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DUI: What is it and how can it affect me? DUI stands for Driving Under the Influence and can be classified as either a felony or a misdemeanor. Many people receive DUIs. It is a crime that cuts across all social, ethnic, economic and age boundaries. You don't have to be a drunk or an alcoholic to be cited for a DUI. DUI is a crime that costs society a great deal both in economic terms and loss of life. As a result of that, Arizona has very strict penalties for DUI including mandatory jail time for first time offenses. Groups such as Mothers Against Drunk Drivers (MADD) and Students Against Drunk Drivers (SADD) have been active in the political arena and have shaped a large part of DUI law. The laws and methods of DUI detection in Arizona are some of the most sophisticated in the country. Federal grant money and state funding have played a large part in enforcement and refinement of the laws. Breath, blood, and urine testing have changed dramatically over the past few years. The advent of workplace testing has provided manufacturers of testing equipment with more incentive to make increasingly accurate and foolproof equipment. As a result of all of this attention, DUI has become a specialized area of the criminal defense world. A conviction for DUI can mean mandatory jail time, hundreds of dollars in fines, increased insurance rates, and loss of your driver's license. It is a criminal offense that will result in a permanent criminal record. It is certainly an offense that is worth fighting. DUI A.R.S.§28-1381(A)(1) In order to prove you guilty for violation of the (A)(1) charge (commonly referred to as the "DUI Charge"), the State must prove all three of the following elements, each beyond a reasonable doubt:
If the State proves each one of the above to a jury beyond a reasonable doubt, you will be convicted. If they fail on any one, you will be acquitted (found "Not Guilty"). One important thing to notice about the (A)(1) charge is that there is no mention of a breath or blood test. Although it is relevant, the state does not need to produce evidence of one in order to take you to trial or prove you guilty. Instead, the state will rely on the results of the Field Sobriety Tests (walking a straight line, standing on one leg, reciting the alphabet, etc.) if such tests were given and are admitted as evidence against you. They will also use observations of the officers involved such as; red, watery, bloodshot eyes, odor of alcohol, stumbling, swaying, etc. Additionally, they will use any admissions made by you. So, if you told the officer you had a couple of beers, or that you felt drunk, you can expect the officer to repeat those statements in court. DUI A.R.S. §28-1381(A)(2) In order to prove you guilty for violation of the (A)(2) charge (commonly referred to as the "BAC Charge"), the State must prove all three of the following elements, each beyond a reasonable doubt:
If the State proves each one of the above to a jury beyond a reasonable doubt, they will get a conviction. If they fail on any one, there will be an acquittal. NOTE: If you refuse to submit to a breath, blood, or urine test, the police almost always apply to a judge for a Telephonic Search Warrant to draw blood from you. The requests for warrants are usually granted. There have been many cases where suspects have been forcibly restrained and injured while blood was drawn by the police. DUI A.R.S. §28-1382 "Extreme DUI" In order to prove you guilty for violation of A.R.S.§28-1382 (commonly referred to as an "Extreme DUI"), the State must prove all three of the following elements, each beyond a reasonable doubt:
If the State proves each one of the above to a jury beyond a reasonable doubt, they will get a conviction. If they fail on any one, there will be an acquittal. AGGRAVATED (Felony) DUI A.R.S. §28-1383 The state must prove any of the above plus an additional element such as: It is your third DUI within 5 years; you received your DUI while on a license suspended, canceled, revoked or refused or that you had a child under the age of 15 in the car with you. Aggravated DUI with prior offense or invalid license are Class IV Felonies. DUI with a child in the car is a Class VI Felony. There are many "companion" charges that can be charged along with an aggravated DUI such as child abuse, endangerment, aggravated assault with a deadly weapon. Whether you are charged with one of these companion charges or not will depend on the individual circumstances of your arrest. MVD LICENSE SUSPENSION By obtaining an Arizona Driver's License or by simply driving within this state, we have agreed that if arrested by an officer we will submit to a breath, blood, or urine test without a search warrant. The officer must advise you of this fact and the consequences of failure of the test and of refusing to take such a test. If you are cited for DUI and you took a breath or blood test which showed a BAC of .08% or more, MVD will attempt to suspend your license pursuant to A.R.S.§28-1385 for 90 days. If you refused to take the test, MVD will attempt to suspend your license for one year under A.R.S.§28-1321 (irrespective of whether they drew blood after the police had obtained a search warrant). A. A.R.S. §28-1321 (Refusal) If you have refused the chemical test and the police take your license away, there are two options available: 1. MVD License Revocation Hearing. An MVD License Revocation Hearing may be held at the petitioner's request to determine whether the officer had requested that you submit to a designated test and whether you refused to submit to the test. 2. Default. You can simply choose to let MVD suspend your license without a Hearing. The suspension takes place 15 days after you were notified of the impending suspension and lasts for one year. There is no provision for a restricted license or work permit. B. A.R.S. §28-1385 (Implied Consent Suspension) If you have taken a test and are over the limit there are three options available: 1. MVD License Revocation Hearing. An MVD License Revocation Hearing may be held at the petitioner's request to determine whether the officer had reasonable grounds to believe that you were driving a vehicle within Arizona while under the influence of alcohol or drugs, and whether you had a BAC of .08% or more. 2. Summary Review. A Summary Review does not involve a hearing. A Summary Review is a petition which asks an MVD Administrative Hearing Officer to review the Implied Consent Affidavit from your case and to determine whether it is valid on its face. If the determination is that the Affidavit is facially invalid, your license will be returned to you and the order of suspension will be void. If the Hearing Officer determines that the Affidavit is facially valid, your license will be suspended without a hearing. The advantage to a Summary Review over a Hearing is that the police cannot cure a defect found on the face of the Affidavit as they could if an MVD License Revocation Hearing were to be held. [A Summary Review is not available for a suspension under §28-1321 (Refusal).] 3. Default. You can simply choose to let MVD suspend your license without a Hearing or Review. The suspension takes place 15 days after you were notified of the impending suspension. You may be eligible for a restricted license after 30 days. PUNISHMENT UPON CONVICTION A. First Offense (Class One Misdemeanor) Like any Class One Misdemeanor, the maximum possible punishment for a DUI is;
Unlike other Class One Misdemeanors, however, a DUI carries certain minimum penalties, including;
In Tucson and Pima County, you can also count on being sentenced to at least 12 months of unsupervised probation, the MADD Victim Impact Panel and possibly some Community Service. Many judges will add other fees and surcharges to the total fine. B. Second Offense Within 60 Months (Class One Misdemeanor) Although it is still a Class One Misdemeanor and the potential maximum penalty remains the same, the minimum penalty rises to;
C. Extreme DUI (Class One Misdemeanor)
You can also count on being sentenced to at least 12 months of unsupervised probation, the MADD Victim Impact Panel and possibly some Community Service. Many judges will add other fees and surcharges to the total fine. NOTE: that an Extreme DUI within 60 months of any other DUI, or vice versa will mean 120 days in jail--the judge may not suspend more than 60 days. This means that you will do a minimum of 60 days jail time upon conviction. The time period runs from date of incident to date of incident. D. Felony or Aggravated DUI The potential maximum penalty varies as to which class of felony is charged, whether you have prior offenses, and whether there are any companion charges. If it is charged as a Class 4 felony, the maximum penalty is 3.75 years and a $150,000 fine plus a 46% surcharge. The minimum penalty is;
WHAT SHOULD I DO IF ACCUSED OF A DUI? There are many "DOs" and "DON'Ts" in a DUI situation. Below is a general guideline that I recommend anyone should follow if accused, whether drinking or not. DO be courteous and polite to the police officer. DO NOT argue with the officer. DO NOT resist arrest. DO NOT try to "explain" the situation to the officer. DO ask to speak to an attorney IMMEDIATELY. DO invoke your right to remain silent. Do not answer any questions. Do not volunteer any statements. Keep quiet. DO NOT tell the officer what, when, or how much you have had to drink. If asked whether you have been drinking, simply decline to answer the question. Do not lie to the officer. DO NOT take any Field Sobriety Tests. Do not let an officer "look into your eyes" or give you an "eye test." The "eye test", otherwise known as "Horizontal Gaze Nystagmus" (HGN) is the biggest scam perpetrated by law enforcement in the DUI arena. HGN is a very scientific test which is usually administered by a qualified physician to detect a head injury. In the hands of the police, it is nothing more than a tool to convict innocent people. Statistical analysis shows that only 1 in 10,000 officers will maintain better than a 90% accuracy rate on HGN tests, yet nearly every police officer I have ever met claims better than 90%. They all can't be 1 in 10,000. (Keep in mind that they keep their own statistics and there is no supervision). Perhaps Dr. L.F. Dell'Osso, Ph.D., a professor in the departments of Neurology and Biomedical Engineering at Case Western University and also Director of the Ocular Motor Laboratory at the VA Medical Center in Cleveland said it best when he wrote: More commonly, alcohol produces horizontal gaze-evoked nystagmus, and this has led to a "roadside sobriety" test conducted by law enforcement officers. Using nystagmus as an indicator of alcohol intoxication is an unfortunate choice. . .[I]t is unreasonable that such difficult judgments have been placed in the hands of minimally trained officers. Current Neuro-Ophthalmology 2:147-182, ©1989, Year Book Medical Publishers, Inc. DO NOT take any balance tests--walk a straight line, stand on one leg, say or write the alphabet. You do not have to take such tests and you do not have to give a reason for refusing the tests. They can only be used against you. There is no "Pass/Fail" on these tests, only a "Fail" or the results are "Inconclusive."
DO submit to a breath, blood, or urine test after the officer has read you an "Implied Consent/Admin Per Se" Affidavit. You will be asked to sign the affidavit and it will explain your rights about chemical testing. DO Sign the citation form (it is not an admission of guilt--it is a promise to appear in court). DO ask to be released for an independent blood test (this is at your own expense). GLOSSARY OF DUI TERMS BAC: Blood Alcohol Content. .10% is the legal limit; .04% with a commercial license and .00% if you are underage. FST: Field Sobriety Tests. HGN: Horizontal Gaze Nystagmus, one of the FST's administered by measuring the involuntary jerking of the eyeballs. Alcohol, along with a host of other causes, enhance nystagmus. INTOXILYZER: A breath testing device. NHTSA: NationalHighway Traffic Safety Administration. A federal agency involved in standardizing FST's, training officers, and funding DUI enforcement campaigns. WIDMARK'S EQUATION: A formula for estimating a person's BAC based on the number of drinks consumed. WHITE'S RETROGRADE EXTRAPOLATION: A formula used for determining a person's BAC at an earlier point in time based on the number of drinks consumed, times of consumption, body weight, elimination rate, water to body fat ratio, and other factors. |
Law-related Links:
Arizona Supreme Court Opinions
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Allows you to read published opinions of the Arizona Court of Appeals, Division I.Arizona Court of Appeals Division II Opinions
Allows you to read published opinions of the Arizona Court of Appeals, Division II.
Court-related Links:
Pima County Superior Court
Information about the Pima County Superior Court, including the court calendar.Maricopa County Superior Court
Search the Maricopa County Superior Court for information on cases and the court calendar.Pima County Justice Court
Search the Pima County Justice Court for information on cases and the court calendar.Courts.net
Search other courts throughout Arizona for information and court calendars
Criminal Justice Links:
National Association of Criminal Defense Lawyers
Information about criminal defense-related issues from the leading organization working for the rights of the criminally accused in the United States.Arizona Attorneys for Criminal Justice
Information about criminal defense-related issues from the leading organization working for the rights of the criminally accused in Arizona.The National Association for the Reform of Marijuana Laws
Information about criminal defense and marijuana-related issues from the leading organization working to change drug laws in the United States.
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