Whether in the Phoenix area, or anywhere in Arizona, per A.R.S. §5-395 "Operating or In Actual Physical Control of a Motorized Water Craft While Intoxicated" or "OUI" involves operating a boat, jet ski, SeaDoo, or any other Water Craft while impaired to the slightest degree by the consumption of alcohol, or above a .08% blood alcohol concentration within two (2) hours of operating the water craft. In addition, a person can be "Extreme OUI:" if they are above a .15% blood alcohol concentration within two (2) hours of operating the water craft.
The penalties for a first conviction of OUI are: potential jail which can be suspended upon completion of mandatory attendance at alcohol screening (approximately $100); any recommended classes (approximately $200-400); and a minimum fine and surcharge of approximately $2100.00. The maximum can be six (6) months' jail.
Per A.R.S. §5-397 "Extreme OWI" - .15% and above BAC; carries a first offense mandatory minimum thirty (30) days jail-only twenty (20) can be suspended; a $2500.00 fine and alcohol classes double.
A conviction for a second Non-Extreme OUI within five (5) years from the first conviction, the penalties are: at least ninety (90) days in jail - sixty (60) days can be suspended only upon completion of the mandatory alcohol screening classes outlined above; a minimum fine and surcharge of approximately $2500.00. The maximum can be six (6) months' jail. Per A.R.S. §5-397, "Extreme OWI" - .15% and above BAC (with a prior OUI conviction within five (5) years of this offense); mandatory minimum one hundred and twenty (120) days jail - only sixty (60) can be suspended; fine of approximately $2500.00 and alcohol classes double.
A conviction for a third OUI or Extreme OUI within five (5) years from the first violation can result in: six (6) months in jail along with the additional penalties of alcohol screening classes; and a minimum fine and surcharge of approximately $2500.00.
WARNING: the prosecutor has the option of charging a third offense misdemeanor as a first offense felony. . . and they usually do!
WARNING: the prosecutor has the option of charging a third offense misdemeanor as a first offense felony. . . and they usually do!
If the Prosecutor decides to charge a third offense misdemeanor as a first offense felony, then this would be called a "Aggravated OUI" per A.R.S. § 5-396. If convicted, there is a mandatory minimum sentence of four (4) months in prison with a maximum of one (1) year of incarceration. If the Defendant has three (3) prior convictions of misdemeanor OUI, and this would be his fourth, now he is subject to a mandatory minimum prison sentence of eight (8) months, and a maximum of two (2) years of incarceration.
"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 main water-way, 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 31 days. In addition, the machine goes through a seven (7) test Standard Quality Assurance Procedure (SQAP) every 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.
"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 OUI 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; DNA testing; 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.
"Blood, Breath or Urine Test Refusal Cases": If you refuse to give a blood, breath or urine test, the law enforcement officer can not have MVD suspend your license. However, you will be subject to a civil penalty of $350.00 if you were cited before January 1, 2006. If you were cited after January 1, 2006, then the civil penalty is $750.00. Again, it is always important to request to call and speak with an attorney prior to making the decision to submit to a blood, breath or urine test.
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 PLLC - www.cantorsimon.com
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Tempe, Arizona 85282
Dismissed |
04/24/08 |
Aggravated DUI, Aggravated DWI |
Dismissed |
04/14/08 |
Aggravated Assault w/Gun |
Not Guilty |
04/04/08 |
DWI Only(.092 Breath) |
Not Guilty |
03/25/08 |
DWI (.099 Breath) |
Not Guilty |
03/24/08 |
Aggravated DUI, Aggravated DWI |
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