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Portions of the following is adapted for
Arizona from the Original by the
Law Offices of Lawrence Taylor, Inc -
California DUI Defense
ARIZONA DUI - 20 Frequently Asked Questions
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What do police officers look for when searching for drunk drivers
on the highways?
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If I'm stopped by a police officer and he asks me if I've been drinking,
what should I say?
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Do I have a right to an attorney when I'm stopped by an officer
and asked to take a field sobriety test?
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What is the officer looking for during the initial detention at
the scene?
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What should I do if I'm asked to take field sobriety tests?
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Why did the officer make me follow a penlight with my eyes to the
left and right?
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Should I agree to take a chemical test? What happens if I don't?
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Do I have a choice of chemical tests? Which should I choose?
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The officer never gave me a Miranda warning: Can I get my case dismissed?
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Why am I being
charged with TWO crimes?
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The officer took my license and served me with a notice of suspension
after the breath test: How can he do that if I'm presumed innocent?
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Can
I represent myself? What can a lawyer do for me
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How can
I find a qualified drunk driving lawyer?
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What will it cost to
get a lawyer?
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What is the
punishment for drunk driving?
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What is a sentence "enhancement"?
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What is a "rising BAC defense"?
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What is "mouth alcohol"?
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What defenses are
there in a DUI case?
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I have some questions about my DUI case. Where can I go for answers?
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1.
What do police officers look for when searching for drunk drivers
on the highways?
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The following
is a list of symptoms in descending order of probability that the
person observed is driving while intoxicated. The list is based
upon research conducted by the National Highway Traffic Administration:
(1) Turning with a wide radius
(2) Straddling center of lane marker
(3) "Appearing to be drunk"
(4) Almost striking object or vehicle
(5) Weaving
(6) Driving on other than designated highway
(7) Swerving
(8) Speed more than 10 mph below limit
(9) Stopping without cause in traffic lane
(10) Following too closely
(11) Drifting
(12) Tires on center or lane marker
(13) Braking erratically
(14) Driving into opposing or crossing traffic
(15) Signaling inconsistent with driving actions
(16) Slow response to traffic signals
(17) Stopping inappropriately (other than in lane)
(18) Turning abruptly or illegally
(19) Accelerating or decelerating rapidly
(20) Headlights off
Speeding, incidentally, is not a
symptom of DUI; because of quicker judgment and reflexes, it may indicate
sobriety.
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2.
In Arizona, if
I'm stopped by a police officer and he asks me if I've been drinking,
what should I say?
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In Arizona, you are not required to answer potentially
incriminating questions. A polite "I would like to speak with an
attorney before I answer any questions" is a good reply. On the
other hand, saying that you had one or two beers is not incriminating:
it is not sufficient to cause legal intoxication -- and it may explain
the odor of alcohol on the breath. However, it is not advisable
to admit to any type of drinking. The reason for this is that
once you make this admission the chances are the police officer
is eventually going to arrest you for DUI. The Arizona law
forbids impairment to any or slightest degree. If you have
consumed two beers, and it has had an affect on you ,and the prosecutor
is able to prove it you could be convicted of DUI.
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3.
Do I have a right to an attorney when I'm stopped by an officer
and asked to take a field sobriety test?
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In Arizona, you do not have the right to consult
with an attorney prior to taking field sobriety tests. FIELD
SOBRIETY TESTS ARE VOLUNTARY. This means you don't have
to take them. As a general rule DO NOT take any field
sobriety tests, ever, for any reason, even if the police officer
says he just wants to see if you are ok to drive. That is
generally B.S. What he is really doing is looking to arrest
you but cannot do so unless he has some evidence that you are DUI.
If the officer says that he will take you to jail if you refuse
to take the field sobriety tests, hold out your hands for the handcuffs
and tell the officer "Let's go". The field sobriety tests
include the "eye-test"(HGN); the
Walk and Turn test; and the
One Leg Stand test.
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4.
What is the officer looking for during the initial detention at
the scene?
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The traditional
symptoms of intoxication taught at the police academies are:
(1) Flushed face
(2) Red, watery, glassy and/or bloodshot eyes
(3) Odor of alcohol on breath
(4) Slurred speech
(5) Fumbling with wallet trying to get license
(6) Failure to comprehend the officer's questions
(7) Staggering when exiting vehicle
(8) Swaying/instability on feet
(9) Leaning on car for support
(10) Combative, argumentative, jovial or other "inappropriate" attitude
(11) Soiled, rumpled, disorderly clothing
(12) Stumbling while walking
(13) Disorientation as to time and place
(14) Inability to follow directions
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5.
What should I do if I'm asked to take field sobriety tests?
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JUST SAY NO!.
See number No. 3 Above.
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There are a wide range of field sobriety tests
(FSTs), including heel-to-toe, finger-to-nose, one-leg stand, horizontal
gaze nystagmus, alphabet recitation, modified position of attention
(Rhomberg), fingers-to-thumb, hand pat, etc. Most officers will
use a set battery of three to five such tests.
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Unlike the chemical test, where refusal to submit
may have serious consequences, you are not legally required to take
any FSTs. The reality is that officers have usually made up their
minds to arrest when they give the FSTs; the tests are simply additional
evidence which the suspect inevitably "fails". Thus, in most cases
a polite refusal may be appropriate.
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6.
Why did the officer make me follow a penlight with my eyes to the
left and right?
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This is the "horizontal gaze
nystagmus (HGN)" test, a relatively recent development in DUI
investigation. The officer attempts to estimate the angle at which
the eye begins to jerk ("nystagmus" is medical jargon for a distinctive
eye oscillation); if this occurs sooner than 45 degrees, it theoretically
indicates a blood-alcohol concentration over .05%. The smoothness
of the eye's tracking the penlight (or finger or pencil) is also
a factor, as is the type of jerking when the eye is as far to the
side as it can go.
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This field sobriety test has proven to be subject
to a number of different problems, not the least of which is the
non-medically trained officer's ability to recognize nystagmus and
estimate the angle of onset. The HGN test is admissible in Arizona
only to prove possible impairment of which once source could be
alcohol.
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7.
Should I agree to take a chemical test? What happens if I don't?
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In Arizona,
the consequences of refusing to submit to a blood, breath or urine
test are:
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(1) In Arizona, your driver's license will be
suspended for twelve (12) months. This may be true even if
you are found not guilty of the DUI charge.
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(2) In Arizona, a refusal is not a separate crime
in an of itself. Prosecutors and judges sometimes look at refusal
cases in the light that you BAC was really high, which was the reason
for the refusal.
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(3) In Arizona, the fact of refusal can be introduced
into evidence as "consciousness of guilt". Of course, the defense
is free to offer other reasons for the refusal.
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Thus,
the decision is one of weighing the likelihood of a high blood-alcohol
reading against the consequences for refusing. Please see "What
is Implied Consent" for more information.
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8.
Do I have a choice of chemical tests? Which should I choose?
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In Arizona, you have no choice. The police
officer decides which test to give you. What test is given
is in large part dependent on the police department and their policies.
For example, the Tucson Police Department generally uses a breath
test. However, sometimes they will have a "trained" police
officer to take blood. The Oro Valley, Arizona Police use
exclusively blood tests.
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Also, the test given is dependent on the circumstances
of the case. For example if there was an vehicle accident
with bodily injury, the police would ask for a blood test.
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Analysis of a blood sample is potentially the
most accurate. Breath machines are susceptible to a number of problems
rendering them often unreliable. The least accurate by far, however,
is urinalysis.
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9.
The officer never gave me a "Miranda" warning: Can I get my case
dismissed?
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No. The officer is supposed to give a 5th Amendment
warning, your "Miranda" rights, after he arrests you. Often, however,
they do not. The only consequence is that the prosecution cannot
use any of your answers to questions asked by the police after the
arrest.
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Of more consequence in most cases is the failure
to advise you of the state's "implied
consent" law - that is, your legal obligation to take a chemical
test and the results if you refuse. This can effect the suspension
of your license.
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16. What is a sentence
"enhancement"?
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Most
states increase the punishment in drunk driving cases if certain
facts exist. The most common of these is an earlier conviction for
the same or a similar offense -- usually within five or seven years
of the current offense. Other commonly encountered enhancements
(which must usually be alleged in the complaint) include:
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(1) A child was in the car at the time.
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(2) The defendant was traveling 20 or 30
miles over the speed limit at the time.
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(3) The blood-alcohol concentration was over
.20%.
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(4) The defendant refused to submit to a
chemical test.
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(5) There was property damage or injury.
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(6) The defendant was under 21 ("zero tolerance"
laws commonly require a much lower blood - alcohol level, and
impose longer license suspensions).
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In
most states, the existence of any personal injury caused by drunk
driving elevates the offense to a felony. A death can trigger manslaughter
or even, in a few states, murder charges.
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19. What defenses
are there in a DUI case?
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Potential
defenses in a given drunk driving case are almost limitless due
to the complexities of the offense. Roughly speaking, however, the
majority can be broken down into the following areas:
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(1) Driving. Intoxication is not enough:
the prosecution must also prove that the defendant was driving.
This may be difficult if, as in the case of accidents, there
are no witnesses to his being the driver of the vehicle.
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(2) Probable cause. Evidence will be suppressed
if the officer did not have legal cause to (a) stop, (b) detain,
and (c) arrest. Sobriety roadblocks present particularly complex
issues.
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(3) Miranda. Incriminating statements may
be suppressed if warnings were not given at the appropriate
time.
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(4) Implied consent warnings. If the officer
did not advise you of the consequences of refusing to take a
chemical test, or gave it incorrectly, in some states this may
affect admissibility of the test results -- as well as the license
suspension imposed by the motor vehicle department.
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(5) "Under the influence". The officer's
observations and opinions as to intoxication can be questioned
-- the circumstances under which the field sobriety tests were
given, for example, or the subjective (and predisposed) nature
of what the officer considers as "failing". Too, witnesses can
testify that you appeared to be sober.
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(6) Blood-alcohol concentration. There exists
a wide range of potential problems with blood, breath or urine
testing. "Non-specific" analysis, for example: most breath machines
will register many chemical compounds found on the human breath
as alcohol. And breath machines assume a 2100-to-1 ratio in
converting alcohol in the breath into alcohol in the blood;
in fact, this ratio varies widely from person to person (and
within a person from one moment to another). Radio frequency
interference can result in inaccurate readings. These and other
defects in analysis can be brought out in cross-examination
of the state's expert witness, and/or the defense can hire its
own forensic chemist.
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(7) Testing during the absorptive phase.
The blood, breath or urine test will be unreliable if done while
you are still actively absorbing alcohol (it takes 30 minutes
to three hours to complete absorption; this can be delayed if
food is present in the stomach). Thus, drinking "one for the
road" can cause inaccurate test results.
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(8) Retrograde extrapolation. This refers
to the requirement that the BAC be "related back" in time from
the test to the driving (see question #17). Again, a number
of complex physiological problems are involved here.
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(9) Regulation of blood-alcohol testing.
The prosecution must prove that the blood, breath or urine test
complied with state requirements as to calibration, maintenance,
etc.
(10) License suspension hearings. A number of issues can be
raised in the context of an administrative hearing before the
state's department of motor vehicles.
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