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Arizona DUI FAQ's

GENERAL INFORMATION


  • GENERAL INFORMATION

  • WHAT ARE THE CHARGES

  • There are five (5) different classifications of drinking and driving offenses:

  • First, it is unlawful to drive or be in control of a motor vehicle while under the influence of intoxicating liquor, drug, vapor or any combination thereof.

  • Second, it is unlawful to drive or be in control of a motor vehicle with an alcohol concentration of .08 or more within two hours of driving.

  • Third, it is unlawful to drive with certain drugs [i.e. cocaine, marijuana etc.] or their metabolites in the body.

  • Fourth, it is unlawful to drive with a blood alcohol concentration of .15 or more within two hours of driving. This offense is classified as "Extreme DUI" and carries additional penalties.

  • Fifth, if you have a commercial driver license "CDL" and your blood alcohol concentration is a .04.

  • These are separate charges. A driver can be charged with one or any combination of these charges depending on the circumstances. Usually, if a driver submits to a chemical test which results in an alcohol concentration of .08 or more, he/she will be charged with both offenses.

  • If a driver refuses to submit to a chemical test and none is performed non-consensually, he/she will only be charged with driving under the influence assuming the officer has enough evidence to establish probable cause for the arrest.  Which is almost always the case.

  • If a driver refuses to participate in a chemical test of his breath, blood and/or urine, the police are authorized by law to obtain a search warrant. If a search warrant is obtained, and the driver still refuses to participate, law enforcement can literally strap you down and take the bodily fluid, usually blood.

  • These offenses can be charged as felonies - prison mandatory - if you have prior DUI's, or your driver license was suspended at the time of the offense, or you have a person under 15 years of age in the vehicle.

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  • SHOULD I PERFORM FIELD SOBRIETY TESTS

  • The short answer is NO!  It is extremely important to understand the difference between field sobriety tests and a test of your breath or blood for alcohol concentration. If you refuse to successfully complete a breath or blood test to determine alcohol concentration your driver license will be suspended and you will loose all driving privileges for twelve months.

  • There is no such penalty for refusing to perform field sobriety tests like the walk and turn, one leg stand, finger to nose, finger count, any verbal tests that requires reciting the alphabet or numbers, or horizontal gaze nystagmus. 

  • Horizontal gaze nystagmus is a test in which the person will be asked to follow the top of a pen being moved in front of his/her eyes. You have the right not to perform these field sobriety tests.  However, if you refuse to perform the field sobriety tests, the police officer will generally not be deterred from continuing his investigation which will most likely lead to an arrest for driving under the influence.

  • Police officers conducting a DUI investigation are looking for evidence which will form a legal basis, or PROBABLE CAUSE to arrest you. They are not looking for evidence to help you or prove that you are not driving under the influence.

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  • SHOULD I HIRE A LAWYER

  • If you want to contest the charges you should definitely hire an experienced criminal defense lawyer. The experience should be extensive in representing people accused of DUI.  These types of cases can be extremely complex and require extensive knowledge of chemical testing, field sobriety testing, and DUI police procedures.  The police oftentimes make mistakes in conducting their investigation.  Only a lawyer experienced in this area will know whether the police have made errors and more important -- what to do about it.

  • If this is your first or second offense and you feel comfortable with a sentence that includes what is outlined below, then you may not need a lawyer. Second time offenders may find a lawyer helpful in obtaining a sentence which includes work release or home arrest. If you are charged with a felony you must be represented by a lawyer as you face at a minimum four (4) months in PRISON, as a condition of probation.  The sentencing range for felony or aggravated DUI is 1 to 3.75 years in the Arizona State Prison System.

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  • DRIVING PRIVILEGES

  • WHAT IS IMPLIED CONSENT?

  • Any person who operates a motor vehicle within the State of Arizona and is arrested for an offense related to drinking and driving is presumed to have given consent to a test of his/her breath, blood, urine or other bodily substance, for the purpose of determining alcohol concentration. The peace officer has the authority to decide what type of test the driver must complete and the power to require more than one type of test.

  • This includes obtaining a search warrant should you refuse to take his requested tests.  This means after they obtain a search warrant and you still refuse, they can literally strap you down and take a blood sample by force.

  • Generally, if you refuse to take a chemical test, be it blood, breath, urine or other bodily substance your driving privilege will be suspended for twelve (12) months.

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  • REFUSING TO SUBMIT TO A BREATH OR BLOOD TEST

    If the driver refuses to successfully complete any one of the tests requested, the officer must inform the driver that a refusal shall result in a license suspension for twelve months.

  • Almost any failure to expressly agree to the test(s) or successfully complete them, including being unconscious, dead, or in some other condition rendering the driver incapable of refusal, will be deemed a refusal and result in a twelve month suspension of driving privileges.

  • If a driver refuses to complete the test(s) as requested by the officer then the statute mandates that none shall be given with two exceptions.

  • First, the officer can attempt to obtain a search warrant for a blood sample. Usually this occurs only if the case involves a serious injury or is a felony. However, the police are now routinely seeking search warrants for blood even for misdemeanor DUI charges.

  • Second, if a sample of the driverís blood or urine is taken for any other reason within two hours of the time of driving (e.g. a doctor may require a blood sample because some medical procedures cannot be safely performed if alcohol or drugs are within the body), the officer is entitled to a portion of that sample.  This usually occurs in conjunction with a traffic accident with injuries to the person driving, and that person at the hospital for treatment.

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  • RESTRICTED DRIVERS LICENSE 

  • If a driver completes a breath or blood test which indicates an alcohol concentration of .08 or more and holds a non-commercial drivers license, then driving privileges will be suspended for ninety days.

  • However, so long as the driver did not cause serious physical injury to another person, has not been convicted of a prior drinking and driving charge in the past sixty months, and has not had his/her privilege to drive suspended for a prior drinking and driving charge, he/she is entitled to a reduced punishment of a thirty day suspension and a sixty day restricted license.

  • A restricted drivers license allows the driver to operate a motor vehicle to and from work, medical appointments, and counseling sessions. If the driver holds a commercial driverís license and is arrested while operating a commercial vehicle he/she is subject to the same punishments if the tests indicate an alcohol concentration of .04 or more. These individuals may also be subject to other non-statutory punishments including loss of employment.

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  • CHALLENGING A MOTOR VEHICLE DEPARTMENT SUSPENSION BY REQUESTING A SUMMARY REVIEW 

  • If a suspension appears warranted it will commence fifteen days from the date it is issued. However, the suspension will be stayed if the driver requests either summary review or a hearing within fifteen days of the date of issuance.

  • If summary review is requested the driver submits a written argument as to why his/her driving privileges should not be suspended. Driving privileges shall remain in effect for at least twenty days from the date of the request. The documents will be reviewed without a hearing and the driver will be notified of the decision within twenty days of the request.

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  • CHALLENGING A MOTOR VEHICLE DEPARTMENT SUSPENSION BY REQUESTING A HEARING 

  • If a hearing is requested, the suspension is stayed and the driver is considered to have a valid license at least until the day of the hearing. The hearing will usually take place in the county in which the driver resides unless the officer requests otherwise.

  • If the driver refused to successfully complete a test of his or her breath, blood, urine or other bodily substance and a hearing is requested, then the State must prove that the officer had reasonable grounds to believe that the person charged was driving a vehicle while under the influence; that the person was placed under arrest; that he/she was informed of the consequences of refusal; and that he/she refused to submit to the test(s).

  • At a hearing on a non-refusal case, the State must prove that the officer had reasonable grounds to believe the person was driving a vehicle while under the influence; that the person was placed under arrest; that a valid and reliable test was completed and it indicated a result of .08 or more for a non-commercial license, or .04 or more for a commercial license while driving a commercial vehicle; and that the result was accurately evaluated.

  • If a suspension is ordered, the driver has the right to review. A non-refusal case requires a motion for rehearing to be filed with the Motor Vehicle Department and ruled upon before a petition for review may be filed with Superior Court.

  • In a refusal case, a motion for rehearing is not required before a petition for review is filed in Superior Court. A petition for review must be filed within thirty days of the Motor Vehicle Departmentís final order of suspension and will be heard on an expedited basis.

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  • REINSTATEMENT OF DRIVING PRIVILEGES 

  • Driving privileges are not automatically reinstated following a period of suspension. The driver must complete some paperwork and tender a fee to have his/her privileges reinstated, otherwise his/her privileges to drive are still considered to be suspended.

  • This fact is sometimes overlooked by drivers and may result in stiff penalties should the driver commit another driving offense while his/her license is still considered suspended.

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  • DRIVING PRIVILEGES SUSPENDED AS A RESULT OF CRIMINAL CONVICTION 

  • Motor Vehicle Department hearings usually occur before any criminal trial. If the State fails to meet its burden of proof at the MVD hearing, the driverís privileges will not be suspended. However, this does not mean his/her driving privileges are immune from suspension.

  • A conviction in the criminal portion of the drinking and driving charge will result in a suspension for the same time period that would have been ordered had the State met its burden at the Motor Vehicle Department hearing.

  • The major difference being that a suspension that results from a criminal conviction will ultimately require the driver to obtain SR-22 insurance, which is usually more expensive, in order to have his/her driving privilege reinstated, while a suspension which stems from a Motor Vehicle Department hearing will not create this situation.

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  • REVOCATION OF DRIVING PRIVILEGES 

  • In addition to a suspension of driving privileges, some drivers suffer a subsequent revocation as well. A person convicted of a second drinking and driving charge within sixty months of the first one shall have his/her driving privilege revoked for a period of not more than one year.

  • A person convicted of aggravated drinking and driving will suffer a three year revocation period. Reinstatement of privileges following a revocation is much more difficult than following a suspension. It involves an investigation of the driverís character, habits, and driving abilities as well as a written evaluation from a physician, psychologist or certified substance abuse counselor stating that the person is able to safely operate a motor vehicle.

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  • SENTENCING:

    FIRST OFFENSE    
      See Sentencing Chart

  • A person charged and convicted of one or both of the charges discussed in Section #2 is guilty of a class one misdemeanor.

  • First time offenders must complete an alcohol abuse screening. The court may order the offender to obtain counseling, education, or treatment if the court or the screening facility determines that the offender has a substance abuse problem.

  • If the offender has the financial resources to pay all or part of the screening, counseling, education, or treatment, then the court shall order him/her to do so. All programs must be approved by the Department of Health Services.

  • The statute requires the court to sentence a first time offender to serve not less than ten consecutive days in jail. However, the court may suspend all but twenty-four consecutive hours of the sentence if the offender completes an alcohol abuse screening.

  • Since the statute stipulates consecutive hours the court cannot give credit for any time served on the day of the arrest. The statute also requires a fine of not less than $250 plus surcharges which are currently 80%. The court may also add on some additional processing fees and/or incarceration fees if deemed appropriate.

  • The court may also order the offender to perform up to forty hours of community service and attend a class sponsored by Mothers Against Drunk Driving (MADD), known as the Victim Impact Panel. Usually the offender will also be placed on twelve months probation as well.

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  • SECOND OFFENSE    See Sentencing Chart

  • A person convicted of a second offense within sixty months of the first, is guilty of a class one misdemeanor. The dates of commission of the offenses are the dispositive dates in determining the sixty month period. A second time offender is subject to the same sanctions as a first time offender regarding an alcohol screening, counseling, education, treatment and payment.

  • The statute requires the court to sentence a second time offender to serve not less than ninety days in jail. The court may suspend all but thirty days of the sentence if the person completes a court ordered alcohol screening, counseling, education and treatment program.

  • If the person fails to follow through with counseling, education or treatment the court will issue an order compelling the defendant to show cause why the remaining sixty days should not be served. Thirty days must be served consecutively unless the sentence includes a provision for work release, which is discussed in a section below, then the requirement is reduced to forty-eight consecutive hours.

  • The statute requires a fine of not less than $500 plus the 80% surcharge. The court may add on some additional processing fees and/or incarceration fees if deemed appropriate. The court may also order community service, the Victim Impact Panel and supervised probation.

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  • EXREME DUI               See Sentencing Chart

  • Extreme DUI is a class one misdemeanor and carries a minimum mandatory 30 days in jail. The judge can suspend 20 days in his discretion if you agree to complete an alcohol evaluation and treatment.  The fine is $250.00 plus an 80% surcharge.

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  • WORK RELEASE 

  • First and second time offenders are eligible for work release. Whether or not a personís sentence will include work release is left to the discretion of the court. If a person is employed or is a student the court may permit the person to be released from jail only long enough to complete the actual hours of employment or studies, up to twelve hours per day, and not more than five days per week.

  • However, a first time offender cannot commence a work release program until he/she has served at least twenty-four consecutive hours in jail. Likewise, a second time offender must serve at least forty-eight hours in jail before a work release program may begin.

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  • HOME ARREST 

  • Second time offenders may be eligible for home arrest. There are several requirements that must be satisfied before a person may be accepted into this program. The probation departmentís approval is necessary before the court will place someone in the home arrest program. The home arrest sentence may include forty-eight consecutive hours in jail, thirteen days on work release, and forty-five days of home detention. The person will be allowed to leave the home to work, attend school, or attend treatment.

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  • AGGRAVATED (FELONY) DUI     See Sentencing Chart

  • A person convicted of a aggravated drinking and driving offense is guilty of a class four felony. Either driving under the influence or driving with a blood alcohol content of .08 or more will be considered an aggravated offense if it is committed while the personís license is suspended, canceled, revoked, refused, or restricted, and the State can prove that the person knew the status of his driving privileges.

  • Likewise, if a person has been previously convicted of two prior drinking and driving offenses, with all these offenses occurring within sixty months, then the third conviction will result in an aggravated sentence. The dates of commission of the offenses are the dispositive dates in determining the sixty month period.

  • DUI with a minor 15 years of age or younger present in the vehicle is also aggravated DUI as a class six felony offense.  Probation is generally available absent valid prior felony convictions with a potential prison sentence of 4 months to 2.5 years in the Arizona State Prison.

  • An aggravated dui sentence as a class four felony includes a minimum of four (4) months in prison, probation, suspension of sentence or release on any other basis is not available until the person serves at least four months. The sentence will also include up to ten years supervised probation and alcohol screening, counseling, education and treatment. If the person fails to complete the screening, counseling, education or treatment the court may re-sentence the person to an additional term ranging from four months to one year.

  • The court may also impose a fine up to one hundred fifty thousand dollars. A person convicted of either driving under the influence or driving with a blood alcohol content of .08 or more who has three or more prior convictions within the last sixty months is guilty of a class four felony.

  • The sentence will be similar to the one stated above in that the person must serve a minimum of four months in prison. However, if this person does not complete any court ordered alcohol screening, counseling, education, or treatment the court may re-sentence him/her to an additional term ranging from eight to twelve years.

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  • FORFEITURE OF VEHICLE 

  • If a person is convicted of an aggravated drinking and driving offense, in addition to all of the aforementioned sanctions, the court may order the motor vehicle driven and owned by the person at the time of the offense forfeited.

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  • DUI WHILE MINOR CHILD PRESENT 

  • If a person is convicted of DUI while a minor who is fifteen years of age or younger is in the vehicle the court will sentence that person pursuant to the guidelines established for a class six felony. The sentence may vary depending upon the circumstances however, it will generally range from four months to two years in prison, and probation may be available.

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  • MIRANDA WARNINGS AND THE RIGHT TO COUNSEL 

  • The United States Constitution guarantees the right of every person not to be a witness against him/her self. Usually, if you are a DUI suspect and an officer advises you of your rights pursuant to Miranda, you should invoke those rights and refuse to answer any questions.

  • You also have a right to have counsel present at every critical stage of the proceedings. No matter what time of the day it  is, you should request to speak with a lawyer. The officer then has the obligation to give you a chance to speak to an attorney so long as it would not unnecessarily hinder the investigation. Your lawyer can give you advice on other issues including your right to an independent test of your breath or blood to determine alcohol concentration.

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