DIFFERENT DWI OFFENSES

There are several different DWI offenses which can be charged. Any DWI related offense is very serious and requires experienced and expert representation. Call immediately for a free consultation and evaluation.

Driving While Impaired to the Slightest Degree, A.R.S. §28-1381(A)(1)–“DUI”

It is unlawful to drive, or to be in actual physical control, of a vehicle while under the influence of any intoxication liquor, any drug, or any combination of liquor or drugs. It is not necessary to be “drunk” nor does this charge require a blood, breath or urine test. The State is only required o prove that a person’s ability to operate their vehicle was impaired “to the slightest degree”.

Driving With a Blood Alcohol Concentration of .08% or Above, A.R.S. §28-1381(A)(2)–“DWI”

It is unlawful to drive, or to be in actual physical control, of a vehicle with a blood alcohol concentration of .08% [.04% if commercial vehicle, A.R.S. §28-1381(A)(4)] or higher within two hours of driving or being in actual physical control. The flood alcohol concentration must be a result of alcohol consumed either prior to driving or while driving, or being in actual physical control.

DWI-Drugs, A.R.S. §1381(A)(3)

It is unlawful to drive, or to be in actual physical control, of a vehicle while there is an illegal drug, or its metabolite, in the body. The State is not required to prove impairment nor is the State required to prove a specific amount of drug in the body. The State is only required to prove that an illegal drug was present in the body while driving or being in actual physical control.

Driving While Under the Extreme Influence of Intoxicating Liquor, A.R.S. §28-1382– “Extreme DWI”

It is unlawful to drive, or to be in actual physical control, of a vehicle with a blood alcohol concentration of .15% or higher within two hours of driving or being in actual physical control. The blood alcohol concentration must be a result of alcohol consumed either prior to driving or while driving, or being in actual physical control. The “Extreme DWI” charge does not require the State to prove that the person was “really drunk”, only that the blood alcohol concentration was .15% or higher. The “Extreme DWI” statute mandates substantially increased punishment for a higher blood alcohol concentration.

Aggravated Driving While Under the Influence of Intoxicating Liquor, A.R.S. §28-1383–“Felony DWI”

There are three different “Felony DWI” offenses:

1. If a person commits any DUI/DWI offense as defined in A.R.S. §28-1381 OR 28-1382, and the person’s driver’s license, or privilege to drive, is suspended, canceled, revoked, refused, or restricted. A.R.S. §28-1383(A)(1).
2. If a person commits any DUI/DWI offense as defined in A.R.S. §1381 or 28-1382, and within a sixty month period (5 years) has two or more prior DUI or DWI convictions. A.R.S. §28-1383(A)(2).
3. If a person commits any DUI/DWI offense as defined in A.R.S. §28-1381 or 28-1382 while a person under fifteen years of age is present in the vehicle.

It is also unlawful to operate an aircraft, water craft or water skis while under the influence of intoxicating liquor.

DUI/DWI DEFENSES

There are several potential defenses which can be raised in a DUI/DWI case and every case is different and unique. Below is a partial list of possible constitutional challenges and sufficiency-of-evidence defenses which we investigate in every DUI/DWI case:

CONSTITUTIONAL CHALLENGES

1. No Reasonable Suspicion to Stop
   In order for the police to conduct a traffic stop the police officer must have “reasonable suspicion” that the person stopped committed a crime or committed a traffic offense. The police officer must have an objective and legitimate reason for making the traffic stop. If the police officer does not have “reasonable suspicion” for making the traffic stop then the case will be dismissed.


2. No Probable Cause for an Arrest
   Prior to the police officer actually making an arrest, there must be “probable cause” that the person committed a crime. “Probable Cause” is a higher standard than “Reasonable Suspicion”. The police officer must have “probable cause” that the person is under the influence of alcohol prior to making an arrest. Improperly administered Field Sobriety Tests, mistaken observations, and hasty decision made by the police officer may invalidate the arrest. If “probable cause” does not exist for the arrest then the case will be dismissed.


3. Denial of Right to Counsel
   If you are arrested, the police must allow you the opportunity to consult with an attorney, if requested. If the police deny you right to an attorney then the charges may be dismissed.


4. Miranda Violation
   If the police fail to adequately advise you of all your Miranda rights, or if the Miranda rights were not given at the appropriate time, then any statements made will be suppressed.


5. Denial of Right to Obtain Exculpatory Evidence
   Every person accused of a criminal offense has the constitutional right to independently obtain favorable evidence. For instance, if arrested for DUI/DWI you have the right to obtain an independent blood test. If the police deny you a “fair chance” to obtain exculpatory evidence, then your case will be dismissed.

SUFFICIENCY-OF-EVIDENCE DEFENSES

1. You Were Not Driving
   The State mus prove, beyond a reasonable doubt, that the person was actually driving. In some cases, the police officer does not actually witness the accused driving nor are any witnesses available to prove “driving”


2. Were Not in Actual Physical Control
   If the State cannot prove “driving”, beyond a reasonable doubt, they may try to prove “actual physical control”. That is, the person, although not driving, still posed a threat by the exercise of present or imminent control over a vehicle. However, a person is not in “actual physical control” if they voluntarily pull of the roadway and attempt to “sleep it off”. A person who is alcohol impaired and is using their vehicle as a “stationary shelter” is not in “actual physical control” and is not guilty of DUI/DWI.


3. You Were Not Alcohol Impaired
   It is not unlawful to consume alcohol and to, thereafter, operate a motor vehicle. If a police officer stops you after you have been drinking he will be predisposed to believe you are impaired by alcohol, and the officer’s observations will be tainted. All of the officer’s observations will be blazed towards “signs or symptoms” of alcohol impairment. However, there are numerous legitimate explanations for the officer’s observations. For instance, people are often very nervous when dealing with the police and may often be tired during nighttime stops. The police officer’s observations and opinions can be questioned as well as the circumstances and reliability of the Field Sobriety Tests.


4. Inaccuracy of the Intoxilyzer
   In jurisdictions where the Intoxilizer (breath testing device) is utilized, challenges to the accuracy of the intoxilyzer can be raised. The officer must be certified to administer the breath test and he must precisely follow an operational checklist. Further, the intoxilyzer must be able to function within a certain “confidence limit” and must be properly calibrated. The calibration of the intoxilyzer must be checked within strict guidelines set by the Arizona Department of Health Services. If the intoxilyzer was not administered properly or any of the maintenance checks are not withing the set limits, then the result of the test will not be admissible.


5. Inaccuracy of the Blood Test
   In Jurisdictions where blood is drawn to determine a person’s blood alcohol level, several issues regarding the accuracy of the process ca be raised. The person who drew the blood must be certified to do so. The blood vials must have been stored properly prior to their use. The blood vials must have been stored properly prior to their use. The blood vials must not be used beyond the expiration date. The blood vials must be preserved for the defense to retest the sample.

These are the more common challenges and defenses which can be raised in a DUI/DWI case. For your particular case you should consult with an experienced and aggressive DUI/DWI attorney.

DUI/DWI PENALTIES

Driving While Impaired to the Slightest Degree – “DUI”
Driving With a Blood Alcohol Concentration of .08% or Above – “DWI”

A violation of either A.R.S. §28-1381(A)(1) – “DUI” or A.R.S. §28-1381(A)(2) – “DWI” IS A Class 1 Misdemeanor. A Class 1 Misdemeanor is punishable by a maximum jail term of six months and a maximum total fine of $4,500.00 if convicted of either “DUI” or “DWI” there is a minimum mandatory jail sentence of 10 days. However, 9 days in jail can be suspended so long as the mandatory alcohol screening and counseling is completed. There is a minimum mandatory total fine of $955.00 (some courts also add a local court surcharge). The court will also require reimbursement for jail costs which are approximately $50.00 per day. Alcohol screening and counseling are also mandatory. The screening process is an evaluation to determine the length of counseling required. Typically, 16 hours of counseling is ordered. The court can also require probation for up to five years. Most courts impose unsupervised probation although there are a few courts which routinely impose supervised probation.

Your driver’s license or privilege to drive can also be suspended. If your driver’s license is suspended as the result of a breath, blood, or urine test which is over the legal limit of .08%, or as a result of a criminal conviction for “DUI” or “DWI”, the suspension is ninety days. After thirty days you are eligible for a restricted license for the remaining sixty days if you did not cause serious physical injury and you have no prior “DUI” or “DWI” convictions, or driver’s license suspensions, in the previous five years. The restricted driver’s license allows you to travel to and from work, school, probation, and any treatment facility.

If you refused to take the breath test, the Arizona Department of Transportation will suspend your driver’s license for 12 months with no eligibility for a restricted license. Your driver’s license will be suspended for two years for a second or subsequent refusal within sixty months. A criminal conviction for “DWI-Drugs”, A.R.S. §28-1381(A)(3) will result in a one year revocation of your driver’s license.

Second Offense “DUI” / “DWI”

If you have been previously convicted of “DUI” or “DWI” within sixty months (5 years) the mandatory minimum penalties substantially increase. There is a minimum mandatory jail sentence of 90 days. However, 60 days in jail can be suspended so long as the mandatory alcohol screening and counseling is completed. Most courts allow for work release after serving 48 consecutive hours. The minimum mandatory total fine is $2,155.00, plus any local court surcharge and jail costs. The alcohol counseling requirement is normally 36 hours. The court will also impose probation for up to five years.

A second “DUI” or “DWI” conviction within a five year period will also mandate a one-year driver’s license revocation. After the period of revocation terminates, you are required to reapply for reinstatement and must complete an investigation process with the Arizona Department of Transportation (ADOT). Reinstatement is not automatic. As a term of reinstatement, ADOT will require you to install and maintain an ignition interlock device on all personal vehicles you drive for a period of at least one year following the reinstatement of your driver’s license.

Driving While Under the Extreme Influence of Intoxication Liquor – “Extreme DWI”

A violation of “Extreme DWI”, A.R.S. §28-1382, having a blood alcohol concentration of .15% or higher, is also a Class 1 Misdemeanor. If convicted, there is a minimum mandatory jail sentence of 30 days. However, 20 days can be suspended so long as the mandatory alcohol screening and counseling is completed. Normally, 36 hours of counseling is ordered. The court will normally allow work release privileges after serving 48 consecutive hours in jail. The minimum mandatory total fine is $1,455.00, plus any local court surcharge and jail costs. The Court is also required to impose an additional $250.00 “DUI” Abatement Fee”. The court can impose probation for up to five years.

Second Offense “Extreme DWI”

If you have been previously convicted of “DUI” or “DWI” within 60 months (5 years), the mandatory minimum sentence substantially increases. If convicted, there is a minimum mandatory jail sentence of 120 days. However, 60 days can be suspended so long as the mandatory alcohol screening and counseling, normally 36 hours, is completed. Again, the court will normally allow work release after serving 48 consecutive hours. The minimum mandatory fine is $2,155.00, plus any local court surcharge and jail costs. The Court is also required to impose an additional $250.00 “DUI Abatement Fee”, and probation for up to five years. The ignition interlock device is also mandatory.

Aggravated Driving While Under the Influence of Intoxicating Liquor – “Felony DWI”

“Felony DWI” is very serious. A “Felony DWI” committed either as a result of the person’s driver’s license being suspended, cancelled, revoked, refused or restricted, A.R.S. §28-1383(A)(1), or as a result of having two prior “DUI” or “DWI” convictions within 60 months (5 years), A.R.S. §28-1383(A)(2), is a Class 4 Felony. A Class 4 Felony is punishable by a minimum prison sentence of 1 year to a maximum prison sentence of 3.75 years. If placed on probation, which will be supervised and can be for up to 10 years, there is a mandatory sentence of four months in prison! The minimum mandatory fine is $2,155.00 if the felony offense is a result of the driver’s license being suspended, and $2,855.00 if the felony offense is a result of prior DWI convictions. Alcohol screening and counseling is also mandatory.

An Aggravated DWI conviction also requires a mandatory three year driver’s license revocation. At the end of the revocation, reinstatement is not automatic. The person must make application and successfully complete the ADOT investigation. The ignition interlock device is required as a term of reinstatement of the person’s driver’s license. Further, it is possible that the vehicle used may be subject to forfeiture.

“Felony DWI” With a Child Under 15 in the Vehicle

A “DUI” or “DWI” which becomes an “Aggravated DWI” for having a child under 15 in the vehicle is a Class 6 Felony. A Class 6 Felony is punishable by a minimum prison sentence of .33 years and a maximum sentence of 2 years. There is not a mandatory prison requirement. It is also punishable by probation for up to 10 years. As a term of probation, the court can order a jail sentence of up to one year in the county jail. The court must sentence the person to at least the minimum mandated “DWI” penalties as outlined above: (1st offense: 10 days in jail with 9 suspended - $955.00 fine; 2nd offense: 90 days in jail with 60 suspended - $2,155.00 fine; Extreme: 30 days in jail with 20 suspended - $1,455.00 fine; 2nd offense Extreme: 120 days in jail with 60 suspended - $2,155.00 fine). Alcohol screening and counseling is mandatory.

This conviction also mandates a three year driver’s license revocation and requires the ignition interlock device as a term of reinstatement. The vehicle used may be subject to forfeiture to the State of Arizona.

The penalties mandated by any “DWI” related conviction can be severe and can have long lasting effects. Please call for immediate assistance.