Anyone charged with a DUI will be served with what’s called an “Admin Per Se/Implied Consent” form. The officer fills that form out and reads them the admonitions regarding whether they’ll consent to do the tests. If the person consents to do the tests after being placed under arrest then they’ll be served with this form, and the officer will note the person’s BAC on the form. The license issue is a civil administrative matter rather than a criminal matter, so it goes to a hearing with the Arizona MVD. What has to be proven in a hearing is different than what would have to be proven in court. At an Arizona MVD hearing the state has to prove that the person was driving a motor vehicle, that they were placed under arrest for suspicion of DUI, and that their BAC reading came back above 0.08 or the person had an illegal drug in their system. If it’s a drug DUI the state has to prove that they had an illegal drug in their system, or that they had a prescription drug in their system without a prescription.
If the state can prove what it needs to prove and the person consented to the test then the consequence is a 90 day suspension of their driving privileges. If the person has an Arizona license then after the first 30 days of the 90 day suspension, they are eligible for a restricted license. That restricted license allows them to drive any day of the week, any time of the day, as long as it’s for purposes of work, school, or treatment. For the last 60 days of the 90 day period, they would be eligible for that restricted license.
If a person refuses to do any tests after being placed under arrest and the officers have to get a warrant, then the consequence is a 12-month revocation of their driving privileges. If the person has an Arizona license, they would be eligible for the same restricted license after the first 90 days of that suspension period. The restricted license would last for the last 9 months of the one year period.
After a person is arrested and served with that Admin Per Se form, they have a couple of options. Once they’re served with that form they have 15 days to decide which option they want to choose. During that 15 day period they can elect to request a hearing with MVD. If they request a hearing, it places a pause on the suspension because the suspension does not kick in until 15 days after they’re served with that form. If they request the hearing during that 15 day period the suspension will be stayed or paused until the hearing takes place, so they would be allowed to drive until the actual MVD hearing. In most cases, the officers have taken their physical license and served them with an Admin Per Se form. In circumstances where they request the hearing, that Admin Per Se form is their driver’s license until the hearing takes place. If they don’t request a hearing within the 15 days at that point, Arizona MVD will send them what’s called a corrective action letter. That corrective action letter will have the exact start date of either the 90 day suspension or the one year suspension depending on whether they consented to the test or refused it.
There are a lot of factors to consider. The first thing we look at is the basis for the stop. Did they have a valid reason to stop and investigate the client? We look at the officers’ training, their experience, whether they followed the training they were given in conducting the DUI investigation or whether there was any kind of constitutional violation that would allow the court to suppress the breath or blood results. That includes looking into how the field sobriety tests were conducted and whether they gave them the proper instructions, because if they didn’t then we could challenge the probable cause that they had to place them under arrest. We look at the intoxilyzer machine that they used, whether it has proper calibration records, whether the officer is certified to use it, whether it went through its proper calibration, and if the officer conducted a proper deprivation period.
If the test was a blood draw we look into the phlebotomist, whether they’re qualified, how they did the draw, whether there was proper chain of custody from the time the blood left the client’s body till the time it was tested in the lab, and whether the lab used the proper testing methods in order to come to whatever result they came to. In some cases we also do our own independent tests of the blood. We have a lab we use here in Arizona where we send our client’s blood to get an independent test to challenge the state.
It depends on the case because each case has its own set of unique facts and they raise different issues. We just look at whether there is any kind of constitutional issue and whether or not those factual weaknesses could either get the case dismissed or create a weakness that could convince a jury to acquit if we were to go to trial.
Those are factors that we weigh with the client when they are deciding whether to go to trial or whether to accept the state’s plea offer.
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