DUI F.A.Q.s
DO I NEED A LAWYER?
Regardless of your income level, you should have a lawyer when
facing any criminal charge. In addition to the many consequences
that can be imposed by the judge, a DUI conviction can affect your
ability to drive a car and may even affect your job.
A qualified attorney can review the case for defects, suppress
evidence, compel discovery of such things as calibration and maintenance
records for the breathalyzer machine, have blood samples independently
analyzed, negotiate for a lesser charge or reduced sentence, obtain
expert witnesses for trial, and contest the administrative license
suspension.
You may be entitled to a public defender based on your income.
However, public attorneys are limited in the amount of time they
can dedicate to your case. You may risk your case getting "lost
in the shuffle." Further, a public defender will NOT represent
you in front of an Administrative Law Judge at the Arizona Department
of Motor Vehicles.
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WHAT ARE THE POLICE LOOKING FOR?
While at the police academy, officers are "trained" to
make observations of impaired persons. Unfortunately, even people
who have not had anything to drink may demonstrate these very subjective
characteristics. Often there are alternative explanations for the
following:
- Turning with a wide radius, straddling center of lane marker,
and weaving
- Speed more than 10 mph below limit
- Stopping without cause in traffic lane
- Following too closely or braking erratically
- Responding slowly to traffic signals or accelerating or decelerating
rapidly
- Driving with headlights off
- Speeding is not a symptom of DUI. Because of quicker judgment
and reflexes required for speeding, it may indicate sobriety.
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IF I AM STOPPED BY A POLICE OFFICER
AND HE ASKS ME IF I HAVE BEEN DRINKING, WHAT SHOULD I SAY?
You are not required to answer potentially incriminating questions.
A polite "I would like to speak with an attorney before I answer
any questions" is a good reply.
Do not answer questions. You have a constitutional right to
remain silent.
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SHOULD I TAKE THE EYE TEST AND
THE OTHER FIELD SOBRIETY TESTS?
Do not agree to take field sobriety tests, including the eye test
(otherwise known as the Horizontal Gaze Nystagmus). There is no
consequence for refusing this test.
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WHAT ARE THE FIELD SOBRIETY TESTS?
The Field Sobriety Tests (FSTs) are three tests administered at
the scene by the police to determine if the subject is intoxicated.
There are other tests that can be performed, but the following three
are the only ones certified by the National Highway Traffic Safety
Administration.
Walk and Turn: In this test, the subject must stand on a line with
his feet in the heel-to-toe position with his arms at his sides.
He must then take steps down the line in a prescribed way, turn
around, and then return to his original position while counting
his steps aloud.
One Leg Stand: In this test, the subject must stand with his heels
together and arms at his sides. The subject then must stand on one
foot and hold the other foot straight out and approximately six
inches off the ground while counting aloud.
Horizontal Gaze Nystagmus (HGN): "Nystagmus" refers to
an involuntary jerking of the eyeball. Under the influence of alcohol,
this involuntary jerking can be more distinct. In this test, the
subject is to follow a pen or penlight 12-15 inches away with his
eyes. The officer then looks for Nystagmus.
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SHOULD I TAKE A BLOOD, BREATH,
OR URINE TEST?
Do not agree to take a breath, blood, or urine test prior to speaking
with an attorney. If you cannot contact an attorney it may be a
good idea to consent to the test, as Arizona Law requires you do
so, or your driver's license may be revoked for one year.
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WHAT IS A BREATH TEST?
The breath test is a technique used by the government to determine
if there is alcohol in your system and to measure the amount. In
these cases, you are asked by a police officer to blow into a breathalyzer
or intoxilyzer, which will then provide the operator with an allegedly
correct reading. Arizona law requires that the machine used to capture
your breath be properly calibrated and serviced with DHS guidelines,
the test be given by a certified operator, and the test be administered
within DHS guidelines. There are well-publicized incidents of government
abuse, misuse, and gross neglect when using these machines against
DUI suspects. It is imperative that someone accused of a DUI involving
a breathalyzer consult a DUI attorney.
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WHAT IS A BLOOD TEST?
Blood alcohol analysis is an attempt to measure by chemical analysis
the amount of alcohol in your blood at a given time. Arizona law
requires that the blood be drawn, collected, stored, and tested
within strict DHS guidelines. A trained DUI lawyer should be consulted
if your case involves a blood draw
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WHY AM I CHARGED WITH TWO D.U.I.s?
The real reason is that the Arizona State legislature wanted to
make it easier for the prosecutor to prove this case. Because of
this, the State probably charged you with:
1. Driving While Under the Influence, requiring the State to prove
that your ability to drive was impaired to the "slightest degree."
2. Driving While Intoxicated, otherwise known as having a blood
alcohol concentration of above .08 within two hours of driving.
If your alcohol reading shows a concentration above .15, the State
can now charge you with Extreme D.U.I.
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WHAT IS AN EXTREME DUI?
An Extreme DUI is a law passed by the Arizona State Legislature,
which enhances penalties for DUI based on blood or breath alcohol
content over .15 within 2 hours of driving. If convicted, the increased
penalties include a minimum, mandatory 10-day jail sentence, the
installation of a breath interlock device on your vehicle, and also
increased fines and fees.
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WHAT IF I HAVE ANOTHER DUI WITH
IN 5 YEARS?
Arizona law has increased penalties for individuals convicted of
a second DUI, within 5 years. The penalties may range from a minimum,
mandatory 30-day jail sentence to a 60-day minimum mandatory sentence.
The time difference depends on whether the prior DUI or current
DUI was/is an Extreme DUI. Additionally, a second offense conviction
carries a one-year license suspension.
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WHAT IS AN AGGRAVATED DUI?
The Arizona legislature passed this law designed to punish repeat
DUI offenders or those convicted DUI offenders driving on a suspended
license with a Class 4 Felony. In addition to providing all the
elements of a DUI, the government must prove that an individual
is either (a) guilty of a 3rd DUI in a 5-year period, or (b) is
driving on a suspended license. In regards to (b), the State must
prove beyond a reasonable doubt that the individual's license was
suspended and they knew or should have known of the suspension.
The possible punishment for an Aggravated DUI ranges anywhere from
supervised probation with a minimum, mandatory 4-month prison sentence
as a condition of probation to 3.75 years in the Department of Corrections.
If a person has multiple prior felony convictions, the government
can seek to punish them with up to 15 years in prison. Additionally,
the individual faces a mandatory license revocation.
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WHAT IF I AM A MINOR CHARGED
WITH DUI?
Arizona law increases penalties for minors driving with alcohol
in their system. It is illegal for a minor to have any alcohol in
their system and drive. If convicted, the DMV will revoke the underage
drinker's license for a lengthy period. The methods of proving a
minor is driving with alcohol in their system may be problematic
and it is imperative to consult with an attorney if facing this
charge.
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WHAT IS AN ADMINISTRATIVE HEARING?
Since a driver's license is more than just a privilege, it has
become widely accepted that this valuable document cannot be suspended
or revoked without affording due process. Due Process consists of
an administrative hearing conducted by the DMV. These hearings greatly
differ from court proceedings and it is important to have an attorney
that understands the difference. The purpose of the hearing is to
confirm the grounds for the suspension exist. If an adverse determination
is given, the hearing is usually subjected to judicial review or
an appeal.
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WHAT ARE THE PENALTIES FOR D.U.I.?
The penalties for a D.U.I. vary depending upon your prior history,
and the circumstances surrounding your particular case. Arizona
law requires a minimum sentence in all D.U.I. cases.
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WHAT WILL HAPPEN TO MY DRIVER'S
LICENCE?
If your blood-alcohol reading is above .08, Motor Vehicle may suspend
your license for 90 days. If eligible, after the first 30 days of
suspension, a restricted license for work purposes may be issued.
The license suspension may occur regardless of whether or not you
have been convicted of a D.U.I.
If you refuse to comply with a police officer's request to take
a blood, breath, or urine test, your driver's license may be revoked
for one year. This may also happen regardless of whether or not
you have been convicted of D.U.I.
You are entitled to a hearing with an Administrative Law Judge
at the MVD. We can represent you at this hearing.
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