Phoenix DUI Lawyers I-K
- Kanu, Solomon:
Driving While Impaired to the Slightest Degree, A.R.S. ¤28-1381(A)(1)ÐÒDUIÓ
It is unlawful to drive, or to be in actual physical control, of a vehicle while under the influence of any intoxication liquor, any drug, or any combination of liquor or drugs. It is not necessary to be ÒdrunkÓ nor does this charge require a blood, breath or urine test. The State is only required o prove that a personÕs ability to operate their vehicle was impaired Òto the slightest degreeÓ.
Driving With a Blood Alcohol Concentration of .08% or Above, A.R.S. ¤28-1381(A)(2)ÐÒDWIÓ
It is unlawful to drive, or to be in actual physical control, of a vehicle with a blood alcohol concentration of .08% [.04% if commercial vehicle, A.R.S. ¤28-1381(A)(4)] or higher within two hours of driving or being in actual physical control. The flood alcohol concentration must be a result of alcohol consumed either prior to driving or while driving, or being in actual physical control.
DWI-Drugs, A.R.S. ¤1381(A)(3)
It is unlawful to drive, or to be in actual physical control, of a vehicle while there is an illegal drug, or its metabolite, in the body. The State is not required to prove impairment nor is the State required to prove a specific amount of drug in the body. The State is only required to prove that an illegal drug was present in the body while driving or being in actual physical control.
Driving While Under the Extreme Influence of Intoxicating Liquor, A.R.S. ¤28-1382Ð ÒExtreme DWIÓ
It is unlawful to drive, or to be in actual physical control, of a vehicle with a blood alcohol concentration of .15% or higher within two hours of driving or being in actual physical control. The blood alcohol concentration must be a result of alcohol consumed either prior to driving or while driving, or being in actual physical control. The ÒExtreme DWIÓ charge does not require the State to prove that the person was Òreally drunkÓ, only that the blood alcohol concentration was .15% or higher. The ÒExtreme DWIÓ statute mandates substantially increased punishment for a higher blood alcohol concentration.
Aggravated Driving While Under the Influence of Intoxicating Liquor, A.R.S. ¤28-1383ÐÒFelony DWIÓ
There are three different ÒFelony DWIÓ offenses:
1. If a person commits any DUI/DWI offense as defined in A.R.S. ¤28-1381 OR 28-1382, and the personÕs driverÕs license, or privilege to drive, is suspended, canceled, revoked, refused, or restricted. A.R.S. ¤28-1383(A)(1).
2. If a person commits any DUI/DWI offense as defined in A.R.S. ¤1381 or 28-1382, and within a sixty month period (5 years) has two or more prior DUI or DWI convictions. A.R.S. ¤28-1383(A)(2).
3. If a person commits any DUI/DWI offense as defined in A.R.S. ¤28-1381 or 28-1382 while a person under fifteen years of age is present in the vehicle.
It is also unlawful to operate an aircraft, water craft or water skis while under the influence of intoxicating liquor.
DUI/DWI DEFENSES
There are several potential defenses which can be raised in a DUI/DWI case and every case is different and unique. Below is a partial list of possible constitutional challenges and sufficiency-of-evidence defenses which we investigate in every DUI/DWI case:
CONSTITUTIONAL CHALLENGES
1. No Reasonable Suspicion to Stop
In order for the police to conduct a traffic stop the police officer must have Òreasonable suspicionÓ that the person stopped committed a crime or committed a traffic offense. The police officer must have an objective and legitimate reason for making the traffic stop. If the police officer does not have Òreasonable suspicionÓ for making the traffic stop then the case will be dismissed.
2. No Probable Cause for an Arrest
Prior to the police officer actually making an arrest, there must be Òprobable causeÓ that the person committed a crime. ÒProbable CauseÓ is a higher standard than ÒReasonable SuspicionÓ. The police officer must have Òprobable causeÓ that the person is under the influence of alcohol prior to making an arrest. Improperly administered Field Sobriety Tests, mistaken observations, and hasty decision made by the police officer may invalidate the arrest. If Òprobable causeÓ does not exist for the arrest then the case will be dismissed.
3. Denial of Right to Counsel
If you are arrested, the police must allow you the opportunity to consult with an attorney, if requested. If the police deny you right to an attorney then the charges may be dismissed.
4. Miranda Violation
If the police fail to adequately advise you of all your Miranda rights, or if the Miranda rights were not given at the appropriate time, then any statements made will be suppressed.
5. Denial of Right to Obtain Exculpatory Evidence
Every person accused of a criminal offense has the constitutional right to independently obtain favorable evidence. For instance, if arrested for DUI/DWI you have the right to obtain an independent blood test. If the police deny you a Òfair chanceÓ to obtain exculpatory evidence, then your case will be dismissed.
SUFFICIENCY-OF-EVIDENCE DEFENSES
1. You Were Not Driving
The State mus prove, beyond a reasonable doubt, that the person was actually driving. In some cases, the police officer does not actually witness the accused driving nor are any witnesses available to prove ÒdrivingÓ
2. Were Not in Actual Physical Control
If the State cannot prove ÒdrivingÓ, beyond a reasonable doubt, they may try to prove Òactual physical controlÓ. That is, the person, although not driving, still posed a threat by the exercise of present or imminent control over a vehicle. However, a person is not in Òactual physical controlÓ if they voluntarily pull of the roadway and attempt to Òsleep it offÓ. A person who is alcohol impaired and is using their vehicle as a Òstationary shelterÓ is not in Òactual physical controlÓ and is not guilty of DUI/DWI.
3. You Were Not Alcohol Impaired
It is not unlawful to consume alcohol and to, thereafter, operate a motor vehicle. If a police officer stops you after you have been drinking he will be predisposed to believe you are impaired by alcohol, and the officerÕs observations will be tainted. All of the officerÕs observations will be blazed towards Òsigns or symptomsÓ of alcohol impairment. However, there are numerous legitimate explanations for the officerÕs observations. For instance, people are often very nervous when dealing with the police and may often be tired during nighttime stops. The police officerÕs observations and opinions can be questioned as well as the circumstances and reliability of the Field Sobriety Tests.
4. Inaccuracy of the Intoxilyzer
In jurisdictions where the Intoxilizer (breath testing device) is utilized, challenges to the accuracy of the intoxilyzer can be raised. The officer must be certified to administer the breath test and he must precisely follow an operational checklist. Further, the intoxilyzer must be able to function within a certain Òconfidence limitÓ and must be properly calibrated. The calibration of the intoxilyzer must be checked within strict guidelines set by the Arizona Department of Health Services. If the intoxilyzer was not administered properly or any of the maintenance checks are not withing the set limits, then the result of the test will not be admissible.
5. Inaccuracy of the Blood Test
In Jurisdictions where blood is drawn to determine a personÕs blood alcohol level, several issues regarding the accuracy of the process ca be raised. The person who drew the blood must be certified to do so. The blood vials must have been stored properly prior to their use. The blood vials must have been stored properly prior to their use. The blood vials must not be used beyond the expiration date. The blood vials must be preserved for the defense to retest the sample.
These are the more common challenges and defenses which can be raised in a DUI/DWI case. For your particular case you should consult with an experienced and aggressive DUI/DWI attorney.
DUI/DWI PENALTIES
Driving While Impaired to the Slightest Degree Ð ÒDUIÓ
Driving With a Blood Alcohol Concentration of .08% or Above Ð ÒDWIÓ
A violation of either A.R.S. ¤28-1381(A)(1) Ð ÒDUIÓ or A.R.S. ¤28-1381(A)(2) Ð ÒDWIÓ IS A Class 1 Misdemeanor. A Class 1 Misdemeanor is punishable by a maximum jail term of six months and a maximum total fine of $4,500.00 if convicted of either ÒDUIÓ or ÒDWIÓ there is a minimum mandatory jail sentence of 10 days. However, 9 days in jail can be suspended so long as the mandatory alcohol screening and counseling is completed. There is a minimum mandatory total fine of $955.00 (some courts also add a local court surcharge). The court will also require reimbursement for jail costs which are approximately $50.00 per day. Alcohol screening and counseling are also mandatory. The screening process is an evaluation to determine the length of counseling required. Typically, 16 hours of counseling is ordered. The court can also require probation for up to five years. Most courts impose unsupervised probation although there are a few courts which routinely impose supervised probation.
Your driverÕs license or privilege to drive can also be suspended. If your driverÕs license is suspended as the result of a breath, blood, or urine test which is over the legal limit of .08%, or as a result of a criminal conviction for ÒDUIÓ or ÒDWIÓ, the suspension is ninety days. After thirty days you are eligible for a restricted license for the remaining sixty days if you did not cause serious physical injury and you have no prior ÒDUIÓ or ÒDWIÓ convictions, or driverÕs license suspensions, in the previous five years. The restricted driverÕs license allows you to travel to and from work, school, probation, and any treatment facility.
If you refused to take the breath test, the Arizona Department of Transportation will suspend your driverÕs license for 12 months with no eligibility for a restricted license. Your driverÕs license will be suspended for two years for a second or subsequent refusal within sixty months. A criminal conviction for ÒDWI-DrugsÓ, A.R.S. ¤28-1381(A)(3) will result in a one year revocation of your driverÕs license.
Second Offense ÒDUIÓ / ÒDWIÓ
If you have been previously convicted of ÒDUIÓ or ÒDWIÓ within sixty months (5 years) the mandatory minimum penalties substantially increase. There is a minimum mandatory jail sentence of 90 days. However, 60 days in jail can be suspended so long as the mandatory alcohol screening and counseling is completed. Most courts allow for work release after serving 48 consecutive hours. The minimum mandatory total fine is $2,155.00, plus any local court surcharge and jail costs. The alcohol counseling requirement is normally 36 hours. The court will also impose probation for up to five years.
A second ÒDUIÓ or ÒDWIÓ conviction within a five year period will also mandate a one-year driverÕs license revocation. After the period of revocation terminates, you are required to reapply for reinstatement and must complete an investigation process with the Arizona Department of Transportation (ADOT). Reinstatement is not automatic. As a term of reinstatement, ADOT will require you to install and maintain an ignition interlock device on all personal vehicles you drive for a period of at least one year following the reinstatement of your driverÕs license.
Driving While Under the Extreme Influence of Intoxication Liquor Ð ÒExtreme DWIÓ
A violation of ÒExtreme DWIÓ, A.R.S. ¤28-1382, having a blood alcohol concentration of .15% or higher, is also a Class 1 Misdemeanor. If convicted, there is a minimum mandatory jail sentence of 30 days. However, 20 days can be suspended so long as the mandatory alcohol screening and counseling is completed. Normally, 36 hours of counseling is ordered. The court will normally allow work release privileges after serving 48 consecutive hours in jail. The minimum mandatory total fine is $1,455.00, plus any local court surcharge and jail costs. The Court is also required to impose an additional $250.00 ÒDUIÓ Abatement FeeÓ. The court can impose probation for up to five years.
Second Offense ÒExtreme DWIÓ
If you have been previously convicted of ÒDUIÓ or ÒDWIÓ within 60 months (5 years), the mandatory minimum sentence substantially increases. If convicted, there is a minimum mandatory jail sentence of 120 days. However, 60 days can be suspended so long as the mandatory alcohol screening and counseling, normally 36 hours, is completed. Again, the court will normally allow work release after serving 48 consecutive hours. The minimum mandatory fine is $2,155.00, plus any local court surcharge and jail costs. The Court is also required to impose an additional $250.00 ÒDUI Abatement FeeÓ, and probation for up to five years. The ignition interlock device is also mandatory.
Aggravated Driving While Under the Influence of Intoxicating Liquor Ð ÒFelony DWIÓ
ÒFelony DWIÓ is very serious. A ÒFelony DWIÓ committed either as a result of the personÕs driverÕs license being suspended, cancelled, revoked, refused or restricted, A.R.S. ¤28-1383(A)(1), or as a result of having two prior ÒDUIÓ or ÒDWIÓ convictions within 60 months (5 years), A.R.S. ¤28-1383(A)(2), is a Class 4 Felony. A Class 4 Felony is punishable by a minimum prison sentence of 1 year to a maximum prison sentence of 3.75 years. If placed on probation, which will be supervised and can be for up to 10 years, there is a mandatory sentence of four months in prison! The minimum mandatory fine is $2,155.00 if the felony offense is a result of the driverÕs license being suspended, and $2,855.00 if the felony offense is a result of prior DWI convictions. Alcohol screening and counseling is also mandatory.
An Aggravated DWI conviction also requires a mandatory three year driverÕs license revocation. At the end of the revocation, reinstatement is not automatic. The person must make application and successfully complete the ADOT investigation. The ignition interlock device is required as a term of reinstatement of the personÕs driverÕs license. Further, it is possible that the vehicle used may be subject to forfeiture.
ÒFelony DWIÓ With a Child Under 15 in the Vehicle
A ÒDUIÓ or ÒDWIÓ which becomes an ÒAggravated DWIÓ for having a child under 15 in the vehicle is a Class 6 Felony. A Class 6 Felony is punishable by a minimum prison sentence of .33 years and a maximum sentence of 2 years. There is not a mandatory prison requirement. It is also punishable by probation for up to 10 years. As a term of probation, the court can order a jail sentence of up to one year in the county jail. The court must sentence the person to at least the minimum mandated ÒDWIÓ penalties as outlined above: (1st offense: 10 days in jail with 9 suspended - $955.00 fine; 2nd offense: 90 days in jail with 60 suspended - $2,155.00 fine; Extreme: 30 days in jail with 20 suspended - $1,455.00 fine; 2nd offense Extreme: 120 days in jail with 60 suspended - $2,155.00 fine). Alcohol screening and counseling is mandatory.
This conviction also mandates a three year driverÕs license revocation and requires the ignition interlock device as a term of reinstatement. The vehicle used may be subject to forfeiture to the State of Arizona.
The penalties mandated by any ÒDWIÓ related conviction can be severe and can have long lasting effects. Please call for immediate assistance.
- Leyh, Cynthia:
The first 10 amendments, also called the Bill of Rights, contain basic, fundamental rights of individuals on which the government may not impinge. Many of these constitutional rights provide protection to criminal defendants in the criminal-justice system. Relatively recently, the US Supreme Court interpreted the due process clause of the Fourteenth Amendment to extend most of these rights beyond just the federal system to criminal defendants in state criminal-justice systems where the vast majority of criminal trials occur.
The basic constitutional rights of the criminal defendant permeate every aspect of the criminal-justice process.
- Bill
King:
In Arizona,
it is not
illegal to
operate a motor vehicle after consuming alcoholic
beverages. Drinking and driving does, however, become a
crime if, as a result of such alcohol consumption, one's
ability to drive is impaired to even the "slightest degree".
premiums.
- George Klink:
If the case proceeds to trial, a judge or jury will make the decision on whether the accused is guilty or not guilty. Many misdemeanors are tried before a judge only. Some misdemeanors and all felonies are tried to a jury of six, eight, or twelve citizens, depending on the type of case. Before a conviction can be obtained, the judge or jury must agree that the Government has proven the guilt of the accused beyond a reasonable doubt. A jury verdict must be unanimous with all jurors in agreement.
- Lawrence Koplow:
FREQUENTLY ASKED DUI QUESTIONS
What are the penalties for an Arizona DUI conviction?
Arizona has some of the toughest DUI laws in the country. In Arizona, some of the possible consequences for a DUI conviction are: (1) a mandatory jail or prison term; (2) probation or parole; (3) loss of your driver's license; (4) mandatory installation of an ignition interlock device; (5) loss of automobile insurance or SR22 insurance; (6) court-mandated driving school; and (7) fines.
What should you do if you are an out-of-state visitor and you are arrested for DUI?
It is extremely common that someone who is visiting Arizona from another state is arrested for DUI. Our firm handles many such cases. On a client’s request, we make every effort to have you appear telephonically with both the court and the Department of Motor Vehicles.
An Arizona DUI may affect your driving privileges in the state you reside in. Consequenses vary by state. In addition, depending on the court in which your DUI is being prosecuted and the facts of the case, you may be able to resolve your DUI without retuning to Arizona.
What happens in Arizona if you refuse to take a blood or breath test?
If you refuse any type of chemical test that would determine your blood-alcohol concentration, your driver’s license will be taken away for at least one year. Moreover, most officers, after your refusal, will then obtain a search warrant and take your blood.
If you are asked to take a field sobriety test by a police officer, can you refuse?
Yes. In Arizona, field sobriety tests (such as eye tests, one-leg stand, walk and turn, finger-to-nose tests, etc.) are voluntary.
Do you have the right to an attorney before a police officer asks you to take a field sobriety test?
No. Arizona Courts have ruled that you have no right to counsel until you are placed under arrest. The officer is asking you to perform field sobriety tests in order to gather more evidence against you. In most circumstances, we recommend that you refuse the test and ask to speak with an attorney.
If a police officer asks me if I have been drinking alcohol, do I have to answer him?
No. The answer to this question could be used as evidence against you which is the reason the officer is asking the question. You have a right against self-incrimination. We recommend that you politely decline to answer the question and ask for an attorney.
Can I choose the type of chemical test the officer will perform on me?
No. You cannot choose which test the officer will perform on you. In Arizona the three most common tests are blood, breath and urine.
While you cannot choose the test the officer performs, you may obtain your own independent sample. Depending on the facts of the case, we will recommend the appropriate type of sample for you to obtain.
What is implied consent, and how does it affect me?
Arizona law provides that any person who operates a motor vehicle and is arrested for an offense related to drinking and driving is presumed to have given consent to a chemical test (blood, breath or urine). Consequently, if you refuse to take a chemical test of the officer’s choice, the officer may obtain a search warrant and forcibly take your blood.
Why should I hire an experienced DUI/DWI attorney?
Arizona DUI law is extremely complicated and has severe consequences. DUI law is commonly referred to as a minefield. An attorney must be competent in the Arizona Rules of "Criminal" Procedure, the Arizona Rules of Evidence, the United States and Arizona Constitutions, and the Arizona Department of Motor Vehicles Rules and Regulations.
An attorney cannot do anything for you unless he or she has extensive experience in these areas. Police officers are only human and do commit legal errors. However, only an experienced DUI attorney will be able to find these errors and use them to help his or her client.
You should choose an experienced DUI attorney for the same reason you should choose a qualified doctor. If you break your wrist, you go to a doctor that specializes in wrist injuries. When you are charged with a DUI, you should hire a qualified DUI attorney.
An experienced Arizona DUI attorney can analyze your case for legal errors and defenses. He or she can have blood samples independently analyzed, look for suppression issues, review calibration / COBRA records of breath machines, find the right expert witnesses for your trial, and assist you with your driver’s license issues.
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