How to Avoid, Challenge and Actually Overcome Your DUI Mistake

No one who drinks expects to get a DUI or be the victim of an alcohol related disaster.

It is important to remember that others on the road may be driving dangerously due to drug or alcohol impairment.

Often people who have been drinking, lose track of how much they are drinking, and have not planned for an alternative ride home or arranged for a designated driver.

Other drinking mistakes include drinking spirituous liquor on an empty stomach, or drinking too fast, also known as binge drinking.

Binge drinking is one of the main causes of impaired driving. But engaging in this practice can also lead to alcohol poisoning, blackouts, unconsciousness, coma and even death.

However, The National Highway Traffic and Safety Administration (NHTSA) reminds drivers that even one drink of can impair judgement and slow down a reaction time.

The National Institute on Alcohol Abuse and Alcoholism (NIAAA) defines binge drinking as drinking 4 or 5 drinks within a short period of time, such as an hour.

An impaired driver’s passengers, other drivers and their passengers, bicyclists, pedestrians, and their loved ones are also at risk.

They have something dangerously in common with the impaired driver. They too may be impacted by a drunk or drug impaired driver in an auto crash. Family members can be dramatically impacted by a loved one’s DUI arrest, or alcohol related crash.

According to the 2015 State of Arizona Highway Safety Annual Report, auto crashes involving at least one drug or alcohol impaired driver, was the leading cause of fatal accidents.

The Arizona Governor’s Office of Highway Safety (GOHS) reported that DUI arrests increased sharply and steadily by 456% percent over the last 5 years.

Arizona law enforcement officials emphasize that impaired driving increases the likelihood of vehicle crashes resulting in serious injuries and fatalities.

The most recent annual safety report from the Arizona GOHS indicated that DUI arrests from the Thanksgiving to the New Year holidays were 4,271.

The good news is that this number was slightly lower than the preceding 5 year average of 4,512.

Better yet, during the preceding 3 year reporting period for year-end holidays, the number of DUIs decreased by nearly 32 percent.

The Governor’s Office credits the decrease in DUI arrests, on intense, high visibility DUI enforcement and prevention efforts, which some view as the most rigorous in the country.

Consistent with this, the Arizona Governor’s Office announced it’s plans to organize a comprehensive statewide DUI enforcement and prevention campaign for the 2016 year-end holidays, and New Year’s holiday 2017.

If you plan to drive, ride, walk or bike on Arizona roadways or highways, here are five things you should know:

1) Arizona DUI Laws are the Most Stringent in the Nation

If you plan to drive anywhere in the state, it is important to be aware that Arizona has harsh alcohol and drug DUI laws.

In Arizona, you do not need to have a blood alcohol level over .08% to be charged with a DUI, under A.R.S. 28-1381.

If you are driving impaired due to drugs or alcohol, while in physical control of your vehicle, you can still be arrested for DUI.

The state includes boats, ATVs, and other motorized vehicles designed to transport people, as meeting the statutory definition of vehicle.

The phrase, “actual physical control” means you don’t have to be driving. In some cases, you do not even have to be behind the steering wheel of the car, to get a DUI.

Here are just a few examples:

• You have your keys in hand, and your are walking toward your vehicle to leave a nightclub; or
• You pulled over to the side of the road, and fell asleep in your vehicle.

The courts will look at the totality of the circumstances to determine if a person was in actual physical control of their vehicle.

Arizona has Extreme DUI laws and Super Extreme DUI laws.

Under A.R.S. 28-1381 (A), (1), a driver may be in violation of Extreme DUI if their Blood Alcohol Content (BAC) is 0.15 percent or greater.

Under A.R.S. 28-1381 (A), (1), a driver may be found guilty of a Super Extreme DUI, if their BAC is 0.20 percent or greater.

The penalties for DUI are more severe for higher BAC levels surrounding a DUI conviction.

If a person is found to be driving impaired due to drugs, with or without alcohol, they may still be found guilty of a DUI, in violation of A.R.S. 28-1381 (A), (3).

This is the case even if they possess qualified medical marijuana cards issued in Arizona or any other state.

Some states that have legalized Marijuana in some fashion, allow driving with a minimum amount of Marijuana, which is determined by that state. For example one state that has legalized recreational Marijuana allows persons to drive with a maximum of 5 nanograms (ng/ml). Another state allows for 2 ng/ml.

But Arizona does not have any statutory allowable limit for drivers with medical marijuana cards. Instead, any violation depends on whether or not the driver was impaired due to marijuana or its active ingredient Tetrahydrocannabinol (THC).

In Arizona any amount of Marijuana or other substances that is determined to have caused driver impairment may result in an impaired driving conviction.

2. Arizona Impaired Driving Penalties are the Toughest in the Nation

Any misdemeanor drug or alcohol DUI conviction calls for jail terms that range from 10 days to 180 days depending on the BAC level and whether or not it is a first or repeat offense.

Other penalties for misdemeanor DUI convictions include suspension or revocation of driver’s license; use of Ignition Interlock Devices (IIDs) with time frames from 6 months to two years; alcohol or substance counseling or treatment; fines fees and assessments that range from $1,250.00 to $3,750.00; and probation.

Arizona is even tougher on repeat offenses. This is reflected in the penalties, which are more severe than first time convictions.

Drivers found guilty of a third DUI within 7 years may be found guilty of Arizona’s Aggravated DUI laws. These charges are brought as felonies, which expose a person to prison sentencing of 4 to 8 months in prison; fines, assessments and fees of $4,000.00; revocation of driving privileges for a year; use of an IID for two years; mandatory alcohol or substance abuse counseling, and a felony criminal record.

A misdemeanor DUI is also elevated to a felony if they are in violation of DUI laws while driving on a suspended, invalid driver’s license. A conviction calls for prison terms of 4 months along with other felony sentencing.

Further it is a felony if a person found guilty of impaired driving while a person under the age of 15 is a passenger in the vehicle. If convicted, they will be exposed to prison terms that range from 10 to 30 days in addition to other felony penalties.

Arizona has an implied consent law, A.R.S. 28-1381. Under this law, it is implied that by obtaining an Arizona driver’s license, you’ve agreed to submit to chemical tests and field sobriety tests if you’re pulled over for a suspected DUI.

Drivers who refuse a law enforcement officer’s request for chemical testing can have their licenses administratively suspended. The administrative license suspension will be separate from any criminal charges that are brought.

3. Ten Tips to Help You Avoid an Impaired Driving or Drinking Disaster

You’ve heard it before, and it’s true–There is no better way to avoid an impaired driving mistake, than to plan ahead.

This applies whether you will be drinking or not. It is prudent to keep in mind that even if you don’t plan on drinking and driving, you are not immune from an alcohol related disaster, especially if you engage in dangerous drinking behaviors such as binge drinking.

If you plan to be on the road as a pedestrian, cyclist, or other vehicle, there is still a risk that you will encounter a driver who is impaired due to alcohol or drugs.

Below are eight tips provided in combination by NHTSA and the National Centers for Disease Control and Prevention (CDC), to help people avoid impaired driving mistakes or becoming the victim of a DUI motor vehicle crash:

• Plan ahead for an alternative ride home if you plan to drink;
• Drink in moderation, and refrain from binge drinking;
• Eat before or while you are drinking;
• Give up your keys to a friend and arrange for an alternative ride home;
• Never get in a vehicle as a passenger with an alcohol or drug impaired driver;
• Offer to drive someone home, or arrange for them to have a safe ride home if it appears they are drinking too much;
• Never leave a person alone unconscious or assume they will “sleep it off”, seek medical help immediately;
• If you decide to walk home, ask a friend who has not been drinking to walk home with you to avoid dangers of walking out in front of a vehicle;
• If you plan to host a gathering where alcohol will served, make sure you offer non-alcoholic alternatives;
• Make sure your guests have a safe ride home if they have been drinking;
• If you see a person on the road driving dangerously, and suspect they are driving impaired, contact law enforcement officials.

4. Seven Things You Should do after a DUI Mistake

As a defendant, the first 24 hours after your arrest for an impaired driving offense is crucial for purposes of building and preserving your defense case.

Time has a way of clouding our memory of details that you may not realize will later be important to your case.

In addition, you want take every precaution to avoid self-incrimination, or jeopardizing your defense case.

There are things you can do that will dramatically help you in the defense process, and thereby increase your chances of overcoming your charges:

• Call or contact a private practice criminal defense attorney to discuss your matter and defense options confidentially.
• If police contact you asking you to discuss the details of your case, let them know you have retained legal representation, and you have been instructed not to speak with anyone, including law enforcement about the details of your matter without your attorney present.
• Get plenty of rest, and refrain from discussing your case with friends.
• Refrain from posting or discussion anything about the incident on social media to avoid self-incrimination.
• If you have been involved in a vehicle accident, call your auto insurance company about the claim.
• Take photos of the location where you were stopped to include the landscaping and road where any roadside field sobriety tests may have been administered.
• If you can remember anything you can regarding the incident, including instructions you were given; questions you were asked by law enforcement officers; your responses to officers; administration of breath or blood testing; witnesses or passengers you had in your vehicle; any consent or refusals you gave to officers, written or verbally; what you had to eat, drink, or ingest, within 12-24 hours prior to the stop; or anything else you can remember. Then make note of these details.

5. Criminal Defenses for Alcohol or Drug DUI in Mesa AZ

Everyone makes mistakes. Many people arrested for impaired driving charge feel that they ruined their lives.

The ordeal is often a dramatic and overwhelming experience. Some drivers feel that it is hopeless to mount a vigorous defense, since they failed the DUI tests. But an arrest is not a conviction. It is simply the beginning of the legal process.

It is never wise to go to court and plead guilty without first consulting a private practice criminal defense attorney who serves the city where you were arrested.

Pleading guilty to a first DUI can result in harsher penalties for a second, third, or fourth DUI. Penalties you may face for a DUI conviction involving either drugs or alcohol include mandatory jail, fines, assessments, vehicle impoundments, alcohol or drug screening, license suspension, and a criminal record.

The criminal record alone can lead to harsh social consequences such as difficulties finding a job or housing or obtaining a professional license.

It is important to consult an experienced DUI defense attorney who understands all the possible ways to challenge the prosecution’s case.

All DUI charges hold their own unique set of evidence and circumstances. The defense strategy will vary based on the strength and weakness of the evidence and the facts surrounding the incident.

For example, one defense may be to challenge the reason for the stop, and the way the evidence was obtained by the police. This may be the case when the officer who pulled you over lacked reasonable suspicion to stop you.

A police officer must have a reasonable suspicion that a violation of the law has occurred or is in progress, when they pull you over. Otherwise the stop is unconstitutional.

The only exception to this is when the stop is at a pre-organized DUI sobriety or safety checkpoint.

Reasonable suspicion needs to be something more than a hunch. It may be due to the driver’s failure to use a turn signal, a broken taillight, or any other type of traffic violation.

Generally, the court will look at the totality of circumstances when determining whether an officer had a reasonable suspicion to pull over someone for suspected drunk driving or impaired driving. The officer’s training and experience will be considered, among other things.

In cases where a violation of rights has occurred, defense may file a motion to have the evidence suppressed, or thrown out, that was obtained unconstitutionally.

In other cases, the evidence that the prosecution plans to use against a defendant may be weak or invalid, and can be challenged by the defense.

For example, when police administer a blood test, they should provide a sample for the suspect for purposes of their defense. Later, the sample can be retested by an independent lab. If the results are different than the criminal lab, or have been compromised due to mishandling or procedural error, then the defense ask the court to have it suppressed.

Other defenses may apply including, but not limited to other violations of constitutional, procedural, or trial rights.

If you are facing a criminal charge in Tempe, Chandler, Gilbert, or Scottsdale, consult DUI attorney James E. Novak. He is a former Maricopa County Prosecutor who will use insights obtained as a prosecutor to determine whether any of your constitutional rights were violated or whether other defenses apply to your case. He offers a free initial consultation for those facing active criminal charges in his service areas. If you have been charged with a crime, call or contact The Law Office of James Novak at (480) 413-1499 and speak directly with Mr. Novak.

Additional Resources:

• A.R.S. § 28-1321
• A.R.S. § 28-1381
• A.R.S. 28- 1382
• A.R.S.§ 28- 1383
• Arizona Governor’s Office of Highway Safety | Media Advisory
• National Highway Traffic Safety Administration | SFSTs
• Arizona Department of Public Safety | DUI Prevention
• Maricopa County Sheriff’s Office | Jail Information for Families
• Mothers Against Drunk Driving | Latest from MADD
• National Institute of Alcohol Abuse and Alcoholism
• WalletHub | Strictest and Most Lenient States on DUI
• National Centers for Disease Control | Alcohol and DUI Facts

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• Marijuana Odor Probable Cause for Search in Arizona
• Does Marijuana Odor Constitute Probable Cause in Arizona? Yes…and No.
• Entrapment: The Most Important Requirement for your Defense Revealed
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• Arizona Supreme Court Rules on Voluntariness of Drug Testing