DUI Questions and Answers

Do You Understand D.U.I.? (Driving while under the influence)

If you are like most people, the answer is no. Obviously, driving while impaired by the effects of alcohol is against the law, not to mention dangerous to human life, including your own. Research has shown, however, that many people arrested and charged for D.U.I. are not "guilty" as that crime is defined by law. Because people don't know their rights, they incriminate themselves, and actually become convinced by police officers and prosecutors that they have committed a crime when they really haven't, and many innocent people suffer the wrath of a very punitive law unnecessarily. It is for those potentially innocent victims that we have prepared this information so that you can understand and exercise your rights and properly exonerate yourself.

Remember, if you are stopped for a routine traffic violation and have had only a few drinks, you can fall into a trap and find yourself charged with D.U.I. and your license suspended. Don't let this happen to you. Know and exercise your rights.

These questions and answers that we have prepared should help.

• What is D.U.I.?
• What is extreme D.U.I.?
• What does "under the influence of alcohol" mean and how do I know if I am under the influence when I am trying to decided whether or not to drive?
• If I am stopped by a police officer after drinking, what should I do?
• What tests do I have to take?
• What are these tests?
• Do I have to answer any questions?
• Do I have the right to speak with an attorney?
• If arrested, can the police officer immediately take my driver's license?
• Do I really need an attorney if I am arrested for D.U.I.?

Important Questions and Answers about D.U.I. And your Rights in Arizona

Question: What is D.U.I.?

Answer: In Arizona, it is a criminal offense and a class one misdemeanor to operate a motor vehicle while under the influence of alcohol or to operate a motor vehicle while the content of alcohol in your blood is .08% or higher. D.U.I. is, without a doubt, the most serious class one misdemeanor that can be committed in the State of Arizona. Unlike other criminal offenses which allow the court wide latitude in the fine provisions and potential jail sentence, the D.U.I. Statute provides a mandatory minimum sentence of one to ten days in jail and an enormous fine. D.U.I. Is also an eight-point moving violation. Arizona law also provides that a conviction for a second D.U.I. within a 60-month period of the first requires a mandatory minimum jail sentence of 30 to 60 days. A third offense within that 60-month period is designated as a felony with a mandatory minimum sentence of four to eight months in a state prison facility. Therefore, as you will see, a conviction for D.U.I. Is a serious offense. Because Arizona's law is unique to the country, it is constantly being challenged by attorneys in court on constitutional grounds. There is currently a struggle going on between the courts and the legislature as to how far the law can go in taking discretion from the courts. It is because of this that the law and our rights are constantly changing.

Question: What is extreme D.U.I.?

Answer: Extreme D.U.I. was enacted by the Arizona Legislature and took effect on December 1, 1998. It is D.U.I., but if your alcohol concentration exceeds .15% at the time of driving, the mandatory sentence for the first offense is thirty (30!) days in jail and a more enormous fine. A second offense for extreme D.U.I. with any prior D.U.I. conviction within 60 months carries a mandatory jail term of 120 days, as well as other extreme penalties and restrictions. "Extreme D.U.I." Is not a felony. It also doesn't mean you were extremely drunk. It is only a number (.15).

The worst part of Extreme DUI is the requirement that you pay to have installed and keep for 1 year, an Ignition Interlock Device. This thing is awful! First, it is embarrassing. Secondly it is dangerous. It is a breath analyzer powered by a satellite that beeps and malfunctions randomly!

In November, 2005, the Police were permitted to impound your vehicle if arrested for Extreme DUI. They can now impound your vehicle for 30 days. You only have a few days to contest this and it needs to be done.

Question: What does "under the influence of alcohol" mean and how do I know if I am under the influence when I am trying to decide whether or not to drive?

Answer: "Under the influence of alcohol" has been defined in Arizona as whether the alcohol that you have consumed impairs your ability to drive to the slightest degree. There are charts that are being passed out from time to time in bars and other places which attempt to show how much alcohol you can consume and be within a safe and tolerable limit. These charges are informative, but they are certainly not completely accurate. The best test for you is the test that the law defines. Determine before you drive whether or not your ability to drive is at all impaired by the alcohol that you have had to drink.

Question: If I am stopped by a police officer after drinking, what should I do?

Answer: First, always immediately ask to consult with an attorney prior to answering questions or performing any tests.

Before a police officer can place you under arrest for driving while under the influence of alcohol, he must have probable cause to believe that you are under the influence of alcohol. One way the police officer determines probable cause is in your driving behavior. If you have just committed a traffic violation or have been swerving or weaving in the lanes, this is the first element of probable cause that the police officer has in order to arrest you. Typically, the police officer's second element of probable cause is that he notices a "strong odor of alcohol" about your breath when he stops your vehicle. It is at this point that the police officer, in order to complete his probable cause, will ask you to step out of the vehicle and perform sobriety or coordination tests. A police officer may ask you to perform a battery of roadside sobriety or coordination tests under certain circumstances, however, you are not legally required to submit to physical sobriety tests. Since many factors other than alcohol (i.e., nervousness, fatigue, general uncoordination) can cause you to make errors on these tests, we recommend that you decline to perform them until consulting an attorney. Be courteous, give the officer your driver's license and your registration because that is required by law, but our opinion and advice is do not perform any sobriety or coordination tests.

Question: What tests do I have to take?

Answer: Arizona law requires that you submit to an analysis of your blood, breath or urine if arrested for D.U.I. In addition to the D.U.I. criminal law, Arizona Revised Statutes also provides a civil penalty of the loss of your license for a period of 12 months if, after arrested and requested, you refuse to submit to a chemical analysis of your breath, blood or urine.

The problem here is that if you refuse, the police can get a telephonic warrant and require with force the taking of blood. Also, as of February 2006, after 90 days you can apply and receive a special ignition interlock license for the balance of the suspension.

Question: What are these tests?

Answer: Typically, in the cites of Phoenix, Glendale, and Tempe, the test of choice is breath. These cities use a new machine called a Intoxilyzer 8000. This machine is under attack now by lawyers because the "Source code" is unknown and the manufacturer won't give it out. It makes the analysis of your sample difficult to question as too many assumptions made by the machine are unknown at this time. Courts are now considering whether to allow the results in court. This is the hottest issue in DUI defense today. Stay tuned for updates. Before you are required to blow into the machine, the Officer must place you under arrest for DUI. Also, if you request, they must let you call a Lawyer for advice. You don't have a choice of tests, the Police do.

In Mesa, Gilbert, Chandler, Scottsdale and some other places the test of choice is blood. Either you will be taken to a hospital or the Police will draw it at the station. This is a very dangerous practice and we are hotly contesting an officer's authority to do this. at present, they can and do draw blood. If this happens to you, request that you be taken to a hospital. This is for your own safety. We have had Clients who have developed major complications form this barbaric practice. Regardless of where you go or who draws the blood, do not ever sign a Waiver of Liability. You can agree to the test but do not let them off the hook if you get injured or sick! Finally, if blood is drawn, demand release to get your own blood test from a Hospital. This is important as the risk of contamination and tampering with your blood increases as Police draw and store it without supervision or independent verification as to the blood's integrity. In other words, you have to believe and trust the officer. That's just wrong!

Question: Do I have to answer any questions?

Answer: You do not have to answer any questions that the police officer asks you. Remember, the only thing that you have to tell the police officer is your name, your address, produce your driver's license, registration, proof of insurance and, if requested, submit to an analysis of your blood, breath or urine. First, before the police officer may formally "interrogate" you, he must read to you your Miranda rights. The very first Miranda warning is that you have the right to remain silent. Exercise that right! All you do by talking is help the police officer gather evidence against you. You are not going to convince the police officer that you aren't drunk, so don't even try. You do not have to give the police officer any other evidence and you should not. You will not be penalized in any way for politely refusing to answer any questions or perform any field sobriety tests.

Question: Do I have the right to speak with an attorney?

Answer: Prior to answering questions or performing any tests, you should immediately begin asking the police officer if you can speak to your attorney. You have an absolute right to consult with an attorney before deciding whether or not to submit to the blood, breath or urine test. Our firm answers those calls 24 hours a day, seven days a week.

Question: If arrested, can the police officer immediately take my driver's license?

Answer: The answer is yes if you have an Arizona license and you refuse to submit to an analysis of your blood, breath or urine after being arrested for D.U.I. Also, your Arizona license can be taken by the police officer immediately if he has probable cause to arrest you for D.U.I., And it is determined that pursuant to an analysis of your blood, breath or urine, you blood alcohol level is .08% or higher.

If this is your first offense, the usual advice is to submit to the analysis to avoid the one-year suspension. If your blood alcohol level is .08% or higher, the police officer will give you a form which states that he is taking your driver's license and that your license will be automatically suspended for 90 days unless you request a hearing before the State Department of Motor Vehicles. The paper that he gives you is a temporary driving permit. If, within 15 days of your arrest, you request a hearing before the Department of Motor Vehicles, you will retain you driving privileges even though your driver's license has been physically taken from you. Your driving privileges will remain in effect until the time of the final determination of the Department of Motor Vehicles as to whether or not your license should be suspended. The best advice that we can give you is to contact an attorney immediately so that he or she can analyze the situation and determine whether or not there is a basis for having the suspension removed so that you have no interruption of your driving privileges. If you have a prior D.U.I. Conviction(s) within five years, call an attorney before making the decision as the suspension periods are different.

Question: Do I really need an attorney if I am arrested for D.U.I.?

Answer: The answer to this question is obviously yes. 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 now the threat of extensive jail for extreme D.U.I. Your rights and requirements of the police are changing constantly. You will be well informed if you speak with an experienced D.U.I. attorney immediately. Remember, the quicker you call an attorney, the better your chances are of obtaining a favorable outcome in your case.

Weingart Law Firm is a Proud Member of: