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ARS §5-395 – OUI / Boating DUI and DWI

Play this video to see to David Michael Cantor talk about being arrested for anOUI in Arizona:

Whether in the Phoenix area, or anywhere in Arizona, per A.R.S. §5-395Operating or In Actual Physical Control of a Motorized Watercraft While Intoxicated” or “OUI” involves operating a boat, jet ski, SeaDoo, Waverunner, or any other personal watercraft while impaired to the slightest degree by the consumption of alcohol, or above a .08% blood alcohol concentration within two (2) hours of operating the watercraft. In addition, a person can be “Extreme OUI:” if they are above a .15% blood alcohol concentration within two (2) hours of operating the watercraft.

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First Offense OUI Misdemeanor:


The penalties for a first conviction of OUI
are: potential jail which can be suspended upon completion of mandatory attendance at alcohol screening (approximately $100); any recommended classes (approximately $200-400); and a minimum fine and surcharge of approximately $2100.00. The maximum can be six (6) months’ jail.

Per A.R.S. §5-397 “Extreme OWI” – .15% and above BAC; carries a first offense mandatory minimum thirty (30) days jail-only twenty (20) can be suspended; a $2500.00 fine and alcohol classes double.

Second Offense OUI Misdemeanor:

A conviction for a second Non-Extreme OUI within five (5) years from the first conviction, the penalties are: at least ninety (90) days in jail – sixty (60) days can be suspended only upon completion of the mandatory alcohol screening classes outlined above; a minimum fine and surcharge of approximately $2500.00. The maximum can be six (6) months’ jail. Per A.R.S. §5-397, “Extreme OWI” – .15% and above BAC (with a prior OUI conviction within five (5) years of this offense); mandatory minimum one hundred and twenty (120) days jail – only sixty (60) can be suspended; fine of approximately $2500.00 and alcohol classes double.

Third Offense OUI Misdemeanor:

A conviction for a third OUI or Extreme OUI within five (5) years from the first violation can result in: six (6) months in jail along with the additional penalties of alcohol screening classes; and a minimum fine and surcharge of approximately $2500.00.

WARNING: the prosecutor has the option of charging a third offense misdemeanor as a first offense felony… and they usually do!

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Aggravated OUI Charges:

If the Prosecutor decides to charge a third offense misdemeanor as a first offense felony, then this would be called a “Aggravated OUI” per A.R.S. § 5-396. If convicted, there is a mandatory minimum sentence of four (4) months in prison with a maximum of one (1) year of incarceration. If the Defendant has three (3) prior convictions of misdemeanor OUI, and this would be his fourth, now he is subject to a mandatory minimum prison sentence of eight (8) months, and a maximum of two (2) years of incarceration.

Possible Defenses for OUI/Boating DUI & DWI in Arizona

“No Reasonable Suspicion to Stop” Officers are not permitted to stop or detain someone based on pretexts regarding race, religion, gender, age, sexual preference nor on a host of other possible unjustifiable reasons.

“No Actual Physical Control” If a person has had too much to drink, pulls off the main water-way, leaves the engine running with the A/C or heater on, and attempts to “sleep it off”, then they are not in “actual physical control” of their vehicle and are not guilty of Boating OUI or OWI.

“No Probable Cause for Arrest” If an officer did not have probable cause that a person was actually under the influence of alcohol, then the arrest will be invalidated (i.e. if the Field Sobriety Tests (FSTs) were improperly administered). The National Highway Traffic Safety Administration (NHTSA) has set forth guidelines regarding FSTs. The tests should not be given if the suspect:

  • is 50 pounds or more overweight
  • is 65 years of age or older
  • has any back, hip, leg, knee, or ankle injuries
  • has any disability effecting balance
  • is wearing shoes with heels two (2) inches or higher

Remember, you always have the right to refuse Field Sobriety Tests (i.e., the “physical” tests). Do not believe the Officer if he tells you otherwise!

If the Horizontal Gaze Nystagmus (HGN) or “eye test” was given by an officer not yet certified to give that test, it will be inadmissible in court.

Note: if the only basis for arrest is refusing to perform FSTs, then the arrest will be invalidated.

“Denial of Right to Counsel” When arrested for Boating OUI or OWI, upon requesting a DUI Attorneys in Arizona, the police must get you to a phone as soon as it is reasonably possible. If they ignore your request, or wait too long, this could be grounds for dismissal. (See also THE RIGHT TO REMAIN SILENT-USE IT! Section).

“Inaccuracy of the Breath Testing Device” The AZ Department of Health Services (DHS) has set forth rules for the proper maintenance of breath testing devices. They must be calibrated to within a 10% accuracy range every 31 days. In addition, the machine goes through a seven (7) test Standard Quality Assurance Procedure (SQAP) every 90 days. If any of the maintenance checks are “out of tolerance”, then all breath tests given during the time interval between the two maintenance checks will be inadmissible. The prosecutor will not point this out for you.

The “Common Defenses” for Boating OUI & OWI, which an Boating OUI & OWI Lawyer may apply in any criminal case are numerous and diverse. One of most common defenses we encounter is a “Miranda rights Violation”. In Arizona, the standard of whether any inculpatory statement (i.e., a statement which tends to admit guilt) is admissible into evidence is based upon a “Voluntariness” standard. If we can demonstrate that the police coerced you (i.e., intimidated or tricked you) into making a confession or inculpatory statement, or that they did not properly read you your Miranda Rights, then we can suppress those statements and any evidence gathered as a direct result of those statements. In addition, “Denial of right to Counsel” is another common defense which is often raised. This occurs when a suspect is in custody and requests to speak to their Attorney, but is denied and questioning continues. Other defenses may include challenging the validity of any search warrant, or whether there were any “forensic flaws” during the investigation of your case. Depending on what you have been charged with, this could include exposing flawed procedures regarding blood, breath, and urine testing; fingerprints analysis; DNA testing; ballistics; gunshot residue testing; computer analysis/”cloning hard drive” procedures; forensic financial accounting reviews; etc. Lastly, one of the most common defenses is exposing sloppy or misleading police reports which include everything from misstatements, false statements, flawed photo line-ups and inaccurate crime scene reconstruction. It is important to hire a skilled Boating OUI & OWI Lawyer to defend you who has knowledge of both the specific defenses and the common defenses involved in an Boating OUI & OWI case.

“Blood, Breath or Urine Test Refusal Cases”: If you refuse to give a blood, breath or urine test, the law enforcement officer cannot have MVD suspend your license. However, you will be subject to a civil penalty of  $750.00. Again, it is always important to request to call and speak with a OUI Attorneys in Arizona prior to making the decision to submit to a blood, breath or urine test.

It is important to hire an AV® rated law firm (the highest possible rating by Martindale Hubbell®). Also, David Michael Cantor is a OUI Attorney in Arizona and a Certified Criminal Law Specialist, per the Arizona Board of Legal Specialization. In addition, the Firm and all of its lawyers are listed in the Bar Register of Preeminent Lawyers®. At the Law Offices of David Michael Cantor, P.C., the majority of our Attorneys are ex-Prosecutors, and all of our OUI Attorneys in Arizona know the system well. For a free initial consultation, call us at 602-307-0808, or click here to contact us now.

Contact The Law Offices of David Michael Cantor and speak to a DUI Attorney in Arizona. We will assist you with your Boating OUI & OWI case.

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