What You Should Know About The Investigation And DUI Laws In AZ

Driving Under the Influence (DUI) is a serious criminal offense in Arizona. Conviction leads to mandatory jail, fines, sanctions, driver's license suspensions and/or restrictions, and graduated punishments for subsequent offense.  It is one of the few offenses for which most people know someone who has been stopped, arrested, charged or convicted. 

You Can Be Charged With Committing DUI In Different Ways

Arizona does not make it illegal to have a drink and drive a motor vehicle.  DUI can be committed in 4 ways in Arizona.  These 4 ways are driving or being in actual physical control of a motor vehicle:  1) while the ability to drive is impaired to the slightest degree by intoxicating liquor, drugs, toxic vapor releasing substance, or any combination of such; 2) and having a blood alcohol concentration of .08% or more within 2 hours of driving or being in actual physical control of a motor vehicle; 3) while there is any illicit drug, for example marijuana, cocaine, methamphetamine, heroin, etc., or its metabolite in a person's body; and 4) driving a commercial motor vehicle that requires a CDL with an alcohol concentration of .04% or more. 

You Can Be Charged With DUI Without Actually Driving A Vehicle

“I wasn't driving the car.  How can I be charged with DUI?”  Being under the influence while in “actual physical control” means that a person can be convicted of DUI even if they are not driving a motor vehicle.  Whether a person is in actual physical control is determined by the totality of the circumstances and includes such things as whether the motor vehicle is running, where the person is inside the motor vehicle and whether he or she has the keys.  What you need to know is that if you are in a car after drinking with it running, you could be found to be in actual physical control and convicted of DUI even if the car is parked.   

There May Be Enhanced Or Increased Punishments For DUI Based On The Circumstances Of The Arrest

In addition to these basic legal theories for criminal liability, there are other laws that can enhance or increase the punishment for a DUI offense.

The legal limit in Arizona is .08% B.A.C. (breath or blood alcohol content). However a DUI with a B.A.C. of .150% or .200% may be considered “Extreme” and “Super Extreme” DUIs. In that instance if the prosecution can prove you are above those limits, you could face increased punishment with a minimum of thirty or forty five days.

A DUI punishment may increased if a defendant has a prior DUI.  A DUI prior within seven years may require more jail time.  A “regular” DUI with a prior may include thirty days in jail.  An “Extreme” or “Super Extreme” may include four or even six months in jail.

If a Defendant commits a DUI while driving on a suspended license (usually for a DUI), then they can be charged with Aggravated DUI.  Aggravated DUI is a felony offense in Arizona, and therefore may be punishable with prison.  If a DUI is committed with a child in the same vehicle, that may be charged also as a felony Aggravated DUI.

A Police Officer Must Have Probable Cause From A DUI Investigation Before They Can Arrest Someone For Suspicion Of DUI

The typical DUI investigation begins with a person being stopped for some type of traffic infraction – speeding or going too slow, weaving within or outside lanes of traffic, turning or changing lanes without signaling, running a stop sign, or anything else that the officer believes provides a basis for a traffic stop.  Based upon the reason for the stop, the officer may already have a suspicion of DUI.  This is more likely when the stop is for weaving or other “bad” driving behaviors.  The officer will almost always tell a person why they were stopped.  The officer will most likely ask questions as to whether the driver has consumed alcohol, drugs, prescription drugs or any other substance.  Remember from our Know Your Rights “Miranda” article that the officer does not have to advise the driver of their right to remain silent because they are not in custody.  If you are the driver, you are under no obligation to answer any of these questions.  If you have not consumed anything, say “no”.  If you have, you should simply ask whether you are being detained for something other than the original traffic stop.  TELL the officer that you would like to speak to an attorney.  Asking to speak to an attorney cannot be used against you. 

If after contacting a driver, the officer believes he or she is DUI under any of the 4 ways it can be committed, the officer will want to conduct field sobriety tests.  The purpose of conducting these tests is to try to obtain evidence that a person is impaired and NOT to determine whether the person can drive safely.  These tests include the Horizontal Gaze Nystagmus test (where the officer has a person follow a fixed object, such as a pen, with his or her eyes to determine an estimate of whether a person is above a .08% blood alcohol concentration), the walk-and-turn, the one-leg stand, the Rhomberg Modified (standing with heels together and head tilted back), the finger-to-nose, the finger count.  Unless a driver conducts such tests without flaw (remember that DUI can be committed if “impaired to the slightest degree”), he or she will most likely be arrested and taken to the police department or jail to do an Intoxilyzer to measure the person's blood alcohol concentration. 

Blood or Breath Test Are Only Legally Required To Keep Driver's License Or Under Search Warrant

Arizona Law states that every person who drives a motor vehicle gives implied consent to such testing if there is probable cause to believe that the person has committed DUI.  While a person does not have to do the test, there are consequences for refusing or completing the test and having a result that is above the legal limit – .08% for non-commercial drivers or .04% for commercial drivers.  If a person refuses the test or unreasonably delays in performing the test, they are subject to a ONE-YEAR suspension of driving privileges.  If the test result is above the legal limit, they are subject to a 90-day suspension.

If a suspect refuses to submit to a test under the implied consent law, the police officer may attempt to obtain a telephone search warrant for the person's blood in the event of a non-consent or a refusal.  The police must give sworn testimony to a judge that there is evidence and probable cause that the crime of Driving Under the Influence was committed before a judge may lawfully issues a search warrant for a blood draw.

KNOW that asking to contact an attorney alone is not unreasonably delaying such testing. 

Whether you have been stopped and are still in the investigative phase of the case, have been arrested and taken to do an Intoxilyzer, or been charged with DUI in court, contacting The Law Offices of Shawn B. Hamp is the most important thing you can do.  There is too much at stake to try to go forward without competent legal advice.  Our office is here to provide you with that advice.