Arizona DUI Lawyer & Attorney : Koplow & Patane Law Firm : Arizona DUI Defense

It is commonly believed that “drunk driving” is the reason for a DUI charge. However, DUI stands for “driving under the influence” of alcohol or drugs. Under Arizona law, you do not have to be “drunk” to be convicted of DUI. Rather, the law requires only that your driving be impaired by alcohol; Arizona law provides that you cannot drive if your ability to do so is impaired to any degree.

When you are arrested for DUI, you generally receive two types of charges. The first alleges that you were driving while impaired by alcohol or drugs to at least “the slightest degree.” Thus, to violate the statute, you do not have to be falling-down drunk. Rather, a slight impairment of your ability to drive, due to alcohol, violates the law.

The second type of charge you receive when arrested for DUI relates to your blood-alcohol concentration (BAC). For a basic DUI allegation, you’re charged with having a BAC greater than .08 percent within two hours of driving. If your BAC is greater than .150, you may receive an additional charge of Extreme DUI (or if above .200 a "super-extreme DUI.")  These are sometimes referred to as “per se” charges, meaning that if the State can prove your BAC is above a certain limit, that alone proves a violation of the DUI statute.

Many “per se” violations are defended on the grounds that the means used to determine one’s BAC have a large range of accuracy. That is, even if the device used to test your breath or blood was working perfectly, your BAC may actually be lower than indicated. The State concedes that this range of accuracy exists. However, the real debate is over the extent of this range.

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In 2007, Arizona’s State Legislature passed two extreme DUI bills which conflicted with one another. One bill prohibited judges from reducing the extreme DUI minimum 30 day jail sentence, while the other bill permitted judges to reduce the sentence.

To resolve this conflict, the State Legislature passed Senate Bill 1004, which takes away a judge’s discretion to suspend any portion of a jail term for a person convicted of extreme DUI.

The Arizona Republic has reported:

Lawmakers moved swiftly Thursday to make more penalties for extreme drunken driving mandatory, a change designed to bring two conflicting provisions of the law into agreement.

Judges no longer would have discretion to waive a portion of the 30-day sentence required for first-time extreme-DUI offenders as well as a portion of the 120-day sentence mandated for second offenders. Judges now can waive 10 days of the first-time sentence and 60 days of the second-time sentence if the offender has completed a court-ordered education, treatment or substance-abuse-screening program.

…The bill passed the Senate Public Safety and Human Services Committee on a unanimous vote.

As stated in the example above, a first time extreme DUI conviction in Arizona previously required a minimum 30 day jail sentence, of which 20 days could be suspended, provided the defendant successfully completed an alcohol or drug screening (and any recommended treatment.)  So persons convicted of extreme DUI actually only had to serve 10 days. The sentencing language usually read Defendant is sentenced to 30 days of jail and 20 of those days will be suspended upon successful completion of a drug and alcohol screening. Under the new bill, persons must serve the full 30 days.

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There has been a lot of publicity regarding the new Arizona DUI laws. These new laws have created some of the toughest penalties in the nation. However, it appears that drinking and driving in Arizona could result in something worse than jail.

Mark Flatten of the East Valley Tribune is reporting that a man shot a hit-and-run suspect in Scottsdale, Arizona.

An attempt to block a fleeing hit-and-run suspect ended with a gunshot in Scottsdale Saturday.

Martin Ezekiel, 23, of Phoenix was arrested on charges of aggravated assault after he fired a shot into a truck that had been involved in an accident a short time earlier, wounding the passenger, according to Scottsdale police.

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All DUI convictions in Arizona now require an ignition interlock device for at least a year. Practically speaking, this means that a person will be forced to “blow” into the device to show there is no alcohol in his or her  system every time he or she starts a car, and approximately every 15 to 30 minutes while the vehicle is operating.

There are also several Arizona statutes relating to the interlock device once it has been installed in a vehicle.  Failure to comply with these laws can result in either: (1) an extended interlock period; and/or (2) a driver's license suspension.  Below is a summary of the requirements that apply to a person who has already had an interlock device installed. 

First, there are several reporting requirements for those required to have an interlock device.  The Motor Vehicle Division's website mandates that:

Once installed in your vehicle, the CIID [Certified Ignition Interlock Device] must be calibrated and inspected by a certified installer every 30 days for the first three months and then every other month for the duration of installation requirement. The inspections make sure the device is working properly and detect any issues of non-compliance...

Moreover, under § 28-1461, a person must provide proof of compliance with an ignition interlock device to the department at least every 90 days.  If a person fails to submit proof of compliance, the person's license will be suspended indefinitely until he or she proves compliance with the guidelines. See A.R.S. § 28-1463.  Most people rely on the interlock company to comply with these requirements.  I strongly recommend that a person audit the interlock company to make sure they have complied with the mandatory reporting requirements.  If the company fails to appropriately comply with the reporting requirements, the person will face the prescribed penalties. 

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I was working with a client who was facing a very serious felony charge that carried a mandatory five (5) year presumptive term in prison. When he first came into my office he asked the obvious question: What can you do for me?  This is the same question many prospective clients want answered.  Moreover, it is an appropriate question.

I always answer this question the same way: “I don’t know.” This is the only truthful answer that an attorney can give on the first day of a case. I use the following analogy to explain why I give this answer. You go to the doctor and ask him "can you cure me"? The doctor will tell you: “I need to do some tests first.” The same it true for a criminal case.  If an attorney tells you how your case will turn out on the first day, I advise that you run out of the office as fast as you can. Common sense tells you that such promises made on day one of a case are baseless.

I explained to the client how I would handle his case.  I also communicated to him my experience and my strategy to fighting criminal charges.  He retained me and I went to work on the case.

The prosecutor made it very obvious that she wanted my client to serve a long term of incarceration. She made us a three and a half (3½) year plea offer which I thought was unreasonable give the circumstances.  As the case went on, my client’s resolve started to weaken. He was considering taking the plea. I told him it was his decision, but I did not recommend taking the plea. While I advised him to seriously consider the plea before making a decision, I did not see the plea having a great benefit based on several weaknesses in the State's case.

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Law enforcement's primary method for determining if a person is driving under the influence of alcohol is a chemical test.  That is, a police officer will take a sample of a susect's blood  or breath.  The chemical test assumes that the composition of everyone's blood is the same.  Specifically, the test assumes that all people have the same hematocrit level.  However, this assumption is incorrect.

The hematocrit level, or packed cell volume, is a measure of the proportion of blood volume that is composed by solids.   Whole blood is composed of solid particles in liquid.  the solid portion of whole blood contains: (1) white blood cells; (2) red blood cells; and (3) platelets.  The liquid portion of the blood is known as plasma. 

In this manner, if a man has a hematocrit level of  .51, then his whole blood consists of 51% solids and 49% liquids (plasma).  This solid to liquid ratio will effect the outcome of a blood alcohol concentration test.  The reason is the liquid portion of the whole blood, the plasma, contains water.   Alcohol is more susceptible of being dissolved in water than is the solid portion.  Consequently, the liquid portion of the whole blood will have a higher concentration of alcohol than the solid portion.

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The most common way that a person is charged with aggravated DUI (felony DUI), is at the time when they are allegedly driving under the influence, their drivers license was suspended.  As odd as this may sound, it is very common that a person did not know their license was suspended.  This is because the procedures of Department of Transportation's Motor Vehicle Division (MVD) are so complicated and confusing, that even most lawyers cannot figure them out.  Thus, the difference between a felony DUI requiring a prison term, and a misdemeanor DUI requiring a short term of jail, can be the simple fact the person did not pay an $85.00 fee.

Most people think, "no problem, I will just explain that I didn't know my license was suspended."  However, this explanation will not satisfy a prosecutor.   This is because Arizona law does not require that you actually know your license is suspended to make the crime a felony.  Thus, the strategy in defending these cases is to show the client did not deliberately ignore the status of his license.    

Here is the basic law regarding aggravated DUI due to a suspended license.  Aggravated DUI based on a suspended license requires proof that the defendant drove a motor vehicle under the influence of alcohol while his license was suspended, and that he knew or should have known of the suspension. State v. Williams, 144 Ariz. at 489, 698 P.2d at 734.

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Over a century ago, the Indiana Supreme Court in Webb v. Baird, 6 Ind. 13 (1853) , formally recognized the right to an attorney for a person accused of a crime.  However, the court did not base its decision on constitutional law.  Rather, it determined this right was grounded in "the principles of a civilized society." 

Since Baird, courts have vastly expanded the right to counsel beyond just appointing an indigent person a lawyer.  Specifically, a person has the right consult with an attorney, indigent or not, even before trial.  A person has a right to the assistance of counsel at any stage of an investigation or custody. 

In Arizona, the right to counsel comes from four sources.  First, the right to counsel was established in the United States Constitution.  The Fifth Amendment of the United States Constitution states: "No person shall...be deprived of of life, liberty, or property without due process of law..."  See also Fourteenth Amendment, U.S. Constitution.  Moreover, the Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right...to have the Assistance of Counsel for his defense."

Second, the right to counsel is also codified in Arizona's Revised Statutes.  Arizona Revised Statutes section 13-114 states: "In a criminal action [the] defendant is entitled...[t]o have counsel."

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Field sobriety tests are any one of several roadside tests that can be used to determine whether a suspect is impaired.  These psychophysical tests are performed on DUI suspects to assist an officer in the decision to make an arrest.  In theory, these tests directly assess impairment by focusing precisely on the human capabilities needed for safe driving. 

The procedures for conducting field sobriety tests are put forth by the National Highway Traffic Safety Administration (NHTSA).  NHTSA is a federal agency charged with reducing deaths and injuries from motor vehicle crashes.  They also attempt to fight drunk driving.  The are responsible for the field sobriety testing guidelines.  They base their procedures on scientific studies.  However, NHTSA does not conduct their own studies.  Rather, the studies are done by those who write grant proposals and are given monetary compensation.  Moreover, none of the studies  supporting the NHTSA Standardized Field Sobriety Testing Manual are "peer reviewed."  This is the process of subjecting an author's scholarly work, research or ideas to the scrutiny of others who are experts in the same field.

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