Phoenix DUI Defense Attorney (ARS 28-1381)
Arrested for a DUI in The State of Arizona? Call the Best DUI Attorney in Phoenix.
Consultations are free (602) 307-0808
Click on a link below for more information and video on Arizona DUI Charges (ARS 28-1381) & DUI Defense:
- Possible Punishments for DUI Charges
- Misdemeanor DUI / DWI Charges
- Drug DUI Charges
- DUI Defenses
- Dealing with the Arizona DMV
Possible Punishment / Penalties for a DUI in Arizona
First Offense DUI Penalties / First Time DUI Charges. Regular Misdemeanor.
Regular DUI or DWI (ARS 28-1381) – The penalties for a first conviction of non-extreme DUI or DWI are:
- A mandatory minimum of 10 days in jail – 9 days can be suspended only upon completion of mandatory attendance at alcohol screening (approximately $100)
- Any recommended classes (approximately $1,00)
- A minimum fine and surcharge of approximately $2,500.00
- A maximum of six (6) months in jail.
In addition, the court must order one (1) year of a mandatory IID (Ignition Interlock Device) being installed in your car, which requires you to blow into the device every time you start your car. You must then continue to blow into the device every 15 minutes to keep your car’s ignition on!
Lastly, if the court chooses, they can order “more than twelve months” of an interlock device in severe cases.
Second Offense Misdemeanor:
Regular DUI or DWI – A conviction for a second non-extreme DUI or DWI within seven (7) years from the first conviction, the mandatory minimum penalties are:
- At least 90 days in jail-60 days can be suspended only upon completion of the mandatory alcohol screening classes outlined above
- A minimum fine and surcharge of approximately $3,500.00
- 30 hours community service; the Motor Vehicle Department (MVD) will revoke your driving privileges for at least one (1) year
- One (1) year of a mandatory IID being attached to your steering wheel after all suspensions completed at a cost of approximately $1,500.
Third Offense Misdemeanor:
The prosecutor has the option of charging a third offense misdemeanor as a first offense felony, Aggravated DUI. . . and they usually do!
Read this page to learn more about Arizona DUI Laws, Penalties, Defenses, and Dealing with the DMV. Then contact Arizona DUI Lawyer David Michael Cantor if you have been charged with DUI/DWI Misdemeanors. You can call our offices 24 hours a day at (602) 307-0808.
The Difference Between DUI & DWI in Arizona
Both DUI and DWI charges are equally serious and carry matching punishments. Extreme DUI and Super Extreme DUI, however, carry more severe penalties. Arizona usually files two or three charges against you:
- DUI (ARS 28-1381 (A)(1)) Driving Under the Influence of intoxicating liquor (or drugs).
- DWI (ARS 28-1381 (A)(2)) Driving with a Blood Alcohol Content (BAC) of 0.08% or greater within two hours of driving.
If your BAC was 0.15% or higher then you have an Extreme DUI which you can learn more about here.
The DUI charge, by itself, does not require a breath or blood reading. It deals with suspicion of driving while under the influence, according to the manner of driving, physical and mental symptoms of impairment, or verbal admissions.
The DWI charge does require a breath or blood reading, but it does not require that the accused have a BAC of .08% or greater “at the time of driving”. It prohibits anyone from having a BAC of .08% or higher within 2 hours of driving if the alcohol was consumed while, or before, driving the car.
Call our offices to speak with a lawyer now at (602) 307-0808.
Legal Update on DUI, DWI, Extreme DUI in Arizona
In April of 2011, Senate Bill 1200 modified the language of the statute regarding jury trials for first time DUI cases. Before SB1200, Arizona Revised Statutes Section 28-1381 (f) ensured any person charged with a DUI the right to a jury trial upon request. SB1200 modified the language of that statute to give judges discretion to grant or deny requests for a jury trial for first time misdemeanor DUIs.
In some courts judges used this discretion to uniformly deny all requests for jury trials on first time misdemeanor DUIs.” West Mesa Justice Court, for example, issued a “new DUI law implementation policy” that specifically stated “anyone whose date of offense for first-time non-extreme DUI is after 12/31/11 will NOT be given the option of a jury trial.” This default position to deny jury trials violated the constitutional rights of Arizona citizens.
We filed a Special Action to the Supreme Court of Arizona to challenge the constitutionality of the Arizona legislature’s modification of Arizona Revised Statutes Section 28-1381(f). We also challenged the judges who were denying requests for jury trials. While the legislature was reviewing their decision to take away this jury trial right, we refused to allow our clients in any court to be denied the right to a jury trial.
On April 11, 2012, House Bill 2284 was signed into law. This Bill restores the jury trial rights for a first offense misdemeanor DUI charge and provides that any request for a jury trial at arraignment “shall be granted.”
DUI Drugs / Marijuana DUI in Arizona
Per ARS 28-1381 (A)(3), it is illegal to drive with a metabolite of illegal or illicit drugs in a person’s body. “Illegal” drugs are the common drugs that we all know (cocaine, methamphetamine, heroin, etc.) that are usually illegal for everyone to use. An “illicit” drug is a legal prescription drug that is possessed or used by somebody who does not have a valid prescription to consume or possess those drugs.
Under this statute, it is irrelevant whether or not you are impaired by an illegal drug while driving, and it is a “strict liability” crime to merely have an illegal drug in your system. However, the police officer still needs to have “reasonable suspicion” and “probable cause” in order to pull you over or force you to provide a blood, breath or urine test. This will be explained more thoroughly in the “Possible Defenses” section below.
If you are driving with a prescribed medication in your blood, breath or urine, you may still be charged with a Drug DUI. However, the fact that you have a prescription can be used as an affirmative defense.
Possible Defenses for DWI and DUI Charges in Arizona
There are many defenses to DUI, DWI, charges. Don’t believe the prosecutor; there are very few hopeless cases. A DUI or DWI conviction has lifelong consequences, and depending on the facts surrounding the individual case, a dismissal or acquittal is possible.
Below is a partial list of Possible Defenses for DUI, DWI, or Extreme DUI:
- “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 possibly discriminatory or legally insufficient reasons. Watch the following video to learn how David M. Cantor and his legal team handle the Arizona DUI Defense for No Reasonable Suspicion to Stop:
- “No Actual Physical Control” If a person has had too much to drink, pulls off the roadway, leaves the engine running with the A/C or heater on, and attempts to “sleep it off”, they are not in “actual physical control” of their vehicle and are not guilty of DUI or DWI. Watch the following video to hear how David M. Cantor and his legal team handle the Arizona DUI Defense for No Actual Physical Control: https://www.youtube.com/watch?v=AgHUpc1u_rY
- “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 should be invalidated.
- “Denial of Right to Counsel” When arrested for DUI, DWI, or Extreme DUI, upon requesting a DUI Lawyer 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). Watch the following video to hear how David M Cantor and his legal team handle the Arizona DUI Defense for Denial of Right to Counsel: https://www.youtube.com/watch?v=qzyKE4VvVK0
- “Inaccuracy of the Breath or Blood 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 thirty-one (31) days. In addition, the machine goes through a seven (7) test Standard Quality Assurance Procedure (SQAP) every ninety (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. Watch the following video to hear how David M. Cantor and his legal team handle the Arizona DUI Defense for Blood Test Inaccuracy of the Testing Device:
“Retrograde Extrapolation below .08% BAC at Time of Driving” (Or below .15% If Extreme DWI). It can be shown through a math calculation that any alcohol drank in the last hour prior to being stopped would still be in your stomach and not in your blood system “at the time of driving”. For example, if a one hundred and fifty (150) pound man who had a breath test of .15% an hour after he was stopped, yet he drank three beers in the last hour before leaving the bar, it can be shown that his BAC “at the time of driving” was as low as .075%. This number can go even lower due to other factors such as a ten percent variance and inaccurate blood to breath conversion ratios (i.e., “2100-1″) which are inherent to all breath testing devices.
The Arizona Legislature passed a law stating that this is only a defense to the DUI charge, not the DWI or the Extreme DWI charges. However, we will be challenging this change in the law as unconstitutional. This has already been successfully reversed in Delaware and Pennsylvania. We are currently challenging this law in the Appellate Courts. See us immediately to discuss the ongoing status of the “BAC at the time of driving” defense.
- Additionally, because our law firm fights conviction from all angles, we will assert a wide range of defenses and challenges to constitutional violations that apply in all criminal cases. The possibilities are numerous and diverse. One of those we frequently assert is a “Miranda rights violation.” In Arizona, the standard of whether an incriminating 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, the “denial of right to counsel” is another common defense which is often raised. When arrested for DUI, DWI, or Extreme DUI, upon requesting a DUI lawyer 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.) Watch the following video to hear how David M. Cantor and his legal team handle the Arizona DUI Defense for Denial of Right to Counsel. Lastly, one of the most common defense tools is exposing sloppy or misleading police reports which include everything from misstatements, false statements, flawed photo line-ups and inaccurate crime scene reconstruction.
Dealing with the Arizona DMV
Since DUI and DWI’s involve driving, the Department of Motor Vehicles also plays a role in your case. In addition to the judge in your criminal case issuing an order to suspend or revoke your driver’s license as part of your punishment, upon a report from the police department after your arrest on a DWI/DUI charge, the Arizona DMV automatically suspends your license for 90 days upon a BAC of .08% or higher in blood or breath testing, or for a year upon an arrestee’s refusal to consent to the testing. However, you may challenge this suspension if you meet the required criteria.
Breath Test and Refusal Cases:
The decision of whether one should consent to a breath test, or refuse and accept the consequences is very fact-based and depends on the individual circumstances of the case. However, here are some very general guidelines. But remember, ask to call and talk with a DUI lawyer in Arizona at DM Cantor, BEFORE making this decision.
In most first offense circumstances, it is wise to consent to a blood, breath, or urine test to determine your BAC after an arrest for DUI or DWI because refusal to consent results in one a (1) year suspension of your driving privileges. In contrast, a blood or breath test that comes back at a .08% or higher results in only an automatic ninety (90) day suspension, and a restricted driver’s license is possible.
If you have previously been convicted of a DUI/DWI within seven (7) years, it is wise not to consent to the test. Upon conviction for the second offense, you would have to serve a mandatory thirty (30) days or more in jail and will lose your license for one (1) year anyway. Thus, rather than risk the jail-time, it is wise to refuse to consent. But note: if you have previously refused to consent to a test, you will lose your driving privileges for two (2) years if you refuse to consent a second time.
If you do refuse, the officer can phone a magistrate in order to secure a “telephonic search warrant”. Once they receive this document, the officer will show it to you. At this point, if you do not cooperate in giving blood, the officers have the authority to hold you down and forcibly take the blood. Regardless of whether you have previously refused, it is always wise to agree to give blood once you are actually shown the search warrant. If you do physically resist, you can be cited with Obstruction of Justice, Aggravated Assault on an officer, Interfering with Judicial Proceedings, and numerous other charges.
WARNING: If you are currently required to have an Interlock Device on your car and you refuse to give a blood, breath or urine sample to an officer, then you can be charged with a Felony Aggravated DUI, under ARS 28-1383. Remember, ask to call and talk with a DUI Lawyer in Arizona BEFORE making this decision.
What is an Admin Per Se or Implied Consent Affidavit?
A document called the Administrative Per SE / Implied Consent Affidavit usually is issued to the driver when the results of the BAC test is .08% or higher, or if you refused to submit to the test. The document consists of a pink and yellow piece of paper. A request for a hearing must be made within fifteen (15) days from the time the Affidavit was served. This is accomplished by filling out the back of the pink sheet and sending it to the DMV address on the upper left hand of the front side. If you retain DM Cantor, then we will immediately file an official “Request for Hearing” pleading on your behalf. If this is not done, then on the 16th day the ninety (90) day suspension will immediately go into effect if you were above a .08%, or a one (1) year suspension if there was a refusal to submit to a blood, breath or urine test.
If the request for hearing is made within the fifteen (15) days, a “Hearing Date Notice” will usually be mailed out two (2) months later. The actual Hearing Date will be a month after receiving the Hearing Date Notice. During this two (2) to three (3) month time span, your license is valid and you are allowed to drive (assuming it was valid before the DUI stop). You will have the yellow copy in your possession which will serve as your “Temporary License”. If you are stopped by an officer during that period of time and he informs you that your license is suspended, simply tell him that we are your DUI Lawyers in Arizona and we have requested a hearing on your behalf. If he still cites you for driving on a suspended license, don’t panic. Simply bring in the ticket and we will take care of it. If he arrests you for driving on a suspended license, you can sue him for false arrest.
Prior to the actual DMV hearing, if you have retained DM Cantor, we will have you in for a “Pre-DMV consultation”. At this consultation, we will go over the police report with you in detail and discuss whether it will be necessary for you to appear at the hearing. We will also discuss various options regarding whether to “Void” the suspension, or whether to actually “Stipulate” to the suspension in order to receive a “Work Permit”. This will also have ramifications nullifying any potential future suspension which could result from the criminal case. All of this will have to be discussed one-on-one with a DUI Lawyer in Arizona in our office.
Blood and Urine Cases
If your case involved the taking of blood or urine during your DUI arrest, you will need to wait and see if your blood test results come back above or below a .08%. It usually takes anywhere between one (1) and six (6) months to get your results back. If your blood results are above a .08% the officer will forward a request for suspension to the DMV office. The DMV office will then notify you with a “Corrective Action Notice” (i.e., notice of suspension). The moment you receive this from the DMV, contact us immediately so we can request a hearing on your behalf. This request needs to be done within fifteen (15) days of the date of that suspension notice.
What can be confusing is that the Corrective Action Notice will state that the suspension will not go into effect until twenty (20) days after mailing of the notice. Do not let them fool you with this extra five (5) days; you must request a hearing within the fifteen (15) day period. If you are stopped by an officer after we have requested a hearing, you will not have a yellow copy of a temporary driver’s license in your possession. The officer’s computer should reveal that we have requested a hearing on your behalf. If the officer still writes you a ticket for driving on a suspended license, do not panic. Simply bring it to us and we will take care of it. If the officer arrests you for driving on a suspended license, you can sue the DMV for not imputing the hearing request into the computer (assuming you were not already suspended prior to your DUI, DWI, or Extreme DUI arrest).
Prior to the actual DMV hearing, if you have retained DM Cantor, we will have you in for a “Pre-DMV consultation”. At this consultation, we will go over the police report with you in detail and discuss whether it will be necessary for you to appear at the hearing or not. We will also discuss various options regarding whether to “Void” the suspension, or whether to actually “Stipulate” to the suspension in order to receive a “Work Permit”. This will also have ramifications nullifying any potential future suspension with regards to the first offense situations which could result from the criminal case. All of this will have to be discussed one-on-one with a DUI Lawyer in Arizona in our office.
Insurance – Additional Punishment for DUI, DWI, Extreme DUI
Until DUI, DWI, or Extreme DUI guilt is established, an insurance company should not–although some do–cancel your insurance coverage. If convicted of a DUI, DWI, or Extreme DUI, you will either be unable to get insurance coverage or you will pay roughly $3,000 or more a year, for the next three (3) years, above your current rate.
Some Final Realities on DUI, DWI, Extreme DUI
DUI also includes driving under the influence of drugs. DUI, DWI, & Extreme DUI charges are filed thousands of times in Arizona every year against people from all walks of life. These charges are serious, but defensible, with assistance from a DUI Lawyer in Arizona experienced in DUI, DWI, & Extreme DUI law.
For a free initial consultation with a Phoenix DUI Lawyer, call us at 602-307-0808, or click here to contact us now and speak to a DUI Lawyer in Arizona. We will assist you with your DUI, DWI or Extreme DUI case.