DUI CASES
Driving Under the Influence is extremely dangerous and, therefore, a very serious offense with severe consequences. Mandatory jail or prison time, stiff fines, license suspension or revocation, probation and increased insurance costs are just some of the consequences of being convicted of DUI.
The best advice is don’t drink to excess and drive. Have a friend drive you home or call for a cab.
However, if you are charged with the crime of DUI and believe the charges are unfair, Robert A. Dodell, Esq., can help. Robert has the expertise, the knowledge and the experience to help you fight these charges and win. He is ready to fight to protect your rights.
What is a DUI?
DUI is shorthand for "Driving Under the Influence." The are basically four types in Arizona.
- It is unlawful if one drives or is in actual physical control of a motor vehicle and is under the influence of alcoholic beverages or any chemical or controlled substance to the extent that his or her mental faculties are impaired. ARS 28-1381A1.
- It is unlawful if one drives or is in actual physical control of a motor vehicle with an alcohol concentration of .08 percent or more within two hours of driving. ARS 28-1381A2.
- It is unlawful if one drives or is in actual physical control of a motor vehicle with an alcohol concentration of .15 percent or more within two hours of driving. ARS 28-1382 (The "Extreme DUI" and "Super Extreme DUI").
- It is unlawful if one drives or is in actual physical control of a motor vehicle with drugs or its metabolite in the person's body. ARS 28-1381A3.
One can be charged with multiple offenses.
Should I perform field Sobriety tests?
It is extremely important to understand the difference between field sobriety tests and a chemical test of your breath, blood or urine. There is no penalty for refusing to perform field sobriety tests like the walk and turn, one leg stand, finger to nose, finger count, any verbal tests that requires reciting the alphabet or numbers, or horizontal gaze nystagmus. Horizontal gaze nystagmus is a test in which the person will be asked to follow the top of a pen being moved in front of the eyes. These tests are not objective. They are tests of a driver's balance and dexterity, judged solely by the officer. Do not do these tests.
The right to remain silent - USE IT!
The United States and Arizona Constitutions give you the right to remain silent. Don’t try to talk your way out. It does not work. An officer will ask you questions in order to gather evidence against you. The officer wants you to make statements that help the State’s case. It is best not to tell the officer anything.
You have a right to have counsel present at every critical stage of the proceedings. No matter what time of the day it is, you should still request to speak with a lawyer. The officer has the obligation to give you a chance to speak to an attorney so long as it would not unnecessarily hinder the investigation. Your lawyer can give you advice on other issues including your right to an independent test of your breath or blood to determine alcohol concentration. Ask to speak to a lawyer.
Be polite, but do not answer questions and do not admit anything.
Do I have to take a blood, breath or urine test is the police asks?
No, but it may be in your best interests to take the test. Arizona will automatically suspend your license for one full year, with no work / school permit, if you refuse to take a chemical test. Some police agencies will get a search warrant for your blood, even if you do refuse to take the test. Additionally, if your case goes to trial, the prosecutor can tell the jury that you wouldn't take the test, which may lead the jury members to conclude that you refused because you were, in fact, impaired by alcohol or drugs.
If you do take the test, and your BAC is greater than 0.08% BAC, your driving privileges will be suspended for ninety days. You may be eligible for a restricted driver’s license that allows you to travel to and from work, for work, medical appointments, and counseling sessions.
Always ask to speak to a lawyer prior to taking any test.
Can I challenge a Motor Vehicle Department suspension?
Yes.
You may request a review of the driver's license suspension by the Motor Vehicle Department within a specified number of days following receipt of your notice arrest. (You will receive your notice immediately with a breath test; a notice could be mailed to you when you take a blood or urine test).
Once a hearing request is made, the suspension of your driving privileges is stayed and the driver is considered to have a valid license, at least, until a decision is rendered by an Administrative Law Judge
At a formal review hearing, the Administrative Law Judge is authorized to administer oaths, examine witnesses and take testimony. If you request an informal review hearing, it shall consist solely of an examination by the Department of Motor Vehicles of the written materials submitted by the arresting officer, as well as anything you wish to submit. You generally cannot attend an informal review hearing.
How long will I lose my license?
That varies in Arizona. If you have an unlawful blood alcohol level, your driving privilege will be suspend for ninety days. If you are eligible, you may get a work / school driving permit after the first thirty days. If you have refused to submit to a chemical or physical test, your license will likely be suspended for a period of one year for a first refusal.
Reinstatement of driving privileges
Driving privileges are not automatically reinstated following a period of suspension. The driver must complete some paperwork and tender a fee to have his/her privileges reinstated, otherwise your privileges to drive are still considered to be suspended. This fact is sometimes overlooked by drivers and may result in stiff penalties should the driver commit another driving offense while ones license is still considered suspended.
Possible DUI defenses
Successfully defending against a DUI charge depends on first recognizing that many cases are manageable and defensible. In Arizona, there are many potential defenses to drunk driving charges. Below is a partial list of possible defenses:
- Lack of impairment.
- No reasonable suspicion to stop.
- No actual physical control.
- No probable cause for arrest.
- Denial of right to counsel.
- Inaccuracy of the breath testing device.
- Retrograde extrapolation below the legal limit.
What are the penalties if convicted?
Misdemeanors:
First Offense Misdemeanor (a class 1 misdemeanor):
DUI (BAC below .15%): At least 10 days in jail, 9
days can be suspended only upon completion of mandatory attendance
at alcohol screening with any recommended classes; and a minimum fine,
surcharge and assessment of approximately $1450. The court will charge
you for the cost of going to jail. One year of mandatory breath test
interlock device being attached to your steering wheel after all suspensions
completed (at a total additional cost of almost $1000). You must then
continue to blow into the device every 15 minutes to keep your car's
ignition on! Work / School release eligible if ordered to serve more
than one day in jail. The maximum can be 6 months in jail.
Extreme DWI (.15% -.199% BAC): Mandatory minimum of 30 days jail,
20 days can be suspended only upon completion of mandatory attendance
at alcohol screening with any recommended classes; a minimum fine,
surcharge and assessment of approximately $2700. The court will charge
you for the cost of going to jail. One year of mandatory breath test
interlock device being attached to your steering wheel after all suspensions
completed (at a total additional cost of almost $1000). You must then
continue to blow into the device every 15 minutes to keep your car's
ignition on! Work / School release eligible. The maximum can be 6
months in jail.
Super Extreme DWI (.20% and above BAC): Mandatory minimum of 45 days
jail; completion of a mandatory attendance at alcohol screening with
any recommended classes; a minimum fine, surcharge and assessment
of approximately $3200. The court will charge you for the cost of
going to jail. Eighteen months year of mandatory breath test interlock
device being attached to your steering wheel after all suspensions
completed (at a total additional cost of almost $1500). You must then
continue to blow into the device every 15 minutes to keep your car's
ignition on! Work / School release eligible. The maximum can be 6
months in jail.
Second Offense Misdemeanor, within 72 months from the first conviction (a class 1 misdemeanor):
DUI (BAC below .15%): At least 90 days in jail,
60 days can be suspended only upon completion of mandatory attendance
at alcohol screening with any recommended classes; 30 hours of community
restitution (the punitive term for community service); a minimum fine,
surcharge and assessment of approximately $3400. The court will charge
you for the cost of going to jail. Additionally the Motor Vehicle
Department (MVD) will revoke driving privileges for at least one (1)
year. After the one year revocation of your license, there is the
one year of mandatory breath test interlock device on your steering
wheel (at a total additional cost of almost $1000). You must then
continue to blow into the device every 15 minutes to keep your car's
ignition on! Work / School release eligible. The maximum can be 6
months in jail.
Extreme DWI (.15% -.199 BAC): Mandatory minimum of 120 days jail,
60 more days can be suspended only upon completion of mandatory attendance
at alcohol screening with any recommended classes; 30 hours of community
restitution (the punitive term for community service); a minimum fine,
surcharge and assessment of approximately $3700. The court will charge
you for the cost of going to jail. Additionally the Motor Vehicle
Department (MVD) will revoke driving privileges for at least one (1)
year. After the one year revocation of your license, there is the
one year of mandatory breath test interlock device on your steering
wheel (at a total additional cost of almost $1000). You must then
continue to blow into the device every 15 minutes to keep your car's
ignition on! Work / School release eligible. The maximum can be 6
months in jail.
Supreme Extreme DUI (.20% and above BAC): Mandatory minimum of 180
days jail, 90 days of which must be consecutive; completion of a mandatory
attendance at alcohol screening with any recommended classes; 30 hours
of community restitution (the punitive term for community service);
a minimum fine, surcharge and assessment of approximately $4600. The
court will charge you for the cost of going to jail. Additionally
the Motor Vehicle Department (MVD) will revoke driving privileges
for at least one (1) year. After the one year revocation of your license,
there is the two year of mandatory breath test interlock device on
your steering wheel (at a total additional cost of almost $2000).
You must then continue to blow into the device every 15 minutes to
keep your car's ignition on! Work / School release eligible. The maximum
can be 6 months in jail.
Third Offense Misdemeanor:
A conviction for a third DUI, with a valid license, within 72 months will result in a first offense felony DUI.
Felonies:
Felonies are always cited as "Aggravated DUI" or "Aggravated DWI".
You can be subject to felony penalties on any DUI charge if you are driving while your driver's license was restricted, suspended, revoked or canceled or if convicted of a third DUI, with a valid license, within 72 months from the first violation.
First Offense Felony (a class 4 felony):
The mandatory minimum penalty is 4 months in PRISON; mandatory alcohol screening and classes; the MVD will revoke driving privileges for at least 3 years; and supervised probation requiring monthly visits, probation fees, and urinalysis at any time the probation officer so desires. The maximum can be 3.75 years in PRISON. Mandatory assessment of $3000.
Second Offense Felony (a class 4 felony):
If convicted of a second felony Aggravated DUI, you will be subject to a mandatory minimum 2.25 years in PRISON along with the other penalties outlined above. The maximum can be 7.5 years in PRISON. MVD will revoke driving privileges for at least 3 years. Mandatory assessment of $3000.
Third Offense Felony (a class 4 felony):
If convicted of a third felony Aggravated DUI, you will be subject to a mandatory minimum 6 years in PRISON along with the other penalties outlined above. The maximum can be 15 years in PRISON. MVD will revoke driving privileges for at least 3 years. Mandatory assessment of $3000.
Felony with a Child Passenger under 15 years of Age (a class 6 felony):
A DUI, even a first offense, where there is a child passenger under 15 years of age in the car, could result in a maximum penalty is 2 years in PRISON.
Insurance - additional punishent
Until DUI guilt is established, an insurance company should not cancel your insurance coverage. If convicted of a DUI, and your insurance discovers the conviction, your insurance rates will increase dramatically for the next 3 years.
Driving privilages suspended as a result of criminal conviction
Motor Vehicle Department hearings usually occur before any criminal trial. If the State fails to meet its burden of proof at the MVD hearing, the driver’s privileges will not be suspended. However, this does not mean one’s driving privileges are immune from suspension. A criminal conviction on the DUI charge will result in a suspension of one’s privilege. The major difference is that a suspension that results from a criminal conviction will ultimately require the driver to obtain SR-22 insurance in order to have his/her driving privilege reinstated, while a suspension which stems from a Motor Vehicle Department hearing will not create this situation.
Revocation of driving privileges
In addition to a suspension of driving privileges, some drivers suffer a subsequent revocation as well. A person convicted of a second drinking and driving charge within 72 months of the first one shall have one’s driving privilege revoked for a period of not more than 1 year. A person convicted of a felony DUI will suffer a 3 year revocation period. Reinstatement of privileges following a revocation is much more difficult than following a suspension. It involves an investigation of the driver’s character, habits, and driving abilities as well as a written evaluation from a physician, psychologist or certified substance abuse counselor.
Vehicle forfeiture
If a person is convicted of an aggravated drinking and driving offense, in addition to all of the aforementioned sanctions, the court may order the motor vehicle owned and operated by the person at the time of the offense forfeited.
Should I get a lawyer?
The answer to this question is, obviously, yes. Defending against a charge of drunk driving is a tricky business. Defenders need to understand scientific and medical concepts, and must be able to question tough witnesses, including scientists and police officers. The law is very complicated and has become more complicated because we now have a blend of the civil sanctions by the Department of Motor Vehicles in addition to the criminal sanctions imposed by the courts. There is also the threat of extensive jail. Your rights and requirements of the police are changing constantly. You will be well informed if you speak with an experienced DUI attorney immediately. Remember, the quicker you call an attorney, the better your chances are of obtaining a favorable outcome in your case.
Some final realities
DUI charges are filed thousands of times in Arizona every year against people from all walks of life. These charges are very serious. Get assistance from Robert A. Dodell, Esq., an attorney experienced in DUI law.
| Disclaimer: The foregoing is not to
be construed as legal advice to or for any specific individuals.
Always seek the advice of counsel for specific legal problems. There
is no substitute for professional legal counsel. |