May 11, 2008
On Jan. 30, Phoenix police arrested Barbara B. McCloone on suspicion of driving under the influence of alcohol. Based on two breath tests, it was determined McCloone had a blood-alcohol content roughly three times the legal limit of 0.08 percent.
The 57-year-old Phoenix woman was charged with extreme DUI, leaving the scene of her single-car accident and speeding.
Under harsher DUI laws passed last year, McCloone, a first-time offender, would be required to equip her car with a breath-testing device known as an ignition interlock. She would also have to serve a minimum of 45 days in jail because her BAC exceeded 0.20 percent, putting her in the new "super extreme DUI" category.
But McCloone and three other DUI offenders are challenging Arizona's new laws, arguing that they are unconstitutionally "vague and ambiguous." And some state lawmakers are worried a judge may soon strike down the laws, eliminating mandatory interlock devices for first-time DUI offenders.
McCloone's attorney makes the case that the statute does not specify at what time the individual's alcohol content must exceed 0.20 percent. Another provision of the laws makes it illegal for a person to have a blood-alcohol content of 0.15 percent or more within two hours of getting behind the wheel.
"Because the statute is not specific and, therefore, unclear, it fails to provide persons of ordinary intelligence a reasonable opportunity to know what is prohibited and fails to contain explicit standards of application to prevent arbitrary and discriminatory enforcement," McCloone's attorney wrote in a lawsuit filed in Phoenix Municipal Court.
An omnibus DUI bill sponsored by House Speaker Jim Weiers, R-Phoenix, would have cleared up any ambiguity in the laws, including a discrepancy over sentencing. But Gov. Janet Napolitano vetoed House Bill 2395 late last month, objecting to a provision that would reduce the amount of time first-time offenders would be required to use the interlock device.
House GOP spokesman Barrett Marson said Weiers may try to override the governor's veto, which requires a two-thirds vote in both chambers, as early as this week. He called that option the "best bet," but added that the speaker's attention has been on 2009 budget negotiations.
Some say there's a slim possibility a judge would toss out the DUI laws over technicalities. But Sen. Jim Waring, another Phoenix Republican, said there's a good reason why the liquor lobbyist and other interlock opponents are fighting for the bill's defeat.
"There is nothing that is 100 percent, but why leave it to chance if even one (attorney) says it could get thrown out?" said Waring, who introduced legislation earlier this year addressing some conflicts with the new DUI laws. "We'd all have egg on our face, especially the governor for vetoing the bill."
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