3 Things I Wish People Knew Before Drinking & Driving

It's 5:00 p.m. on Friday afternoon in Phoenix, and Joe just walked through the door of his favorite restaurant to meet some friends for happy hour.  He drove himself to the restaurant.  When he is done, he is going to drive to his house in Scottsdale.

At the table, Joe sees everyone has one of the restaurant's signature margaritas in front of them.  The waiter comes to the table and asks Joe: "can I get you something to drink?"  Before Joe answers this question, I wish he would consider the following facts:

  1. There is no crime of Drunk Driving in Arizona.  Arizona law makes it illegal to drive while Joe is impaired to at least the slightest degree by alcohol.  This means that if Joe's ability to drive is impaired to any degree, Joe is technically in violation of the law;
  2. If Joe is stopped by the police, they will stick a needle in Joe's arm.  Regardless of the law on this subject, it has been my experience that if Joe is stopped by a police officer for a traffic violation, and the officer smells any alcohol, Joe is going to end up taking a chemical test.  Many police agencies are now using blood testing instead of breath testing.  If the officer smells alcohol on Joe's breath (or just imagines it), Joe is going to have a needle stuck in his arm and a blood sample will be taken.  The results of the blood test will probably take at least 30 days to come back.  While Joe is waiting to find out the results of the blood test, he will not sleep very much or very well;
  3. If Joe refuses the blood test, the officer will get a warrant and forcibly take his blood.  Once the officer meets the requirements of Arizona's implied consent law, he may require Joe to submit to a chemical test.  If Joe says "no," he will then lose his driver's license for 12 months.  Moreover, the officer will then make a phone call to the judge.  Within minutes, the judge can then issue a telephonic warrant.  If Joe still refuses, he will be held down by several police officers, and a needle will be shoved into his vein. 
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I Want To See A Replay

I was reading DUI Attorney Mark Steven's blog and he touched upon a subject that concerns many DUI attorneys.  Why don't more police officers videotape DUI arrests?  Clearly, this would be the best evidence of a person's degree of impairment.  So, why not use videotape in a DUI investigation?

Mark addresses this issue in his post Why Aren't Most New Hampshire DWI Arrests Video Recorded?  He writes:

Just about everywhere you go today in public you are being videotaped. You are videotaped at your bank, supermarket, shopping mall, drive through lines for fast food, donut shops, even little convenience stores. Just about every place is equipped with a video camera these days. If someone holds up a little store or commits just about any crime in public there is a video of the event on the evening news, copied from a surveillance camera. It has become very inexpensive to capture a high quality audio and video recording for safety and security purposes of just about every aspect of our everyday lives.

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Imaginary DUI?

When police officers are attempting to determine whether to arrest someone for driving under the influence of alcohol (DUI), they usually ask them to perform some field sobriety tests.  Police generally rely on a battery of tests recommended by the National Highway Traffic Safety Administration (NHTSA).  One of these tests is referred to as the "Walk-and-Turn" test.  The instructions for performing the Walk-and-Turn test are contained in the NHTSA DWI Detection and Standardized Field Sobriety Testing Manual.

In essence, the Walk-and-Turn test requires that a person walk a straight line, touching heel to toe, and then turn around and walk back.  However, it seems many officers in Arizona (and apparently in other states as well) believe that using an imaginary line is a fair test.  That is, instead of having a person walk on a true line (i.e. a painted line in a parking lot) they have the person imagine a line to walk on.  Just this morning I was debating this issue with a Scottsdale Police Officer in a DUI case.

Austin, Texas DWI lawyer Jamie Spencer has written an excellent article entitled, Walking A Straight Line, arguing the merits of using an imaginary line during a Walk-and-Turn test.  He writes:

One common misconception that I see over and over on the part of officers, up to and including some of the local Austin DWI task force officers, is the belief that the book doesn’t require that a designated actual line be used.

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5 Frequently Asked Questions About Arizona DUI Penalties

1.  If I am convicted of an Arizona DUI, do I have to go to jail?

The only way to avoid going to jail is to avoid a DUI conviction.  However, if you are convicted, Arizona DUI law requires a mandatory term of jail.  The amount of jail will depend on several factors.  To start, the results of a blood alcohol concentration (BAC) test will generally control the amount of mandatory jail required.  Here are the mandatory minimum terms of jail based on a person's BAC: 

  • BAC under .150 - 1 day
  • BAC of .150 and below .200 (new laws) - 30 days
  • BAC of .200 and above - 45 days

These jail terms apply to first time DUI convictions.  Second time DUI convictions have much longer mandatory minimums. 

2.  Will I lose my driver's license if I am convicted of a DUI in Arizona?

A person's driver's license will be suspended if the results of a chemical test are above .08.  This suspension is actually through the Motor Vehicle Division - not the courts.  Thus, the suspension often occurs prior to a court conviction. 

To illustrate, take the example of a person who is arrested for DUI and performs a breath test.  Suppose the breath test results are .100 and .101.  Because the test results are above a .08, the officer will give that person a form called an admin per se / implied consent affidavit.  The affidavit will state that the person's driver's license will be suspended in 15 days.  The term of suspension is 90 days.  However, after the first 30 days the person may be eligible for a restricted driving permit.  Thus, a conviction is not even necessary for the suspension to take effect.

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