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AFTER AN ACCIDENT
 
 
 
 
Wayne Howell, Esq.
623-328-8567
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OVERVIEW
It is unlawful for a person to drive or be in actual physical control of a vehicle while under the influence of intoxicating substances.  (ARS 28-1381). 

You can expect a DUI conviction or plea to cost you a minimum of $1500 in fines and $1000 or so for a year of having an interlock device - plus your legal fees, cost of attending substance abuse classes and other miscellaneous expenses.  In addition, you will spend at least one day in jail and have your license suspended for at least 90 days.

Thresholds, penalties and administrative consequences are different in the cases of drivers under 21, operators of commercial vehicles, multiple offenses and involvement of drugs as opposed to alcohol. 

Your choices regarding how to proceed when you have been arrested for DUI will depend on the seriousness of the charge and the amount of money you are able to devote to your defense.

     
WHAT TO DO IF YOU ARE STOPPED
The following is not intended as legal advice, but does appear to represent the consensus of attorneys handling DUI cases.  This assumes, of course, that you have been drinking.

The things to bear in mind are that you are required to provide identification and other documents and you are required to comply with the orders of the officer.

You are not required to perform the field sobriety tests and you are not required to give permission for the officer to "look around" in your vehicle.

For years I have given all my personal injury clients a simple speech, which ends with the statement that on the back of every lawyer's card, printed in invisible ink, are the words "Shut Up".  This is even more true with respect to criminal matters.

So, if you are pulled over, stay in the car with your seat belt on.  Hand over your ID and other requested documents, but do not initiate conversation.  Remember, everything about how you look, act, speak and move is evidence against you.  The more you open your mouth, the more the alcohol smell comes out.  The more words you speak, the more opportunity the officer has to hear you slur your words.  The more you attempt to engage the officer, the more reason you give him to look into your bloodshot, watery eyes.  Face it:  If you have been drinking and you are pulled over, there is slim chance you will be driving away.  But there is a chance nonetheless, so don't blow it. 

If the officer orders you out of the vehicle, and especially if he asks you to perform the field sobriety tests, the overwhelming probability is that he has already decided to arrest you and is now giving you the opportunity to give him more evidence to use against you.  So don't help him.  Politely decline to perform the tests.  When asked questions, politely state that you cannot answer any questions without the advice of your attorney.  When asked for permission to look in your vehicle, do not grant it.  If he didn't need your permission, he wouldn't ask.

Getting Technical. Okay so technically, some things are evidence and some aren’t. Some things are Observations that give the officer probable cause to arrest you and are limited to that. The things that give the officer probable cause are his subjective perceptions. Evidence is objective fact that exists and that can be used against you in trial. Anything you say or do is evidence, because it is fact. How the officer perceives you said or did it, what you might have meant or the reason you did something a certain way, is subjective to him.

So when he asks if you’ve been drinking and you say two beers in the course of telling him all about your day, all of your belching, swearing, hiccupping and losing your train of thought is his subjective observation, that gives him probable cause to arrest you. The fact that you admitted to drinking is objective evidence that can be used against you at trial.

The field sobriety tests, including blowing into the portable device, all comprise the probable cause that determines it was appropriate for the office to arrest you. Anything you say before you are arrested, after you are read your rights, or that you blurt out on your own, is evidence that will be used against you.

Once you are under arrest, you are subject to a blood and/or alcohol test.

 

ADMIN PER SE AND IMPLIED CONSENT
Admin Per Se
refers to an administrative suspension of your license per ARS §28-1385.  If your breath or blood test comes back at .08 or higher, you are subject to a 90 day suspension of your license -- regardless of whether you are actually convicted of DUI.

Implied Consent refers to the provisions of ARS §28-1321, whereby your application for and acceptance of an Arizona driver's license implies that you consent to blood alcohol testing.  If you refuse to submit to a breath or blood test, you will be subject to an automatic one year suspension of your license.
 
VIOLATIONS
Various charts and tables attempt to present the world of Arizona DUI law in an organized format, with varying degrees of success.  A bit of surfing will yield you a range of presentations.  Going by the statutes:

ARS §28-1381, Regular DUI
Any amount of illegal drug, even if not impaired
Any amount of legal drug, vapor or alcohol resulting in the slightest impairment
.04 or above within 2 hours of driving a commercial vehicle
.08 or above within 2 hours of driving a noncommercial vehicle

ARS §28-1382(A1) Extreme DUI
.150 to .199 within 2 hours of driving

ARS §28-1382(A2) Superextreme DUI
.20 or above within 2 hours of driving

ARS §28-1383 Aggravated DUI
Any of the above:
Without a valid, unrestricted license
Within seven years after a second offense
With a minor under age fifteen in the vehicle
If required to use an interlock device(or refusing a test while required to use an interlock device)

 

PENALTIES

Penalties for DUI violations, as well as details of how the system works, change from time to time.  A great chart with the more or less current penalties can be found here.


Community Service 
You may be required to perform community service for a first offense.  You must be required to perform 30 days of community service for a second offense.

License Suspension
First Offense.  License is suspended for 90 days, eligible for school/work permit after 30 days.
Second Offense.  License is revoked for one year.
Aggravated DUI.  License is revoked for 3 years.

Interlock 
You will have to use an interlock device for 12 months for a first or second offense of Regular or Extreme DUI, 18 months for a first offense of Super Extreme DUI and 24 months for a second offense of Super Extreme DUI.  The interlock device costs about $100 per month.

Imprisonment
For all imprisonment, you may be eligible for school/work release after you have served 48 consecutive hours.  The charge for imprisonment varies, but is about $80 per day after the first day.

First Offense Regular DUI.  The sentence is 10 days.  You must serve one day(not necessarily 24 consecutive hours); after that the judge may suspend 9 days provided you comply with all other requirements.

First Offense Extreme DUI.  The sentence is 30 consecutive days.  No days may be suspended.

First Offense Super Extreme DUI.  The sentence is 45 consecutive days.  No days may be suspended.

 

A Potential Break.  Under the provisions of ARS 28-1382(I), for a first offense, the Court may suspend all but 9 days of the 30 day  jail time for a .15 extreme DUI, and all but 14 days of the 45 day jail time for a .20 super extreme DUI.  It is up to the particular court whether they follow this provision.  To qualify, you must equip your vehicle with an interlock device, show the Court proof, and maintain the device for one year -- also with proof to the Court.  If you fail to do this, you get the full 30 or 45 days.

 

Second Offense Regular DUI.  The sentence is 90 days.  60 days may be suspended on the condition you have drug/alcohol screening and attend classes.  The remaining 30 days must be served consecutively.

Second Offense Extreme DUI.  The sentence is 120 days.   No days may be suspended.  However, only 60 days must be consecutive, which means you may be able to serve the balance on weekends.

Second Offense Super Extreme DUI.  The sentence is 180 days.   No days may be suspended.  However, only 90 days must be consecutive, which means you may be able to serve the balance on weekends.

Aggravated DUI.  If the charge is due only to the presence of a minor under age fifteen in the vehicle, the imprisonment terms are the same as above.  If the charge is due to an offense above without a valid, unrestricted license, the sentence may be up to four and a half years, with a minimum of four months actually served and the balance eligible for suspension or probation.  If the charge is due to a third offense, the minimum time actually served is eight months.


Work Release and Home Detention.  With all sentences in all courts, you can be eligible for work release after you serve two days.  For twelve hours a day, five days a week, you get out of jail to work, going back to jail to spend the night.

In courts that participate, you can be eligible for home detention after serving 20 percent of your actual sentence.

Doing the math, you can receive a 30 day sentence for a .15 extreme DUI, serve 2 days in jail and 7 days of home detention.  For a .20 super extreme DUI, you can serve 2 days in jail, 1 day on work release, and 11 days of home detention.
 
In the wake of Covid-19, things have changed and courts have gotten creative.  At times the sickness has been so prevalent, that courts have "continued" the Incarceration Order for months, 30 or 60 days at a time, until it may be deemed safe to go to jail.

The jails have determined that letting people out for work release is risky and have stopped doing it.  Since it is not fair for you to just sit in jail when under other circumstances you could be on work release, that is another justification for putting things off.

A recent client sentenced to 180 days in jail for a second, .20 super extreme DUI, will actually do:
-- 144 days of home detention up front
-- 36 days of jail time, six months or more down the road
-- The 36 days will consist of two full days in jail, followed by 34 days of work release.
 
 
INTERLOCK DEVICES
An interlock device is required for all DUI convictions.  This device is installed in your vehicle.  you must provide a breath sample before the vehicle will start as well as periodically while you are driving.

Regular and extreme DUI results in the interlock being required for one year.  A first time Super Extreme conviction carries an 18 month requirement.  Super Extreme for the second time, or Aggravated(felony) DUI, comes with a two-year requirement.

Having an interlock device comes with its own problems, from the potential of false positive results caused by chemicals such as air fresheners volatizing from the sun heating you interior, to inadvertently shutting down the vehicle after being prompted to provide a breath sample.

Interlock violations, such as failing to provide a sample, having someone else blow for you or blow for someone else, can result in additional penalties and extensions of the interlock period.

Costs vary.  At least one provider has a fixed monthly payment that includes installation, maintenance and removal of the device, while others may charge separately for the services associated with having an interlock device.  Several local providers are:
GETTING YOUR LICENSE BACK
When your license has been revoked, getting it reinstated is a three-step process.  Click here to download a sample of the MVD form. 

Once you are eligible, you complete Part A of the form.  Part B is then completed by the Court, parole or probation officer. 

Once you have Parts A and B completed, it is time to contact a counselor, physician or psychologist to arrange to complete Part C. 

Typically you will have this done by a Licensed Independent Substance Abuse Counselor(LISAC), or a psychologist or physician.  Charges and procedures vary greatly, so you want to pin this down in advance.

Most entities that provide counseling can put you in contact with a provider for this service.  The Arizona Board of Behavioral Health maintains the registry of Licensed Independent Substance Abuse Counselors. Click here.
                                                 
     

Wayne Howell - DUI Defense