The 3 major types of misdemeanor DUI in Arizona:

One common question I get from clients is, “Why was I charged with two DUIs?” They’re confused because they know it was just one incident so why are they facing multiple charges? To answer that, you need to understand the different types of misdemeanor DUI charges in Arizona.

Let’s begin with the three types of misdemeanor DUIs. They are:

  • 1)  A.R.S. §28-1381 (A)(2) DUI-Impaired to the Slightest Degree;
  • 2) A.R.S. §28-1381(A)(2) DUI-Blood over .08; and
  • 3) A.R.S. §28-1381(A)(3) DUI-Drugs

DUI: Impaired to the slightest degree ARS 28-1381(A)(1):

First, there’s the (A)(1) violation. It reads:

A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:

1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree. 1

With this type of DUI, the government must prove that you drove or controlled the car while being impaired by either drugs, alcohol or vapors to at least the slightest degree. With this type of DUI, proving impairment is key to the government’s case. With an (A)(1) violation, your BAC is actually irrelevant. A conviction does not depend on if you were under or over the .08 standard. But one of the ways a prosecutor will try to prove impairment is through your BAC reading. Thus, the two charges go hand in hand. Most DUI citations start with the (A)(1) violation and add on an (A)(2) or (A)(3) violation. In most DUI cases, the government tries to convict people with both statutes.

DUI: BAC over .08 ARS 28-1382(A)(2):

Second, is the (A)(2) violation. Of the three types of DUIs, the most famous is the (A)(2) violation. Due to public awareness of DUI laws, most people know that having a blood alcohol concentration (BAC) over .08 will lead to a DUI in most states. In Arizona, the (A)(2) statute reads:

A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:

2. If the person has an alcohol concentration of 0.08 or more within two hours of driving or being in actual physical control of the vehicle and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle. 2

The (A)(2) violation is a strict liability statute. This means the only factual inquiry for the jury is whether your BAC was over .08 within two hours driving and that you were in fact the driver or had control over the car, not impairment. For an (A)(2) violation, impairment is irrelevant.

DUI: Drugs ARS 28-1382(A)(3):

Finally, there’s the (A)(3) violation. It reads:

A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:

3. While there is any drug defined in section 13-3401 or its metabolite in the person’s body. 3

You can find a copy of A.R.S. §13-3401 here. But the gist of it is that any sort of narcotic or dangerous drug and marijuana can lead to a DUI. This is another strict liability law like the (A)(2) violation. However, there are exceptions to this rule. First, if you had a valid prescription and were taking that medicine as directed, you have a defense against the (A)(3) DUI. Second, the Arizona Supreme Court carved out an exception for inactive marijuana metabolites. 4

How the different DUI charges interact:

The different types of DUIs build upon each other. Thus, even if a person had a valid prescription for a drug under the (A)(3) violation but was still impaired to the slightest degree in the (A)(1) violation, a jury could find that person not guilty of the (A)(3) but guilty of the (A)(1). The same can be true of the (A)(2): a BAC under .08 but the jury believes that person was still impaired while driving.

In situations where a person had both a BAC over .08 and was impaired to the slightest degree, that person could be convicted of both types of DUIs. If an illegal drug was in that person’s system as well, then there are three types of DUIs that person will face. Under Arizona law, one act can lead to multiple types of violations if there are different elements to the crime. Although there was just one act, if the all the elements of the different crimes are met by that act, that person could face multiple charges.

The bottom line:

The short answer is that a person can be charged with multiple types of DUI from just one incident because there are three different types of DUI. Each type of DUI has a slightly different element that the government must prove beyond a reasonable doubt. The different types of DUI interact with each other which is why almost every DUI is charged with both the (A)(1) and either an (A)(2) or (A)(3) or both.

If you’ve been charged with DUI, it’s important to hire competent legal counsel who understands the nuances of DUI law. There is a synergy between the charges and it’s important to hire an attorney that understands how these DUIs interact and can defend you properly against them. Even if you’ve been charged with all three types of DUIs, we’ve been successful in defending against them. Give us a call today.