How to beat a DUI in Arizona: ARS 28-1381 explained.

by | May 2, 2015 | Articles

THE TOP 3 DUI DEFENSES IN ARIZONA

If you were charged with DUI in Arizona, the first thing to do is take a deep breath. The second, hire good counsel to assist you. Third, equip yourself with knowledge. Fourth, take action. In other words, if you were charged with DUI, prepare for what’s to come and get good legal counsel by your side.

 

I hate throwing out legal disclaimers but I have to let you know that this blog doesn’t create an attorney-client privilege and it’s not legal advice. The reason I say that is because there are subtle differences and strategies to each DUI case. No two facts are the same. That’s why having a qualified Arizona DUI attorney is so important. We provide that service. Nevertheless, you should be informed of at least the basics of what’s going on. With that out of the way, let’s get started.

What does the government have to prove?

In order to be found guilty of a crime in Arizona, the government has to prove its case beyond a reasonable doubt. This is the highest burden of proof in the law so the government’s evidence must be strong. The government must meet each element of an offense. If just one element is missing, the evidence isn’t sufficient. Let’s break down each element of a misdemeanor DUI case in Arizona.

What are three main ways to get a DUI in Arizona?

There are three types of misdemeanor DUIs in Arizona. They are similar but have different elements the government must prove for each offense. Usually, the government will charge a combination of DUI offenses for one incident. That’s because one act can lead to different types of DUI violations.

The first violation is found under A.R.S. §28-1381(A)(1)(driving while impaired to the slightest degree). For that offense, the government must prove:

  • You were driving or in actual physical control of a vehicle; and
  • You were impaired to the slightest degree by liquor, drugs (including legally prescribed drugs), or any other toxic substance or vapor.

For the second violation under A.R.S. §28-1381(A)(2)(blood alcohol concentration (BAC) over .08), the government must prove:

  • You were driving or in actual physical control of a vehicle; and
  • Your BAC was over .08.

For the final violation under A.R.S. §28-1381(A)(3)(illegal drugs DUI), the government must prove:

  • You were driving or in actual physical control of a vehicle; and
  • You had any illegal drug or its metabolite in your body. See A.R.S. §13-3401 for a comprehensive list of illegal drugs.

Now, the government might have charged you with an Extreme DUI. This does not change the basic elements of the case but adds one additional fact for the government to prove to the jury beyond a reasonable doubt: a BAC above .15 or .2. As discussed below, those BAC levels can affect the mandatory minimum penalty if you’re convicted.

If I got pulled over once, how can I be charged with multiple DUI counts?

Here’s an example of how one act can lead to multiple DUI charges. If police arrested a person who was driving while impaired to the slightest degree and had a BAC over .08 and illegal drugs in his or her system, the government could charge that person with all three violations for one act because that act covered each element of the offenses described above. The government would still have to prove to the jury beyond a reasonable doubt each and every element for each offense to convict: impairment, BAC over .08, and the presence of illegal drugs without a valid prescription.

Although you can only be punished once, the government will strategically charge as many counts as it can because you only need to be convicted of one of them and you’ll face the same penalties.

Are the penalties for DUI in Arizona always the same?

No. While there are mandatory minimum sentences, a judge is free to sentence you within the statutory range. There are also penalty enhancements if a person has a BAC higher than a .15 or .20.

These are called extreme DUIs. Under A.R.S. §28-1382, the government has to prove an additional element to the ones laid out above. Specifically, the government would have to prove a BAC of .15 or .20 depending on the allegation against you.

So what are some of the potential penalties if convicted of DUI?

All misdemeanor DUIs are class 1 misdemeanors. The maximum penalty for a class 1 misdemeanor is 6 months jail and a $2,500 fine plus surcharge (currently 83%).

DUI penalties are extensive and complicated. Generally speaking, at a minimum, you are looking at one day in jail for a first time offense with a BAC below .08. Click here for a comprehensive treatment of DUI penalties in Arizona.

What are some of the defenses to DUI in Arizona? How do I beat a DUI case? 

A good defense is all that stands between guilt and innocence. Because creativity and innovation are limitless, it’s impossible to list every defense. Keen legal strategy is an art that’s built on experience and hard work. Nevertheless, here are the main general defenses to DUI charges in Arizona:

  1. You were not impaired to the slightest degree. The government keeps lowering the threshold of what it means to be impaired. Moreover, the “tests” the government uses that are designed to ferret out impairment are one-sided. Completely sober people have a difficult time passing many of the tests, especially with physical or mental limitations. Good defense attorneys that focus on DUI defense understand each of these tests and the limitations of these tests the government won’t talk about. We spend time learning the ins and outs of the test. I’ve spent countless hours at seminars and trainings to know the limitations of these “tests.”
  1. Your BAC didn’t exceed .08/.15/.20. There are two main ways the government tests for BAC levels: 1) Breath or 2) Blood. Each has its own shortcomings, especially breath tests. As discussed above, good defense counsel spends countless hours training to understand the science behind and the limitations of the tests. If police use incorrect procedures to collect the blood, it can cause contamination in the sample and improperly elevated BAC levels. With breath tests, even more can go wrong. Sometimes the government will use retrograde extrapolations. This means if your BAC was below the legal limit when they collected the sample, they’ll attempt to use equations to go back in time and determine what your BAC was then. But this has many shortcomings too. Moreover, the legislature blocked the defense from using retrograde extrapolations to more fairly determine what the BAC would have been at the actual time of driving by adding a two-hour window. In other words, the government wants to use extrapolations when it helps them but not when it hurts them. Does that sound fair?
  1. You weren’t driving or in actual physical control of the vehicle. Many times police show up late to the scene and arrest the wrong driver. Or the government can’t prove who drove the car altogether. A driver may also be misidentified. And while a person may have been the driver, if he or she started drinking after the driving, then there’s no violation. Where things really get sticky is the Safe Harbor provision. This is where a driver is okay to drive at first but later starts to feel the effects of alcohol. Instead of trying to race home, endangering others in the process, that person makes the wise decision to pull over. Although still technically recognized in Arizona as a defense, it’s been eviscerated by the appellate courts. The jury now applies a multifactor test to determine if a person was in “actual physical control” of the vehicle within 2 hours of driving.
  1. You have a valid prescription. This is a defense to the (A)(3) (illegal drug) violation only. The (A)(3) violation is a harsh strict liability statute. The government doesn’t have to prove impairment or any amount of drugs in your system (like alcohol over .08). But there is a defense if you have a valid prescription and the drug was used according the prescribed amount. Although the government can still proceed with the (A)(1) violation (impaired to the slightest degree). The main defense to that charge is that you weren’t impaired (above).
  1. Involuntary intoxication and necessity. These defenses are rare. Voluntary intoxication is no defense. (If you knowingly consumed alcohol or drugs you can’t later use the defense “I wouldn’t have driven if I wasn’t drunk.”) Only if you unknowingly consumed something or were forced to take something you didn’t know was a drug or alcohol, would you have a defense. The circumstances are rare where this would be a defense. The same is true for necessity. To say that it was necessary for you to drive to avoid a greater evil, you would have to prove there was absolutely no reasonable alternative. In other words, it would have to be a true emergency and you’d have to be in a remote area (where 9-1-1 services aren’t readily available). If you’re in Maricopa County, your chances are slim. But if you were out camping with friends in a remote area and tragedy strikes, it’s a defense.
  1. Legal defenses. There are many legal defenses to DUI. For example, if an officer pulls you over without reasonable suspicion to stop your vehicle, or denies you your right to counsel, or has no probable cause to arrest you, then evidence or your case may be thrown out. A confession taken without Miranda warnings can cause any confession you made to be thrown out.

Some final thoughts about DUIs in Arizona.

The bottom line is that DUIs are, in fact, defensible. There are many more intricacies to DUIs in Arizona than can be written in a short blog. If you’ve been charged with DUI in Arizona, give us a call. We can help. No matter what you decide to do, it’s important to have experienced Arizona DUI counsel. You can get through this and there are helpful tips and tricks to make this difficult situation be the best it can be.

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