Tempe DUI Lawyers
- Penrod, Craig:
Do you understand D.U.I. (Driving while Under the Influence)?
If you are like most people, the answer is no. Obviously, driving while
impaired by the effects of alcohol is against the law, not to mention
dangerous to human life, including your own. However, it is perfectly
legal in Arizona to drive after consuming alcohol as long as your
ability to safely operate your vehicle is not impaired and your alcohol
level is below the legal limit. Research has shown that many people
arrested and charged for D.U.I. are not "guilty" as that crime is
defined by law. In spite of this fact, because many people don't know
their rights, they incriminate themselves, and actually become convinced
by police officers and prosecutors that they have committed a crime when
they really haven't, and many innocent people suffer the wrath of a very
punitive law unnecessarily. It is for those potentially innocent victims
that we have prepared this information so that you can understand and
exercise your rights and properly exonerate yourself.
Remember, if you are stopped for a routine traffic violation and have
had only a few drinks, you can fall into a trap and find yourself
charged with D.U.I. and your license suspended. Don't let this happen to
you. Know and exercise your rights. These questions and answers that we
have prepared should help.
1. What is D.U.I.? 2. What is Extreme D.U.I.? 3. What is "Super"
Extreme D.U.I.? 4. What is an Aggravated D.U.I.? 5. What does "under
the influence of alcohol" mean and how do I know if I am under the
influence when I am trying to decide whether or not to drive? 6. If I
am stopped by a police officer after drinking, what should I do? 7.
What tests do I have to take? 8. What are these tests? 9. Do I have
to answer any questions? 10. Do I have the right to speak with
attorney? 11. If arrested, can the police officer immediately take my
driver's license? 12. If arrested, can the police officer immediately
seize my car? 13. What is an ignition interlock device and do I need
to install one on my vehicle? 14. Can the Court order me to quit
drinking alcohol? 15. Do I really need an attorney if I am arrested
for D.U.I.?
1. What Is D.U.I.?
In Arizona, ÒD.U.I.Ó, ÒD.W.I.Ó or Òdrunk driving chargeÓ are all slang
references to a violation of A.R.S. ¤ 28-1381, driving 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. It is a criminal offense and a class one misdemeanor if a person
operates a motor vehicle while under the influence of alcohol or with an
alcohol concentration of .08 or higher. A person can also receive a
D.U.I. if they are operating a motor vehicle while under the influence
of any drug or with a metabolite of any illegal drug or drugs in their
blood for which they do not have a prescription.
Unlike other criminal offenses which allow the court latitude in
determining appropriate penalties, the D.U.I. statute has mandatory
minimum sentences. On a first offense involving alcohol, the minimum
sentence is 1-10 days in jail, a fine and assessments of approximately
$1,700, as well as mandatory substance abuse screening and counseling,
if recommended, and a 90-day license suspension. If the offense is one
involving drugs, the penalties are the same except for license
suspension. For a D.U.I. drug offense, it is one year in which the
person is not entitled to drive at all and there are no hardship permits
available. A second offense within seven years carries a 30-90 day jail
sentence, fines and assessments of $3,400, costs of incarceration and
mandatory substance abuse screening and counseling, if recommended.
Additionally, a second offense requires a mandatory revocation of your
driverÕs license for at least one year followed by the installation of
an ignition interlock device in any vehicle you drive for an additional
year and the requirement that you carry SR-22 (high risk) insurance for
a period of three years after reinstatement. All told, the monetary
assessments on a second offense D.U.I. could easily exceed $5,000.
Therefore, as you can see, a D.U.I. is a very serious offense that
should only be handled by an expert professional...
Back to top
2. What Is Extreme D.U.I.?
Extreme D.U.I., which was enacted by the Arizona Legislature, took
effect on December 1, 1998. Extreme D.U.I., a class one misdemeanor, is
when your alcohol concentration exceeds .15. The mandatory minimum
sentence for a first offense extreme D.U.I. is 10-30 days in jail and
fines and assessments of approximately $3,500, as well as mandatory
substance abuse screening and counseling, if recommended. A second
offense extreme D.U.I. (when a person has been previously convicted of a
D.U.I. within seven years) carries a mandatory jail term of 60-120 days
in jail, minimum fines and assessments of $4,150, plus costs of
incarceration. All told, the monetary assessments could exceed $8,000.
Back to top
3. What Is "Super" Extreme D.U.I.?
ÒSuperÓ extreme DUI, which was enacted by the Arizona Legislature, took
effect on September 19, 2007. This is a more serious version of extreme
D.U.I. and occurs when a personÕs alcohol concentration exceeds .20. For
a first offense, the person faces 45 consecutive days in jail, none of
which may be suspended. Additionally, there are fines and assessments of
approximately $4,150. Including costs of incarceration, the total
monetary assessments could exceed $7,000. If you are charged with a
ÒsuperÓ extreme D.U.I. and you have a prior D.U.I. conviction within 7
years, it carries a mandatory minimum jail sentence of between 90 and
180 days, fines and assessments of $5,050, a one year revocation of
driving privileges followed by 24 months with a certified ignition
interlock device. Including fines and assessments, costs of
incarceration, and other fees, the minimum monetary assessments could
easily exceed $12,000.
Back to top
4. What Is An Aggravated D.U.I.?
Aggravated D.U.I. is a class four felony that carries a range of
sentence from a mandatory minimum of four months to a maximum of 3.75
years in the Arizona Department of Corrections. It also carries a
three-year license revocation and supervised probation after you have
been sentenced to prison and your prison term is less than one year.
This is essentially a simple D.U.I. committed by a person who either has
a suspended, cancelled, revoked or restricted driverÕs license or has
two prior D.U.I. convictions within the previous seven (7) years. One
can also be charged with an aggravated D.U.I. if there is a passenger in
the vehicle under the age of 15. This is a class six felony with a range
of sentence from one day to 2 years in prison. It also carries a
three-year license revocation.
Back to top
5. What does Òunder the influence of alcoholÓ mean and how do I know if
I am under the influence when I am trying to decide whether or not to
drive?
ÒUnder the influence of alcoholÓ has been defined in Arizona as whether
the alcohol that you have consumed impairs your ability to drive to the
slightest degree. There are charts that are informative, but are
certainly not completely accurate. There are many variables in human
beings that can affect whether or not those charges apply to you. The
best test for you is the test that the law defines. Determine before you
drive whether or not your ability to drive is at all impaired by the
alcohol that you have had to drink.
Back to top
6. If I am stopped by a police officer after drinking, what should I do?
If you are pulled over or stopped by an officer and he begins to
question you about your drinking or asks you to perform any tests, you
should immediately ask to call an attorney. If the officer refuses to give you an opportunity to contact
an attorney, do not argue with him, but make a mental note of exactly
when you requested that attorney and what you said as well as the
officerÕs response. This failure by the officer is a serious violation
of your constitutional rights that could ultimately result in the
dismissal of your case if it can be established in court. Do not agree
to answer any questions since the United States Constitution provides
you with the Fifth Amendment right to silence. You are required to
produce identification, your driverÕs license, registration, proof of
insurance and, if requested, submit to an analysis of your blood, breath
or urine. Most of the other questions that the officer would like to ask
you are designed to incriminate you even if inadvertently. It is our
opinion that you should almost always refuse to perform any field
sobriety tests or other physical tests, including the ÒeyeÓ test in
which an officer asks you to follow his pen back and forth. You have the
right to refuse this test and the officer does not have a right to
impose any sort of penalty for your refusal. The tests are extremely
difficult, especially when one is in a situation which they are stressed
or nervous. It is extremely unlikely that your performance on the tests
will be good enough to cause the officer to release you at that point
without requesting a further chemical test. Additionally, most of the
time, you are not going to be aware of what the grading criteria for the
test is. It is like taking a test at school without ever having read the
material or taken the class. You are unlikely to do very well.
As stated previously, you should immediately ask the police officer for
the opportunity to speak to an attorney once it appears to you that he
suspects that you might be D.U.I. You have the absolute right to consult
with counsel as soon as reasonably possible after your request.
... if at the time you are unsure of who to
call or donÕt have the phone number, the officer must provide you with a
telephone book in a reasonable amount of time to make calls and to
obtain a private phone call with an attorney.
Back to top
7. What tests do I have to take?
Arizona law requires that once you have been arrested for D.U.I., you
must submit to analysis of your blood, breath or urine if requested by a
police officer. Keep in mind that the officer has the right to choose
the type of test you take, as well as how many times you have to take
it. If you refuse to take the requested tests, the Arizona Department of
Motor Vehicles will attempt to suspend your driving privileges for a
period of 12 months, or 24 months if you have a prior refusal to submit.
Our advice is generally to agree to submit to the chemical test for two
reasons:
1. 1. If you refuse, you will lose your license for at least one year
and you will still be cited for D.U.I.; and, 2. 2. In almost every
jurisdiction in the State of Arizona, the officers will simply get a
telephonic court order and forcibly take blood from you. You then end
up in the worst of both worlds - you will still have a D.U.I. that
you need to defend, as well as a one-year license suspension for
which you will need an attorney to try to fight at the Motor Vehicle
Division.
If you are arrested for D.U.I. during a time when you are required to
have a certified ignition interlock device, a refusal to submit to a
test of your breath, blood or urine can be charged as a class six
felony.
Back to top
8. What are these tests?
Typically, in the valley, the method used to analyze the blood alcohol
content is the breathalyzer or intoxilyzer. This is a machine in which
you give a breath sample which is analyzed for breath alcohol content.
Remember, before you are required to submit to the test, you must first
be told that you are under arrest by the police officer. Typically, when
you are placed under arrest, you will know it because the police officer
will tell you that you are under arrest for driving under the influence
of alcohol and he or she should read to you your ÒMirandaÓ rights, as
well as the requirement that you submit to a breath, blood or urine
analysis.
You do not have a choice as to which method will be used for testing.
That is the officerÕs choice. The cities of Mesa, Scottsdale, Chandler
and Gilbert are different from other jurisdictions in that most alcohol
analysis is done by the taking of blood. First, you must agree to submit
to the blood test or lose your driverÕs license for 12 months. If you
are taken to a hospital for a blood draw, you can consent to have blood
drawn, but refuse to release the hospital from liability. When the
police take you to the hospital for a blood test, before the technician
at the hospital will take your blood sample, he/she is required by the
hospital to get you to sign a release of liability to the hospital in
case, for some reason, because of the method of taking blood, you get
sick or contract a disease.
It has been determined by an opinion of the Attorney General in Arizona
that you do not have to release the hospital from liability. Simply tell
the police officer that you will submit to the test, but that you will
not release the hospital from liability. By doing this, you have not
ÒrefusedÓ to take a test, but a sample of your blood will not be taken
by the hospital staff because they are not permitted under their own
standards to do this unless you sign the release. Make sure, however,
that you are very clear when telling the police officer what you will
do, and that is that you will submit to the test, but you will not
release the hospital from liability. The police officer may, at that
point, require you to submit to a breath analysis which you generally
should take for the above stated reasons, if this is your first offense.
Back to top
9. Do I have to answer any questions?
You do not have to answer any questions that the police officer asks
you. Remember, the only thing that you have to tell the police officer
is your name, your address, produce your driverÕs license, registration,
proof of insurance and, if requested, submit to an analysis of your
blood, breath or urine. First, before the police officer may formally
ÒinterrogateÓ you, he must read to you your Miranda rights. The very
first Miranda warning is that you have the right to remain silent.
Exercise that right! All you do by talking is help the police officer
gather evidence against you. You are not going to convince the police
officer that you arenÕt drunk, so donÕt even try. You do not have to
give the police officer any other evidence and you should not. You will
not be penalized in any way for politely refusing to answer any
questions or perform any field sobriety tests.
Back to top
10. Do I have the right to speak with an attorney?
Prior to answering questions or performing any tests, you should
immediately begin asking the police officer if you can speak to your
attorney. You have an absolute right to consult with an attorney as soon
as possible after your request. You are also entitled to speak in
privacy. Our firm answers those calls 24 hours a day, seven days a week.
Back to top
11. If arrested, can the police officer immediately take my driver's
license?
As stated previously, convictions of D.U.I. charges will result in
mandatory license suspensions. However, often when an officer has
obtained the results of the chemical test at the time of the arrest, or
you have refused to submit to a test of your blood, breath or urine, the
officer may take your license administratively, and give you a temporary
driving permit. This is called an Òadmin per seÓ or Òimplied consentÓ
suspension and will result in a 90-day suspension if the officer
obtained results of the chemical test at the time of the arrest, or a
one-year suspension if you refused to submit to a test of your blood,
breath or urine. These are separate proceedings from the criminal case
and your license could be suspended even prior to your ever getting to
court on the D.U.I. case if you ignore the paperwork. However, if a
hearing is requested within the fifteen (15) day period after your
arrest, the license suspension will be stayed and you are entitled to a
hearing in the future as to whether or not your license will be
suspended based upon the circumstances of your arrest, as well as the
apparent operating condition of the intoxilyzer or breathalyzer. The
best advice is to contact a D.U.I. expert attorney immediately so that
he or she can analyze the situation and take action to prevent the
interruption of your driving privileges.
Back to top
12. If arrested, can the police officer immediately seize my car?
If you are charged with extreme D.U.I., the officer may seize your car
for a period of 30 days and you would be required to pay for the cost of
towing and impoundment. You do have the ability to request a hearing for
the release of the vehicle prior to the expiration of the 30 days. If it
is determined that another person has an ownership interest in the
vehicle, such as a spouse, as long as the vehicle has valid registration
and insurance and the person with ownership interest can provide a valid
license, the vehicle would be released to that person prior to the
expiration of the 30 days.
Likewise, if you are charged with underaged drinking and driving, your
vehicle may also be seized for 30 days and you would be required to pay
for the cost of towing and impoundment. You do have the ability to
request a hearing for the release of the vehicle prior to the expiration
of the 30 days. If it is determined that another person has an ownership
interest in the vehicle, as long as the vehicle has valid registration
and insurance and the person with ownership interest can provide a valid
license, the vehicle would be released to that person prior to the
expiration of the 30 days.
Back to top
13. What is an ignition interlock device and do I need to install one on
my vehicle?
As of September 19, 2007, a conviction for any D.U.I., including first
offenses, requires the installation of a certified ignition interlock
device in your vehicle for at least 12 months. A certified ignition
interlock device is installed near the steering column of your car and
is connected to another device that operates as a form of
Òbreathalyzer.Ó You must first blow into the mouthpiece prior to
starting your vehicle. If the device detects alcohol, the vehicle will
not start. Also, the failed attempt is recorded in the internal memory
of the device which is monitored by the interlock company every 60 days
and reported to the Motor Vehicle Division. After the vehicle is
started, the device will signal the driver to blow in the vehicle again
at random times during the trip to assure that the driver has not begun
consuming alcohol after the vehicle has been started. The cost of the
certified ignition interlock device is approximately $80 per month. A
person convicted of ÒsuperÓ extreme D.U.I. with an alcohol concentration
of .20 or higher is required to maintain the ignition interlock device
for at least 18 months. A person with an extreme D.U.I., second offense,
with an alcohol concentration of .20 or higher is required to maintain
the device for at least 24 months.
Back to top
14. Can the Court order me to quit drinking alcohol?
In addition to the penalties described above, the conviction of a first
offense extreme D.U.I. or any second offense D.U.I., the court may
require 30 to 90 days or more of continuous alcohol monitoring, or twice
daily alcohol testing, to be determined at the time of sentencing.
Continuous alcohol monitoring is generally effected by what is known as
a ÒSCRAMÓ bracelet. This device is an ankle bracelet that can detect
alcohol in your system and alert the monitoring facility. If the
monitoring facility detects that you have consumed alcohol at any time,
it will alert the court and the court can take punitive action against
you.
Back to top
15. Do I really need an attorney if I am arrested for D.U.I.?
The answer to this question is yes. As you can see, the penalties are
extremely severe even if you are a first offender. However, contrary to
what the press or the police may want you to believe, D.U.I.Õs can be
very defensible if handled by an experienced attorney. They are very
complicated cases and the scientific evidence that is used to
essentially establish guilt or innocence in a court is far from perfect.
The body of law regarding D.U.I. cases is much different than that of
other types of criminal cases. The Supreme Court once referred to it in
one of its opinions as the Òsubculture of D.U.I. law.Ó Because of the
uniqueness of the evidence in a D.U.I. case, the law in many ways
imposes much more stringent requirements upon the police and the
government in the gathering of evidence and the assurance of timely
preservation of our Constitutional rights in order to put together a
case that will stand up against a knowledgeable expert defense.
Return to Arizona DUI Lawyers
|