Absorption Defense/Rising BAC Defense: In many states it can be argued that if a person has consumed alcohol rapidly just prior to driving, then that alcohol has not absorbed into their system at the time they actually drove. They may be stopped by an officer shortly thereafter, and then not tested until an hour later. At that time, their BAC (Blood Alcohol Concentration) is much higher than it was “at the time of driving”. This used to be known as the “slam dunk defense” when a person would testify that they “slammed” a couple of shots just prior to leaving a bar. In Arizona, it is now only required to show what a person’s BAC was “within 2 hours of driving”, and not actually “at the time of driving”, when dealing with what is known as the “A2” charge under the Arizona Revised Statute ARS 28-1381 A2. However, under the “A1” charge per Arizona Revised Statute ARS 28-1381 A1, you can show that you were not “impaired to the slightest degree” while operating the motor vehicle and that the BAC result an hour later is irrelevant as to “at the time of driving”
Absorption Rate: In Arizona, the time it takes for alcohol to absorb into a person’s blood stream is known as the Absorption Rate. Factors of which can affect the time it takes to absorb alcohol are such things as food, the type of food, biological factors, and what type of alcohol was consumed. On an empty stomach, it can take up to 51 minutes, and up to 2 and a half hours for peak absorption of a full stomach.
Administrative Per Se license suspension: In Arizona, when somebody is arrested for DUI the Police Officer will confiscate the individual’s plastic driver’s license. They will be provided a “yellow form” which allows the person to drive for the next 15 days in order to allow them to use the “pink form” to request a DMV hearing. If a blood test was obtained, at the point the blood results are known, then the 15 days to request a hearing will begin running. If the blood results are below the .08 legal limit, then the license is mailed back and there is no suspension. If the reading is above an .08, and the individual loses at the hearing, they will be suspended for 90 days. It is best to consult an Attorney immediately after receiving an Administrative Per Se license suspension.
BAC (Blood Alcohol Concentration): BAC is the acronym used to refer to a person’s Blood Alcohol Concentration. In Arizona, the legal limit is a .08 BAC. This refers to .08 grams of alcohol per 100 milliliters of blood. This is a very small amount. As a visual demonstration, this would amount to about 1 raisin’s worth of alcohol per volume contained in a third of a soda can’s worth of blood per volume. This can be tested either by a, blood, urine or breath conversion.
Burn Off/ Elimination Rate: In Arizona, this is the time it takes for the alcohol in the body to metabolize or “burn off” and be eliminated in a person’s blood system. The number 1 factor affecting elimination rate is metabolism, combined with age, weight, various medical conditions and a person’s alcohol tolerance. The higher tolerance a person has for alcohol, the faster they will burn it off.
Conditional/Temporary Drivers’ License: This is the “yellow copy” which is attached to either an Administrative Per Se or Implied Consent license suspension form. This is given to the person at their arrest if they refuse to take a chemical test, or if they did take a test and the reading was above a .08. In Arizona this allows a person to drive for 15 days in order to give them time to request an actual hearing with the “pink copy”. Once the hearing is requested, they are allowed to continue driving until the date of the actual hearing.
DUI: In Arizona this stands for Driving Under the Influence per Arizona Revised Statute ARS 28-1381 A1. The definition is that if a person is “impaired to the slightest degree to operate a motor vehicle safely due to the consumption of alcohol”, then they are Driving Under the Influence. In Arizona, a second charge of DUI can be added per Arizona Revised Statute ARS 28-1381 A2, if the person’s Blood Alcohol Concentration is a .08 or higher. Some people call this second charge the DWI.
DWI: In Arizona all Driving Under the Influence charges are called DUI’s. However, per Arizona Revised Statute ARS 28-1381 A2 some people will refer to the charge of being above a .08 Blood Alcohol Concentration as a “DWI”.
Finger Count Test: This test involves taking a pinky and touching your thumb on the same hand and saying “one”. Then the ring finger, middle finger, index finger finishing out as 2, 3, and 4. Then the person is to count going backwards from 4-1 in reverse order. This is not a Standardized Field Sobriety Test (SFTS) and is not validated under NHTSA (National Highway Traffic Safety Administration).
Finger to Nose Test: This is not a Standardized Field Sobriety Test (SFST) validated per NHTSA (National Highway Traffic Safety Administration). This test requires a person standing still with their hands off to the side and pointing with their index fingers. Their head is to be tilted back, eyes closed, and then when the officer says “left” or “right”, the person is to raise that hand and touch the tip of the nose with the tip of their finger. After 6 different commands, the officer supposedly determines if somebody “passed or failed”. This test can be easily attacked by a skilled DUI lawyer.
FST (Field Sobriety Test): These are physical tests that supposedly measure whether a person is impaired by alcohol and/or drugs. Only 3 of these tests are Standardized Field Sobriety Tests (SFTS’s) validated by NHTSA (National Highway Traffic Safety Administration). These include the One Leg Stand, Walk and Turn and HGN (Horizontal Gaze Nystagmus). In Arizona, the government will claim that if 2 or more cues are observed on any of these tests that they can predict with a certain probability that somebody is above a .08 BAC (Blood Alcohol Concentration). The other 3 tests that are not validated include the Finger to Nose Test, the Rhomberg Modified Test the Finger Count Test. In reality, these tests can be easily attacked by an experienced criminal defense attorney.
HGN (Horizontal Gaze Nystagmus): This is considered to be the most reliable of the 3 Standardized Field Sobriety Tests (SFST’s) approved by the National Highway Traffic Safety Administration (NHTSA). In Arizona, the test normally involves standing still while looking at the tip of an Officer’s pen approximately 12-15 inches from a suspect’s face. The pen is then moved side to side to determine if the eyes are jerking or bouncing. That jerking or bouncing is an involuntary action known as “nystagmus”. All people have a natural nystagmus however, the nystagmus is exaggerated with a higher level of Blood Alcohol Concentration (BAC). The Officer is specifically looking for 3 cues in each eye: lack of smooth pursuit, onset at maximum deviation and onset prior to 45 degrees. This test can be easily attacked by a skilled criminal defense attorney.
Ignition Interlock Device: In Arizona, after a person is convicted (or in order to get ones license back), a requirement will be imposed which mandates the installation of an Ignition Interlock Device. This device requires that a person blows into it in order to start a car, and every 15 minutes after the engine is running, in order to show that they are not above a .020 BAC (Blood Alcohol Concentration). If a person does not blow into the device upon command, a person’s engine can be shut off. In addition, if there is a failed test, this will be recorded and will be reported by the Ignition Interlock Device provider to the MVD (Motor Vehicle Department), and a person’s license can be suspended. In Arizona, if somebody receives a DUI while they have a requirement to have an Ignition Interlock Device on their vehicle, they will automatically be charged with a felony Aggravated DUI, which carries a mandatory minimum 4 months in prison.
Implied Consent Suspension: If somebody drives in the state of Arizona, they “Impliedly Consent” to a test of their blood, breath and/or urine at the request of a law enforcement officer. If they do not voluntarily provide the requested test or tests, their license can be suspended for one full year. This is known as the Implied Consent Suspension.
Intoxilyzer: In Arizona, the Police use the intoxilyzer 8,000 mainly. Older machines would include the intoxilyzer 5,000. Many people simply call this the “breathalyzer”. After a small amount of breath is captured by the machine and using a “conversion ratio”, it converts it as though it is measuring the amount of alcohol vapor floating within 2,100 liters of breath. As a visual, think of inflating a 55 gallon drum as if it were a blow up pool toy. The amount of alcohol floating around in that vapor would determine your Breath/Blood Alcohol Concentration (BAC). These machines have numerous flaws and are easy to refute.
Intoxilyzer 8,000: The Intoxilyzer 8000 is the breath testing device most commonly used in Arizona. It is the successor to the Intoxilyzer 5,000. However, most jurisdictions in Arizona are switching to blood testing.
MIC (Minor in Consumption): Minor in Consumption in Arizona per Arizona Revised Statute ARS 4-244.41 involves anyone under the age of 21 years of age who has consumed alcoholic beverages.
MIP (Minor in Possession): Minor in Possession per Arizona Revised Statute ARS 4-244.9 usually refers to anyone under the age of 21 possessing alcohol beverages. In Arizona, it is not necessary that the person actually consumed the alcohol beverage, just that they are possessing it without a parent or guardian immediately present.
Miranda rights: These are the rights which are afforded to all American citizens who are in custody pursuant to the US Supreme Court case of Miranda v. Arizona. These rights are to be given prior to questioning, and always begin with “You have the right to remain silent”. In Arizona, during a DUI investigation Officers are allowed to ask a couple of questions prior to reading Miranda rights. These include; “Have you been drinking, how much and when did you last drink”. Questions beyond those 3 can be suppressed if proper motions are filed by a skilled criminal defense lawyer.
One Leg Stand: This is one of the Standardized Field Sobriety Tests (SFST’s) validated per NHTSA (National Highway Traffic Safety Administration). In Arizona, it involves standing still with a person’s hands to their side and one foot raised approximately 6 inches off the ground. The person is then instructed to count “1,001, 1,002” all the way up to 1,030. If a person’s hands leave their side by more than 6 inches, or their foot touches the ground, they will be marked off as having not done the test properly. This test can be successfully attacked by a skilled DUI defense lawyer.
OUI/Boating DUI: In Arizona, per Arizona Revised Statute ARS 5-395 an OUI stands for “Operating Under the Influence”, and is only cited for a DUI while operating a boat impaired to the slightest degree by alcohol. OUIs still carry mandatory minimum jail sentence depending on how high a person’s BAC (Blood Alcohol Concentration) is.
Rhomberg Modified Test: This is not a standardized Field Sobriety Test (SFST) validated by NHTSA (National Highway Traffic Safety Administration). This test involves a person standing still with their hands to their side, head tilted back and eyes closed. They are then to count “1,001, 1,002, etc.” up until 1,030. Sometimes they are asked to do this silently in their head, and this is known as an “internal clock test”. This test can be easily rebutted by a skilled DUI attorney.
Sobriety Check Point/Road Block: In Arizona, law enforcement officers are allowed to set up road blocks that are known as “Sobriety Check Points” in which they are permitted to stop every vehicle on a pre designated location and ask people if they have been drinking. They then will look to see a person’s eyes, their mannerism and they will attempt to see if they smell of alcohol. If they have reasonable suspicion, they will then ask that person to pull over and they will continue their investigation. Many people feel that they can simply keep their window cracked only 1 inch and/or put up some type of business card up to the window and that the police must let them drive on without furthering their investigation. In Arizona, the officers will issue a command immediately that you are to pull over and roll down your window so that they can speak to you. If you do not comply, they most likely will smash out the window, pull you out of the car and then cite you for the criminal act of “Failure to Obey a Lawful Order”. Attacking check point/road block cases requires a DUI defense attorney who is highly skilled.
Substance Abuse Screening/DUI School: This is sometimes called “SASS” (Substance Abuse Screening Services). It is required after the conviction for DUI and normally involves being screened to do either 16 or 32 hours of classes. It can occur either after conviction, or it may be required in order to reinstate driving privileges. Other states can refer to this as DUI Alcohol/ Drug Use Risk Reduction Programs.
Vehicle Impound: After DUI arrests in Arizona, law enforcement officials are allowed to take your keys and “impound” your vehicle. A tow truck will then take it to a specific tow yard, and the car cannot be released to the driver unless they avow that they will not drive it for the next 30 days. Also, if the vehicle is released to somebody other than the driver (such as a spouse), that person must sign a form avowing that they will not let the person drive the vehicle for the next 30 days, or they may also be in trouble. There is also an impound fee to get the vehicle released. A qualified DUI defense lawyer can help navigate a rapid return of a defendant’s vehicle.
Walk and Turn Test: This is one of the Standardized Field Sobriety Tests (SFST’s) which is validated by NHTSA (National Highway Traffic Safety Administration). In Arizona, this test involves a person standing with one foot directly in front of the other and touching them (as if standing on a tight rope). The person’s hands are to remain by their side, then they are to walk forward 9 steps heel to toe. After the 9th step, there is a very specific turn maneuver that is required, and then they are to walk back 9 steps heel to toe. All the while, they must count the step 1-9 on the way up, and 1-9 on the way back. This test can be easily attacked by a skilled DUI defense attorney.
Underage Drink and Drive: This is sometimes referred to as a “baby DUI” in Arizona. Per Arizona Revised Statute ARS 4-244.34 it actually does not actually require any type of impairment be proved, and only requires that somebody under the age of 21 had consumed alcoholic beverages and then was driving a motor vehicle. It can result in a suspension of one’s driver’s license for up to 2 years.