Each year thousands of motorists are arrested in the greater Phoenix area for charges related to DUI, Extreme DUI and Aggravated DUI. Despite the advertisement of DUI task force patrols on the radio, television and in local newspapers, many people are arrested between Thanksgiving and New Years Day after celebrating with family, friends and co-workers. Drivers arrested in Arizona and subsequently prosecuted for DUI face some of the harshest penalties in the country. DUI convictions result in huge fines, the suspension or revocation of driving privileges, required ignition interlock devices and jail or prison terms.
Of course, the surest way to avoid being arrested, prosecuted and convicted of DUI is to avoid drinking and driving. Unfortunately, drinking and driving can result in tragic consequences. As we are all aware, many people are seriously injured or killed in accidents involving impaired drivers each year. When this occurs, lives are changed forever and the individuals charged with driving under the influence and causing an injury or death face potential aggravated assault, manslaughter or even murder charges. The best advice anyone could give a person who has been drinking is to utilize a designated driver, call a taxi or contact Uber or Lyft.
If you find yourself contacted by police and investigated for a DUI, there are a couple of things you should know:
- You can be arrested for DUI even if you are not driving - Arizona law makes it illegal to operate or be in "actual physical control" of a motor vehicle while impaired to the slightest degree by alcohol, drugs or a combination thereof. Operation of a vehicle or driving generally speaks for itself. However, with respect to "actual physical control," you can be arrested for simply being seated behind the wheel of your parked vehicle while impaired. Under an "actual physical control" theory of DUI, prosecutors will examine several factors including, where the vehicle was parked, whether the engine was running, whether the keys were in the ignition, where you were seated in the vehicle, etc.
- You can be arrested for DUI even if you've only had one or two drinks - When discussing a DUI charge, most people ask what did you blow on the breathalyzer test or what your blood result was. Obviously, tis is important if you are charged with DUI above .08%, Extreme DUI above .150% or Super Extreme DUI above .20%. However, A.R.S. 28-1381A1 states that it is illegal for a person to drive or be in actual physical control of a motor vehicle if they are impaired to the slightest degree by alcohol. Consequently, if your ability to drive is lessened to any degree as illustrated by motor vehicle violations, physical signs of alcohol consumption or performance on the field sobriety tests, you can be arrested and prosecuted for DUI.
- You are not required to perform the field sobriety tests - Experienced DUI officers in Arizona will usually employ a battery of three tests to determine whether someone is impaired to drive a car. These tests include Horizontal Gaze Nystagmus (the "eye test"), the Walk and Turn Test and the One Leg Stand Test. The tests are designed to make you perform physical and mental tasks at the same time and there are a number of clues or mistakes an officer will look for in deciding to arrest you. These tests are completely voluntary and you have no legal obligation to participate in them. Most people will make mistakes whether or not they have been drinking due to nervousness, coordination issues, failure to follow instructions, etc. Moreover, it is powerful evidence which can be used by a prosecutor at trial. You should politely refuse to participate in the field tests if you've been drinking and are stopped by police.
You have certain rights when stopped and investigated or arrested for DUI in Arizona:
If you have been stopped by police and suspected of DUI and actually arrested, there are certain steps you can take to protect your rights. These include:
- Remaining Silent - You are only required to provide the officer with your name along with your drivers license, insurance and registration. You do not have to answer any questions concerning alcohol consumption, where you have been, explaining your driving behavior, etc. Additionally, officers will ask a standard set of questions to someone who has been arrested for DUI such as rating themselves on a scale of 1 to10, admitting how much they've had to drink, and giving an opinion about whether they feel impaired to drive. You have a constitutional right to remain silent and should absolutely exercise it.
- Do Not Participate in the Field Tests - Again, the tests are voluntary and you cannot be penalized for refusing them.
- Request to Speak with an Attorney as soon as Possible - You have a right to consult privately with an attorney as soon as possible after being arrested for DUI as long as it does not unreasonably interfere with the officer's investigation. Consultation with an attorney includes a private room where you are able to speak freely and openly with a lawyer outside of the officer's presence. The assistance of a lawyer while you are in custody is valuable as you can get answers to common questions about taking a blood, breath or urine test, getting an independent test, etc.
- Request to Arrange for an Independent Blood Test - You have a right to obtain an independent test of your blood as soon as possible after being processed by police for DUI. An independent test can be used to challenge the reliability of the results reported by the state crime laboratory or intoxilyzer. Officers cannot interfere with your ability to obtain an independent test at a local hospital or urgent care once you make that request.