The DUI Accident Where There Are No Injuries - Endangerment

I see the following scenario commonly in my practice.  My client is responsible for causing a low impact accident.  No one from either automobile was injured.  However my client had consumed alcohol, and a blood test confirmed he was over Arizona's legal limit of .08.  What charges may he be facing?

Obviously he is facing a misdemeanor DUI.  And more troubling, he may also be facing an Endangerment charge.  Under section 13-1201 of the Arizona Revised Statutes, a person commits Endangerment by:

  • Recklessly endangering another person with a substantial risk of imminent death or physical injury.
  • Endangerment involving a substantial risk of imminent death is a class 6 felony. In all other cases, it is a class 1 misdemeanor.

Moreover, since a car was involved (a dangerous instrument under Arizona law) my client may be facing a mandatory prison term.  This can happen if it is proven that he placed the other driver in a substantial risk of imminent death.  While most low impact accidents do not expose a person to such a risk, prosecutors often charge these cases with the attitude of "just leave the decision to the jury".  Meanwhile the client has now been exposed to a serious risk, of a long period of prison, because the State has not taken the time to properly and correctly evaluate the case.  These cases cannot be taken lightly.  Every effort must be made to show the true nature of the impact.  That is, there was no risk of "imminent death."  This may require the use of both an accident reconstructionist and bio-mechanical engineer.  In any event, these types of  cases must be proactively handled as soon as possible.



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.

Let’s assume that an argument exists that expands this range of accuracy, or that some other flaw occurred in the testing process, that puts your BAC results below the per se limit of .08 percent. Does that mean the State cannot proceed with the DUI case? The State may still be able to prosecute the case, but it will be forced to rely on the charge that you were impaired to the slightest degree.

In practical terms, it would be very difficult for the State to proceed with the case if it cannot prove that your BAC was greater than .08. Moreover, there are certain legal presumptions regarding a person’s BAC that could further complicate the State’s case. However, the above situation illustrates a crucial point: You do not have to be drunk to be charged with DUI.

While I cannot remember a DUI client who was convicted with a BAC of less than .08, drivers should know that they do not have to be “drunk” to be charged with DUI. In addition, if you do get charged with DUI and end up beating the charge, the entire process will be costly and fraught with risk.

Thus, before you drink and drive, do not ask yourself “Am I too drunk to drive?” Rather, the question should be “Will the alcohol at all impair my driving?” Asking – and honestly answering – this question may keep you out of my office.