Arizona Revised Statute 28-1381 (A.R.S.) is the statute that defines DUI crimes in Arizona. The statute splits DUI into two offenses, including driving with a blood alcohol concentration (BAC) of 0.08% or above and driving while impaired by alcohol. You are likely to face charges for these two crimes if arrested for a DUI in Arizona. The impaired charge revolves around your mental and physical state, while the per se charge concerns your BAC level above the legal limit during your arrest.

If convicted for an Arizona DUI, your sentences run concurrently. Your future could be at stake upon conviction, but an experienced DUI attorney could help you have the charges dropped or reduced. At Phoenix Criminal Lawyer, we offer legal services to clients facing DUI charges in the city or the larger state.

Given our many years of experience, we can vigorously protect your rights. You can count on us for the results-oriented and focused representation you deserve during these hard times. In this article, you learn what an Arizona DUI involves, the crime’s elements, possible punishment, and many more. Read along!

Definition of DUI Under Arizona Law

Under ARS 28-1381, you commit a DUI when:

  1. Driving under the influence of alcohol or drugs. You are arrested if you show the slightest signs of impairment.
  2. Driving with a .08 BAC or above within 2 hours after physically controlling a vehicle.
  3. Driving with a drug listed under ARS 13-3401.

Arizona law holds commercial vehicle drivers to a higher standard. If you are a commercial vehicle, you face DUI charges if found driving with a BAC of at least 0.04%. In Arizona, DUI crimes are split into three classes handing on the level of your BAC. These are:

  1. DUI - Also known as DUI per se or impaired DUI. The crime is further split into first and second DUI offenses.
  2. Extreme DUI.
  3. Super Extreme DUI.

Extreme DUI in Arizona, ARS 28-1382(A)(1)

You face arrest for extreme DUI if the police find you driving with a BAC of between .15 and .199. The law calls it ‘extreme’ because the BAC range is higher than a normal DUI at .08 to .149. The law considers drivers who have high alcohol tolerance as impaired if their BAC levels exceed 0.15%. An ARS 28-1382(A)(1) violation is a class 1 misdemeanor. If found guilty, you could serve time in jail, have your license suspended, or pay fines. If your BAC is .02 or higher, you could face super extreme DUI charges, the most serious non-felony DUI crime.

Super Extreme DUI, ARS 28-1382(A)(2)

You commit super extreme DUI when you drive with 0.20 BAC or above. At this level of dangerously high BAC, you could have difficulties walking, let alone controlling a car. This DUI category is considered the most dangerous after Extreme DUI and carries the harshest punishment. If found guilty, you could serve time in jail, have your license suspended, pay fines, or have an IID installed in your vehicle, among other punishments.

DUI Arrest and Charging Process

Your DUI arrest starts after the police pull you over. The evidence presented in court is primarily gathered at the DUI stop. You want to know your rights and how the arrest process occurs in Arizona. Your arrest occurs after you commit a felony or misdemeanor crime. The police must have probable cause before arresting you. Note the actions the arresting officer takes when arresting you. In Arizona, the police are not required to read Miranda rights during arrest; however, they must read them during interrogation. If they interrogate you without Miranda rights, your lawyer could use this as a defense in court.

Booking Process after Arrest

After your arrest, you are booked and released later. Normally, you are not taken to jail after a DUI arrest unless there are aggravating factors. During your booking, the following happens:

  • You are ushered in a police station
  • The police interrogate you.
  • You are searching even without your consent.
  • You are photographed, and your fingerprints are taken.

If your loved one faces arrest, you could inquire about their booking information by calling the prison or jail hotline. All that is needed is the defendant’s booking number, date of birth, or official name. The jail personnel releases information regarding the inmate's charges, the court dates, the arresting police, and the determined bail amount.

Post-Arrest Investigations

The police could investigate your DUI case after arrest but before the prosecution files the charges in court. The police investigate your case depending on whether the prosecutor wants to fill a misdemeanor DUI or a felony one, for example, aggravated DUI. You could be told that your DUI case is ‘scratched,’ to mean that the prosecution is in the process of determining what type of charge to file.

When you are notified that your case is scratched, don't assume that the prosecutor has dropped it. You want to hire a lawyer immediately at this stage. Hiring a lawyer during this stage is vital as they could contact the arresting agency and prosecution to try and influence them on their charging decisions in your favor.

In felony aggravated cases, the arresting agency investigates the motor vehicle department’s (MVD) record to ensure you are the same person as the one with prior convictions. Another reason for the investigation is to confirm the defendant’s MVD status. The arresting agency could ask for records from other courts to prove prior DUI convictions.

Your past DUI history could be researched in other states. The police are not required to release their report before your arraignment. Due to this, your attorney should follow up and ensure the report is released asap. The prosecuting agency has the jurisdiction to file misdemeanor or felony charges against you if they have enough proof that you could be guilty of a DUI law violation.

Criminal Court Process

First Appearance

You could skip making the first appearance for a misdemeanor charge if you have hired a competent DUI lawyer. However, you must appear in court on all court dates if you are charged with a felony, even if you have a lawyer. If you don't have a private DUI defense attorney, the state will provide one for you.

During the first appearance, you are read your rights and the charges against you. A bail or bail bond could be needed for serious DUI cases like aggravated DUI. The court determines the bail amount depending on the factors of your case. You could be released without bail on your recognizance (OR). However, the judge could increase the bail amount if you don't appear in court on the stipulated date. The court then issues a warrant for your arrest.

In a second or subsequent court proceeding, your attorney could file a motion for the court to reduce your bail amount. Before the judge can reduce your bail, they must consider factors like your risk of flight or risk to the public’s safety. If you are charged with a felony DUI and your attorney files for an OR release, the judge orders for another hearing, and your pretrial services report is produced. The court process could take up to two weeks.

Preliminary Hearing

These hearings only happen if your felony DUI case was not initiated after a grand jury indictment. Arizona law suggests that a preliminary hearing is important, and the court determines whether there is enough proof to support the allegations against you. The case is then handed over to the Superior Court for trial. At this hearing, the judge or prosecution could add additional charges and order that you are apprehended even though you are out on bail.

Arraignment on Indictment

You are taken to the Superior Court, and your charges are read if charged with an aggravated DUI case. At this proceeding, you are needed to plead either guilty or not guilty. Also, the bail amount is reviewed if your attorney filed a motion before the proceeding. The court has the jurisdiction to increase or decrease the amount.

The prosecution must provide discovery such as medical reports, pictures, police reports, probation reports, physical proof, and diagrams in your case to the defense. Your defense attorney and the prosecution are not allowed to hide evidence to show them during the trial.

Pre-Trial and Trial Conferences

During the pre-trial hearing, your lawyer could negotiate with the prosecution to obtain a plea deal for you. You have the right to a plea deal, and you can reject or accept the plea. A plea deal could include alternative penalties or reduction of charges.

During your trial, the following happens:

Firstly, the court selects a jury. Your attorney, the prosecutor, and the judge ask the potential jurors several questions to unearth any biases. Ultimately, the juror panel should remain with seven jurors. Six jurors are allowed to deliberate on your charges, while the seventh one acts as an alternative.

Secondly, your attorney and prosecutor present each side of the case. After the prosecuting attorney presents their proof, your lawyer can provide the court with evidence to counter the prosecution. You are not allowed to present evidence on your own.

Sentencing Hearing

The judge makes a ruling after your case’s verdict is determined. Sentencing could happen many days later too. At the hearing, the court determines the penalty like probation, jail, fines, or restitution.

Common Defenses to Arizona DUI

You could use several legal defenses that could have your DUI charges dismissed or reduced. However, the judge has the jurisdiction of making a ruling depending on the circumstance surrounding your DUI charge. The defenses include:

Failure to Read Your Rights

After you are arrested, Arizona law requires the police to read your Miranda rights. They should read the Miranda rights before interrogating you. If the police question you before reading your Miranda rights, anything you say cannot be used against you in a court of law. If the prosecution brings the statements forth, the judge could dismiss them.

The Police Had No Reasonable Suspicion To Pull You Over

Police officers have no right to stop you for a DUI check without a proper reason. In the US constitution, the Fourth Amendment states that traffic officers must have reasonable suspicion and belief that you are drunk when driving. Acts that could give the arresting officer a reasonable suspicion of drunk driving are overspeeding or driving way below the speed limit, weaving on the road, driving erratically, or changing speeds abruptly. But if the officers singled you out because of your gender, denomination, race, or factors that do not require law enforcement, then your lawyer could argue that the stop was unconstitutional.

Law Enforcement Made You Perform the Wrong Field Sobriety Tests (FSTs)

Arizona law requires you to do FSTs after the police pull you over for a DUI check. Even though the traffic police could not tell you that, know that it is your constitutional right to refuse to perform any FST. Many lawyers recommend that you refuse to take FSTs, too, because the police could use the tests against you if you voluntarily do the tests. However, your lawyer could help you build many defenses after failing an FST, including:

  • The Law Enforcer Did not Consider Relevant Factors

Like your blood alcohol level, different factors could affect your FST performance apart from being intoxicated. These factors could include wearing high heels, having a physical disability, slippery roads, or bad weather.

  • Improper Administration of FSTs

Police administer three standard FSTs, including walk-and-turn, one-leg stand, and horizontal gaze nystagmus test. The law also requires the traffic officers to follow the protocol strictly. You can argue in court that the officer who pulled you over deviated from the lawful FSTs.

Lack of Probable Cause

The Fourth Amendment also requires the police to have probable cause before arresting you for DUI. Probable cause is a higher standard than reasonable suspicion, and the traffic officer must have a reasonable belief you are driving under the influence as long as there is proof. If the police arrested you without proof, then the arrest is considered unlawful. Also, any evidence obtained during your arrest and presented in court is considered inadmissible. If the prosecution cannot provide proof that could be admissible during the trial, the judge could dismiss your case or lower your charges.

The Blood Test Samples Were Contaminated

If the traffic officer requires you to give a blood sample, your lawyer could challenge the results on various grounds. Like a breath test, contamination and calibration problems can arise, and use these as a legal defense. False high BAC readings after doing a blood test could be caused by blood sample fermentation or inadvertent sample switching.

You Were not Driving Before Your Arrest

Per A.R.S. Section 28-1381, it is unlawful to drive while drunk or with a .08 BAC and higher. The police could find you in your car while drunk and decide to arrest you. If you were not in actual physical control of the car, your lawyer could use this particular defense at the time of your arrest. The police must prove that you were driving under the influence within two hours of your arrest. However, you cannot use their legal defense if the police stop you while you are in actual control of the vehicle.

Unreliable or Incorrect Breath Test Results

Several factors could cause inaccurate breath test results. Improper calibration of device testing is a legal defense to DUI. Also, these factors could result in false BAC readings. The factors include:

  • The Breath Sample Was Contaminated. Potential contaminants could affect your BAC reading and cause false results. These contaminants include the previous suspects’ breath residue or even cleaning solvents.
  • You Suffer a Health Condition. Particular conditions such as gastrointestinal reflux disease (GERD), acid reflux, and heartburn could spike your BAC level even though you haven't been drinking.
  • The Law Enforcer Delayed to Administer the Breath Test. If you drink alcohol shortly before you are stopped for DUI, your BAC could rise between the time of your stop and when taking your breath test.

What The Prosecutor Must Prove to Convict You

Sentencing for Arizona DUI Crimes

  1. Penalties and Punishment for Violating ARS 28-1381

Violation of an Arizona DUI law is charged as a class 1 misdemeanor. The punishment the judge gives you depends on whether it is your first or second offense DUI within seven years. In Arizona, the DUI law applies even if you committed a DUI in another US state.

Arizona Punishment for a First Offense Within Seven Years

Upon conviction of a first DUI offense, the court could:

  • Sentence you to county jail for ten days. However, the judge could drop nine days if you undergo alcoholic and drug screening, treatment, or education.
  • Post you to community service.
  • Order you to undergo a traffic survival school program.
  • Order you to pay a $1,250 fine or more.
  • Order for an ignition interlock device installation (IID) for one year.
  • Suspend your driver’s license for 90 days. You are eligible for restricted driving privileges after 30 days.

Arizona Punishment for a Second Offense Within Seven Years

A second DUI office carries harsher penalties upon conviction, including:

  • Serving 30 hours of community service.
  • Serving 90 days in jail. The court could drop 60 days from the sentence if you undergo alcohol and drug screening, treatment, and school program.
  • Undergoing a traffic survival school course.
  • Paying not less than $3,000 in fines.
  • Installing an IID if your vehicle for one year.
  • Having your license suspended for one year. You are eligible to drive on a restricted license with an IID installed in the vehicle after 45 days.

  1. Extreme DUI Penalties Under ARS 28-1382(A)(1)

Penalties for Extreme DUI increase with every successive DUI within seven years.

1) First Extreme DUI Offense Within Seven Years

You are charged with a class 1 misdemeanor and the possible penalties, including installing an IID in your vehicle for a year. The court could sentence you to 30 days in jail or fine you around $2,500. A 90-day driving privileges suspension and compulsory alcohol and drug treatment are other possible punishments. The judge could also post you to do community service or attend a traffic survival school course.

2) Second Extreme DUI Crime Within Seven Years

Like the first extreme DUI offense, the court charges the second extreme DUI offense as a class 1 misdemeanor. If found guilty, the judge could sentence you to county jail for 120 days or order you to pay a $3,250 fine. You could have your driving license suspended for a year, do 30-hour community service, or attend a traffic survival school course. Other penalties include having an IID installed in your car for a year or undergoing alcohol and drug education or screening.

3) Third Extreme DUI Crime Within Seven Years

A third extreme DUI offense attracts harsher penalties than the other two crimes. Arizona law classifies it under class 4 felony. Upon conviction, you could serve not less than four months in state prison or pay a fine not below $4,000. The court could suspend your driving privileges for three years and order you to install an IID for two years. Other possible punishments are attending a traffic survival school program or undergoing an alcohol and drug screening and treatment.

Apart from the above penalties, you could incur other costs like bail amounts, alcohol monitoring, and jail costs.

  1. Punishment for Super Extreme DUI Under ARS 28-1382(A)(2)

Your penalties for violating ARS 28-1382(A)(2) becomes more severe with every successive DUI within seven years.

1) First Super Extreme DUI Offense Within Seven Years

A first super extreme DUI offense is a class 1 misdemeanor that carries penalties, including a 45-day jail sentence, a $2,750 fine, a 90-day license suspension, and an IID installation for a year. The court could order you to undergo alcohol and drug screening, undertake a traffic survival school program, or post you to community service.

2) Second Super Extreme DUI Offense Within Seven Years

Like the first super extreme DUI, this crime is a class 1 misdemeanor. If found guilty, possible penalties are having your driver’s license suspended for one year, serving time in jail for 180 days, or paying a fine of not less than $3,750. The judge could order you to install an IID in your car for one year, undergo alcohol and drug treatment, attend a traffic survival school, and complete community service for one hour.

3) Third Super Extreme DUI Offense Within Seven Years

A third super extreme DUI is charged under class 4 felony and carries the harshest penalties. If found guilty, you could serve not less than four months in state prison, pay not less than $4,000 in fines, and have your driving license suspended for three years. You also must install an IID in your vehicle for two years, complete a traffic survival program, and undergo alcohol and drug treatment.

Depending on the circumstances surrounding your car, you could be eligible for work-release or, instead of serving time in jail, be detained at home.

Find a Phoenix Criminal Lawyer Near Me

Possible punishments that the court gives you if convicted for DUI in Arizona are harsh. Arizona has the harshest DUI penalties among many states. Suspects facing drunk driving charges require a DUI attorney’s help. Due to their knowledge and experience, your attorney can represent you in court, fight for your rights using strong defenses, and achieve a favorable outcome. At the Phoenix Criminal Lawyer, we represent clients facing DUI charges in Phoenix, AZ. Call us today at 626-626-7075 to schedule a free consultation.