Mar 7 2018

Phoenix DUI Attorney – Kelly Law Team

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Let The Legal Process Work In Your Favor For Your DUI Charges

Frequently Asked DUI Questions

What is Driving Under the Influence (DUI) in Arizona?

The first step in dealing with the charge against you is to understand the nature of a DUI case. The offense of driving under the influence is set forth generally in A.R.S. § 28-1381. That section states that it is against the law to drive, or to be in actual physical control, of a vehicle while you are (a) under the influence of alcohol or drugs, (b) if you have a blood alcohol concentration (BAC) of 0.08 or more, or (c) while you have any drug (including dangerous drugs, narcotics, and marijuana) or its metabolite in your system. In the case of commercial drivers, the same prohibitions apply, except that the statute provides that you are driving under the influence if your BAC is 0.04 or higher.

The law also states you can be convicted of DUI if, as the result of liquor or drugs, you are “impaired to the slightest degree.” So even if you “pass” a breath test, and show, for example, a BAC of 0.05, you can still be convicted of DUI based upon impairment.

The issue of “actual physical control” (APC) arises in situations where the police do not find you driving, but, for example, sitting in a vehicle by the side of the road. The engine may or may not be running, you may be awake or sleeping, you may be sitting in the driver’s seat or the passenger seat, the keys may or may not be in the ignition. In these cases, whether you are in actual physical control will involve an analysis of all the surrounding circumstances.

What Happens if I am Pulled Over for Drunk Driving?

There has been a significant increase in the number of DUI patrols and sobriety checkpoints in our area. Your chances of being stopped for suspicion of DUI, or even on a random checkpoint, are greater than ever.

If you are stopped by the police, and there is a suspicion that you are under the influence, you will likely be asked to submit to a preliminary alcohol screening (basically a roadside breath alcohol test), as well as several field sobriety tests (FST’s). You may be asked to submit to other tests. While you are not required to do so, refusal can result in your license being suspended.

If, after being tested, the police arrest you for DUI, this is not the end of the matter. Being arrested does not spell doom, and the basis for the arrest can be challenged. Blood alcohol tests are often inaccurate, FST’s rely on the subjective judgment of the officer administering them, and even the traffic stop that began the process may have violated your rights.

What Are the Differences When Driving Under the Influence of Drugs?

A charge of driving under the influence of drugs has a number of aspects that differ from cases of alleged drunk driving. In the first instance, there is no preliminary screening device that can measure the level of drugs in your system. And even if you underwent a blood test, while the presence of one or more drugs may be detected, these tests do not provide information to measure impairment.

The evidence in DUI drug cases is often provided by a drug recognition expert (DRE). Theoretically, at least, a DRE is trained to determine whether a person is under the influence of drugs, and in some cases even determine the nature of the drug involved. On the other hand, may so-called DRE’s are not certified as such, and in any event the analysis is subjective, and can be challenged in court.

Another issue in DUI drug cases, one that is an evolving area of the law, concerns A.R.S. § 28-1381A3. This is the section of the DUI statute that says you can be charged with DUI if there is any drug or metabolite of a drug in your system. Theoretically, if you used a drug days ago, are no longer affected by the drug to any degree at all, you can still be found guilty of DUI, notwithstanding that there is not even an allegation of impairment. The Arizona Supreme Court has ruled, however, that in the case of marijuana, the mere presence of a metabolite of the drug (carboxy-THC) is insufficient evidence of impairment. This ruling affects both those using pot legally (medical marijuana) as well as illegally.

There is an exception to the metabolite section of the law. While that exception does not protect you if you are in fact impaired by a drug, where you are charged with the mere presence of the drug (or a metabolite) in your system, it is a defense if you were entitled to use the drug under state law, i.e. if you took the drug pursuant to a valid prescription.

What Is A Misdemeanor DUI?

In the absence of additional or aggravating factors, DUI is a class 1 misdemeanor. The potential penalties include jail time, fines, assessments, license revocation, installation of an IID (ignition interlock device) on your vehicle, and points on your license, among others. The penalties increase if this is your second DUI within 84 months.

What is an Extreme DUI?

If your BAC is 0.15 or higher, the charge against you will be extreme DUI. The effect of this will be enhanced penalties, including a minimum jail sentence and increased fines. The enhancements are even greater if your BAC is 0.20 or more, which is known as super extreme DUI.

What is an Aggravated DUI?

There are a number of different factors that can lead to a charge of aggravated DUI. They include (a) being convicted of driving under the influence while your license is suspended, cancelled or revoked due to a prior DUI; (b) being convicted of a third or subsequent DUI within 84 months; (c) being convicted of DUI with a child under the age of 15 is in your vehicle; or (d) being convicted of DUI while under a court order to equip your vehicle with an IID. All these charges are felonies, with corresponding increases in potential jail or prison time, among other consequences.

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