Generally, when a defendant is arrested for D.U.I. they face two separate proceedings: (1) a criminal case in court and (2) a civil administrative case with the Department of Motor Vehicles. There are several different types of D.U.I. offenses and prior D.U.I. convictions substantially increase the penalties. As a result, it is very important that you understand D.U.I. law the first time you are arrested and do what you can to avoid or minimize the damage on this offense as well as avoiding future arrests.

D.U.I. is one of the most common crimes people hire an attorney to defend. It seems like every year there are new harsher D.U.I. laws and the penalties get more serious all the time. There is a substantial amount of Arizona case law on D.U.I. and there have been numerous legal challenges. Last year, the breath tests were suppressed on more than 1,000 cases in the Phoenix City Court as a result of defense attorney challenges. All cases are different and each must be evaluated on its own merits because the statutes and case law are constantly changing and there are many new areas to challenge and fight all the time.

Whatever you do, please do not plead guilty without having your case reviewed by an experienced D.U.I. attorney. An experienced attorney can help you determine what, if any, defenses you have to your D.U.I. case or your defenses to the related motor vehicle driver's license suspension. You have a right to demand a trial by jury on a D.U.I. case and you also have a right to request a hearing at the Motor Vehicle Division. An attorney can represent you in both the criminal courts and at the motor vehicle division.

D.U.I. & D.W.I. defense is a specialized area of law. It is very important that you have an attorney experienced in this area. Because of our experience, we understand what you are going through and we know how to get results.

 

In Arizona, D.U.I. or D.W.I. is Driving While Under the Influence of Intoxicating Liquor or Drugs. The charge, we call it D.U.I., requires the operation of a motor vehicle while your ability to drive is impaired or while your blood or breath alcohol concentration exceeds the statutory limit. Driving While Under the Influence can be called "D.U.I." or "D.W.I." and there is no difference between the terms.

The Driving While Under the Influence charge can be proven by a violation of either of the following Arizona Revised Statues (1) ¿ 28-1381(A)(1), or (2) ¿ 28-1381(A)(2), or (3) ¿28-1382(A)(3), or (4) ¿28-1382(A)(4).

In order to violate A.R.S. ¿28-1381(A)(1) a person must drive or be in actual physical control of a motor vehicle while their ability to drive is impaired by the slighted degree by alcohol, drugs or any combination of the above. This is known as the "A1" charge and there are many factors that can be taken into consideration in evaluating or defending this charge.

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Often authorities consider the following factors as signs of impairment that could lead to arrest or be used as evidence on an "A1" charge:

1. Driving Symptoms -- such as speeding, weaving, failure to drive in one lane, driving with no headlights, or other moving violations.
   
   
2. Personal Symptoms -- such as slurred speech, bloodshot water eyes or the odor of alcohol on your breath.
   
   
3. Field Sobriety tests -- there are six common tests like the walk-a-line, stand on one foot, counting while touching your fingers or looking at the eye with a pen light.
   
   
4. Incriminating statements -- such as "I only drank 8 beers," "Yes, I was driving" or "Of course I'm drunk" can be used as evidence at trial.
   
   
5. Blood-alcohol evidence -- like a breath test or a blood test may also be admissible in court as evidence.

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A violation of ¿28-1381(A)(2) occurs when a person has a blood alcohol concentration in excess of the statutory limit within two hours of operating a motor vehicle. If you are arrested prior to August 31, 2001, the statutory limit is 0.10% or more Blood or Breath Alcohol Concentration. After August 31, 2001, the limit statutory becomes 0.08% Blood or Breath Alcohol Concentration. If you are tested, and the results exceed the about statutory limits, you will likely be charged with an "A2" charge. It is also possible that you could be tested and you are below the statutory limit yet still charged with the "A1" charge. We believe this to be inappropriate and unreasonable and have had success in fighting these cases. When considering the guilt or innocence of an individual cited for the "A2" charge, the court only considers chemical evidence of blood or breath alcohol.

Chemical evidence may be challenged on several grounds as follows:

When dealing with a blood or breath test, there are three major areas of challenge that are described in more detail in our D.U.I. defenses section:

1. The process used for collection of the chemical evidence. Did the police follow the proper policy? Was the test obtained by a qualified officer?
   
   
2. Issues related to contamination of the collected sample. There are many ways breath tests could be contaminated thus possibly being inaccurate.
   
   
3. Control Issues -- Was the machine used to collect the sample working accurately at the time of the tests?

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There are also two less common types of D.U.I.: A violation of ¿28-1381(A)(3) occurs if a person is driving or in actual physical control of a vehicle in this State while there is any illegal drug or its metabolite in the person's body. This would be a charge of driving under the influence of drugs. There are methods used by police to attempt to determine whether or not a person is on drugs but, we believe they are less scientific than many other types of tests. The State usually hopes for an admission like "I took some X earlier today" or "Yes, I smoked some before driving". Remember you have a right to remain silent and please do not make any admissions.

A violation of ¿28-1381(A)(4) occurs if a person is driving or in actual physical control of a vehicle that requires a commercial driver's license and that person has an alcohol concentration of 0.04% B.A.C. or more. This statute was intended to be used for large truck drivers but other commercial vehicles could also result in an "A4" charge, depending mostly on the size and weight of the vehicle.

D.U.I. is a difficult crime to understand and it is often difficult to determine whether or not your actions actually were a violation of criminal law. On the A1 charge, there is no clear line people cross to determine whether or not they have had too much alcohol to drive at any particular time. On the A2 charge, some people might be over the limit at the time of the test yet under the limit at the time of driving. As a result, many people who are cited or arrested for D.U.I. might be "not guilty" of the D.U.I. crime defined by statute or, there certainly could be "reasonable doubt" as to the facts.

An experienced attorney can help you understand your rights and protect you from a possible wrongful conviction. It is possible that the machine used to test your blood or breath was not working accurately. Because this is an important issue, there are numerous laws and administrative regulations that require periodic testing of blood or breath testing devices. The records must be maintained and are available for an experienced D.U.I. attorney to review.

Because people often do not know what to do after they are stopped by the police, they often make unnecessary incriminating statements that are harmful to their case. The police then might attempt to convince you that you are guilty even when you might not have violated one of the statutes.

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Procedurally, you should be aware of certain legal rights you have -- rights that are often ignored by the police:

1. There must be legally sufficient facts to constitute "probable cause" to stop, detain and arrest you.
   
   
2. You should be advised that submission to field sobriety testing, physical (coordination and eye tests) and portable field breath testing is not required by law.
   
   
3. Once arrested, you must be advised of your constitutional rights -- the "Miranda" warning -- before any further questioning takes place.
   
   
4. In Arizona, you must submit to a blood or breath test but if you refuse, you must be advised of the legal consequences (the "implied consent" advisement). Yes, we usually recommend that you submit to chemical testing if it's your first D.U.I. arrest.
   
   
5. If a breath test is administered at the police station, since the breath sample is usually not saved, you must be given a chance to obtain a blood sample for later independent testing by your defense attorney. Your request for release could prevent a trip to jail and become important evidence we can use in your defense.

 

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Alcohol intoxication is legally defined by the blood alcohol concentration level. However, taking a blood sample in the field for later analysis in the laboratory was not practical or efficient for detaining drivers suspected of driving under the influence (D.U.I.). What was needed was a way to measure something related to BAC without invading a suspect's body. Urine tests for alcohol proved to be just as impractical in the field as blood sampling. In the 1940s breath alcohol testing devices were first developed for use by police. In 1954, Dr. Robert Borkenstein of the Indiana State Police invented the Breathalyzer, one type of breath alcohol testing device used by law enforcement agencies today.

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Principle of Testing

Alcohol that a person drinks shows up in the breath because it gets absorbed from the mouth, throat, stomach and intestines into the bloodstream. Alcohol is not digested upon absorption or chemically changed in the bloodstream. As the blood goes through the lungs, some of the alcohol moves across the membranes of the lung's air sacs (alveoli) into the air because alcohol will evaporate from a solution -- that is, it is volatile. The concentration of the alcohol in the alveolar air is related to the concentration of the alcohol in the blood. As the alcohol in the alveolar air is exhaled, it can be detected by the breath alcohol-testing device. So instead of having to draw a driver's blood to test his alcohol level, an officer can test the breath on the spot and determine whether there is a reason to arrest the driver.

Because the alcohol concentration in the breath is related to that in the blood, you can figure the BAC by measuring alcohol on the breath. The ratio of breath to blood alcohol is 2,100 to 1. This means that 2,100 milliliters of alveolar air will contain the same amount of alcohol as 1 milliliter of blood.

The legal standard for drunkenness across the United States was 0.10% for years, but recently many states have adopted the 0.08% standard. The federal government has pushed states to lower the legal limit. The American Medical Association says that a person can become impaired when the blood alcohol level hits 0.05%. The standard 0.08% means that there is 0.08% gram of alcohol per 100 milliliters of blood.

There are three major types of breath alcohol testing devices based upon different principles:

1. Breathalyzer uses a chemical reaction involving alcohol that produces a color change.
2. An Intoxilyzer detects alcohol by infrared (IR) spectroscopy.
3. The Alcosensor III or IV detects a chemical reaction of alcohol in a fuel cell.

Regardless of the type, each device has a mouthpiece or tube through which the suspect can blow air and a sample chamber where the air goes. The rest of the device will vary with the type.

The following is a charts for males and females.

Please note one drink is equal to either:

(a) one 12 oz. Light Beer with an alcohol concentration of .042%,

(b) 1¿ oz. of 80 proof liquor or 1 oz. of 100 proof liquor, or

(c) a 3 to 5 oz. glass of wine.

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Blood Alcohol Concentration Chart for Males

(Alcohol % in bloodstream for weight (lbs.) and number of drinks)

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Blood Alcohol Concentration Chart for Females

(Alcohol % in bloodstream for weight (lbs.) and number of drinks)

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If you have been arrested or cited for D.U.I., please seek the assistance of our firm or another experienced attorney.

There are several types of D.U.I. cases and certain types of cases are much more serious than others. Ordinarily, when we refer to a D.U.I. case, we are referring to a first offense D.U.I. by a person who had a valid driver's license at the time of the offense.

If you have a prior D.U.I. conviction or if your driver's license was suspended, revoked, cancelled, refused, or restricted at the time of the alleged offense, you might be facing a much more serious Aggravated D.U.I. offense.

D.U.I. cases can be divided as follows:

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1. First Offense D.U.I.

We will begin by discussing a first offense D.U.I. This is a Class 1 Misdemeanor criminal offense that is very serious. In Arizona, there is a minimum mandatory jail requirement of one to ten days with a maximum jail term of six months. You can also be fined from $250.00 to $2,500.00 plus surcharges and placed on probation for up to five years. You can also have your driver's license or driving privileges suspended, revoked or restricted. If your driver's license is suspended as the result of an admin per se, the suspension is ninety days. During the ninety days, you cannot drive at all during the first thirty days and you may be eligible for a restricted license for the next sixty days.

A D.U.I. case usually consists of two citations we refer to as the (A)(1) charge and the (A)(2) charge. A person violates the (A)(1) charge by driving or being in actual physical control of a motor vehicle while their ability to drive is impaired to the slightest degree by alcohol, drugs or any combination.

You can be charged with violating the (A)(2) charge if your blood or breath alcohol concentration is greater than the statutory limit. The limit is 0.10% B.A.C. until August 31, 2001 and then the limit drops to 0.08% B.A.C. A person violates this statute if their alcohol concentration exceeds the limit within two hours of driving.

There are also two less common types of D.U.I. An (A)(3) charge is used if you are suspected of driving under the influence of drugs. An (A)(4) charge could result if you are driving a commercial vehicle with a B.A.C. of 0.04% or more.

If your blood or breath alcohol concentration exceeds the statutory level you probably also received an admin per se or Implied Consent Affidavit. This is notice to you that the Motor Vehicle Division plans to suspend your driver's license or your Arizona driving privileges. This is an important document because if you do not take action immediately (by requesting a hearing), your license will be suspended on the fifteenth day after you were served with the affidavit.

You can request an M.V.D. hearing yourself or you can contact our firm for assistance. You have nothing to lose by requesting a hearing and such a request will help you delay and/or avoid the suspension.

D.U.I. is also an eight point moving violation on your driving record. This could also result in another driver's license suspension or an assignment of traffic survival school. How this will affect you depends on how many other moving violations you received in the past and at the time you were arrested for D.U.I.

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2. Second Offense D.U.I.

If you have been previously convicted of D.U.I. (in the past 5 years, date of arrest to date of arrest), you will be facing a longer mandatory jail term. If you have one prior D.U.I. within 5 years, the minimum jail sentence is 30 to 60 days with a maximum term of up to six months. A second D.U.I. conviction within five years would also require a minimum one-year driver's license revocation. Revocation is more serious and this means your driver's license does not automatically come back unless you reapply and are approved. This is a long-term process that requires you to stop drinking alcohol all together. A person who is convicted of a second offense will be required to install and maintain a vehicle interlock device on all personal vehicles they drive, for a period of at least one-year following the restoration of their driver's license.

If you are charged with D.U.I., you have a right to a jury trial and at Phillips & Associates we can help you. Call for a free private consultation.

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3. Extreme D.U.I.

This is a more serious version of the previously discussed D.U.I. charge. This is also a relatively new law that took effect on December 1, 1998. A violation of Extreme D.U.I. occurs when your blood or breath alcohol concentration exceeds a greater statutory limit. Arizona Revised Statue ¿ 28-1382 defines Driving Under the Extreme Influence of Intoxicating Liquor. The statutory limit for Extreme D.U.I. is 0.15% B.A.C.

RECENT UPDATE:
An Extreme D.U.I. conviction will now require the Ignition Interlock Device.

Extreme D.U.I. has a longer minimum mandatory jail term (30 days) and a larger minimum fine of $500.00 to $2,500.00 plus surcharges. You can also be placed on probation and have a driver's license suspension. You will also be required to install and maintain a vehicle interlock device in all personal vehicles you drive for a period of at least one-year after your driver's license has been restored.

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4. Extreme D.U.I. With a Prior Conviction

An Extreme D.U.I., with a prior D.U.I. conviction in the previous 5 years raises the minimum mandatory jail sentence to 120 days to a maximum of six months. The Ignition Interlock Device is again required. Because Extreme D.U.I. is a very serious offense, we recommend you call us to set up a free office visit. We want to at least have a chance to help you.

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5,6,& 7. Aggravated D.U.I.

Aggravated D.U.I. is the most serious type of D.U.I. and can be committed several different ways:

1. Aggravated D.U.I. With No Valid Driver's License.
   
   
2. Aggravated D.U.I. with two prior convictions in the past five years.
   
   
3. Aggravated D.U.I. with a child under 15 in the vehicle.

1. Aggravated D.U.I. with no Valid Driver's License ...

... is a Class 4 Felony that requires a mandatory prison term upon conviction. County jail and work release programs are not available under law and the presumptive prison term is three years. The minimum mandatory prison term is four months but this sentence also requires the prison to be as a condition of probation. It is possible in some cases for us to negotiate a plea agreement to a different charge that would allow work release.

An Aggravated D.U.I. conviction is a felony offense and also requires a mandatory minimum three year driver's license revocation. Then your license will not come back without a reinstatement application and approval by the M.V.D. By law, the driver's license cannot be reinstated unless the M.V.D. believes the person is no longer a risk to drive while intoxicated thus endangering society. Our firm also provides advice and counseling on this issue and we help people get their licenses back. The Ignition Interlock Device is required upon conviction for Aggravated D.U.I. and, it is also possible that the vehicle used may be subject to forfeiture to the State of Arizona.

2. Aggravated D.U.I. With Two Prior Convictions in the Past Five Years

You can be indited for Aggravated D.U.I. if you have two prior D.U.I. convictions in the past 5 years. Thus, a third offense D.U.I. is often an "Aggravated D.U.I.". In these types of cases, there are two primary elements, (1) regular D.U.I. is an element of the offense and all of the defenses to regular D.U.I. can be raised, and (2) the issue of your priors: do you have two valid prior convictions. The Ignition Interlock Device is required after conviction and the vehicle used in the offense may also be subject to forfeiture to the State of Arizona.

3. Aggravated D.U.I. With a Child Under 15 in the Vehicle

This is a Class 6 Felony and occurs if you commit a D.U.I. or Extreme D.U.I. while a person under fifteen years of age is in the vehicle. Normally, a separate felony charge is filed for each child in the vehicle. The State treats this as an extremely serious offense and we recommend you see an attorney immediately.

A Class 6 Felony carries a presumptive prison sentence in the Department of Corrections 1-year, with a mitigated sentence of six months and an aggravated sentence of 1.5 years. Instead of a prison term, a judge may order up to 10 years of supervised probation with conditions which may include alcohol counseling, a fine and up to 12 months in the county jail.

A Class 6 Felony Aggravated D.U.I. does not carry a minimum jail term other than the normal D.U.I. minimum sentences, (1st offense: 10 days; 2nd offense: 90 days; Extreme: 30 days; 2nd offense extreme: 120 days), but the minimum sentences are not imposed as often if a child is in the vehicle.

A judge has the authority to designate the offense a misdemeanor or felony. He may also treat the offense as open-ended offense in which it will be designated a misdemeanor upon successful completion of probation or designated a felony if the judge chooses. A Class 6 Felony Aggravated D.U.I. conviction also requires a minimum three year driver's license revocation that will not be reinstated with an application and approval.

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Other penalties include a required Ignition Interlock Device that tests for alcohol use before a vehicle may be started. The motor vehicle owned and operated that the time of the offense may also be seized and forfeited to the state.

You have a right to a jury trial on Aggravated D.U.I. and a separate trial on the issue of prior convictions. At the law office of Olin R. Hale, we can help you. Call now for more information. 

There are many ways to lose your driver's license if you are stopped and cited for D.U.I. and Arizona has an Implied Consent Law. This means that if you elect to drive a vehicle in this state, you consent to give your blood or breath sample to law enforcement authorities if they have reasonable cause to believe you might be driving while under the influence of alcohol.

If you are stopped, and the officer requests that you take a test or tests, you must cooperate or you will lose your Arizona driver's license, or Arizona driving privileges for a period of twelve months. If a person has within the past five years previously refused to take a breath, blood or urine test, then your Arizona driver's license or privilege to drive will be suspended for two years. This suspension occurs whether or not you are even charged with D.U.I. and you cannot challenge this suspension unless you request a hearing with M.V.D. within 15 days of the service of the affidavit. We can help you request a hearing even if you decide not to retain us. Call us now for a free consultation or more information.

If you do choose to blow or give blood, (which you probably should do if it's your D.U.I. arrest), and your alcohol concentration is over the statutory limit (0.10% until August 31, 2001, 0.08% thereafter), the law enforcement officer can take away your physical copy of your driver's license while the matter is pending.

You will then face a ninety-day driver's license suspension but you can challenge the suspension by requesting, within fifteen days, a motor vehicle hearing.

If you refuse to complete all tests or if you are over the legal limit the officer will give you pink and yellow papers that explain that they are taking your driver's license and that you have a right to a hearing. One of those documents is actually your new temporary driver's license (yellow) and the other is a form to request an M.V.D. hearing (pink).

These are very important documents and you should bring them on you first visit to our office. If you request a M.V.D. hearing, your driver's license or privileges will remain valid until after a final decision is made at a hearing on the merits of your case.

If you are stopped for D.U.I. and the officer believes he has reasonable grounds to believe you were driving or operating a motor vehicle under the influence of intoxicating liquor or drugs, they may place you under arrest for D.U.I., Extreme D.U.I. or Aggravated D.U.I.. They will then likely take you to the police station or a mobile D.U.I. van and read you the Implied Consent Law. Officers often read this law from a pre-printed form word-for-word and they will not answer your questions or give you legal advice on whether or not to blow. The bottom line is they will be asking you whether or not you will be willing to submit voluntarily to a breath or blood test.

We generally recommend that you submit to the blood or breath test if it's your first arrest for D.U.I. If you have prior D.U.I. convictions you should consult your attorney for individual advice prior to your second or subsequent arrest. Our advice then would depend on the circumstances but, if you already have no valid driver's license, the suspension for refusal might be no penalty at all in your case.

If you have been served with the admin per se (the pink and yellow papers you get after arrest), you have a right to a hearing with the M.V.D. (if requested) before any driver's license suspension.

There are two types of Implied Consent Suspension. One is related to Arizona Revised Statute ¿ 1385(I) with results from taking a chemical test and the result, which exceeded the statutory limit. (0.10% until August 31, 2001, 0.08% thereafter). The other suspension is related to Arizona Revised Statute ¿ 1321(K) and could occur if the police officer accuses you of refusing to submit to a test or tests upon request at the choice of the police officer. You do not have a right to refuse blood or breath and you might be asked to blow several times. You also do not have a right to select breath or blood.

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More Information on A.R.S. ¿ 1385 (I) Hearings

M.V.D. hearings are civil cases and are different in several ways from a criminal D.U.I. case.

First, an M.V.D. hearing is decided by an Administrative Law Judge and not a jury.

Second, in the M.V.D. hearing the State's burden of proof is by a preponderance of the evidence, more likely than not, whereas in a criminal case it is the much higher standard of beyond a reasonable doubt.

Third, in an A.R.S. ¿ 1385(I) M.V.D. hearing, to prove its case the State must show each of the following elements:

1. That the officer had reasonable grounds to believe the person was driving while under the influence of intoxicating liquor or drugs,
   
   
2. That the person was placed under arrest for an alleged violation of 28 A.R.S. ¿1381.A.1, Driving Under the Influence,
   
   
3. That a test or tests were taken, the results of which indicated the alcohol concentration in the person's blood or breath at the time of the test was 0.10% (or 0.08% after August 31, 2001) or more,
   
   
4. That the testing method used was valid and reliable, and
   
   
5. That the test results were accurately evaluated.

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If you have no prior D.U.I.-related suspensions within the past 60 months, and if no one suffered a serious physical injury in this case, and the Administrative Law Judge orders that your license be suspended, it shall be suspended for a period of 90 days. The first 30 days of the suspension you will not be able to drive at all, and for the next 60 days you will be able to drive on a restricted basis to and from work, on the job, and to and from necessary medical appointments.

At the end of the final 60 days you will be able to get the suspension lifted by going to any driver license facility and paying a $55.00 reinstatement fee. If you have either a prior DUI-related suspension within the last 60 months or the Administrative Law Judge finds that you caused serious physical injury to someone in this incident, your license will be suspended for 90 days and you will not be eligible for a restricted license.

If, at the M.V.D. hearing, the hearing officer orders that your license be suspended he or she must still put that decision in writing and mail it to you and me. The suspension will take effect 20 days after that decision is mailed. Therefore, your license will not be suspended immediately after the hearing.

If the correct officer or officers appear at the hearing, the Administrative Law Judge will uphold the suspension. If any of the above elements or documents are not satisfied, or one of the required police officers fails to appear, you may have the option to request that the suspension be voided.

However, it may be to your advantage to stipulate the suspension. This may allow you to avoid a SR-22 insurance requirement. Please see our firm for a free consultation so that we can discuss this with you prior to your hearing.

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More Information on A.R.S. ¿ 1321(K)

M.V.D. Hearings are civil cases, which are different in several ways from a criminal D.U.I. case.

First, an M.V.D. Hearing is decided by an Administrative Law Judge and not a jury.

Second, in the M.V.D. Hearing, the State's burden of proof is by a preponderance of the evidence (more likely than not), whereas in a criminal case it is the much higher standard of beyond a reasonable doubt.

Third, in an A.R.S. ¿1321(K) MVD Hearing, to prove its case the State must show each of following elements:

1. That the officer had reasonable grounds to believe the person was driving while under the influence of intoxicating liquor or drugs,
   
   
2. That the person was placed under arrest,
   
   
3. That the person refused to submit to a test or tests to determine the alcohol concentration or the presence of drugs ads requested by the police officer(s), and
   
   
4. That the person was informed of the consequences of refusal by the police officer(s).

The Administrative Law Judge will not uphold the suspension unless the correct officer or officers appear at the hearing in person and testify and/or have documents and the ability to prove all of the above elements. If one of the above elements are not proven to the satisfaction of the Administrative Law Judge or one of the required police officers fail to appear at the hearing, the suspension will be voided (will not go into effect).

Even if all officers appear, testify and prove their case, your license will not be suspended immediately after the hearing. If, at the M.V.D. Hearing, the Administrative Law Judge orders that your license be suspended he or she must still put that decision in writing and mail it to you and me. The suspension will take effect twenty (20) days after that decision is mailed.

A restricted license permitting you to drive to and from work or on the job is not available if a 28-1321(K) suspension is upheld.

Please contact our firm for a free consultation so that we can discuss this with you prior to your hearing. If you have any other questions about your driver's license please contact us. It is our goal to help you and answer all of your questions.

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Arizona Driving Privileges

If you possess a valid driver's license from another state, but you do not have an Arizona driver's license, you usually have "Arizona Driving Privileges". While the State of Arizona does not have the authority to alter our out-of-state license, they can restrict your right to drive while you are in Arizona. (Whether or not your home state will also suspend your license depends on the state rules in your home state).

Thus, if you have an out-of-state license and you get a suspension of your Arizona Driving Privileges your license might be valid everywhere except in Arizona.

 

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The Traffic Stop

A D.U.I. arrest begins with the traffic stop. Generally, most evidence against you is gathered at that time. We recommend that you be more aware of your right prior to the stop and that you exercise your right to remain silent.

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Retaining an Attorney

A defendant may retain an attorney at any time after arrest, whether it is immediately after the stop or the night before your court date. We recommend at least a few days before your court date.

D.U.I. defendants have the right to an attorney or will be appointed one (Public Defender) if they can not afford one. However, D.U.I. defendants may be responsible for paying the costs of the Public Defender if it is later determined that they had enough money to pay for an attorney. Shortly after arrest is the best time to hire an attorney to take control and defend the case.

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Arrest

Felonies - Police must have "probable cause" to make an arrest, which may be conceptualized as a "good reason" to arrest.

Misdemeanors - Arrests can only be made for crimes that occurred while in the presence of the arresting person or with a warrant.

Miranda Warnings - Police do not have to read Miranda Warnings to everyone that is arrested. Failure to read the Miranda Warnings does not make the arrest illegal, but may be grounds to suppress certain statements or confessions.

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Booking

Generally, you will not be booked into jail after a D.U.I. arrest. When a suspect is booked the following occurs:

1. The suspect is taken to the law enforcement station.
2. They are asked a series of routine questions.
3. They are lawfully searched with or without consent.
4. The suspect is fingerprinted and photographed.

Some felony D.U.I. defendants and a few misdemeanor D.U.I. defendants will be required to go to the station for booking.

How to get booking information if someone you know is arrested:

1. Call the jail or prison hotline for booking information.
2. You will need the inmate's booking number or their date of birth and full name.
3. The jail or prison will release information on the charges, the court date, the arresting agency and the bail amount.

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Post-Arrest Investigations

Post-arrest investigations may be done after the D.U.I. arrest, but before charges have been filed by the prosecutor. In D.U.I. cases this often involves the decision between a felony aggravated D.U.I. or a misdemeanor D.U.I. Defendants are then sometimes told their case is "scratched" while the prosecutors decide which type of case to file. A scratched case does not mean the case is dismissed or that it has gone away. Although we wish it was that simple, "scratched case" means hire an attorney immediately. An aggressive attorney can contact law enforcement in an attempt to influence to charging decision.

It is not required that the arresting agency release the police report before the defendant goes to court. However, sometimes your attorney can talk the police into releasing the report.

On Aggravated D.U.I. cases, police officers investigate the M.V.D. record to make sure you are the exact person with prior s or to confirm your M.V.D. status. They might also obtain records from other courts to prove a prior D.U.I. conviction. Investigating officers also might research a suspect's driving history or prior convictions in other states.

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Decision to Charge

The following individuals can file charges:

1. County Attorney - The County Attorney files charges against an individual if they believe there is sufficient evidence to convict the suspect.
   
   
2. City Attorney - Some cities have a City Attorney's office which handles most misdemeanor cases and determines if there is sufficient evidence to convict the suspect.
   
   
3. On misdemeanor cases, the police officers can cite you directly into city or justice courts. Their decisions to charge are often "rubber-stamped" by the court or prosecutor.

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First Appearance

On misdemeanor cases, you can often avoid your first court date by hiring an experienced D.U.I. attorney. However, Felony cases always require your personal appearance even if you hire an attorney. If you do not have an attorney, the court will advise you of your right to hire an attorney and your other basic rights.

At the initial appearance, the defendant will be read his rights and the charges against him. Bail or an appearance bond is sometimes required on serious cases or Aggravated D.U.I. cases during the initial appearance. Bail is an "insurance policy" that the defendant will appear before the court again. The amount of bail is determined by the seriousness of the offense and by the Judge. Bail can be $0 if the person is released "on their own recognizance (O.R.)", but it can be increased if the Judge feels that the defendant will not appear in court again. If the person fails to appear before the court, a warrant will be issued for their arrest.

During a later proceeding in front of the court, your attorney can bring a motion to reduce bail. The judge decides whether to reduce bail and will consider the client's risk of flight and danger to the public. In a felony case, if your attorney is asking for an O.R. release, the court will most likely set the matter over for another hearing and order a pre-trial services report on the defendant. This process usually takes a week.

Discovery is given to the defense attorney after arraignment, Discovery includes, but is not limited to: police reports, medical records, probation reports, photographs, diagrams and viewing of physical evidence.

Discovery in D.U.I. cases must be reciprocal, which means that the prosecution must provide the defense with the evidence they are using in the case. Neither the prosecution nor the defense may "hide" evidence and later introduce it during the trial.

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Preliminary Hearing / Arraignment / First Appearance

Preliminary hearings only occur in felony Aggravated D.U.I. cases that are not started by a grand jury indictment. In Arizona, a preliminary hearing is necessary (unless there is an indictment) and here the Judge determines whether or not there is sufficient evidence or probable cause to support the charges against a defendant and bind the case over to Superior Court for trial. During a preliminary hearing, the District Attorney or the Judge can add additional charges and request that the defendant back into custody even if they are already out on bail.

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Arraignment on the Information or Indictment

On Aggravated D.U.I. cases, the defendant is taken before the Superior Court and informed of their charges. At that time, the defendant will answer to the charges by pleading not guilty or guilty. At the Superior Court arraignment, the amount of bail may be reviewed if a written motion is filed enough time in advance of the hearing. Then the bail may be increased or decreased at the court' discretion.

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Pre-Trial Conference

At the pre-trial conference, the defense attorney negotiates with the prosecuting attorney, in order to obtain the best possible "deal" or plea for their client. The State is not required to offer a plea deal, but if they do, your attorney is required to discuss the deal with you. It is ten solely your choice to accept or reject the plea.

A "deal" might include:

1. The prosecution charges the defendant with a lesser charge.
2. The prosecution agrees to a lesser punishment for the same charge.
3. The number of counts may be dropped.
4. Alternative sentencing.

Defense Attorneys may also file Pre-Trial Motions, which may assist in dismissing charges or changing the prosecution's position.

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Trial

The trial itself will normally proceed in the following order:

• First, a jury will be selected. To do this, the judge, the prosecutor, and your attorney will ask the prospective jurors a series of questions designed to reveal strong biases, either for or against either side. After those people with strong biases have been removed from the jury panel, the prosecutor and your attorney will have the right to remove any two persons from the remaining panel. Thereafter, the judge will empanel a seven person jury to hear the criminal charges. At the conclusion of the presentation of the evidence only six jurors will deliberate on the charges. The seventh juror will be designated as an alternate and excused from the case.
  
  
• Second, the prosecutor and then your attorney will present opening statements to the jury outlining what you and your attorney think the evidence will show.
  
  
• Next, the prosecutor must introduce evidence in support of the charges made in the complaints. The evidence will consist of the testimony of witnesses and possibly presentation of exhibits. For each witness, first the prosecutor will question his witness and then your attorney will cross-examine that witness.
  
  
• Then, after the prosecution has concluded the presentation of its case (or "rested"), your attorney may or may not present your own evidence. For the testimony of any witnesses we present, your attorney will first examine the witness and then the prosecutor will cross-examine them. Your evidence may include testimony from you. However, the law does not require you to testify or even produce any evidence, and should you not do so, the judge may instruct the jury that they may not take the fact that you did not testify and/or produce any evidence into consideration when they deliberate on the charges. The decisions regarding what evidence to present and whether you should testify or not will be made by you and your attorney after you have fully discussed them.
  
  
• After the presentation of your case has been concluded, the prosecutor will have a limited opportunity to present additional evidence to rebut any evidence, which your attorney presented as a part of your case.
  
  
• At the conclusion of the presentation of all the evidence, the prosecutor and your attorney will make their closing arguments to the judge. Thereafter, the jury will issue its decision.
  
  
• If there are civil charges, such as 28 A.R.S. ¿ 701, Speeding, those charges will be decided by the judge. After the jury returns its verdict, the judge will issue his or her decision on the civil charges.
  
  
• After the verdicts have been returned by the jury and the judge, the judge will proceed with sentencing on any charges for which the verdicts were guilty or responsible.

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M.V.D. Hearing

An M.V.D. Hearing is a separate process that has nothing to do with the criminal case. M.V.D. suspensions and hearings vary depending on your actions and M.V.D. history. Generally, you have a right to an M.V.D. hearing on most new suspensions but you are often required to request the hearing within fifteen days. If you do not timely request a hearing you could lose your right to a hearing.

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Sentencing

Sentencing is usually held immediately after the verdict or it could be thirty days later. This is a court hearing where the judge determines punishment. A defendant may be sentenced to Probation in addition to jail or prison for D.U.I. However, you may be ordered to do some local custody time as a term of his or her probation. If a person violates their probation, they may be incarcerated again.

1. (1) Formal probation is when an individual is supervised by a probation officer.
   
   
2. (2) Informal or summary probation is unsupervised.
   
   
3. (3) If probation is not granted, there is usually a range of three prison terms in each FELONY crime: the mitigated term, presumptive term, and aggravated term. Lawyers argue about the proper term based on the facts of the particular case. The final word is usually within the judge's discretion unless the plea agreement specifically outlines the agreed upon term.

Some alternatives to jail that might be negotiated are:

1. Treatment or Detox Programs
2. Electronic Home Monitoring
3. Residential Treatment Centers
4. Counseling
5. Weekend Work Programs
6. Community Service

Please contact our office for a free consultation or if you have any other questions regarding the process of a D.U.I. case.

 

1. ADAMS Issue and Defense in D.U.I. Cases

In Arizona most alcohol breath testing is done on a device known as the Intoxilyzer 5000. This device is limited in its accuracy. Before the State may use the breath test results in court or in motor vehicle proceedings, it must show that the device is at least capable of measuring within an acceptable range of accuracy. If the device was not testing within the acceptable range of accuracy when an arrested person was tested, then the State may not be able to use the test results against the defendant.

The state is also required to give to the arrested person's attorney, all records of when the device's accuracy was tested. In 1999, it was discovered that many police agencies including the Department of Public Safety and the Phoenix Police Department were engaging in a systematic practice of not disclosing all accuracy test results and thus creating a false impression that the device was working accurately when it was not. This practice had the effect of convincing arrested people that they had no basis to challenge the accuracy of the breath test results, when in reality they did have such a basis.

Once the practice became known, my firm filed motions to dismiss all cases or suppress breath tests in where there were breath tests because the State's practice constituted bad faith. These claims are currently the subject of protracted court hearings.

Because of this new deceptive practice used by the State, my office sought the dismissal of cases where the person's breath alcohol level was tested on an Intoxilyzer 5000.

My firm was successful and we had numerous breath tests suppressed which lead to the dismissal of numerous cases.

In April 2000, a Phoenix City Court judge granted defense motions to suppress breath tests on over 1000 D.U.I. cases.

 

The Retrograde Defense or B.A.C. at Time of Driving Defense.

The subtractive retrograde is a method to estimate your true breath alcohol level at the time of driving. Generally, the human body requires between 45 minutes to two hours for all the alcohol that you consumed to enter your blood stream. For this reason, a person's blood alcohol concentration ("B.A.C.") may continue to rise after the traffic stop and show a much higher level during the later breath or blood test. To do a retrograde, the total number of a drinks in a defendant's system at the time of the breath or blood test is "related back" to the time of driving by subtracting the drinks consumed shortly before the traffic stop.

For example, assume a 180-pound man consumed two beers within an hour of his being pulled over by the police, and approximately one hour later, the suspect submits to a breath test, which indicates a B.A.C. of 0.12%. Between the time of the traffic stop and the time of the breath test, the suspect's B.A.C. continued to rise as his body physiologically continued to absorb alcohol. Under the retrograde, although the breath test accurately reported a 0.12% B.A.C., the defendant's actual B.A.C. at the time of driving will be retrograded or "reduced" to a 0.08% B.A.C. or below.

Expert witnesses can be retained and they can testify as to your estimated B.A.C. at the actual time of driving. Because an estimate is all anyone will ever be able to obtain, we may never know for sure whether or not any one defendant was over 0.08% B.A.C. at the time of the stop.

Presumptions. Under Arizona law, the following presumptions apply for the court and jury to consider:

1. If there was at the time of alcohol testing 0.05% or less alcohol concentration in the defendant's breath or blood, then it may be presumed that the defendant was not under the influence of intoxicating liquor;
   
   
2. If there was at the time of alcohol testing in excess of 0.05% but less than 0.10% (0.08% after August 31, 2001) alcohol concentration in the defendant's breath or blood, then no presumption arises, but that fact may be considered with other evidence in determining the defendant's guilt or innocence; and
   
   
3. If there was at the time of alcohol testing 0.10% (0.08% after August 31, 2001) or more alcohol concentration in the defendant's breath or blood, then it may be presumed that the defendant was under the influence of intoxicating liquor.

LEGAL UPDATE: With respect to the A(2) charge, the Arizona legislature repealed the Rising B.A.C. Defense on July 18, 2000. However, this defense still applies to the A(1) charge and may be used at trial.

B.A.C. at the Time of Driving Defense may be available now on A2 charges under the Desmond case.

Beginning August 31, 2001, the legal limit for the A(2) charge will drop from 0.10% B.A.C. to 0.08% B.A.C.

(a) Inherent Margin of Error
(b) Radio Frequency Error
(c) Mouth Alcohol Error
(d) Operator Error
(e) Physical Problems
(f) Average Person Problems

 

The National Highway Traffic Safety Administration (NHTSA) has established guidelines regarding the administration of FSTs. The tests should not be given if the accused (a) is 50 pounds or more overweight; (b) is 60 years of age or older; (c) has any back, hip, leg, knee, or ankle injuries; (d) has any disability effecting balance or (e) is wearing shoes with heels two inches or higher.

Police officers in Arizona usually ignore these guidelines and give the tests to almost everyone. Then, presumably, they are ready to testify of poor performance. We believe these tests are unfair and very difficult to perform even if you were completely sober.

There are six standardized Field Sobriety Tests:

1. Horizontal Gaze Nystagmus Test ("HGN"): HGN is an eye test where the observer looks for "nystagmus" or an involuntary jerking of the eyes. The test measures the eyes' ability to follow a moving object in a horizontal and sometimes vertical plane. Although this phenomenon is frequently caused by the consumption of alcohol and/or certain drugs, nystagmus appears naturally in some people and may also be caused by the ingestion of certain antihistamines and other over-the-counter medications.
   
   To properly administer the test, the officer must:
   
   (1) hold the stimulus, often a pen, 12 - 15 inches in front of the suspect's face;
   
   (2) keep the tip of the stimulus slightly above the suspect's eyes;
   
   (3) move the stimulus smoothly;
   
   (4) check for all three clues in each eye;
   
   (5) check for clues in the order of lack of smooth pursuit, distinct nystagmus at maximum deviation and onset of nystagmus prior to 45 degrees; and
   
   (6) check for each clue at least twice in each eye. Consequently, the administering officer looks for three clues of neurological dysfunction in each eye, including, (i) lack of smooth pursuit, (ii) moderate to distinct nystagmus at maximum deviation, and (iii) onset prior to 45 degrees, for a total of six clues of impairment.
   
   We recommend that clients decline to participate in HGN eye tests. Gaze nystagmus may also be caused by many other things other than alcohol consumption such as:
   
   (1) Drugs such as aspirin, caffeine and nicotine
   
   (2) Physical problems:
         Eye disorders
         Nausea
         Dizziness
         Influenza
         Measles
         Neurological disorders
   
   (3) External conditions:
         Temperature
         Rain
         Wind
         Sun
         Pollution
         Headlights from other traffic on the road
   
   (a) The procedure is new and may have undiscovered flaws.
   
   (b) The officer incorrectly performed the test. (Request that judicial notice be taken on the proper procedures.)
   
   (c) No record of the test exists with which to gauge the officer's observations.
   
   (d) The officer had inadequate training and experience in administering the test.
   
   (e) The officer did not have a protractor or other measuring device to measure the angle at which nystagmus occurred.
   
   
2. Walk And Turn Test: The walk and turn test is a divided attention test intended to test your ability to follow instructions while standing heel to toe during the instruction phase and to walk a line heel to toe, for nine steps, turn around in small steps to your left, and return by taking nine heel to toe steps back. Should you (i) start before the instructions are finished; (ii) lose your balance while listening to the instructions; (iii) stop while walking to steady yourself; (iv) miss heel to toe (v) step off the line; (vi) use your arms to balance; or (vii) walk the incorrect number of steps, these factors will count against you. We also recommend that clients decline the walk and turn tests.
   
   
3. One Leg Stand Test: The one leg stand test is designed to test a person's ability to balance on one foot, while raising the other 6 inches off of the ground, and count by 1000's from 1001 to 1030. The administering officer will consider the following clues as signs of impairment: (1) sway back-to-front or side-to-side while balancing; (2) use your arms to balance; (3) hop; (4) put your foot down or (5) count incorrectly. The secret to this test (that the officer will not tell you) is to place your weight on the back half of the foot you are standing on. Try this and you will find it much easier.
   
   
4. Rhomberg Modified Test. In this test the suspect stands with their feet together their arms to the side ten lean their head back with the eyes closed. By doing this unnatural action -- most people might lose their equilibrium. Then officers will record your actions and assume any slight problem is a sign of intoxication.
   
   
5. Finger to Nose Test. I want you to stand with your feet together and arms down at your side. When I tell you to begin, I want you to close you eyes and tilt your head. Using the finger I tell you, I want you to touch the tip of your nose to the tip of your finger.
   
   
6. Try this sober sometime and you will see how difficult it is if strictly judged. You are penalized for opening your eyes, swaying, failing to keep feet together or using the wrong hand. Even asking again to repeat the instructions means you are drunk.
   
   
7. Finger Count Test. This test is easy even after a few beers if you practice. It is difficult while sober if you don't practice. Try it now, with the hand I tell you, I want you to count out loud while touching the proper finger to your thumb. You must count 1-2-3-4, 4-3-2-1. Give it a try now but not if you're stopped for D.U.I.

You have the right to refuse to do any of the field sobriety tests listed above. We recommend that you do not attempt to do these tests. Under stressful conditions, few people can perform the tests correctly. There is no penalty for your refusal to do FSTs and you usually have nothing to gain. Remember, if you have been drinking the police will attribute the poor performance to possible intoxication. If arrested after performing these field sobriety exercises, this evidence will be used to prosecute you. Some people tell us they feel they did well on the FSTs but we almost never see a police officer that agrees.

For each of the standardized NHTSA tests, a qualified D.U.I. lawyer will be prepared to address inadequacies of the administering officer's instructions, demonstration, administration and scoring. In challenging the results of your performance on the FSTs, an experienced D.U.I. lawyer will investigate the possibility of inaccurate or unfair testing.

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Ways to Challenge FSTs

1. The non-objectionable police officer. Experienced DUI lawyers can establish that police officers have an interest in the outcome of the case and are capable of making mistakes. In almost all cases the officer has only told half the story in his police report. This is confirmed during the pretrial interview where the officer admits he only recorded the signs or symptoms which he believed were indicative of impairment and did not write down any behavior consistent with non-intoxication, i.e., that the client did not fumble retrieving his license from his wallet and had no trouble getting out of his car or that he was able to converse intelligently without slurring his words or stuttering. Through confirming he only wrote down the things he thought the driver did wrong we can establish the officer was more interested in creating a limited record for the sole purpose of supporting his decision to arrest, rather than making a fair and accurate record of all the facts and events as they actually transpired.
   
   
2. The Nervous Client. At trial, the officer may testify the driver fumbled with is wallet, slurred his words and seemed nervous or confused. However, the stress induced by a roadside confrontation with the police is enough to cause even the most well spoken individual to stutter and the most coordinated to fumble and falter. It is normal for people to be nervous when confronted as the subject of the police investigation. This is often compounded when officers use a forceful tone and demeanor with suspects in order to establish command over the roadside stop and subsequent investigation.
   
   
3. Unnatural Tasks. The prosecution will invariably seek to show the FSTs requested of the arrestee were such that any sober individual could easily perform them. However, in many cases, officers request suspects perform roadside tests without first inquiring whether the suspect had any disability or infirmity, mental or physical, which would preclude or hinder him from successfully completing the tests. Even if the officer does inquire and the person indicates that they have an infirmity, officers rarely attempt to determine how that infirmity would affect a person's performance on the FSTs. If this is the case, the officer did not really care whether the FSTs would be fair or accurate indicators of alcohol impairment. Showing the jury the only thing the officer was interested in was unfairly gathering incriminating evidence is a good way to successfully challenge his credibility. The officer will likely be asked by the prosecutor to demonstrate the ease with which these tests are performed. However, on cross-examination, an experienced DUI lawyer will get the officer to admit that he repeatedly practices the tests every time he demonstrates and administers the tests to DUI suspects. In essence, practice makes perfect. Although the tests may be easily performed by the officer, this battery of tests is foreign to most drivers who are asked to perform them for the first time under extremely stressful circumstances.
   
   
4. Poor Instructions. Often the arresting officer will decide a suspect has failed a particular FST due to inadequate performance when in fact it was the failure of the officer to explicitly describe what he wanted the driver to do. For example, if the driver was merely told to tip his head back, hold his arms out to the side and touch his finger to his nose, he should not fail the test merely because he did not touch the tip of his finger to the tip of his nose. If any portion of his finger touched any part of his nose, he was just doing as he was told, and doing it well. If the officer states the subject swayed while performing the one leg stand or any FST for that matter, then he should be asked if he told the driver not to sway. When he says no, it will confirm that the driver was unfairly judged on criteria he was not told would be on the test.
   
   
5. Unfavorable Conditions. Perhaps it was a dark, cold and stormy night when the driver was required to perform FSTs on the roadside. Perhaps the road was steeply graded or the emergency lane was filled with loose gravel. Maybe the citizen was asked to perform the one leg stand and walk and turn in 5-inch stiletto heels. If the conditions under which the driver was administered these tests were poor, it may invalidate the test and/or offend the jury. Once it has been established that conditions for FST administration were not ideal, the officer should be asked if he considered giving the driver the test battery in the dry, warm, level, and well lit conditions of the police station. This will show the jury the officer was holding all the cards and controlling the outcome by unfairly administering the tests under conditions which guaranteed failure.

 

The State must prove more than just intoxication. Under Arizona law, the State must establish the defendant was driving or in actual physical control of a vehicle while impaired by alcohol or drug consumption or with a blood-alcohol concentration of 008% or more within two hours of driving.

To determine "actual physical control" the court looks at the "totality of circumstances". Factors that may be considered may include but are not limited to the following: whether vehicle was running or ignition was on; whether defendant was awake or asleep; whether vehicle's headlights were on; where vehicle was stopped (in road or legally parked); whether defendant had voluntarily pulled off road; time of day and weather conditions; whether heater or air conditioner was on; whether windows were up or down; and any explanation of circumstances advanced by defendant. In some cases there may be no witnesses to testify who was driving a vehicle.

Therefore, the State may be unable to meet its burden of proving the accused was driving or was in actual physical control of the vehicle. This could lead to a case dismissal, a direct verdict or a non-guilty verdict. Often the courts look to whether the defendant actually posed a threat to the public by exercise of present or imminent control over it while impaired, rather than simply using the vehicle as a stationary shelter.

 

To properly defend your D.U.I. case, it may be necessary for us to obtain an expert witness on the forensic testing of blood and breath alcohol. We often use as our expert Mr. Chester Flaxmayer. The following is a listing of his qualifications.

CHESTER FLAXMAYER

Charles Flaxmayer is an expert witness available to testify in the defense of a D.U.I. charge. Mr. Flaxmayer is a Criminalist who specializes in the field of Forensic Alcohol Science and Technology. He is a 1982 graduate of Arizona State University and holds three degrees in Chemistry, Microbiology and Botany. Mr. Flaxmayer has worked as a Criminalist for fifteen years in the area of alcohol and drug testing and has testified extensively on the effects of alcohol and drugs on the human body. He has appeared as a guest speaker for groups such as APAAC, GOHS, State Bar, AZ Supreme Court, NHTSA, and IACT.

Mr. Flaxmayer has testified as an expert witness for my firm on numerous cases for many years. Please discuss the facts of your case thoroughly with your attorney to determine whether or how an expert witness could help with your defense.

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The following is a listing of professional presentations from Mr. Flaxmayer:

• Methods of Trapping Ethanol Vapor on an Intoxilyzer Presentation at NHTSA meeting on April 26, 1984, Denver, CO
  
  
• New GC Analytical Procedure for the Analysis of Ethanol in Human Breath Presentation at Southwestern Association of Forensic Science on May 03, 1984, Scottsdale, AZ
  
  
• Quality Assurance and Forensic Breath Alcohol Testing Presentation for the Arizona Department of Health Services on May 25, 1984, Phoenix, AZ
  
  
• Radio Frequency Interference and Electronic Instrumentation Presentation at GOHS Vehicular Homicide/DUI Conference on October 18, 1984, Phoenix, AZ
  
  
• Electronic Slope Detection in the Intoxilyzer 4011 and 5000 Presentation for the Arizona Department of Health Services on January 28, 1985, Phoenix, AZ
  
  
• The Analysis of Ethanol in Human Breath by Headspace Gas Chromatography Presentation at Southwestern Association for Forensic Science on May 02, 1985, Denver, CO
  
  
• Forensic Toxicology of Ethanol Presentation at Arizona Prosecuting Attorney's Advisory Council Annual DUI Conference June 11, 1988, Phoenix, AZ
  
  
• Testimony as a Forensic Expert: How to Play the Game Presentation at Intoxilyzer 5000 User's Group on August 29-01, 1988, La Cross, WI
  
  
• The Accuracy and Reliability of the Intoxilyzer 4011 Two Presentations at the Honolulu, Hawaii DUI Adjudication/Legislation Conference on Dec. 01-02, 1988, Honolulu, HI
  
  
• Retrograde Extrapolation in a DUI Prosecution Presentation at Arizona Prosecuting Attorney's Advisory Council Annual DUI Conference on June 10, 1989, Phoenix, AZ
  
  
• Pharmacology and Pharmacokinetics of Ethanol and their Relation to a DUI Prosecution Presentation at Arizona Prosecuting Attorney's Advisory Council Annual DUI Conference on June 9, 1990, Phoenix, AZ
  
  
• DUI and the Affirmative Defense Presented at the Arizona State Bar Meeting on DUI Defense on March 08, 1991, Phoenix, AZ
  
  
• The Need & Use of Expert Testimony to Successfully Defend the Accused Presented at the Arizona Attorneys for Criminal Justice at their 4th Annual Seminar on May 4, 1991, Tucson, AZ
  
  
• The Criminalist Direct and Cross Examination Presented at the Maricopa County Bar Association Advanced DUI seminar on August 6, 1991, Phoenix, AZ
  
  
• DUI and Field Sobriety Testing Presented at the seminar of the same name on December 7, 1991, Phoenix, AZ
  
  
• DUI and Retrograde Extrapolation: an Advanced Course Presented at the seminar of the same name for Tempe Police department on March 2, 1992, Tempe, AZ
  
  
• DRE & DRE Case Analysis Presented at the seminar of the same name on December 5, 1992, Phoenix, AZ
  Laboratory Analysis: Blood, Urine, Biological Fluids
  Presented at the seminar of the same name on December 5, 1992, Phoenix, AZ
  
  
• Arizona Department of Health Services Instructor Recertification Course Presented at the seminar of the same name for the Arizona Department of Health Services on December 30, 1993, Phoenix, AZ
  
  
• Defense Experts and How to Handle them at Trial Presented at the Sixth Annual Conference of the International Association for Chemical Testing on March 25, 1993, Louisville, KY
  
  
• DUI Issues/Expert Testimony Presented at the 1993 "Orientation for new Limited Jurisdiction Judges" for the Arizona Supreme Court's Administrative office on April 14, 1993, Phoenix, AZ
  
  
• Expert Witnesses in DUI cases Presented at the joint meeting of the Coconino County and the Maricopa County Public Defender's Offices on April 30, 1993, Flagstaff, AZ
  
  
• A Comparison of Drug Induced Signs and Symptoms between D.R.E. (Drug Recognition Expert-Examination) and the Medical Literature Presented at the joint meeting of the Society of Forensic Toxicologists and the California Association of Toxicologists on October 15, 1993, Tempe, AZ
  
  
• An update on the Development of a Model Program concerning Alcohol Testing in the Workplace Presented at the National Safety Council's Committee on Alcohol and Other Drugs in San Antonio Texas on February 15, 1994
  
  
• A Comparison of Drug Induced Signs and Symptoms between D.R.E. (Drug Recognition Expert-Examination) and the Medical Literature Presented at the seminar entitled DUI - Drugs presented by the Maricopa County Office of the Public Defender in Phoenix, Arizona on April 08, 1994, Tempe, AZ
  
  
• "Speculative" Retrograde Extrapolation - Fact & Fantasy Presented with Pat Harding from the Wisconsin State Lab, at the Seventh Annual Conference of the International Association for Chemical Testing on April 14, 1994 in Denver, CO
  
  
• Blood Testing, The Scientific Approach Presented at the AACJ 7th Annual DUI Conference on May 21, 1994 in Tucson, AZ
  
  
• Breath Testing, Theory and Practice Presented to the Arizona Motor Vehicle Department at a meeting of Administrative Law Judges at MVD on Feb. 2, 1995 in Phoenix, AZ
  
  
• The Use of a Criminalist in a DUI Trial Presented at the seminar entitled "issues for Representing the DUI Client -- 1995" on March 24, 1995 in Phoenix, AZ
  
  
• Expert Witnesses Presented at the Eighth Annual Conference of the International Association for Chemical Testing on April 6, 1995 in Milwaukee, WI
  
  
• A Tabular Summary of Functional/Clinical Neuroanatomy, Neurotransmitter-Receptor Location and Sites of Drug Action in the Human Brain Presented at the Society of Forensic Toxicologists Silver Anniversary Meeting on October 12, 1994 in Baltimore, MD
  
  
• Retrograde Extrapolation Presented at the Arizona State University College of Law Alumni Association DUI 10 Meeting on October 28, 1994 in Tempe, AZ
  
  
• The Intoxilyzer Model 5000 with A.D.A.M.S. Presented at the AACJ 9th Annual DUI Conference on May 18, 1994 in Phoenix, AZ
  
  
• Overview of the NHTSA/NJC Faculty Development Workshop - DUI/Traffic Safety Cases Presented at the 12th Annual Intoxilyzer Model 5000 Users Group on August 29, 1995 in Reno, NV
  
  
• Technology (ADAM/RBT4) and Legal Challenges Presented at the Arizona 1996 Governor's Office of Community and Highway Safety DUI Conference for Judges, Co-sponsored by NHTSA, on September 27, 1996 in Tucson, AZ. Co-instructor - Sgt. T. Dyas, Tempe P.D.
  
  
• D.R.E. Presented at the Arizona 1996 Governors Office of Community and Highway Safety DUI Conference for Judges, Co-sponsored by NHTSA, on September 27, 1996 in Tucson, AZ. Co-instructor - Sgt. T. Dyas, Tempe, P.D.
  
  
• ADAMS and RBT IVs: Technology and Issues Presented at the Arizona State University College of Law Alumni Association's DUI XI on October 5, 1996 in Tempe, AZ. Co-instructor - Sgt. T. Dyas, Tempe, P.D.
  
  
• Expert Witness Preparation Presented at the Maricopa County Attorney's Office/NHTSA seminar entitled LETHAL WEAPON: VEHICULAR HOMICIDE PROSECUTION on December 11, 12, & 13, 1995 in Phoenix, AZ
  
  
• DUI Experts Presented at the Phoenix City Prosecutor's Office Law Retreat on May 1, 1997 in Phoenix, AZ
  
  
• Blood Tests Presented at the AACJ 10th Annual DUI Conference on May 3, 1997 in Tucson, AZ
  
  
• Cross Examination of the Expert Witness By Literature Presented at the Tenth Annual Conference of the International Association for Chemical Testing on May 3, 1997 in Missoula, MT
  
  
• Blood Testing/DUI Presented at the symposia entitled Effectively Using Scientific Evidence at the 64th Annual Conference of the State Bar of Arizona on June 12, 1997 in Phoenix, AZ
  
  
• Questions, Problems, Answers and Solutions for DUI XII Presented at the Arizona State University College of Law Alumni Association's DUI XII on September 6, 1997 in Tempe, AZ
  
  
• New Technology and New Issues - Intoxilyzer Model 5000 Presented at the Arizona 1998 Governor's Office of Community and Highway Safety DUI Conference for Judges, Co-sponsored by NHTSA, on February 16, 1998 in Prescott Arizona. Co-instructor - Sgt. T. Dyas, Tempe, P.D.
  
  
• Breath/Blood Testing/DUI Presented at the Arizona 1998 Maricopa County Public Defender's office symposia entitled "Actions Speak Louder Than Words DUI 1998" on February 20, 1998 in Tempe, AZ
  
  
• Variances and Assumptions in an AC Test Result Presented at the Arizona State University College of Law Alumni Association's DUI XIII on October 3, 1998 in Tempe, AZ . Co-instructor - Gary Kula
  
  
• Retrograde Extrapolation Presented at the Phoenix City Public Defenders Conference on December 10, 1998 in Phoenix, AZ
  
  
• Retrograde Extrapolation, Alcohol Calculations & Field Sobriety Tests Presented at the Maricopa County Public Defenders Conference on DUI on February 26, 1999 in Phoenix, AZ
  
  
• Intoxilyzer Model 5000 and A.D.A.M.S. Presented at the Arizona Attorneys for Criminal Justice Conference on DUI on May 15, 1999 in Tucson, AZ
  
  
• Intoxilyzer Model 5000 and A.D.A.M.S. Presented at the Arizona State University College of Law Alumni Association's DUI XIII on September 25, 1999 in Tempe, AZ
  
  
• The Effects of Alcohol and Drugs on the Human Body Presented at the Arizona 1999 Maricopa County Bar Association symposia entitled "The ABC's of DUI" on November 4, 1999 in Phoenix, AZ
  
  
• Understanding Blood Test Results Presented at the Arizona 2000 Maricopa County Public Defenders symposia entitled "DUI: The Science. . .And Fiction" on February 25, 2000 in Phoenix, AZ
  
  
• What You Need To Know About Blood Cases Presented at the Arizona Attorneys for Criminal Justice Thirteenth Annual DUI Seminar on Aril 29, 2000 in Phoenix, AZ

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Mr. Flaxmayer also holds the following certifications and analyst permits:

Operator Permits:

• AZ DHS Breathalyzer 900A
• AZ DHS Intoximeter 3000
• AZ DHS GCI Mark IV & Indium Encapsulation Unit
• AZ DHS Intoxilyzer 4011 A Modified W/WO Beam Attenuator
• AZ DHS Intoxilyzer 4011 AS Modified W/WO Beam Attenuator
• AZ DHS Intoxilyzer 4011 A Modified W/WO Beam Attenuator with SPM
• AZ DHS Intoxilyzer 4011 AS Modified W/WO Beam Attenuator with SPM
• AZ DHS Intoxilyzer 5000

Quality Assurance Permits:

• AZ DHS Intoxilyzer 4011 A Modified W/WO Beam Attenuator
• AZ DHS Intoxilyzer 4011 AS Modified W/WO Beam Attenuator
• AZ DHS Intoxilyzer 4011 A Modified W/WO Beam Attenuator with SPM
• AZ DHS Intoxilyzer 4011 AS Modified W/WO Beam Attenuator with SPM
• AZ DHS Intoxilyzer 5000
• AZ DHS Intoximeter 3000
• AZ DHS GCI Mark IV & Indium Encapsulation Unit

Instructor Permits:

• AZ DHS Intoxilyzer 4011 A Modified W/WO Beam Attenuator
• AZ DHS Intoxilyzer 4011 AS Modified W/WO Beam Attenuator
• AZ DHS Intoxilyzer 4011 A Modified W/WO Beam Attenuator with SPM
• AZ DHS Intoxilyzer 4011 AS Modified W/WO Beam Attenuator with SPM
• AZ DHS Intoxilyzer 5000
• AZ DHS Gas Chromatograph Intoximeter Mk. IV
• AZ DHS Intoximeter 3000
• AZ DHS Indium Encapsulation Unit

Analyst Permits:

• AZ DHS Blood Alcohol Analyst Permit - inactive
• AZ DHS Silica Gel Analyst Permit - inactive

Other Certifications:

• Factory Certified to operate, repair and instruct in the operation and repair of the Intoxilyzer 4011 A, 4011 AS, and 5000.

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The following is a summary of Mr. Flaxmayer's experience:

• 8/15/83 to 7/31/90
  Arizona Department of Public Safety
  Assigned to provide scientific support to the DPS breath-testing program. This support includes:
  
  (a) Repair Intoxilyzers, Stimulators and ancillary equipment.
  
  (b) Train Operators, Quality Assurance Specialists, and Instructors for the Intoxilyzer, Includes 111 classes for some 60+ agencies in Arizona. Duties include preparation of DHS approval of lesson plans. Instruction includes pharmacology and pharmacokinetics of ethanol with special emphasis on the effects including ethanol's effects on driving and field sobriety testing.
  
  (c) Provide expert testimony in the area of forensic breath and blood alcohol determinations. Includes testifying 350 times in the justice and superior courts of Arizona. Duties have included responding to out-of-state subpoenas.
  
  (d) Provide laboratory services including simulator solution, silica gel analysis and blood alcohol analysis.
  e. Provide other assistance as requested including disseminating technical and legal information.
  
  
• 7/1/86 to 7/31/90
  Responsible for the planning and implementation of the Department of Public Safety's Intoxilyzer Unit Laboratory
  Duties include:
  
  (a) GOHS grant preparation, budget preparation, specification and bid process to purchase laboratory equipment.
  
  (b) Site preparation, installation and testing of analytical equipment when in place.
  
  (c) Purchasing perishable and disposable supplies and performing routine and special maintenance on lab equipment.
  
  Equipment Includes:
  Hewlett Packard 5890A Gas Chromatograph
  Hewlett Packard 19395A Headspace Sampler
  Perkin Elmer/Nelson Integrators
  3 IBM Personal computers
  Multiple laboratory refrigerators
  Gas manifold and delivery system
  Sample preparation equipment
  
  
• 2/2/87 to 7/1/88
  Acting Supervisor of the Department of Public Safety's health testing program.
  
  
• 7/31/90 to 11/02/90
  Provide expert testimony in the area of forensic breath and blood alcohol for DUI related vehicular manslaughter and homicides. Receive additional training in the area of forensic hair and fiber analysis.
  
  
• 11/02/90 to present
  Criminalist in the private sector providing consultation and expert testimony in the area of alcohol and drugs. This includes the effects of alcohol and other drugs on humans as they relate to behavior, field sobriety test performance and driving skills, as well as methods of determining the presence of alcohol and other drugs in the human system.

 

An investigatory stop is unconstitutional if the stop is not supported by reasonable suspicion that criminal activity is afoot. Thus, if the law enforcement officer lacked a constitutionally valid reason for making the traffic stop, all evidence of impaired driving obtained as a result of the unlawful stop must be suppressed. Common reasons for stops are other traffic violations. The lack of other violations could call questions to the reason for the stop.

 

 

Probable cause to arrest means reliable information within an officer's knowledge, which would lead a reasonable person to conclude that criminal activity has been or is being committed. If objective facts and circumstances, indicative of impairment or intoxication, did not exist at the time of the arrest, the arrest is unconstitutional and the case could be dismissed. Once in a while, police officers will admit they did not observe the normal factors used to believe a person was under the influence. This might lead to a challenge.

Many arrests result from "task forces" or sweeps where officers often from several cities team up to arrest as many people as possible so they can make the headlines in the newspapers. Some clients believe this results in the traffic stops that lack probable cause.

 

Under Arizona criminal law, when a D.U.I. suspect requests a lawyer, the police must provide the defendant with an opportunity to speak with a lawyer telephonically as soon as is reasonably possible. Where the police unreasonably delay or deny the suspect's request to speak with an attorney, depending on the particular facts, the remedy in the criminal case is either dismissal or suppression of all the evidence obtained after the violation of his or her constitutional right to counsel. Thus, it is very important to demand to speak with your attorney as soon as you are stopped.

• (a) he or she has a right to remain silent;
• (b) any statement he or she does make may be used as evidence against him or her;
• (c) he or she has the right to the presence of an attorney; and
• (d) if he or she cannot afford an attorney, one will be appointed for him or her prior to any questioning.

Unless these warnings or a waiver of these rights are shown, any incriminating statements made during the custodial interrogation may be suppressed.

Of course, it is best to always exercise your right to remain silent and do not answer questions such as where you were, what you were drinking, number of drinks, or when you last ate food.

 

Under the Fourteenth Amendment to the United States Constitution, the defendant has a due process right to collect independent scientific evidence of his or her blood alcohol concentration (BAC). Independent chemical tests are exculpatory evidence, and the State may not unreasonably interfere with a defendant's reasonable efforts to gain such evidence. This means even if you are booked into jail, they usually can not book you into jail immediately after your arrest, upon your verbal request, you must be given the opportunity to immediately arrange for an independent blood test.

 

Results of blood alcohol testing are only admissible as evidence against the defendant if the State can establish the blood was drawn by qualified personnel and the particular scientific analysis utilized complied with scientific standards and State requirements as to calibration and maintenance. Any foundational deficiencies in the State's collection, storage or analysis of the chemical evidence may require the test results to be suppressed.

In Arizona, the person who drew the blood must have been qualified by law to draw a D.U.I. suspect's blood for blood alcohol concentration testing. The results of the blood alcohol testing may be challenged if the person who drew the blood was not qualified by law to draw the blood.

The Blood Swab used to cleanse the site of venepuncture must be contaminant free. Hospitals frequently use isopropyl alcohol to clean the site of the blood draw. However, isopropyl alcohol can contaminate the blood sample. Also, if police used a NIK blood kit, due to a manufacture recall, the content of the forensic swab may be contaminated and should be the subject of a discovery request.

Was Whole Blood or Plasma Tested? Whole Blood is composed of cellular material, plasma and fibrinogen (clotting agent). In plasma draws hospitals typically test serum or plasma for the presence of alcohol. Conversely, forensic blood draws test for the precise blood-alcohol concentration. Medical blood draws, therefore, present several problems for D.U.I. suspects. First, when the hospital lab tech centrifuges the blood sample, the solid, cellular material (the whole blood) is removed, which leaves the same amount of ETOH in a smaller volume of liquid. Thus, hospital tests may artificially inflate the D.U.I. suspect's alcohol concentration by as much as 20% to 30%.

Hematocrit. This is the percentage of whole blood comprised of cellular material. For instance, a Hematocrit of 47 means that 47% of the person's blood is composed of cellular material, and the remaining 53% is plasma (mostly water). The Hematocrit for a male is 47% and for a female is slightly lower.

Hypothetically, if the D.U.I. suspect had a Hematocrit of 60 and the hospital tested plasma, what results? The lab analysis will report a higher BAC for the D.U.I. suspect, because he or she will have a lesser volume of liquid, and alcohol always gravitates toward the liquid. Thus, the higher the Hematocrit the higher the D.U.I. suspect's BAC. Typically, hospital records will show Hematocrit.

Administering an IV to a D.U.I. suspect prior to a blood draw artificially increases the person's blood-alcohol concentration. Because alcohol tends to follow water in the blood, intravenously administered liquid draw more alcohol out of body tissue, thereby, artificially increasing the D.U.I. suspect's blood-alcohol concentration.

Blood test kits manufactured by NIK Public Safety, Inc., have expiration dates regarding the period that the vacuum in the vacutainer tube is warranted. Each tube contains a preservative and an anticoagulant. A precise vacuum exists in the vacutainer tube to assure a precise amount of blood will be drawn and mixed with these chemicals in a precise ratio. Thus, imprecision in the mix, i.e., too much chemical or not enough blood, can skew the test result.

Additionally, if the vacutainer leaks, air born microorganisms may contaminate the sample. Combining blood with microorganisms results in fermentation. ETOH is a byproduct of fermentation, and there is no way to distinguish between alcohol consumed by a D.U.I. suspect and alcohol created by fermentation.

Each vacutainer kit is intended to take 10 ml of blood. Each kit contains two chemicals: 100 mg of sodium fluoride (a preservative to prevent fermentation and neo-production of ETOH) and 20 mg of potassium oxalate (an anticoagulant designed to prevent clotting of the blood). The issue is whether these chemicals were in the vacutainer tubes because these chemicals are critical to an accurate test result.

NIK kits have two sets of instructions. One for the person drawing the blood and one for the cop. One of the instructions pertains to mixing of the blood immediately after the blood draw. After the blood is in the vacutainer, the person drawing the blood is to properly mix the blood and chemicals in tubes.

After they get the blood, it must be tested by an approved method:

1. Gas Chromatography. There are two types of gas chromatography used in blood analysis: (1) direct measurement of the blood sample and (2) measurement of the gas in the headspace above the liquid. Gas Chromatography ("G/C") is a method of (1) identifying a substance and (2) determining the concentration of that substance. The process is both qualitative (what is it?) and quantitative (how much is there?).
   
   
2. Gas Head Space Chromatography. In gas chromatography you are actually testing the D.U.I. suspect's blood. In gas headspace chromatography, you are testing the gas or vapor above the liquid--not the liquid itself. The headspace is the space above the liquid. The alcohol evaporates (at a rate of speed determined by temperature) from the liquid to the gas in the headspace above the liquid. The alcohol will evaporate until it reaches the point of equilibrium. Equilibrium is determined by temperature. The higher the temperature, the more alcohol in the gas above the liquid.

By way of analogy, this is why core body temperature variation and expired breath variation can artificially inflate a breath test reading. Breath testing is based on the relationship between alcohol in the blood and alcohol percolating from the blood into the vapor in the lungs. The assumption underlying breath testing is that whatever alcohol is present in one ml of breath, 2100 times that amount will be present in one ml of blood.

This same theory underlies gas headspace chromatography. With this process, the lab makes up the same mixture of the blood plus the internal standard. They heat the sample and draw off the vapor for analysis. Then the vapor is injected into the chromatograph. The process assumes there is a relationship between the alcohol in this vapor and the actual alcohol in the blood.

However, this assumption raises several questions. How is the temperature regulated? What was the temperature? What is the relationship between the ETOH in the headspace and the ETOH in the blood? The primary disadvantage to headspace chromatography is the partition ratio and the effect of temperature and pressure.

Machine Error could also be a problem. Like the IR 5000, the G/C has a 10% margin of error under Arizona's DHS administrative regs. A 20% margin of error is not uncommon. The process is not that precise.

Gas Chromatography analysis rides on the validity of the standards that are used to calibrate the chromatograph. The integrity of the whole process is determined by the accuracy of those standards.

 

A motion to suppress the breath test can be filed for many legal reasons. Thousands of motions to suppress breath tests were filed and granted in Arizona due to the Adams issue, which was previously discussed.

 

Many of the above defenses nay lead to a motion to dismiss your case. The Adams issue led to thousands of dismissal requests and, although the courts usually only grant the Breath Test Suppression, the State nevertheless dismissed many cases.

No probable cause for the stop, denial of right to speak to your attorney, or denial of right to obtain independent tests could lead to facts favorable for a motion to dismiss your case.

 

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The Traffic Stop

A D.U.I. arrest begins with the traffic stop. Generally, most evidence against you is gathered at that time. We recommend that you be more aware of your right prior to the stop and that you exercise your right to remain silent.

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Retaining an Attorney

A defendant may retain an attorney at any time after arrest, whether it is immediately after the stop or the night before your court date. We recommend at least a few days before your court date.

D.U.I. defendants have the right to an attorney or will be appointed one (Public Defender) if they can not afford one. However, D.U.I. defendants may be responsible for paying the costs of the Public Defender if it is later determined that they had enough money to pay for an attorney. Shortly after arrest is the best time to hire an attorney to take control and defend the case.

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Arrest

Felonies - Police must have "probable cause" to make an arrest, which may be conceptualized as a "good reason" to arrest.

Misdemeanors - Arrests can only be made for crimes that occurred while in the presence of the arresting person or with a warrant.

Miranda Warnings - Police do not have to read Miranda Warnings to everyone that is arrested. Failure to read the Miranda Warnings does not make the arrest illegal, but may be grounds to suppress certain statements or confessions.

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Booking

Generally, you will not be booked into jail after a D.U.I. arrest. When a suspect is booked the following occurs:

1. The suspect is taken to the law enforcement station.
2. They are asked a series of routine questions.
3. They are lawfully searched with or without consent.
4. The suspect is fingerprinted and photographed.

Some felony D.U.I. defendants and a few misdemeanor D.U.I. defendants will be required to go to the station for booking.

How to get booking information if someone you know is arrested:

1. Call the jail or prison hotline for booking information.
2. You will need the inmate's booking number or their date of birth and full name.
3. The jail or prison will release information on the charges, the court date, the arresting agency and the bail amount.

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Post-Arrest Investigations

Post-arrest investigations may be done after the D.U.I. arrest, but before charges have been filed by the prosecutor. In D.U.I. cases this often involves the decision between a felony aggravated D.U.I. or a misdemeanor D.U.I. Defendants are then sometimes told their case is "scratched" while the prosecutors decide which type of case to file. A scratched case does not mean the case is dismissed or that it has gone away. Although we wish it was that simple, "scratched case" means hire an attorney immediately. An aggressive attorney can contact law enforcement in an attempt to influence to charging decision.

It is not required that the arresting agency release the police report before the defendant goes to court. However, sometimes your attorney can talk the police into releasing the report.

On Aggravated D.U.I. cases, police officers investigate the M.V.D. record to make sure you are the exact person with prior s or to confirm your M.V.D. status. They might also obtain records from other courts to prove a prior D.U.I. conviction. Investigating officers also might research a suspect's driving history or prior convictions in other states.

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Decision to Charge

The following individuals can file charges:

1. County Attorney - The County Attorney files charges against an individual if they believe there is sufficient evidence to convict the suspect.
   
   
2. City Attorney - Some cities have a City Attorney's office which handles most misdemeanor cases and determines if there is sufficient evidence to convict the suspect.
   
   
3. On misdemeanor cases, the police officers can cite you directly into city or justice courts. Their decisions to charge are often "rubber-stamped" by the court or prosecutor.

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First Appearance

On misdemeanor cases, you can often avoid your first court date by hiring an experienced D.U.I. attorney. However, Felony cases always require your personal appearance even if you hire an attorney. If you do not have an attorney, the court will advise you of your right to hire an attorney and your other basic rights.

At the initial appearance, the defendant will be read his rights and the charges against him. Bail or an appearance bond is sometimes required on serious cases or Aggravated D.U.I. cases during the initial appearance. Bail is an "insurance policy" that the defendant will appear before the court again. The amount of bail is determined by the seriousness of the offense and by the Judge. Bail can be $0 if the person is released "on their own recognizance (O.R.)", but it can be increased if the Judge feels that the defendant will not appear in court again. If the person fails to appear before the court, a warrant will be issued for their arrest.

During a later proceeding in front of the court, your attorney can bring a motion to reduce bail. The judge decides whether to reduce bail and will consider the client's risk of flight and danger to the public. In a felony case, if your attorney is asking for an O.R. release, the court will most likely set the matter over for another hearing and order a pre-trial services report on the defendant. This process usually takes a week.

Discovery is given to the defense attorney after arraignment, Discovery includes, but is not limited to: police reports, medical records, probation reports, photographs, diagrams and viewing of physical evidence.

Discovery in D.U.I. cases must be reciprocal, which means that the prosecution must provide the defense with the evidence they are using in the case. Neither the prosecution nor the defense may "hide" evidence and later introduce it during the trial.

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Preliminary Hearing / Arraignment / First Appearance

Preliminary hearings only occur in felony Aggravated D.U.I. cases that are not started by a grand jury indictment. In Arizona, a preliminary hearing is necessary (unless there is an indictment) and here the Judge determines whether or not there is sufficient evidence or probable cause to support the charges against a defendant and bind the case over to Superior Court for trial. During a preliminary hearing, the District Attorney or the Judge can add additional charges and request that the defendant back into custody even if they are already out on bail.

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Arraignment on the Information or Indictment

On Aggravated D.U.I. cases, the defendant is taken before the Superior Court and informed of their charges. At that time, the defendant will answer to the charges by pleading not guilty or guilty. At the Superior Court arraignment, the amount of bail may be reviewed if a written motion is filed enough time in advance of the hearing. Then the bail may be increased or decreased at the court' discretion.

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Pre-Trial Conference

At the pre-trial conference, the defense attorney negotiates with the prosecuting attorney, in order to obtain the best possible "deal" or plea for their client. The State is not required to offer a plea deal, but if they do, your attorney is required to discuss the deal with you. It is ten solely your choice to accept or reject the plea.

A "deal" might include:

1. The prosecution charges the defendant with a lesser charge.
2. The prosecution agrees to a lesser punishment for the same charge.
3. The number of counts may be dropped.
4. Alternative sentencing.

Defense Attorneys may also file Pre-Trial Motions, which may assist in dismissing charges or changing the prosecution's position.

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Trial

The trial itself will normally proceed in the following order:

• First, a jury will be selected. To do this, the judge, the prosecutor, and your attorney will ask the prospective jurors a series of questions designed to reveal strong biases, either for or against either side. After those people with strong biases have been removed from the jury panel, the prosecutor and your attorney will have the right to remove any two persons from the remaining panel. Thereafter, the judge will empanel a seven person jury to hear the criminal charges. At the conclusion of the presentation of the evidence only six jurors will deliberate on the charges. The seventh juror will be designated as an alternate and excused from the case.
  
  
• Second, the prosecutor and then your attorney will present opening statements to the jury outlining what you and your attorney think the evidence will show.
  
  
• Next, the prosecutor must introduce evidence in support of the charges made in the complaints. The evidence will consist of the testimony of witnesses and possibly presentation of exhibits. For each witness, first the prosecutor will question his witness and then your attorney will cross-examine that witness.
  
  
• Then, after the prosecution has concluded the presentation of its case (or "rested"), your attorney may or may not present your own evidence. For the testimony of any witnesses we present, your attorney will first examine the witness and then the prosecutor will cross-examine them. Your evidence may include testimony from you. However, the law does not require you to testify or even produce any evidence, and should you not do so, the judge may instruct the jury that they may not take the fact that you did not testify and/or produce any evidence into consideration when they deliberate on the charges. The decisions regarding what evidence to present and whether you should testify or not will be made by you and your attorney after you have fully discussed them.
  
  
• After the presentation of your case has been concluded, the prosecutor will have a limited opportunity to present additional evidence to rebut any evidence, which your attorney presented as a part of your case.
  
  
• At the conclusion of the presentation of all the evidence, the prosecutor and your attorney will make their closing arguments to the judge. Thereafter, the jury will issue its decision.
  
  
• If there are civil charges, such as 28 A.R.S. ¿ 701, Speeding, those charges will be decided by the judge. After the jury returns its verdict, the judge will issue his or her decision on the civil charges.
  
  
• After the verdicts have been returned by the jury and the judge, the judge will proceed with sentencing on any charges for which the verdicts were guilty or responsible.

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M.V.D. Hearing

An M.V.D. Hearing is a separate process that has nothing to do with the criminal case. M.V.D. suspensions and hearings vary depending on your actions and M.V.D. history. Generally, you have a right to an M.V.D. hearing on most new suspensions but you are often required to request the hearing within fifteen days. If you do not timely request a hearing you could lose your right to a hearing.

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Sentencing

Sentencing is usually held immediately after the verdict or it could be thirty days later. This is a court hearing where the judge determines punishment. A defendant may be sentenced to Probation in addition to jail or prison for D.U.I. However, you may be ordered to do some local custody time as a term of his or her probation. If a person violates their probation, they may be incarcerated again.

1. (1) Formal probation is when an individual is supervised by a probation officer.
   
   
2. (2) Informal or summary probation is unsupervised.
   
   
3. (3) If probation is not granted, there is usually a range of three prison terms in each FELONY crime: the mitigated term, presumptive term, and aggravated term. Lawyers argue about the proper term based on the facts of the particular case. The final word is usually within the judge's discretion unless the plea agreement specifically outlines the agreed upon term.

Some alternatives to jail that might be negotiated are:

1. Treatment or Detox Programs
2. Electronic Home Monitoring
3. Residential Treatment Centers
4. Counseling
5. Weekend Work Programs
6. Community Service

Please contact our office for a free consultation or if you have any other questions regarding the process of a D.U.I. case.

 

D.U.I. A.R.S. 28-1381(A)(1) and/or A.R.S. ¿28-1381(A)(2)
This is a Class 1 Misdemeanor criminal offense that is very serious. In Arizona, there is a minimum mandatory jail requirement of one to ten days with a maximum jail term of six months. You can also be fined from $250.00 to $2,500.00 plus surcharges and placed on probation for up to five years.

You can also have your driver's license or driving privileges suspended or restricted. If your driver's license is suspended as the result of a breath test that is over the legal limit, the suspension is ninety days. During the ninety days, you cannot drive at all during the first thirty days and you may be eligible for a restricted license for the next sixty days if you did not cause injury with your D.U.I. and you have no prior D.U.I. suspended license in the previous five years.

If you reused to take the breath test, you will have a one-year driver's license suspension instead of the ninety days. A conviction on a ¿28-1381(A)(3) is the same as A1 and A2 except your driver's license will be revoked for one year. A conviction on ¿28-1381(A)(4) is the same as A1 and A2 except you may lose your commercial driver's license.

 

 

If you have been previously convicted of D.U.I. (in the past 5 years, date of offense to date of offense), you will be facing a longer mandatory jail term. If you have one prior D.U.I. within 5 years, the minimum jail sentence is 30 to 60 days with a maximum term of up to six months.

A second D.U.I. conviction within five years would also require a minimum one-year driver's license revocation. Revocation is more serious and this means your driver's license does not automatically come back unless you reapply and are approved.

This is a long-term process that requires you to stop drinking alcohol all together. You are also not allowed to drive without a valid driver's license.

A new law now also requires a person who is convicted of a second offense D.U.I. will be required to install and maintain a vehicle interlock device on all personal vehicles they drive, for a period of at least one year following the restoration of their driver's license.

 

A violation of Extreme D.U.I. occurs when your blood or breath alcohol concentration exceeds a greater statutory limit. The statutory limit for Extreme D.U.I. is 0.18% B.A.C. until April 4, 2001. After that date the limit becomes 0.15% B.A.C. A new law now requires people with an Extreme D.U.I. conviction to use the Ignition Interlock Device.

This is attached to your car and you must blow into the device to start your car. Extreme D.U.I. has a longer minimum mandatory jail term (30 days) and a larger minimum fine of $500.00 to $2,500.00 plus surcharges. You can also be placed on probation and will have a driver's license suspension, which will be determined by prior history.

You will also be required to install and maintain a vehicle interlock device in all personal vehicles you drive for a period of at least one-year after your driver's license has been restored.

    4.    Extreme D.U.I. With a Prior Conviction

An Extreme D.U.I., with a prior D.U.I. conviction in the previous 5 years raises the minimum mandatory jail sentence to 120 days to a maximum of six months. The Ignition Interlock Device is again required. Because Extreme D.U.I. is a very serious offense, we recommend you call us to set up a free private consultation. We want to at least have a chance to help you.

    5.    Aggravated D.U.I. With No Valid Driver's License

This is Class 4 Felony that requires a mandatory prison term upon conviction. County jail and work release programs are not available under law and the presumptive prison term is three years. The minimum mandatory prison term is four months but this sentence also requires the prison to be as a condition of probation. It is possible in some cases for us to negotiate a plea agreement to a different charge that would allow work release.

An Aggravated D.U.I. conviction is a felony offense and also requires a mandatory minimum three year driver's license revocation. Then your license will not come back without a reinstatement application and approval by the M.V.D. By law, the driver's license cannot be reinstated unless the M.V.D. believes the person is no longer a risk to drive while intoxicated thus endangering society. The Ignition Interlock Device is required upon conviction for Aggravated D.U.I. and, it is also possible that the vehicle used may be subject to forfeiture to the State of Arizona.

You can be indicated for Aggravated D.U.I. if you have two prior D.U.I. convictions in the past 5 years. Thus, a third offense D.U.I. is often an "Aggravated D.U.I.".

In these types of cases, there are two primary elements, (1) regular D.U.I. is an element of the offense and all of the defenses to regular D.U.I. can be raised, and (2) the issue of your priors: do you have two valid prior convictions.

The penalties here are exactly the same as the previous section on Aggravated D.U.I. without a valid driver's license. A probation term of four years along with four months or more prison time is required in addition to the Ignition Interlock Device is required after conviction and the vehicle used in the offense may also be subject to forfeiture to the State of Arizona.

The probation term is usually four years and you cannot drink alcohol or drive a vehicle without a valid license during probation.

    7.    Aggravated D.U.I. With a Child under 15 in the Vehicle

This is a Class 6 Felony and occurs if you commit a D.U.I. or Extreme D.U.I. while a person under fifteen years of age is in the vehicle. Normally, a separate felony charge is filed for each child in the vehicle. A Class 6 Felony carries a presumptive prison sentence in the Department of Corrections 1-year, with a mitigated sentence of six months and an aggravated sentence of 1.5 years. Instead of a prison term, a judge may order up to 10 years of supervised probation with conditions which may include alcohol counseling, a fine and up to 12 months in the county jail.

A Class 6 Felony Aggravated D.U.I. does not carry a minimum jail term other than the normal D.U.I. minimum sentences, (1st offense: 10 days; 2nd offense: 90 days; Extreme: 30 days; 2nd offense extreme: 120 days), but the minimum sentences are not imposed as often if a child is in the vehicle.

A judge has the authority to designate this offense a misdemeanor or felony. He may also treat the offense as open-ended offense in which it will be designated a misdemeanor upon successful completion of probation or designated a felony if the judge chooses.

A Class 6 Felony Aggravated D.U.I. conviction also requires a minimum three year driver's license revocation that will not be reinstated with an application and approval.

Other penalties include a required Ignition Interlock Device that tests for alcohol use before a vehicle may be started. The motor vehicle owned and operated that the time of the offense may also be seized and forfeited to the state.

You have a right to a jury trial on Aggravated D.U.I. and a separate trial on the issue of prior convictions. At Phillips & Associates, we can help you. Call now for more information.

    8.    Work Release

We are able to obtain work release for many of our clients. Work Release is often available on misdemeanor cases. Work Furlough is also available on some cases but it is more hassle and more restrictive. Work Furlough is usually your only option if you were originally charged with a felony or you end up on Supervised Probation with a probation officer. Work Furlough and Work Release are not available if you are convicted of Aggravated D.U.I. A plea to a lessor charge is the key.

    9.    MVD Conviction Violation Points Assessment

MVD Conviction Violation Points Assessment

The following is the sentencing amount for jail or prison terms:

    10.    Ignition Interlock Device (IID)

What is an IID?

IID is an "Ignition Interlock Device", a breath alcohol testing instrument connected to the ignition and power system of a vehicle that is designated to prevent the vehicle from being started if the driver's alcohol level is above a predetermined set-point.

Ignition interlocks were first developed in the U.S. and currently 35 States have IID laws. IID gained popularity since the initial 1986 California legislation authorizing their use as a condition of license reinstatement.

Since that time there have been significant technical improvements in the devices and substantially improved monitoring programs have enhanced the popularity and legitimacy of interlock programs.

The IID unit records the driving records in an interlock event recorder, recording the date, time, event, and every time the vehicle switch is turned on. The events are:

1. Time the vehicle is powered up
2. Result of the test (pass - fail)
3. The alcohol content
4. Any attempt to circumvent the unit by removing power, tampering, etc.

As a D.U.I. countermeasure and court tool, IID has had three times lower recidivism rates than other programs.

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How does the IID work?

After a driver puts their key into the ignition and turns on the power of the vehicle, the IID unit, depending on the manufacturer, will either sound a beep, give a visual warning on a screen, or light or speak to the driver, asking them to blow into a device or sensor head. The driver at that point is evaluated by the sensor and if the AC is below the threshold level of .03 set by the State, they are allowed to start the vehicle.

If they are above the threshold of acceptable level, they will be locked out and the vehicle may not be started. When the driver returns to the threshold of acceptance level, the vehicle will allow them to start but the event will be recorded for information to the Motor Vehicle Division, showing the date, time and AC level of the event.

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Is there a requirement to blow again while the vehicle is in motion?

Yes. It was found in a study by Voas & Marques (Federal Register, 1992) that people were bypassing or circumventing the vehicle by having someone else do the initial blowing into the mouthpiece, then taking advantage of that to drive. The answer the industry found was what is now known as the "Rolling Test", which requires the driver to provide a breath sample at random intervals into the unit during their drive.

The feature is part of the NHTSA Model Specifications for the IID, of which all units must now pass to be used in most mandatory programs. It is part of the criteria used to certify a unit in Arizona under the new program.

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How much is the installation of the unit?

The installation cost will be between $75 and $100.

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How much is maintenance?

Maintenance first of all includes the re-calibration of the interlock device each time to federal standards set by the National Highway Traffic Safety Administration (NATSA). This insures the validity of the information given by the unit.

Also at this time, the information gathered by the unit is downloaded and a summary, as well as daily log are produced for monitoring the unit and program and forwarded to the Motor Vehicle Division. The unit is visibly inspected for any tampering and the report on non-compliance report is then transmitted to the Jurisdiction mandated by the program.

The driver is then billed for his lease, download and service. This cost will be between $65 and $75 per month. If damage has been done to the unit, the driver will bear the cost of that damage.

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Where is the unit placed physically on the vehicle?

Depending on the manufacturer, one places it on top of the dash, most of the rest use a location to the right of the driver at the edge of the console. Most of the units are small. One manufacturer actually hides their unit under the dash and all you see is a mouthpiece with a cord, similar to the microphone used by the PD, and a speaker hidden below the dash.

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How often must an offender come in for service?

The Arizona program dictates that they must come in for inspection the first 30-60-90 day period after installation and thereafter every 60 days to the download center with a revisit to the download center, or if the State threshold of .03 is exceeded at any time.

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What happens if the participant does not return when mandated?

As part of the service, the computer programs the unit to return for service at whatever interval designated by law. The unit by light, audio and visual direction tells the participant they have five days to return for service. Everyday after they are again reminded "You have four days", "You have three days." The seventh day or two days after the last message is given, the car enters a lock down mode and will lock the participant out of the vehicle until the information and data is downloaded.

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How can a participant contact a center after hours or on weekend?

Manufacturer/Installers are required to have a 24-hour, 7-day a week toll free number for participants to call.

 

Drinking and driving can also lead to many related crimes. There are also several vehicular crimes that may not involve alcohol. We can help you no matter what the exact charges are and as an experienced attorney I understand the relationship between the charges and your driver's license.

1. Vehicular Manslaughter 13-1103

In Arizona, you will be simply indicted for Manslaughter if you are driving a vehicle and you are suspected to be under the influence of alcohol or drugs and an accident occurs that results in someone's death. Here you must recklessly cause the death of another person. Some people feel they did not commit a crime because it was an "accident". Generally the State prosecutors do not believe an accident is a defense. They believe the "accident" may have been avoided if you were not under the influence. Manslaughter is a Class 3 felony with a minimum prison term of five years and a maximum aggravated term of eighteen years.

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2. Negligent Homicide (Vehicular) 13-1102

In Arizona, you will be indicted for Manslaughter, Second Degree Murder or Negligent Homicide. Generally, the charge will be Manslaughter unless the State believes it is a very serious case. In serious cases, the defendant may be indicted for Second Degree Murder as the result of a D.U.I. traffic accident. Negligent Homicide is a Class 4 felony with a minimum prison term of four to ten years.

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3. Second Degree Murder 13-1104

In serious cases, a D.U.I. accident could lead to an indictment for Second-Degree Murder. In these cases, it is important to have an experienced attorney who has handled these types of cases in the past.  The minimum prison sentence is ten years with a maximum of twenty years.

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4. Aggravated Assault - Dangerous (Vehicle) 13-1204

If your D.U.I. leads to an accident you caused and the result is serious injury to another person, you may be indicted for Aggravated Assault. Aggravated Assault is a Class 3 felony that has a minimum mandatory prison term of five years. This prison term is required even if you have no prior D.U.I. convictions or any prior criminal history. The maximum term is about eighteen years in prison. This is an extremely serious charge and you need an experienced attorney immediately.

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5. Leaving the Scene of an Accident Involving Death or Serious Injury 28-661

The driver of a vehicle involved in an accident resulting in injury or death of a person shall immediately stop the vehicle at the scene or as close as possible and return to the scene, and remain at the scene until they provide information as required in ¿28-663. A violation of this statute is a Class 4 felony unless the driver caused the accident then the violation is a Class 3 felony.

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6. Leaving the Scene of an Accident with Injury that is not Serious ¿28-661(c)

You have the same requirement to stop, remain and provide information if you leave the scene it could result in a Class 6 felony charge.

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7. Unlawful Flight from Law Enforcement 28-622.01

This used to be called "Felony Flight" and occurs if you fail to pull over when a law enforcement vehicle is behind you with their lights on. IF an officer tries to pull you over and you refuse to stop and begin a chase or high-speed chase, it will likely result in a felony criminal charge. This is a Class 5 felony.

28-663

This statute requires the driver of a vehicle to give information and assistance to others after an accident

"A. The driver of a vehicle involved in an accident resulting in injury or death of a person or damage to a vehicle that is driven or attended by a person shall:

1. Give the driver's name and address and the registration number of the vehicle the driver is driving.
   
   
2. On request, exhibit the person's driver license to the person struck or the driver or occupants of or person attending a vehicle collided with.
   
   
3. Render reasonable assistance to a person injured in the accident, including making arrangements for the carrying of the person to a physician, surgeon or hospital for
   medical or surgical treatment if it is apparent that treatment is necessary or if the carrying is requested by the injured person.

B. A person who fails to comply with this section is guilty of a class 3 misdemeanor."

Please note that this can be a felony if death or serious injury occurs.

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8. Endangerment 13-1201

A person commits endangerment by recklessly endangering another person with a substantial risk of imminent death or physical injury. While this is not often the original charge in a D.U.I. case, it could be added as a separate count or be part of a plea agreement offer by the State.

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9. Driving on a Suspended or Revoked License 28-3473(C)

It is illegal to operate a vehicle while your license to drive or your Arizona Driving privileges are suspended, revoked, restricted, or if your license to drive was cancelled or refused. This is a Class 1 misdemeanor that could result in probation, a fine and up to six months in jail. A conviction here also could result in an additional license suspension.

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10. Driving on a Suspended License 28-3473(B)

This is a more serious charge that occurs if your license is suspended or revoked as the result of a D.U.I. offense. This offense has a minimum mandatory jail term of two days, which must be served as 48 hours consecutive with no work release. Again, probation, fine and up to six months in jail could be the maximum.

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11. Reckless Driving 28-693

A person who drives a vehicle in reckless disregard for the safety of persons or property is guilty of reckless driving. This is a Class 2 misdemeanor that could result in up to four months in jail.

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12. Racing on Highways 28-708

Any race or exhibition of speed or contest could lead to this serious charge. Racing is a Class 2 misdemeanor that could result in up to four months in jail. There is also eight points on your driver's license.

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13. Excessive Speed 28-701.02

This is a serious criminal charge that occurs only in the following speeding situations:

1. Speeding over 85 mph
2. Speeding over 20 mph over the posted limit in residential or business districts
3. Speeding over 35 mph approaching school zones.

A conviction for Excessive Speed is a Class 3 misdemeanor and could result in up to thirty days in jail and three points against your driver's license.

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14. Hit and Run 28-662

This is known in Arizona as failure to stop after an accident involving damage to a vehicle. Even if there is only damage to property, you must comply with 28-663. If you leave the scene, you may be guilty of a Class 3 misdemeanor and could fact up to thirty days in jail.

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15. Boating Under the Influence 5-395

This is a drunk boating statute that mirrors the regular D.U.I. statutes and penalties. We handle drunk boating cases and defenses.