Why am I charged with a DUI even though I was under a .08?

It’s baffling to think you could be charged with DUI in Arizona even if your BAC was under .08.

Let’s paint the picture here: After a long day at work, you decide to have a couple drinks with some friends. You know you need to drive home so you’re careful and limit yourself. You feel your okay to drive. After leaving the bar, an officer pulls you over and says you made a wide left turn, or didn’t fully stop at the stop sign, or something like that. Then, the officer asks you if you’ve been drinking. Feeling confident, you respond that you had a couple of beers. Because you feel you have nothing to hide, you say your willing to take a couple of tests to make sure you’re “safe to drive home.” After completing some tests, to your surprise, the officer tells you he has probable cause to arrest you on suspicion of DUI. Scared, you comply with a breath or blood test to avoid having your license suspended. To your relief, the test comes back under a .08. But then the officer submits charges to the court anyway and you find yourself fighting for your rights with a BAC under a .08. What happened?

In Arizona, you can be convicted of a DUI even if your blood alcohol content (BAC) is under a .08. How?

1) Understand the types of DUIs?

First, we’ll begin with the types of DUIs. There are three types of misdemeanor DUIs:

  • 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

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 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. 1

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.

But in an (A)(1) or “impaired to the slightest degree” violation, impairment is everything. That 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:

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. 2

With an (A)(1) violation, your BAC is now irrelevant. A conviction does not depend on if you were under or over the .08 standard. What matters is if the government can prove that you were impaired to the slightest degree from any liquor, drugs or vapor. One of the ways a prosecutor will 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.

2) So I was charged with an (A)(1) violation, what’s next?

With that out of the way, I’ll explain what happens when someone is under a .08. Sometimes a prosecutor will dismiss the case against you on his own. If so, you’re one of the lucky ones. Increasingly, the government is pushing cases through the system where people are under a .08. Although the government can’t prove the strict liability standard of .08, the government will try and proceed with the (A)(1) impairment violation. One of the ways the government will try and prove impairment is through the series of tests the officer performed at the time of the stop. Thus, it’s important to know your rights.

But even if you decided to take the roadside field sobriety tests (FSTs), you can still fight your case. There are many issues with FSTs. Those tests are difficult to perform. People who are completely sober will often fail them too. If you have a medical condition, it can affect the outcome of the FSTs. If you find yourself facing charges even if your BAC is under a .08, it’s still very important to find competent legal counsel. DUI law is highly nuanced and a skilled defense can be the difference between proving your innocence and a conviction when you weren’t impaired at all. Give us a call today. We’ve had success in defending these exact types of cases.