• BLOOD ALCOHOL CONCENTRATION (BAC) TESTING: Breath, Blood, Urine or "other" bodily substance.

  • Definitions

  • Chemical Test:test or test(s) consisting of "breath", "blood" and/or "urine".  Breath tests in Arizona are usually given by a machine called an Intoxilyzer 5000.  Blood tests are administered by drawing blood with a needle from your arm.  Urine tests are administered by collection of your urine.  Yes! you may have to pee in a cup.

  • Field Sobriety Test(s) [FST's]These are not chemical tests.  Do not confuse them as such. They generally consist of Horizontal Gaze Nystagmus (HGN), Walk and Turn, and One Leg Stand.  There is absolutely no requirement that you take them.  They are strictly voluntary.  You will rarely hear a police officer tell you the FST's are voluntary, for obvious reasons. See Field Sobriety Tests

  • Extreme DUI:having a BAC of 0.15 or more. Carries a higher minimum mandatory penalty of 30 days in jail of which 20 days can be suspended by the court under certain circumstances. See Sentencing Chart

  • "Affected to" DUI: a DUI charge dealing with the affect of alcohol to the slightest degree.  Slightest degree is defined as any affect i.e. tipsy, buzzed, lighheaded, etc.  Carries the minimum mandatory penalty of 10 days in jail of which 9 days can be suspended by the court under certain circumstances.

  • BAC of 0.08 but less than 0.15: a DUI charge dealing with the quantity of alcohol in your blood measured by a breath, blood or urine test.  Carries the minimum mandatory penalty of 10 days in jail of which 9 days can be suspended by the court under certain circumstances. See Sentencing Chart

  • When you drive a motor vehicle, i.e. car, truck, semi, motorcycle, etc; or boat, airplane, watercraft, or just about anything with wheels, or that floats or flies, on a roadway, on water or in the air, you give your "implied consent" to submit to a chemical test for alcohol or drug content if suspected by a police officer of driving or operating under the influence of alcohol, drugs or vapor releasing substance.

  • What "implied consent" means is that because the State of Arizona has granted you the privilege, and not the right, to operate motor vehicles, boats, airplanes, etc within the State, by implication you consent, or agree to give law enforcement a sample of whatever bodily substance they choose, usually blood, breath or urine, if they suspect you may be operating under the influence of alcohol and/or drugs.  The officer decides which test to give and if you refuse, you lose your driver/operator license for twelve (12) months.

  • A refusal results in the state's prosecutor at trial arguing to a jury you refused to take the test because you thought or knew your were guilty of DUI and that it demonstrates consciousness of guilt.

  • Refusal to take the chemical test(s) does not get you off the hook.  If you refuse the police can obtain a search warrant and if necessary strap you to a gurney and take blood from you by force.  Further, the refusal of the test(s) will result in a 12 month suspension of your driver license plus the police now have a blood test result and the fact you "refused" which are both most likely admissible against you in court.  In most cases refusal to take chemical tests i.e. blood, breath, urine, is a no win situation.  Always Consent to the breath test if offered but only if you have been placed under arrest first.  Do not volunteer to take any type of breath test.

  • Do not confuse chemical tests, i.e. blood, breath, urine with field sobriety tests (FSTs). See above definitions. While you are required under Arizona's "Implied Consent" statute to submit to a chemical test or face a 12 month suspension of your driver license,  THERE IS ABSOLUTELY NO REQUIREMENT UNDER THE LAW THAT YOU SUBMIT TO FIELD SOBRIETY TESTS, THEY ARE STRICTLY VOLUNTARY, THE POLICE DO NOT TELL YOU THAT FOR OBVIOUS REASONS. THERE IS NEVER A VALID REASON TO TAKE FSTs.  EVEN IF YOU HAVE NOT BEEN DRINKING.

  • Much confusion exists whether it is best to take or refuse a chemical test. Much confusion exists as to when to submit to the chemical test.  Remember, here we are not talking about field sobriety tests.  We are talking about breath, blood and/or urine. For a first offense DUI arrest, it is usually best to take the chemical test. The reasons therefore are because the penalty for taking and failing a test are generally less than refusing the test. If you refuse the chemical test (and it's your first DUI) your driver license/privilege will be suspended 12 months. If you fail the test -- blow 0.08 or higher - your license/privilege to drive will be suspended for a maximum of 90 days from the MVD. The "blow" vs. "no-blow" decision must be balanced against the possible criminal penalties if convicted, i.e. extreme DUI, compared to 12 month driver license suspension and a conviction for "affected to" DUI. If this is your first DUI and you blow over a 0.08, but below a 0.150, you generally qualify for the minimum DUI penalty available in Arizona. However, if your BAC  is  0.150 or above, you could be convicted of "Extreme DUI" with stiffer penalties including jail time and fines than what you would receive for a conviction for "affected by" DUI with a chemical test refusal.

  • "Alcohol Content" or BAC  refers to the number of grams of alcohol present per 100 milliliters of blood in a person's blood stream. A BAC of 0.10 would mean that the person has 1/10 of a gram of alcohol per every 100 milliliters of blood. So when it comes to the legal limit of 0.08, we are not talking about a whole lot of measurable alcohol.

  • Blood testing simply takes a sample of blood and directly measures the alcohol content generally using a gas chromatograph. Breath testing, on the other hand, is extremely more complicated prone to errors. Breath testing machines apply mathematic equations to a measured quantity of alcohol contained in a sample of deep lung(alveolar) air.  The machine allegedly can then calculate the amount of Blood Alcohol based on the quantity of alcohol in your deep lung air.  The problem with testing deep lung air is the sample does not necessarily remain constant. Temperature, breath patterns, and mouth alcohol affect the content of any given breath sample.  There are inherent reliability problems with breath testing machines.  This is clear by the Arizona Rules and Regulations that govern the use of these devices.  In Arizona, for a breath testing device to be considered "working properly" it only has to be accurate within plus or minus 10%.  That is a 20% variance which is "close enough for government work".

  • In the typical DUI case dealing with achemical test where the prosecution will attempt to use the test results,  there are more ways to challenge and attack the accuracy of a breath test than a blood test. A blood test also measures for the presence of prohibited drugs and their metabolites in your system, while a breath test measures only alcohol

  • The breath test machine, in Arizona it is generally an Intoxilyzer 5000. These machines are produced by private companies and sold to law enforcement agencies. Interesting enough is the fact that unless you are in law enforcement you cannot generally purchase these machines or receive training on how to operate them. There is a concerted effort to frustrate effort to keeps these machines and information out of the hands of the general public.

  • The Intoxilyzer 5000 uses infrared absorption to measure the the quantity of alcohol in your breath. The alcohol in the breath sample absorbs infrared energy. The greater the amount of alcohol present in the sample being analyzed, the greater the absorption. Inside the machine a quartz lamp radiates infrared energy through the sample. The amount of energy that makes it through the sample (and is not absorbed by alcohol) is then measured and calculations are made.  This is very spooky stuff because it make assumptions based on averages that might not necessarily true in any particular DUI case.

Copyright �  2006 Darby Law Office

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