DUI Rights

IF STOPPED FOR DUI KNOW YOUR RIGHTS!

You have the right to remain silent!

If you are being investigated or have been stopped by the police you have the right to remain silent. Arizona DUI law does not require you to answer any questions. If stopped, present the police officer with your driver's license, proof of insurance and registration. Do not answer any other questions and do not admit to anything. You may be pressured into speaking; however, you should resist answering questions that may be used against you later in court. This is an important first step in your DUI defense. Remaining silent is your constitutional right and was established to protect you from being forced to testify against yourself.

You have the right to an attorney

If you are stopped by police, immediately request a confidential call with an attorney. Arizona DUI law gives you the right to consult with an attorney before you choose to submit to any chemical test (breath or blood) as long as it does not delay the investigation. Attorneys at the Maasen Law Firm are available 24 hours for emergency consultations.

Refuse to take any Eye or Physical Tests

You may be asked to submit to a variety of field sobriety tests or an HGN eye test. These tests are not required by Arizona DUI law and are not always accurate, which is why we suggest you decline. The results of the test are left to the discretion of the police officer who is administering the test unlike a blood or breath test which is determined by objective analysis.

FOLLOW THESE STEPS

1. Invoke your 5th amendment right to remain silent and refuse to answer any questions.
2. Provide a copy of your license, registration and insurance information.
3. Refuse to do any eye or physical tests.
4. Immediately demand a confidential phone call with an attorney.
5. Submit to a blood/breath test after a confidential phone call with an attorney.
6. Request that the police preserve a blood/breath test for independent testing.
7. Demand to be immediately released for an independent test.

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Ten Things You Must Know About DUI Law

Arizona and every other state has DUI laws that are meant to stop drivers from getting behind the wheel of a car after a few glasses of wine, or beer, or alcohol. The limit in our state, sometimes ironically called the "legal limit," is .08%. The best advice any attorney can give you is don't drink and drive. Period. Imagine how many cab rides you can pay for with the money you'd spend on fines and attorneys' fees in a DUI case.

So, let's say you've left the party thinking you're okay to drive only to have the flashing red and blues greet you. How to handle the DUI stop? First, stay in your car unless the officer asks you to step out and if you have your seat belt on, leave it on! Second, know these ten things:

1. Provide identification. The officer will ask for your driver's license and registration. How easily you find these items will be noted on the officer's report. If you fumble around for them, it will look like you've had too much to drink.

2. Politely refuse to take field tests. Field tests for DUI are: walking the line, touching your finger to your nose, counting on your fingers, saying your ABCs, holding your leg up while counting, and HGN, the one where the officer asks you to follow a light with your eyes. When you do field tests, you are giving evidence that will be used against you. There is no law requiring you to do the tests. Some officers will tell you they will take you to jail if you don't do the tests. Don't fall for it. They were going to take you to jail anyway.

3. If asked, politely explain that you will not agree to a search of your car. If the officer has to ask you to agree, it's a red flag. Just say no. If an officer has enough reason to get a search warrant, he or she will. If not, then why search? Usually the question will come at you like: You don't mind if I look in your car, do you? You don't have a problem with my looking in your car? I'm just going to take a quick look inside, okay? Say no--politely, but firmly--and don't explain. And hope your no makes it into the report.

4. Politely refuse to answer questions. Usually the officer will ask you a few questions about what you've had to drink and then move on to more questions later at the station. Your best response is: "I can only answer your questions on the advice of my attorney." You don't have to call an attorney right then. The statement effectively stops any questioning of you by invoking your constitutional rights. Even when the officer reads Miranda rights to you, the answer should be the same.

5. Cooperate, cooperate, cooperate. Cooperation means having a good attitude and being polite. It doesn't mean answering questions or doing field tests or talking. Your attitude, appearance and words all become part of the officer's report. Your disposition indicates your level of intoxication. This is not the time to crack jokes, cry, apologize or confess.

6. Take a breath, blood or urine test if one is offered. When your driver's license was issued, you agreed to take such a test if you were ever pulled over. It's called the Implied Consent Law and even if you don't remember agreeing, you did. If you don't take the test, your license will be suspended for a minimum of one year, even if you are not convicted of DUI. If you take the test and the reading is greater than .08%, your license will be suspended from 30 to 90 days.

After the investigation on the street, the officer will usually take you to the station or to a testing site. Some cities will offer you a blood test, others will offer a breath test. If your test shows your blood alcohol concentration (BAC) to be less than .08%, you may not be charged. If you are, you might be able to later have the case dismissed. If your BAC is .08% to .14%, you will be charged with DUI, and DUI with a BAC over .08%. If your BAC is .15% or more, you will be charged with DUI, DUI with BAC over .08%, and Extreme DUI.

7. After completing the test, the officer may give you a form that asks whether you want to preserve a sample of your test or waive a sample. NEVER waive! Always ask that a sample be preserved if you are given that choice.

8. As soon as you are released, go to a hospital, a lab, or call your doctor to arrange to have your own test done immediately. If that test shows a lower BAC, you can use it in your case. If the level is the same or higher, you need not provide that information to the prosecutor.

9. If you don't want to lose your license, ask for a hearing at the Motor Vehicle Division within fifteen days. The officer will give you a form when he or she takes your license. This Admin Per Se/Implied Consent Affidavit has a paragraph telling you how to request a hearing.

If you are charged with DUI, you are not required to have an attorney. In some cases, a court will appoint one for you. At any stage in the process, you might choose to hire an attorney to help you with your case. If you understand intoxilyzers and how they operate, you can handle the case yourself. If you can interview police officers and question witnesses at trial, you can handle the case yourself. Or if you just feel better walking in and pleading guilty, you can handle the case yourself.

10. If you decide to hire an attorney, find one who has experience with DUI cases. Hire a qualified attorney you trust, an attorney you meet in person at your first consultation. A good attorney will personally appear in court on your behalf, interview the officer, gather records, prepare motions, and negotiate with the prosecutor. A good attorney will keep you informed about the progress of your case, but don't expect a daily call! Beware of attorneys you don't meet until your first day in court or who aggressively go head to head with the prosecutor during pretrial negotiations. You need an advocate who won't alienate the other side and paint you into a corner.

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DUI Frequently Asked Questions

What is DUI? DUI is defined as driving under the influence of alcohol or drugs. Drugs can include street drugs, illegal substances and illegal prescription drugs.

What do officers look for when pulling someone over for DUI? Officers will likely pull you over in suspicion of DUI if you are speeding, swerving, or are otherwise driving erratically, or if you have broken a traffic law. Sometimes officers will also set up sobriety checkpoints to catch drunk drivers.

What is the legal blood alcohol limit in Arizona? A person driving with a blood alcohol concentration (BAC) or blood alcohol level of .08% or above is deemed to be driving under the influence.

Do I have to take field sobriety tests? No. You can refuse to take such field sobriety tests as walking in a straight line, following an object or light with your eyes, touching your nose with your finger, alphabet tests, and more.

Do I have to consent to blood alcohol testing? After you are taken to the police station, the arresting officer will most likely request for you to take a breath, blood or urine test to determine your blood alcohol level. You do not have to take this test, but refusal to do so could result in the immediate suspension of your license for up to 1 year.

What is “implied consent”? Because you are driving, you are assumed to have given consent for a law enforcement agency to test your blood alcohol level if you are suspected of driving under the influence.

Does an officer have to inform me of implied consent? Most of the time, yes. An officer’s failure to inform you that your refusal of alcohol testing will result in suspension of your license could result in a stronger defense for your DUI case.

Arizona DUI Penalty Chart

FIRST OFFENSE DUI
BAC of .08 - .14
10 consecutive to 180 Days in Jail
Ignition Interlock Device Mandatory
1 year

Fines / Charges
$250 + s/c to $2,500 fine/assessment fees
$500 Prison Construction
$500 DPS
Jail Costs
Screening & Counseling
Driver’s license suspended for 90 days

FIRST OFFENSE EXTREME DUI

Extreme DUI
BAC .15 - .19
30 consecutive to 180 Days in Jail

Super Extreme DUI
BAC .20 & UP
45 consecutive to 180 Days in Jail
Ignition Interlock Device Mandatory 1 year; BAC over .20 IID 18 months
Vehicle Impounded for 30 days

Fines / Charges
$250 + s/c to $2,500 fine/assessment fees
$250 DUI Abatement
$1,000 Prison Construction
$1,000 DPS
Jail Costs
Screening & Counseling
Driver’s license suspended for 90 days to 1 year

SECOND OFFENSE DUI
BAC .08 - .14
90 of which 30 is consecutive to 180 Days in Jail
Ignition Interlock Device Mandatory 1 year

Fines / Charges
$250/500 + s/c to $2,500 fine/assessment fees
$1,250 Prison Construction
$1,250 DPS
$250 DUI Abatement
Jail Costs
Screening & Counseling
Driver’s License revoked for 1 year

SECOND OFFENSE EXTREME DUI
Alcohol .15 - .19
120 of which 60 is consecutive to 180 Days in Jail

Super Extreme DUI
BAC .20 & UP
180 of which 60 is consecutive to 180 Days in Jail
Ignition Interlock Device Mandatory 1 year; BAC over .20 IID 2 years
Vehicle Impounded for 30 days

Fines / Charges
$500 + s/c to $2,500 fine/assessment fees $1,250 Prison Construction $1,250 DPS
$250 DUI Abatement
Jail Costs
Screening & Counseling
Driver’s License revoked for 1 year

THIRD OFFENSE
1 year to 3.75 years in Prison
Minimum 4 Months in Prison
3rd DUI within 7 years
Probation up to 10 years
Mandatory Ignition Interlock Device
Possible vehicle forfeiture

Fines / Charges
$250 to $150,000 fine plus surcharges
Jail Assessment
Driver’s License revoked for 3 years

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Field Sobriety Tests

When a driver is pulled over on suspicion of DUI, there is a good chance the police officer is going to ask the driver to take one or more field sobriety test. Field sobriety tests are conducted on the side of the road to help an officer determine if a driver is too intoxicated to be operating a vehicle. These tests challenge a driver’s physical coordination, mental alertness, reaction time, and ability to follow instructions.
Although there are many different field sobriety tests for an officer to choose from, most officers in Phoenix ask drivers to perform at least one of the following six tests:

Walk and Turn: The subject takes nine heel-to-toe steps along a line, turns, and takes nine heel-to-toe steps back. The officer is looking to see if the accused can keep their balance, follow instructions, begin early, stop during the test, leave space between heel and toe, step off the line, or lose balance while turning.
 
Standing on One Leg: The accused is instructed to stand with heels together, arms at the side, then raise one leg six inches off the ground while counting out loud until the officer allows the accused to stop. The officer is looking for raising of the arms, swaying, hopping, putting the foot down, inability to stand still, body tremors, muscle tension, and any statements made by the accused during the test.
 
Finger to Nose: The accused is instructed to stand with heels together, eyes closed, and standing straight. The officer will then instruct the accused to bring the index finger to the tip of the nose. The officer is looking for body sway, body tremors, eyelid tremors, muscle tension, or any statements made by the accused to support a finding of intoxication.

The Rhomberg Balance Test: The accused assumes a position of attention, closes their eyes, tilts back their head and counts to 30. At this time the officer is looking for the inability to stand still or steady, body or eyelid tremors, opening of the eyes to maintain balance, swaying, muscle tension, or statements made by the accused. The officer is also testing the accused’s sense of time, which will usually be slower in the case of alcohol or depressants, or fast in the case of stimulants.

Horizontal Gaze Nystagmus Test: This test is performed when the officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical jargon for a distinctive eye oscillation). The officer will position an object (such as a pen) 12 inches away from the driver’s face. If nystagmus occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The smoothness of the eyes 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.

Preliminary Alcohol Screening: The officer uses a portable breath device to determine the presence of alcohol in the system.

Why Do I Need a Phoenix DUI Lawyer?

These tests are supposedly designed to check "divided attention," a critical skill in operating a motor vehicle. However, there are many people who, for many innocent reasons, cannot perform these tests to the officer's satisfaction, and pay the price with a DUI arrest.  In addition, these tests are scientifically unreliable and highly inaccurate. The outcome of the test is very subjective, as it is based entirely on the discretion and personal opinion of the officer who is administering the test.

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Blood & Breath Tests

In the state of Arizona, it is illegal to drive if your blood alcohol concentration (BAC) is .08% or more. Blood alcohol concentration refers to the amount of alcohol in the bloodstream. When too much alcohol enters the bloodstream, an individual’s level of alertness, reaction time, inhabitations, and physical coordination become significantly impaired. So much so that he/she has a much greater chance of causing a serious or deadly accident.

Breath & Blood Testing in Phoenix

Breath Tests: In order to determine a driver’s BAC by breath, an officer will use a Preliminary Alcohol Screening (PAS) device. These machines work by burning up alcohol, which generates an electrical current that is measured and quantified with a numeric result. However, at best these machines are dubious at providing accurate BAC readings. These devices do not have "slope" detectors, which are designed to guard against mouth alcohol that causes an artificially high reading by detecting a negative slope (or sharp drop-off) in the alcohol level. In addition, they are not specific for alcohol, and are subject to error due to certain types of chemical buildup.

Blood Tests: Blood is drawn from the driver at the police station or in a lab, where it is then analyzed. Blood tests are far more accurate than a breath test, so if you know for certain that your BAC is less than .08% you should opt for a blood test. That being said, because blood tests are more accurate, it is more difficult to contest the accuracy of the results.

Do I have to submit to a breath or blood test?

Although you are not technically required to submit to a breath or blood test, It is strongly advised that you do. If you refuse to take a breath or blood test, but are found guilty in criminal court, at the MVD hearing, or both, you will face much harsher penalties than if you agreed to take the test.

However, it should be noted that you can request an independent breath or blood test. Hiring an independent laboratory to test your BAC will provide you with your own evidence to use in court, instead of relying solely on the results of the breath or blood test administered by the officer. This is not only a smart move, but is also highly advantageous to your defense.

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Driving Under the Influence - Arizona DUI Laws

An Arizona DUI case will be charged as either a misdemeanor or a felony offense depending upon the particular facts of the case, the status of the defendant’s driving privileges and prior criminal history. Arizona’s DUI offenses are set forth in Arizona Revised Statutes §§ 28-1381, 28-1382, and 28-1383.

Misdemeanor Offenses: A.R.S. §§ 28-1381 and 28-1382

(1) DUI: A.R.S. § 281381(A)(1)

“DUI” means “Driving under the Influence” of intoxicating liquor (or drugs). The DUI charge involves a law enforcement officer’s suspicion the DUI suspect’s ability to drive is impaired. Although evidence of the subject’s Blood Alcohol Concentration (“BAC”) is relevant to the DUI charge, this offense does not require proof of a chemical test or evidence of the suspect’s BAC. This charge can be based solely upon the suspects (1) driving behavior, (2) physical appearance and performance on field sobriety test, and (3) verbal admissions.
           
(2)  DWI: A.R.S. § 1381(A)(2)

“DWI” stands for “Driving While Intoxicated,” which requires that the accused have a BAC of .08 or greater within two hours of driving a vehicle. Unlike the DUI charge, the DWI charge requires a blood, breath or urine test.
           
(3) Extreme DWI: A.R.S. § 1382 (BAC .15 to Higher)

The Extreme DWI charge differs from the DWI charge in only two respects. First, the Extreme DWI charge requires that the accused have a BAC of .15 or higher, within two hours of driving. Second, the punishment for an Extreme DWI is much greater than for a DUI or a DWI offense.
           
(4) “Super” Extreme DWI: A.R.S. § 1382 (BAC .20 or Higher)

The “Super” Extreme DWI requires that the accused have a BAC of .20 or greater, within two hours of driving. The punishment for a “Super” Extreme DUI is greater than for an Extreme DUI offense. (See “Penalties” link on the left)

Felony Offenses – A.R.S. § 28-1383

An “aggravated” or “felony” DUI offense is a DUI, DWI or Extreme DWI, committed:
(1) While the accused’s driver’s license is suspended, restricted, revoked, canceled, etc.;

(2)  If, within a period of 84 months (7 years) the accused commits a third or subsequent DUI, DWI or Extreme DUI; or

(3)  While a passenger less than fifteen years of age is in the vehicle.


21 AND UNDER DUI LAW

In Arizona, it is illegal for anyone under 21 to drive or be in physical control of a motor vehicle while there is any alcohol in the person’s body. A.R.S. § 4-244(33). Simply put, the law punishes the presence of alcohol in the under 21 person’s body without regard to whether the person’s ability to drive was affected even in the slightest degree. And, if convicted, the under 21 driver faces a two-year license suspension. It should also be noted that under 21 drivers, in addition to being charged with underage DUI, are frequently simultaneously charged with violations of A.R.S. §§ 28-1381(A)(1) and (2).

Since the penalties and consequences for persons under 21 are so severe, it is important to have an experienced, knowledgeable and aggressive Arizona DUI attorney on your side. The transgressions we make in our early days can affect us for years to come. But many DUI’s can be successfully defended, and you would be wise to contact an Arizona DUI defense lawyer who knows this area of the law.

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The Gillespie Law Firm

A leading Phoenix, Arizona DUI and criminal defense law firm dedicated to the aggressive representation of clients involving all aspects of DUI, vehicular crimes and criminal litigation. They handle cases in Federal, State, Municipal, Juvenile, and Appellate Courts throughout the greater Phoenix Metropolitan Area and all of Arizona.

Having achieved the highest level of professional skill and integrity, The Gillespie Law Firm, P.C. has been awarded an "AV"® rating; the highest possible rating by Martindale-Hubbell®. In addition, the firm is listed in the National Bar Register of "Preeminent Lawyers", Criminal Trial Section.

All cases accepted are thoroughly investigated, carefully prepared, and aggressively litigated. Their staff is highly committed to personalized and responsive service regarding your case and the desired results. Mr. Gillespie, a former Deputy County Attorney, is a highly respected attorney within the legal community with years of experience in the fields of DUI and criminal defense. The Gillespie Law Firm has earned its reputation for winning difficult cases through focus, hard work and diligent preparation.

To discuss your case or schedule a free office consultation, please call 602.253.1010 or complete the Contact Us form for an immediate response by the Gillespie Law Firm. For directions to their office, please Click Here.

Arizona DUI Police Tests

Most DUI arrests occur at night and on week-ends. The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated while driving at night. The list is based upon research conducted by the National Highway Traffic Administration (NHTSA):

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

Interestingly, Speeding has not been identified by NHTSA as an indicator of impairment. However, it is a common prosecution tactic to argue that speeding is "risk taking" behavior suggestive of diminished judgment occasioned by alcohol consumption. In reality, most police officers will admit that totally sober persons drive 10 miles over the posted speed limit late at night when the traffic is light.

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Driving Under the Influence (DUI) Information

Definition

Driving under the influence of alcohol (driving while intoxicated, drunk driving, drinking and driving, drink-driving) or other drugs, is the act of operating a vehicle (including bicycle, boat, airplane or horse) after consuming alcohol or using drugs. It is a criminal offense in most countries.

Overview

In jurisdictions of most countries, anyone who is convicted of injuring or killing someone while under the influence of alcohol or drugs can be heavily fined, as in France, in addition to being given a lengthy prison sentence.

The specific criminal offense may be called, depending on the jurisdiction, driving while intoxicated (DWI), operating while intoxicated (OWI), operating a motor vehicle while intoxicated (OMVI), driving under the influence [of alcohol or other drugs] (DUI), driving under the combined influence of alcohol and/or other drugs, driving under the influence per se or drunk in charge [of a vehicle]. Such laws usually (but not always) also apply to boating, piloting aircraft, or driving a bicycle.
First German driving school in 1906, Aschaffenburg.

Historically, guilt was established by observed driving symptoms, such as weaving; administering field sobriety tests, such as a walking a straight line heel-to-toe or standing on one leg for 30 seconds; and the arresting officer's subjective opinion of impairment. Starting with the introduction in Norway in 1936 of the world’s first per se law which made it an offense to drive with more than a specified amount of alcohol in the body, objective chemical tests have gradually supplemented the earlier purely judgmental ones. Limits for chemical tests are specific for blood alcohol concentration or concentration of alcohol in breath.

With the advent of a scientific test for blood alcohol content (BAC), enforcement regimes moved to pinning culpability for the offense to strict liability based on driving while having more than a prescribed amount of blood alcohol, although this does not preclude the simultaneous existence of the older subjective tests. BAC is most conveniently measured as a simple percent of alcohol in the blood by weight. It does not depend on any units of measurement. In Europe it is usually expressed as milligrams of alcohol per 100 millilitres of blood. However, 100 milliliters of blood weighs essentially the same as 100 milliliters of water, which weighs precisely 100 grams. Thus, for all practical purposes, this is the same as the simple dimensionless BAC measured as a percent. Since 2002 it has been illegal in all 50 US states to drive with a BAC that is 0.08% or higher.

The validity of the testing equipment/methods and mathematical relationships for the measurement of breath and blood alcohol have been criticized. (Taylor 2007)

Driving while consuming alcohol may be illegal within a jurisdiction. In some it is illegal for an open container of an alcoholic beverage to be in the passenger compartment of a motor vehicle or in some specific area of that compartment.

The German model serves to reduce the number of accidents by identifying unfit drivers and removing them from traffic until their fitness to drive has been established again. The Medical Psychological Assessment (MPA) works for a prognosis of the fitness for drive in future, has an interdisciplinary basic approach and offers the chance of individual rehabilitation to the offender.

George Smith, a London taxi driver, was the first person to be convicted of drunk driving, on 9 September 1897. He was fined 20 shillings. source