DUI in Arizona:

There are several DUI crimes in Arizona. Defendants are usually charged with at least two DUI crimes.

Driving While Impaired to the Slightest Degree

This charge is codified in A.R.S. 28-1381(A)(1), which states:

It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:

While under the influence of intoxicating liquor, any drug, a vapor-releasing substance containing a toxic substance or any combination of liquor, drugs or vapor-releasing substances if the person is impaired to the slightest degree.

BAC Above .08

This charge is codified in A.R.S. 28-1381(A)(2), which states it is unlawful for a person to drive or be in actual physical control of a vehicle:

If the person has an alcohol concentration of 0.08 percent or more within two hours of driving or being in actual physical control of the vehicle, and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle.

Extreme DUI

This charge is codified in A.R.S. 28-1382(A), which states:

It is unlawful for a person to drive or be in actual physical control of a vehicle in this state if the person has an alcohol concentration of 0.15 percent or more within two hours of driving or being in actual physical control of the vehicle, and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle.

Note: The penalties for Extreme DUI are higher.

Super Extreme DUI

BAC above .2 ith a minimum mail time of 45 days.

Aggravated/Felony DUI

This charge is codified in A.R.S. 28-1383, which states:

A. A person is guilty of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs if the person does any of the following:

Commits a violation of section 28-1381, section 28-1382 or this section while the person's driver's license or privilege to drive is suspended, canceled, revoked or refused, or while a restriction is placed on the person's driver's license or privilege to drive as a result of violating section 28-1381 or 28-1382 or under section 28-1385.

Within a period of 84 months commits a third or subsequent violation of section 28-1381, section 28-1382 or this section, or is convicted of a violation of section 28-1381, section 28-1382 or this section and has previously been convicted of any combination of convictions of section 28-1381, section 28-1382 or this section or acts in another jurisdiction that, if committed in this state, would be a violation of section 28-1381, section 28-1382 or this section.

While a person under 15 years of age is in the vehicle, commits a violation of either:
(a) Section 28-1381.
(b) Section 28-1382.
In other words, a person may be guilty of aggravated DUI if that person:

Is driving on a license suspended for DUI.

Within a period of 84 months (7 years) commits a third (or more) DUI, whether the prior DUIs occurred in Arizona or another state.
Is convicted of DUI while a minor under the age of 15 is in the vehicle.

Drug DUI

This charge is codified in two places, 28-1381(A)(1) and A.R.S. 28-1381(A)(3).

A.R.S. 28-1381(A)(1) states that it is unlawful for a person to drive or be in actual physical control of a vehicle:

While under the influence of . . . any drug, a vapor-releasing substance containing a toxic substance, or any combination of liquor, drugs or vapor-releasing substances if the person is impaired to the slightest degree.

A.R.S. 28-1381(A)(3) states that it is unlawful for a person to drive or be in actual physical control of a vehicle:

While there is any drug defined in section 13-3401 or its metabolite in the person's body.

The drugs defined in ARS 13-3401 are too many to list here, but generally they are drugs that are illegal to possess.

Commercial DUI

Drivers of commercial vehicles need to have a BAC of only 0.04 percent to be charged with DUI.

This charge is codified in A.R.S. 28-1381(A)(4), which states that it is unlawful for a person to drive or be in actual physical control of a vehicle:

If the vehicle is a commercial motor vehicle that requires a person to obtain a commercial driver 's license…and the person has an alcohol concentration of 0.04 percent or more.

Boating DUI

This charge is codified in A.R.S. 5-395, which states:

A. It is unlawful for any person to operate or be in actual physical control of a motorized watercraft that is underway within this state under any of the following circumstances:

While under the influence of intoxicating liquor, any drug, a vapor-releasing substance containing a toxic substance, or any combination of liquor, drugs or vapor-releasing substances if the person is impaired to the slightest degree.
If the person has an alcohol concentration of 0.08 percent or higher within two hours of operating or being in actual physical control of the motorized watercraft and the alcohol concentration results from alcohol consumed before or while operating or being in actual physical control of the motorized watercraft.

While there is any drug as defined in section 13-3401 or its metabolite in the person's body.
If the motorized watercraft is a commercial motorized watercraft and the person has an alcohol concentration of 0.04 percent or more.

B. It is not a defense to a charge of a violation of subsection A, paragraph 1 of this section that the person is or has been entitled to use the drug under the laws of this state. A person using a drug prescribed by a medical practitioner licensed pursuant to title 32, chapter 7, 11, 13 or 17 is not guilty of violating subsection A, paragraph 3 of this section.

C. In any trial, action or proceeding for a violation of this section or section 5-396, other than a trial, action or proceeding involving operating or being in actual physical control of a commercial motorized watercraft, the defendant's alcohol concentration within two hours of the time of operating or being in actual physical control as shown by analysis of the defendant's blood, breath or other bodily substance gives rise to the following presumptions:

If there was, at that time, 0.05 percent or lower alcohol concentration in the defendant's blood, breath or other bodily substance, it may be presumed that the defendant was not under the influence of intoxicating liquor.
If there was, at that time, in excess of 0.05 percent but less than 0.08 alcohol concentration in the defendant's blood, breath or other bodily substance, such fact shall not give rise to any presumption that the defendant was or was not under the influence of intoxicating liquor, but such fact may be considered with other competent evidence in determining the guilt or innocence of the defendant.

If there was, at that time, 0.08 percent or higher alcohol concentration in the defendant's blood, breath or other bodily substance, it may be presumed that the defendant was under the influence of intoxicating liquor.



ARIZONA DUI Law - FUNDAMENTALS

To convict a person of DUI, the State must prove a number of elements, which are addressed below.

1. Driving or Actual Physical Control
The first element of a DUI charge is that a person was driving or in actual physical control of a vehicle. A defendant need not actually be “driving” a vehicle.

2. Impairment
The next element the State must prove is that the person driving or in actual physical control was impaired.

As shown above, the State can charge: a) impairment to the slightest degree; b) BAC of 0.08 or higher; and/or BAC of 0.15 or higher. The State can also charge drug impairment to the slightest degree or the presence of specific drugs or metabolites in the person’s system.

The “impairment to the slightest degree” charge almost always accompanies any other charge, because the requirements for conviction are minimal. While most people understand that the BAC limit for DUI is 0.08, many don’t realize that the State does not need to prove the presence of any BAC at all. The state must prove only that the defendant was impaired to the slightest degree. This means the defendant could have a BAC of less than 0.08 and still be convicted of DUI.

The primary ways of determining BAC (and drug levels) are blood and breath tests. Arizona law requires that blood or breath be obtained and tested by certified individuals. Under A.R.S. 28-1388, only a physician, registered nurse or other “qualified person” may withdraw blood for the purpose of determining BAC (or drug content). A.R.S. 28-1325, 1326, and 1388 address who may conduct the tests.

3. The State Does Not Need to Prove Mental State
DUI statute does not require proof of culpable mental state.

In other words, the State need not prove that the driver intended to drive drunk. The State need only prove DUI within two hours of driving.


ARIZONA DUI LAW - INVESTIGATION

Most people suspected of DUI are given Field Sobriety Tests (FSTs) pursuant to the authority given police in A.R.S. 28-1321 and 28-1322(B). These include roadside breath analysis, horizontal gaze nystagmus (HGN), and motor skills tests. If the officer then has probable cause to suspect DUI, the officer will demand the driver submit to a breath or alcohol test to determine BAC.

As explained in the implied consent section, drivers whom officers have probable cause to suspect of DUI have to submit to an alcohol or blood test, or the driver loses his or her license for one year, regardless of whether he or she is later convicted of DUI and regardless if DUI charges are never brought or are dropped.

According to A.R.S. 28-1322(A), a law-enforcement officer who has reasonable suspicion to believe that a person has committed a violation of section 28-1381 or 28-1382 may request that the person submit to a preliminary breath test or tests before an arrest is made.



ARIZONA DUI - Driver's License Issues

Implied Consent — Under the law, any person who operates a vehicle in the State gives consent to the State to test the driver’s blood, breath or urine to determine BAC if a law enforcement officer has “reasonable grounds” to suspect DUI or that a person under age 21 has any amount of alcohol in his or her body.

This law is codified at A.R.S. 28-1321(A), which states:

A. A person who operates a motor vehicle in this state gives consent... to a test or tests of the person's blood, breath, urine or other bodily substance for the purpose of determining alcohol concentration or drug content if the person is arrested for any offense arising out of acts alleged to have been committed in violation of this chapter or section 4-244, paragraph 33, while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs. The test or tests chosen by the law-enforcement agency shall be administered under the direction of a law-enforcement officer having reasonable grounds to believe that the person was driving or in actual physical control of a motor vehicle in this state, either:

While under the influence of intoxicating liquor or drugs.
If the person is under 21 years of age, with spirituous liquor in the person's body.
A.R.S. 28-1321(B) sets forth the procedure for officers to request a test and explains the consequences for refusal. Generally, if the defendant refuses, he or she will lose driving privileges for one year. If the defendant refuses for a second or subsequent time within 60 months (five years), he or she will lose driving privileges for two years. The section text follows:

B. After an arrest, a violator shall be requested to submit to and successfully complete any test or tests prescribed by subsection A of this section, and, if the violator refuses, the violator shall be informed that the violator's license or permit to drive will be suspended or denied for 12 months, or for two years for a second or subsequent refusal within a period of 60 months, unless the violator expressly agrees to submit to and successfully completes the test or tests. A failure to expressly agree to the test or successfully complete the test is deemed a refusal. The violator shall also be informed that, if the test results show a blood- or breath- alcohol concentration of 0.08 or higher, or if the results show a blood- or breath- alcohol concentration of 0.04 or higher and the violator was driving or in actual physical control of a commercial motor vehicle, the violator's license or permit to drive will be suspended or denied for not less than 90 consecutive days.

Police can Obtain a Search Warrant for Breath or Blood, if a Person Refuses

Per A.R.S. 28-1321(D), police can obtain a search warrant if a defendant refuses to take a breath, blood, urine or other bodily fluid test:

A. If a person under arrest refuses to submit to the test designated by the law-enforcement agency as provided in subsection A of this section:

The test shall not be given, except as provided in section 28-1388, subsection E, or pursuant to a search warrant.
Refusal Results in Suspension of Driving Privileges for One Year or Two Years for a Second Refusal Within 60 Months (five years):

If the person is a resident without a license or permit, or has an expired license or permit to operate a motor vehicle in this state, the department shall deny the person the issuance of a license or permit for a period of 12 months after the order of suspension becomes effective, or for a period of two years after the order of suspension becomes effective for a second or subsequent refusal within a period of 60 months.


ARIZONA DUI - PENALTIES

The crime of DUI carries many different penalties, depending on the circumstance. The possible penalties for a DUI are listed below:

First-time DUI with a BAC of at least 0.08, but less than 0.150

CLASS OF CRIME Class 1 Misdemeanor
MAXIMUM JAIL Six (6) months
MINIMUM JAIL One (1) day [10 days, 9 suspended]
COUNSELING A drug/alcohol screening will be performed. The results of the screening can affect the duration of counseling.
MINIMUM FINE $250 + surcharge
ADDITIONAL FINANCIAL PENALTY $500 to State Prison Fund
PROBATION 5 years (maximum)
Driver’s License Consequences

SUSPENSION 90 days (work permit after 30 days)
INTERLOCK DEVICE Not required


Second-time DUI (with a valid license) within sixty (60) months

CLASS OF CRIME Class 1 Misdemeanor
MAXIMUM JAIL Six (6) months
MINIMUM JAIL 30 days [90 days, 60 suspended]
COUNSELING A drug/alcohol screening will be performed. The results of the screening can affect the duration of counseling.
MINIMUM FINE $500 + surcharge
ADDITIONAL FINANCIAL PENALTY $1250 to State Prison Fund
PROBATION 5 years (maximum)
Driver’s License Consequences

SUSPENSION 1 year revocation
INTERLOCK DEVICE Required


Extreme DUI

CLASS OF CRIME Class 1 Misdemeanor
MAXIMUM JAIL Six (6) months
MINIMUM JAIL 10 days [30 days, 20 suspended]
COUNSELING A drug/alcohol screening will be performed. The results of the screening can affect the duration of counseling.
MINIMUM FINE $250 + surcharge
ADDITIONAL FINANCIAL PENALTY $250 assessment to the Arizona DUI Abatement Fund; additional $1000 to State Prison Fund.
PROBATION 5 years (maximum)
Driver’s License Consequences

SUSPENSION 90 days (work permit after 30 days)
INTERLOCK DEVICE Required


Second-time Extreme DUI

CLASS OF CRIME Class 1 Misdemeanor
MAXIMUM JAIL Six (6) months
MINIMUM JAIL 60 days [120 days, 60 suspended]
COUNSELING A drug/alcohol screening will be performed. The results of the screening can affect the duration of counseling.
MINIMUM FINE $500 + surcharge
ADDITIONAL FINANCIAL PENALTY $250 assessment to the Arizona DUI Abatement Fund. (Additional $1000 assessment for arrests after March 13, 2004.)
PROBATION 5 years (maximum)
Driver’s License Consequences

SUSPENSION 1 year revocation
INTERLOCK DEVICE Required


Aggravated DUI (Felony) with Driver's License Restriction - First Offense

CLASS OF CRIME Class 4 Felony
MAXIMUM JAIL 2.5 years
MINIMUM JAIL 4 months in the Department of Correction
COUNSELING A drug/alcohol screening will be performed. The results of the screening can affect the duration of counseling.
BASE FINE $750 + surcharge

Prison Construction Assessment = $1500

Public Safety Equipment Fee = $1500

ADDITIONAL FINANCIAL PENALTY $250 assessment to the Arizona DUI Abatement Fund

Base Jail / Doc time = 4 months

Number of consecutive days in Jail = 4 months

First-time felony DUI charges are eligible for probation (10 years)

Driver’s License Consequences

SUSPENSION 3 year revocation
INTERLOCK DEVICE Required

 

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