Frequently Asked DUI Questions
This guide will serve as a general knowledge guide to help you answer questions about DUIs in Arizona. DUIs in Arizona can be very costly, burdensome, and can affect you for the rest of your life, so it is critical to understand the law, and be able to assert your rights in these situations.
Do I have to do the Field Sobriety Tests?This is a question that I encounter almost daily in practice. The answer is no, you do not have to agree to any field sobriety tests by the police officers. Once an officer is investigating you for a DUI, the field sobriety tests or FSTs, will be coming. These tests include the walk and turn, HGN, One-Leg Stand, Portable Breath Test, and a host of other tests. Officers use these tests to develop probable cause for a DUI arrest, so the best thing to do is respectfully refuse these tests. You will not lose your license for a year by refusing the FSTs.
So what happens if I refuse the blood and breath tests?In Arizona, when a person receives a driver's license, they are giving implied consent to law enforcement to take a sample of blood, breath or urine to measure Blood Alcohol Concentration (BAC) or drug metabolite levels when you are being investigated for DUI. The State of Arizona is allowed to do this because driving is not a right, it is a privilege. When you refuse to take a blood, breath or urine test in Arizona, your license will be suspended for a period of one year. If you do not refuse the tests, you license will be suspended for 90 days if it is your first DUI within a seven year period. You can be eligible for a restricted license, which allows you to drive for the last 60 days of the suspension, however you cannot drive for the first 30 days, period. To get the restricted license, MVD will need proof of completion of alcohol screening, a valid Arizona license, and no other pending suspensions. Then they will mail you a restricted license.
Do I have to install an Ignition Interlock Device?The quick answer is that it depends on the conviction. If you are convicted of an alcohol DUI, you will be required to install an ignition interlock device in any car that you operate for a period of one year, or more, depending on the type of DUI. For most DUIs, you will be required to install the interlock for one year. Some DUIs allow a person to have the interlock requirement terminated after 6 months. The ignition interlock requirement time begins when you get your license reinstated with the special "Ignition Interlock" symbol on it. Until you provide the MVD with proof of the installation, and obtain a new interlock license, your time will not count. So make sure once the interlock is installed, you bring proof of installation to the MVD and obtain the restricted license to start your time. For drug DUI convictions, the law no longer requires an interlock device.
Am I eligible for home detention or do I have to do every day in county jail?Home detention in Arizona is not guaranteed in DUI cases. In order for home detention to be a possibility, the city that is handling your case must have a home detention program. Not all cities in Arizona have one. All of the justice courts in Maricopa County do not do home detention for DUI offenses. However, most of the cities in the Phoenix area have home detention programs. Home detention is only available for people who have been convicted of a second regular DUI, a first or second extreme DUI, or a first or second super extreme DUI, it is not available for a first time, regular DUI conviction or for felony DUI convictions. The reason is because the first time convictions usually only warrant one day in jail, so there is no need to monitor the person at their home, and felony DUIs are mandatory prison. For all other DUI convictions (non-felony), home detention can save you from an extended stay in the County Jail, however, the programs do get costly, so be prepared.
What are the punishments for DUI in Arizona?The punishments for a DUI in Arizona are as follows:
First time DUI (slightest degree or BAC .08-.149): 1 day in jail, 9 days suspended upon completion of alcohol screening, ignition interlock device for one year, alcohol screening and counseling, fines, fees and surcharges, jail costs, possible probation, and possible community service or M.A.D.D. impact panel.
Second time DUI (slightest degree or BAC .08-.149): 30 days in jail; 6 in a jail facility, and possibly 24 in home detention program if available, ignition interlock device for one year, alcohol screening and counseling, fines, fees and surcharges, jail costs, possible probation, and possible community service or M.A.D.D. impact panel.
First time Extreme DUI (BAC .15-.199): Same punishments as a second time DUI (slightest degree or .08-.149), see above.
Second time Extreme DUI (BAC .15-.199): 120 days in jail, 24 days in a jail facility and possibly 96 in a home detention program if available, ignition interlock device for one year, alcohol screening and counseling, fines, fees and surcharges, jail costs, possible probation, and possible community service or M.A.D.D. impact panel.
First time Super Extreme DUI (BAC >.20): 45 days jail, 9 days in a jail facility and possibly 36 in a home detention program if available, ignition interlock device for 18 months, alcohol screening and counseling, fines, fees and surcharges, jail costs, possible probation, and possible community service or M.A.D.D. impact panel.
Second time Super Extreme DUI (BAC >.20): 180 days jail, 36 of them in a jail facility and possibly 144 in home detention program if available, ignition interlock device for 18 months, alcohol screening and counseling, fines, fees and surcharges, jail costs, possible probation, and possible community service or M.A.D.D. impact panel.
Aggravated DUI: Any third DUI offense within a seven year period; getting a DUI while your license is suspended/revoked; getting a DUI if you are required to have an ignition interlock and do not have one installed; and also getting a DUI with a child under the age of 15 in the car will result in an Aggravated DUI. An aggravated DUI is a felony DUI, and most of them are charged as class 4 felonies. There is a mandatory four months in prison, your driving privileges will be suspended for 3 years, you will be placed on supervised probation, and the court can impose even more penalties.
What happens if I have a Medical Marijuana Card and I am charged with a DUI?This issue is coming up a lot more frequently. The main difference between possessing a valid card and not can be the key to winning your case. When a person is charged with a Drug DUI, and they do not have a valid card, the state does not have to prove that the person was impaired. The presence of drug metabolites creates the presumption of impairment under the law. HOWEVER, when you have a valid medical marijuana card, the state must now show that you were impaired. This is because people with a valid card are allowed to use marijuana, so they are allowed to have metabolites in their system, but those metabolites cannot cause impairment within two hours of driving. Having a medical marijuana card allows a defense attorney to assert an affirmative defense to the charge, and we must show at trial that the level of THC metabolites in your system were at a level that was insufficient to cause impairment. It adds one more layer of the case that the state must jump through to get a conviction. But do not be mistaken, you can still be tried, and convicted, of a Drug DUI, even with a valid medical marijuana card, if the amount of THC and its metabolites were causing impairment within two hours of operating a vehicle.
Can I be convicted of a DUI if my BAC was less than .08 at the time of driving?Yes, you can. Arizona is one of the harshest states in the country with regards to DUI laws. The law in Arizona allows for a person to be arrested, charged and possibly convicted of a DUI if their BAC level was under a .08 within two hours of driving. This type of DUI is called DUI Impaired to the Slightest Degree. Under the slightest degree statute, the state must show that the driver was impaired beyond a reasonable doubt. This is much different from a Regular DUI (.08-.149); an Extreme DUI (.150-.199); and a Super Extreme DUI (>.20). Under those three DUI statutes, the BAC level being over .08 creates an automatic presumption of impairment. The state does not have to prove that the defendant was impaired. However, under the slightest degree of impairment, there is no BAC level to create a presumption of impairment. Because of this, the state now MUST prove that the defendant was impaired, even if the BAC was under .08. This is done by calling the officers to the stand and having them talk about the Field Sobriety Tests, the officer's observations of the defendant's demeanor, the odor of alcohol, and many other things.
Can I be convicted of a DUI if I was taking prescription medication that my doctor prescribed?Generally no. If a person has a valid prescription for the drug, and they are taking the drug as prescribed by a medical doctor, then they generally cannot be convicted of a Drug DUI under A.R.S. ? 28-1301(A)(3). However, they can still possibly be prosecuted under the slightest degree DUI if the state can show impairment. Doctors do warn patients that they should not operate motor vehicles while taking certain medications. It is always best to avoid driving while taking any prescription medications.
Can I challenge the 90 day license suspension?Yes, you can. When you are investigated for a DUI, the officer will issue an admin per se suspension, if you agreed to the bodily fluid test. Typically, that suspension will begin 15 days from when you receive the paperwork (which is the day of your DUI). That suspension lasts for 90 days. However, you can request a hearing on the suspension through the MVD. You have 15 days to request the hearing. Once the hearing is requested, the suspension is put on hold until the hearing is complete. At the hearing, if the state does not provide the evidence necessary to uphold the suspension, then it will go away. If they provide enough proof, then the suspension will be upheld. If the suspension is upheld, you have choice of beginning the suspension immediately, or 20 days from when the judge's written ruling is mailed to you.
Am I able to drive to work/school/doctor, etc. while the 90 day suspension is in effect?The answer depends on the facts of the case. Generally, if you receive your first DUI, and you did not get into an accident that involved a person being seriously injured, you are eligible for a restricted drivers permit. That permit allows you to go to work, school, lawyers office, doctor's appointments, and things of that nature. It is not a free license to drive wherever you want, whenever you want. In order to obtain the restricted permit, you must complete the alcohol screening, and you cannot have caused serious injury to another person. The MVD will typically mail you the restricted permit within the 30 days after they have proof that you completed the substance abuse screening. The restricted permit only applies to the last 60 days of the suspension. The first 30 days are a complete suspension of your driving privileges.
If you got into an accident and/or caused physical injury to another person, you will not be eligible for a 90 day restricted driving permit, unless you request an MVD hearing and win at that hearing. If you win at the MVD hearing, there is no suspension at all. However, if you lose at the hearing, or if you don't request one at all, and your abstract that the officer sends to the MVD mentions physical injury to another person, you will not be eligible for the restricted permit, and your driving privileges will be suspended for the full 90 days.