*These do's and don'ts apply to most, but not all situations.
Constitutional rights prohibit an officer from asking too many questions because the suspect might not know their purpose, or they could trick a suspect into making statements that might unfairly indicate guilt. Do not answer questions and do not admit anything.
The officer might ask (sometimes coerce) a DUI or DWI suspect to take coordination or field sobriety tests. Sometimes these tests are videotaped. Unlike the breath or blood test, the field sobriety tests are not objective. They are tests of a driver's balance and dexterity. Only the officer at the scene determines the results. Do not do these tests. A subjective analysis is not something to which a person should submit.
Once a person has been taken into custody (or otherwise deprived of his or her freedom in any significant way), a police officer must advise that person of their Miranda Rights prior to asking any questions. If this is not done, then any illegally obtained statements may be suppressed.
Felonies are always cited as "Aggravated DUI" or "Aggravated DWI"
Most Aggravated DUI's are class four (4) felony crimes. On conviction of any DUI or DWI charge while your driver's license was restricted, suspended, or revoked, you can be subject to felony penalties. If convicted for a 3rd DUI or DWI within seven (7) years from the first violation, you can be subject felony penalties.
Both DUI and DWI charges are equally serious and carry matching punishments. Arizona usually files two charges:
The key to defending against the charges is knowing the difference between these two.
The DUI charge, by itself, does not require a breath reading. It deals with suspicion of driving while under the influence, according to the manner of driving, physical and mental symptoms of impairment, or verbal admissions.
The DWI charge does not require that the accused have a BAC of .08% or greater "at the time of driving". Many defendants plead guilty if their breath or blood test is above a .08%. The ordinary citizen does not realize the test results only show their BAC at the time they were tested and NOT at the time they were actually behind the wheel. As it will be explained in the "Possible Defenses" section, there is a way to mathematically calculate what your true BAC level was "at the time of driving". This math formula is known as a "retrograde extrapolation". If your BAC is found to be below a .08% "at the time of driving", this is a possible defense.
As of 7/17/00 the Legislature passed a law stating that the "retrograde extrapolation" is only a defense to the DUI charge, not the DWI or the Extreme DWI charges. However, we are continually challenging this change in the law as unconstitutional. This has already been successfully reversed in Delaware and Pennsylvania. Many attorneys are currently challenging this law in the Appellate Courts. See us immediately to discuss the ongoing status of the "BAC at the time of driving" defense.
By citing drivers under two laws, Aggravated DUI (A.R.S. §28-1383 (A)(1)), and Aggravated DWI (A.R.S. §28-1383(A)(2)), the State gets multiple chances to convict. If convicted of one or both Aggravated DUI or Aggravated DWI, the punishment is the same.
The mandatory minimum penalty is four (4) months in PRISON; mandatory alcohol screening and classes; the MVD will revoke driving privileges for at least three (3) years; and supervised probation requiring monthly visits, monthly probation fees, and urinalysis at any time the probation officer so desires. The maximum can be three and three quarters (3.75) years in PRISON!
If convicted of a second felony Aggravated DUI or Aggravated DWI during any time in your life (or if you have one (1) allegeable historical non-Aggravated DUI felony conviction), you will be subject to a mandatory minimum two and one quarter (2.25) years in PRISON along with the other penalties outlined above. The maximum can be seven and one half (7.5) years in PRISON!
If convicted of a second felony Aggravated DUI or Aggravated DWI during any time in your life (or if you have two (2) allegeable historical non-Aggravated DUI felony conviction), you will be subject to a mandatory minimum six (6) years in PRISON along with the other penalties outlined above. The maximum can be fifteen (15) years in PRISON!
If you are cited for any DUI while a child under the age of fifteen (15) was a passenger, you can also be charged with an Aggravated DUI (class six (6) felony). Although this type of DUI is not as serious as the standard class four (4) Aggravated DUI, it still is a felony. The State would need to prove not only that the child in the car was under fifteen (15) years of age, but that you were also either impaired by alcohol while driving, or you had a blood alcohol concentration of .08% or higher within two (2) hours of being stopped by the Officers.
For a first offense class six (6) felony, you can be sentenced anywhere from probation with one (1) to ninety (90) days in jail minimum (depending if you have a prior DUI or DWI conviction, and whether your blood alcohol content is above or below the Extreme DUI mark of .15%, or the Super Extreme mark of .20%) up to one (1) year in jail; and prison of four (4) months to two (2) years of incarceration. If the person has one (1) allegeable historical felony prior conviction, then the "prison only" range is nine (9) months to two and three quarters (2.75) years in prison. If the person has two (2) allegeable historical felony prior convictions, then the "prison only" range is two and one quarter (2.25) to five and three quarters (5.75) years of incarceration.
In addition, to the above penalties, your license will be revoked for a minimum of three (3) years. When you do get your license back, then you will be required for at least one (1) year to place an interlock device (i.e., a breath testing device) on your steering wheel that you will have to blow into every time you start your car, and every fifteen (15) minutes after your car is running in order to keep the ignition from shutting off and the head lights from flashing. This will cost a minimum of $1500.00.
There are many defenses to the Aggravated DUI and the Aggravated DWI charges. Don't believe the Prosecutor - there are very few hopeless cases. The Aggravated DUI or the Aggravated DWI conviction has lifelong consequences, and-depending on the facts surrounding the individual case-Dismissal or Acquittal is Possible.
"No Reasonable Suspicion to Stop" Officers are not permitted to stop or detain someone based on pretexts regarding race, religion, gender, age, sexual preference nor on a host of other possible unjustifiable reasons.
"No Actual Physical Control" If a person has had too much to drink, pulls off the roadway, leaves the engine running with the A/C or heater on, and attempts to "sleep it off", then they are not in "actual physical control" of their vehicle and are not guilty of DUI or DWI.
"No Probable Cause for Arrest" If an officer did not have probable cause that a person was actually under the influence of alcohol, then the arrest will be invalidated (i.e. if the Field Sobriety Tests (FSTs) were improperly administered). The National Highway Traffic Safety Administration (NHTSA) has set forth guidelines regarding FSTs. The tests should not be given if the suspect:
Remember, you always have the right to refuse Field Sobriety Tests (i.e., the "physical" tests). Do not believe the Officer if he tells you otherwise!
If the Horizontal Gaze Nystagmus (HGN) or "eye test" was given by an officer not yet certified to give that test, it will be inadmissible in court.
Note: if the only basis for arrest is refusing to perform FSTs, then the arrest will be invalidated.
"Denial of Right to Counsel" When arrested for DUI or DWI, upon requesting a lawyer, the police must get you to a phone as soon as it is reasonably possible. If they ignore your request, or wait too long, this could be grounds for dismissal. (See also THE RIGHT TO REMAIN SILENT-USE IT! Section).
"Inaccuracy of the Breath Testing Device" The AZ Department of Health Services (DHS) has set forth rules for the proper maintenance of breath testing devices. They must be calibrated to within a 10% accuracy range every thirty-one (31) days. In addition, the machine goes through a seven (7) test Standard Quality Assurance Procedure (SQAP) every ninety (90) days. If any of the maintenance checks are "out of tolerance", then all breath tests given during the time interval between the two maintenance checks will be inadmissible. The prosecutor will not point this out for you.
"Retrograde Extrapolation below .08% BAC at Time of Driving." It can be shown through a math calculation that any alcohol drank in the last hour prior to being stopped would still be in your stomach and not in your blood system "at the time of driving". For example, a one hundred and fifty (150) pound man who had a breath test of .15% an hour after he was stopped, yet he drank three beers in the last hour before leaving the bar, it can be shown that his BAC "at the time of driving" was as low as .075%. This number can go even lower due to other factors such as a ten percent variance and inaccurate blood to breath conversion ratios (i.e., "2100-1") which are inherent to all breath testing devices. As of 7/17/00 the Legislature passed a law stating that this is only a defense to the DUI charge, not the DWI or the Extreme DWI charges. However, we will be challenging this change in the law as unconstitutional. This has already been successfully reversed in Delaware and Pennsylvania. We are continually challenging this law in the Appellate Courts. See us immediately to discuss the ongoing status of the "BAC at the time of driving" defense.
"Common Defenses", which may apply in any criminal case are numerous and diverse. One of the most common defenses we encounter is a "Miranda Rights Violation". In Arizona, the standard of whether any inculpatory statement (i.e., a statement which tends to admit guilt) is admissible into evidence is based upon a "Voluntariness" standard. If we can demonstrate that the police coerced you (i.e., intimidated or tricked you) into making a confession or inculpatory statement, or that they did not properly read you your Miranda Rights, then we can suppress those statements and any evidence gathered as a direct result of those statements. In addition, "Denial of Right to Counsel" is another common defense which is often raised. This occurs when a suspect is in custody and requests to speak to their lawyer, but is denied and questioning continues. In DUI / DWI cases it is mandatory that you speak to an attorney as soon as possible in order to determine your rights before your body burns away the evidence of your presumably low alcohol content. Other defenses include challenging the validity of any search warrant, or whether there were any "forensic flaws" during the investigation of your case. This could include exposing flawed procedures regarding blood, breath, and urine testing; fingerprints analysis; etc. Lastly, one of the most common defenses is exposing sloppy or misleading police reports which include everything from misstatements, false statements, flawed photo line-ups and inaccurate crime scene reconstruction.
In most first offense misdemeanor circumstances, it is wise to consent to a blood, breath, or urine test to determine you BAC after an arrest for DUI or DWI. (Remember, ask to call and talk with an attorney at the Law Offices of David Michael Cantor, BEFORE making this decision). This applies to any and all DUI or DWI arrests. Refusal to do the requested test can result in one (1) year suspension of your driving privileges with very few exceptions (not even to drive to work). However, if you are convicted for a second offense misdemeanor DUI or DWI, you will lose your license for one (1) year anyway. Rather than risk the thirty (30) days or more in jail, it is usually wise to refuse to consent to a breath or blood test when facing a second offense misdemeanor (within seven (7) years). However, if this offense will be an Aggravated DUI / Aggravated DWI (i.e., third offense within seven (7) years or license currently suspended), then you may want to refuse to consent to blood, breath or urine because you now face a minimum of prison and three (3) years revoked license. Remember, ask to call and talk with an attorney BEFORE making this decision.
WARNING: If you are currently required to have an Interlock Device on your car and you refuse to give a blood, breath or urine sample to an officer, then you can be charged with a Class Six (6) Felony Refusal per A.R.S. §28-1383 (A) (4).
If you do refuse, the officer can then phone a magistrate in order to secure a "telephonic search warrant". Once they receive this document, the officer will show it to you. At this point, if you do not cooperate in giving blood, the officers have the authority to hold you down and forcibly take the blood. It is always wise to agree to give blood once you are actually shown the search warrant. If you do physically resist, you can be cited with Obstruction of Justice, Aggravated Assault on an officer, Interfering with Judicial Proceedings, and a whole bevy of other charges.
As of August 12, 2005 a refusal to submit to a chemical test now carries a civil penalty of $500.00!
As of February 1, 2006 in certain situations, it will be possible to obtain a "work permit" to drive to and from work, school, or alcohol classes if you were suspended for refusing a chemical test (i.e., an "implied consent" suspension).
A document called the Administrative Per SE/ Implied Consent Affidavit usually is issued to the driver when the results of the BAC test is .08% or higher, or if you refused to submit to the test. The document consists of a pink and yellow piece of paper. A request for a hearing must be made within fifteen (15) days from the time the Affidavit was served. This is accomplished by filing out the back of the pink sheet and sending it to the DMV address on the upper left hand of the front side. If you retain the Law Offices of David Michael Cantor, P.C., then we will immediately file an official "Request for Hearing" on your behalf. If this is not done, then on the 16th day the ninety (90) day suspension will immediately go into effect if you were above a .08%, or a one (1) year suspension if there was a refusal to submit to a blood, breath or urine test.
If the request for hearing is made within the fifteen (15) days, a "Hearing Date Notice" will usually be mailed out two (2) months later. The actual Hearing Date will be a month after receiving the Hearing Date Notice. During this two (2) to three (3) month time span, your license is valid and you are allowed to drive (assuming it was valid before the DUI stop). You will have the yellow copy in your possession which will serve as your "Temporary License". If you are stopped by an officer during that period of time and he informs you that your license is suspended, simply tell him that we are your attorneys and we have requested a hearing on your behalf. If he still cites you for driving on a suspended license, don't panic. Simply bring in the ticket and we will take care of it. If he arrests you for driving on a suspended license, you can sue him for false arrest.
Prior to the actual DMV hearing, if you have retained the Law Offices of David Michael Cantor, P.C., we will have you in for a "Pre-DMV consultation". At this consultation, we will go over the police report with you in detail and discuss whether it will be necessary for you to appear at the hearing. We will also discuss various options regarding whether to "Void" the suspension, or whether to actually "Stipulate" to the suspension in order to receive a "Work Permit". This will also have ramifications nullifying any potential future suspension which could result from the criminal case. All of this will have to be discussed one-on-one with an attorney in our office.
If your case involved the taking of blood or urine during your DUI arrest, you will need to wait and see if your results come back above or below a .08%. It usually takes anywhere between one (1) and six (6) months to get your results back. If your blood results are above a .08% the officer will forward a request for suspension to the DMV office. The DMV office will then notify you with a "Corrective Action Notice" (i.e., notice of suspension). The moment you receive this from the DMV, contact us immediately so we can request a hearing on your behalf. This request needs to be done within fifteen (15) days of the date of that suspension notice. What can be confusing is that the Corrective Action Notice will state that the suspension will not go into effect until twenty (20) days after mailing of the notice. Do not let them fool you with this extra five (5) days; you must request a hearing within the fifteen (15) day period. If you are stopped by an officer after we have requested a hearing, you will not have a yellow copy of a temporary driver's license in your possession. His computer should reveal that we have requested a hearing on your behalf. If he still writes you a ticket for driving on a suspended license, do not panic. Simply bring it to us and we will take care of it. If he arrests you for driving on a suspended license, you can sue the DMV for not imputing the hearing request into the computer (assuming you were not already suspended prior to your Aggravated DUI / DWI arrest).
Prior to the actual DMV hearing, if you have retained the Law Offices of David Michael Cantor, we will have you in for a "Pre-DMV consultation". At this consultation, we will go over the police report with you in detail and discuss whether it will be necessary for you to appear at the hearing or not. We will also discuss various options regarding whether to "Void" the suspension, or whether to actually "Stipulate" to the suspension in order to receive a "Work Permit". This will also have ramifications nullifying any potential future suspension which could result from the criminal case. All of this will have to be discussed one-on-one with an attorney in our office.
Until DUI or DWI guilt is established, an insurance company should not--although some do--cancel your insurance coverage. If convicted of a DUI or DWI, you will either be unable to get insurance coverage or you will pay roughly $3000 or more a year, for the next three (3) years, above your current rate.
DUI also includes driving under the influence of drugs. DUI and DWI charges are filed thousands of times in Arizona every year against people from all walks of life. These charges are serious, but defensible, with assistance from an attorney experienced in DUI and DWI law.
It is important to hire an AV® rated law firm (the highest possible rating by Martindale Hubbell®), with the most Certified Criminal Law Specialists of any AV® rated Arizona Law Firm, per the Arizona Board of Legal Specialization. In addition, the Firm and all of it's lawyers are listed in the Bar Register of Preeminent Lawyers®. At the Law Offices of David Michael Cantor, P.C., the majority of our Attorneys are ex-Prosecutors, and all of our Attorneys know the system well. For a free initial consultation, call us at 1-888-822-6867, or click here to contact us now.
If your case involves Accident & Injury, Family & Divorce or Motorcycle Injury please visit our companion firm: Cantor Simon Law Group - www.cantorsimonlawgroup.com/
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November 09, 2008
A dozen years ago, 3,000 drunken-driving prosecutions in Tucson…
