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  Frequently Asked Questions About DUI

1. What Is D.U.I.?

In Arizona, "D.U.I.", "D.W.I." or "drunk driving charge" are all slang references to a violation of A.R.S. § 28-1381, driving while under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree. It is a criminal offense and a class one misdemeanor if a person operates a motor vehicle while under the influence of alcohol or with an alcohol concentration of .08 or higher. A person can also receive a D.U.I. if they are operating a motor vehicle while under the influence of any drug or with a metabolite of any illegal drug or drugs in their blood for which they do not have a prescription.

Unlike other criminal offenses which allow the court latitude in determining appropriate penalties, the D.U.I. statute has mandatory minimum sentences. On a first offense involving alcohol, the minimum sentence is 1-10 days in jail, a fine and assessments of approximately $1,700, as well as mandatory substance abuse screening and counseling, if recommended, and a 90-day license suspension. If the offense is one involving drugs, the penalties are the same except for license suspension. For a D.U.I. drug offense, it is one year in which the person is not entitled to drive at all and there are no hardship permits available. A second offense within seven years carries a 30-90 day jail sentence, fines and assessments of $3,400, costs of incarceration and mandatory substance abuse screening and counseling, if recommended. Additionally, a second offense requires a mandatory revocation of your driver's license for at least one year followed by the installation of an ignition interlock device in any vehicle you drive for an additional year and the requirement that you carry SR-22 (high risk) insurance for a period of three years after reinstatement. All told, the monetary assessments on a second offense D.U.I. could easily exceed $5,000. Therefore, as you can see, a D.U.I. is a very serious offense that should only be handled by an expert professional with the type of knowledge and experience that we possess at the Law Offices of Craig W. Penrod, P.C.

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2. What Is Extreme D.U.I.?

Extreme D.U.I., which was enacted by the Arizona Legislature, took effect on December 1, 1998. Extreme D.U.I., a class one misdemeanor, is when your alcohol concentration exceeds .15. The mandatory minimum sentence for a first offense extreme D.U.I. is 10-30 days in jail and fines and assessments of approximately $3,500, as well as mandatory substance abuse screening and counseling, if recommended. A second offense extreme D.U.I. (when a person has been previously convicted of a D.U.I. within seven years) carries a mandatory jail term of 60-120 days in jail, minimum fines and assessments of $4,150, plus costs of incarceration. All told, the monetary assessments could exceed $8,000.

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3. What Is "Super" Extreme D.U.I.?

"Super" extreme DUI, which was enacted by the Arizona Legislature, took effect on September 19, 2007. This is a more serious version of extreme D.U.I. and occurs when a person's alcohol concentration exceeds .20. For a first offense, the person faces 45 consecutive days in jail, none of which may be suspended. Additionally, there are fines and assessments of approximately $4,150. Including costs of incarceration, the total monetary assessments could exceed $7,000. If you are charged with a "super" extreme D.U.I. and you have a prior D.U.I. conviction within 7 years, it carries a mandatory minimum jail sentence of between 90 and 180 days, fines and assessments of $5,050, a one year revocation of driving privileges followed by 24 months with a certified ignition interlock device. Including fines and assessments, costs of incarceration, and other fees, the minimum monetary assessments could easily exceed $12,000.

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4. What Is An Aggravated D.U.I.?

Aggravated D.U.I. is a class four felony that carries a range of sentence from a mandatory minimum of four months to a maximum of 3.75 years in the Arizona Department of Corrections. It also carries a three-year license revocation and supervised probation after you have been sentenced to prison and your prison term is less than one year. This is essentially a simple D.U.I. committed by a person who either has a suspended, cancelled, revoked or restricted driver's license or has two prior D.U.I. convictions within the previous seven (7) years. One can also be charged with an aggravated D.U.I. if there is a passenger in the vehicle under the age of 15. This is a class six felony with a range of sentence from one day to 2 years in prison. It also carries a three-year license revocation.

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5. 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?

"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 informative, but are certainly not completely accurate. There are many variables in human beings that can affect whether or not those charges apply to you. 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.

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6. If I am stopped by a police officer after drinking, what should I do?

If you are pulled over or stopped by an officer and he begins to question you about your drinking or asks you to perform any tests, you should immediately ask to call an attorney. The Law Offices of Craig W. Penrod, P.C. provides a 24-hour help line that will be answered within minutes of your call and to assure you that you are aware of all of your constitutional rights that apply to the investigation before you submit to anything that may possibly be incriminating. Our phone number is 480-753-5888 which will take you to an answering service that will immediately page one of the attorneys on call to respond and answer your questions. If the officer refuses to give you an opportunity to contact an attorney, do not argue with him, but make a mental note of exactly when you requested that attorney and what you said as well as the officer's response. This failure by the officer is a serious violation of your constitutional rights that could ultimately result in the dismissal of your case if it can be established in court. Do not agree to answer any questions since the United States Constitution provides you with the Fifth Amendment right to silence. You are required to produce identification, your driver's license, registration, proof of insurance and, if requested, submit to an analysis of your blood, breath or urine. Most of the other questions that the officer would like to ask you are designed to incriminate you even if inadvertently. It is our opinion that you should almost always refuse to perform any field sobriety tests or other physical tests, including the "eye" test in which an officer asks you to follow his pen back and forth. You have the right to refuse this test and the officer does not have a right to impose any sort of penalty for your refusal. The tests are extremely difficult, especially when one is in a situation which they are stressed or nervous. It is extremely unlikely that your performance on the tests will be good enough to cause the officer to release you at that point without requesting a further chemical test. Additionally, most of the time, you are not going to be aware of what the grading criteria for the test is. It is like taking a test at school without ever having read the material or taken the class. You are unlikely to do very well.

As stated previously, you should immediately ask the police officer for the opportunity to speak to an attorney once it appears to you that he suspects that you might be D.U.I. You have the absolute right to consult with counsel as soon as reasonably possible after your request. Obviously, we suggest that you call the Law Offices of Craig W. Penrod, P.C. at 480-753-5888 because you can be assured that you will receive immediate assistance. However, if at the time you are unsure of who to call or don't have the phone number, the officer must provide you with a telephone book in a reasonable amount of time to make calls and to obtain a private phone call with an attorney.

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7. What tests do I have to take?

Arizona law requires that once you have been arrested for D.U.I., you must submit to analysis of your blood, breath or urine if requested by a police officer. Keep in mind that the officer has the right to choose the type of test you take, as well as how many times you have to take it. If you refuse to take the requested tests, the Arizona Department of Motor Vehicles will attempt to suspend your driving privileges for a period of 12 months, or 24 months if you have a prior refusal to submit. Our advice is generally to agree to submit to the chemical test for two reasons:

1. If you refuse, you will lose your license for at least one year and you will still be cited for D.U.I.; and,
2. In almost every jurisdiction in the State of Arizona, the officers will simply get a telephonic court order and forcibly take blood from you. You then end up in the worst of both worlds - you will still have a D.U.I. that you need to defend, as well as a one-year license suspension for which you will need an attorney to try to fight at the Motor Vehicle Division.

If you are arrested for D.U.I. during a time when you are required to have a certified ignition interlock device, a refusal to submit to a test of your breath, blood or urine can be charged as a class six felony.

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8. What are these tests?

Typically, in the valley, the method used to analyze the blood alcohol content is the breathalyzer or intoxilyzer. This is a machine in which you give a breath sample which is analyzed for breath alcohol content. Remember, before you are required to submit to the test, you must first be told that you are under arrest by the police officer. Typically, when you are placed under arrest, you will know it because the police officer will tell you that you are under arrest for driving under the influence of alcohol and he or she should read to you your "Miranda" rights, as well as the requirement that you submit to a breath, blood or urine analysis.

You do not have a choice as to which method will be used for testing. That is the officer's choice. The cities of Mesa, Scottsdale, Chandler and Gilbert are different from other jurisdictions in that most alcohol analysis is done by the taking of blood. First, you must agree to submit to the blood test or lose your driver's license for 12 months. If you are taken to a hospital for a blood draw, you can consent to have blood drawn, but refuse to release the hospital from liability. When the police take you to the hospital for a blood test, before the technician at the hospital will take your blood sample, he/she is required by the hospital to get you to sign a release of liability to the hospital in case, for some reason, because of the method of taking blood, you get sick or contract a disease.

It has been determined by an opinion of the Attorney General in Arizona that you do not have to release the hospital from liability. Simply tell the police officer that you will submit to the test, but that you will not release the hospital from liability. By doing this, you have not "refused" to take a test, but a sample of your blood will not be taken by the hospital staff because they are not permitted under their own standards to do this unless you sign the release. Make sure, however, that you are very clear when telling the police officer what you will do, and that is that you will submit to the test, but you will not release the hospital from liability. The police officer may, at that point, require you to submit to a breath analysis which you generally should take for the above stated reasons, if this is your first offense.

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9. Do I have to answer any questions?

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.

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10. Do I have the right to speak with an attorney?

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 as soon as possible after your request. You are also entitled to speak in privacy. Our firm answers those calls 24 hours a day, seven days a week.

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11. If arrested, can the police officer immediately take my driver's license?

As stated previously, convictions of D.U.I. charges will result in mandatory license suspensions. However, often when an officer has obtained the results of the chemical test at the time of the arrest, or you have refused to submit to a test of your blood, breath or urine, the officer may take your license administratively, and give you a temporary driving permit. This is called an "admin per se" or "implied consent" suspension and will result in a 90-day suspension if the officer obtained results of the chemical test at the time of the arrest, or a one-year suspension if you refused to submit to a test of your blood, breath or urine. These are separate proceedings from the criminal case and your license could be suspended even prior to your ever getting to court on the D.U.I. case if you ignore the paperwork. However, if a hearing is requested within the fifteen (15) day period after your arrest, the license suspension will be stayed and you are entitled to a hearing in the future as to whether or not your license will be suspended based upon the circumstances of your arrest, as well as the apparent operating condition of the intoxilyzer or breathalyzer. The best advice is to contact a D.U.I. expert attorney immediately so that he or she can analyze the situation and take action to prevent the interruption of your driving privileges.

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12. If arrested, can the police officer immediately seize my car?

If you are charged with extreme D.U.I., the officer may seize your car for a period of 30 days and you would be required to pay for the cost of towing and impoundment. You do have the ability to request a hearing for the release of the vehicle prior to the expiration of the 30 days. If it is determined that another person has an ownership interest in the vehicle, such as a spouse, as long as the vehicle has valid registration and insurance and the person with ownership interest can provide a valid license, the vehicle would be released to that person prior to the expiration of the 30 days.

Likewise, if you are charged with underaged drinking and driving, your vehicle may also be seized for 30 days and you would be required to pay for the cost of towing and impoundment. You do have the ability to request a hearing for the release of the vehicle prior to the expiration of the 30 days. If it is determined that another person has an ownership interest in the vehicle, as long as the vehicle has valid registration and insurance and the person with ownership interest can provide a valid license, the vehicle would be released to that person prior to the expiration of the 30 days.

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13. What is an ignition interlock device and do I need to install one on my vehicle?

As of September 19, 2007, a conviction for any D.U.I., including first offenses, requires the installation of a certified ignition interlock device in your vehicle for at least 12 months. A certified ignition interlock device is installed near the steering column of your car and is connected to another device that operates as a form of "breathalyzer." You must first blow into the mouthpiece prior to starting your vehicle. If the device detects alcohol, the vehicle will not start. Also, the failed attempt is recorded in the internal memory of the device which is monitored by the interlock company every 60 days and reported to the Motor Vehicle Division. After the vehicle is started, the device will signal the driver to blow in the vehicle again at random times during the trip to assure that the driver has not begun consuming alcohol after the vehicle has been started. The cost of the certified ignition interlock device is approximately $80 per month. A person convicted of "super" extreme D.U.I. with an alcohol concentration of .20 or higher is required to maintain the ignition interlock device for at least 18 months. A person with an extreme D.U.I., second offense, with an alcohol concentration of .20 or higher is required to maintain the device for at least 24 months.

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14. Can the Court order me to quit drinking alcohol?

In addition to the penalties described above, the conviction of a first offense extreme D.U.I. or any second offense D.U.I., the court may require 30 to 90 days or more of continuous alcohol monitoring, or twice daily alcohol testing, to be determined at the time of sentencing. Continuous alcohol monitoring is generally effected by what is known as a "SCRAM" bracelet. This device is an ankle bracelet that can detect alcohol in your system and alert the monitoring facility. If the monitoring facility detects that you have consumed alcohol at any time, it will alert the court and the court can take punitive action against you.

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

The answer to this question is yes. As you can see, the penalties are extremely severe even if you are a first offender. However, contrary to what the press or the police may want you to believe, a D.U.I. can be very defensible if handled by an experienced attorney. They are very complicated cases and the scientific evidence that is used to essentially establish guilt or innocence in a court is far from perfect. The body of law regarding D.U.I. cases is much different than that of other types of criminal cases. The Supreme Court once referred to it in one of its opinions as the "subculture of D.U.I. law." Because of the uniqueness of the evidence in a D.U.I. case, the law in many ways imposes much more stringent requirements upon the police and the government in the gathering of evidence and the assurance of timely preservation of our Constitutional rights in order to put together a case that will stand up against a knowledgeable expert defense.

The attorneys at the Law Offices of Craig W. Penrod, P.C. have played an instrumental role throughout the years in the shaping of much of the case law which provides greater protection for the preservation of the D.U.I. defendant's rights. Although many lay people, and even some attorneys who purport to handle D.U.I. cases, believe that a case with a chemical test with a result over the legal limit is indefensible, this is far from the truth. As stated previously, the testing process and procedure is far from perfect. These imperfections can be exposed if the case is handled by an experienced expert such as the attorneys at the Law Offices of Craig W. Penrod, P.C. Additionally, the evidence may not even be admissible in your case if it was seized or handled in an improper manner.

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Legal Disclaimer: The Law Offices of Craig W. Penrod, P.C. prepared the materials in this website to provide a general overview of the typical DUI case in an Arizona court. These materials are not legal advice and the use of these materials does not constitute nor form an attorney/client relationship with the Law Offices of Craig W. Penrod, P.C.