Frequently Asked Questions - FAQ on Arizona DUI

Our Phoenix, Arizona DUI lawyers with Phillips and Associates understand that DUI can be a confusing subject. Here, we answer some of the most frequently asked questions. If you have been charged with DUI, please do not plead guilty. Instead, to discuss your specific DUI situation, contact our lawyers to schedule a free consultation.

• What is DUI?
• Do I Need to Hire DUI Lawyers?
• How Do I Find Very Good D.U.I. Lawyers?
• What do police officers look for when searching for drunk drivers on the highways?
• If I'm stopped by a police officer and he asks me if I've been drinking, what should I say?
• Do I have a right to ask for an attorney when I'm stopped by an officer and asked to take a field sobriety test?
• What is the officer looking for during the initial detention at the scene?
• What should I do if I'm asked to take field sobriety tests?
• Why did the officer make me follow a penlight with my eyes to the left and right?
• Should I agree to take a chemical test? What happens if I don't?
• Do I have a choice of chemical tests?
• The officer never read me a "Miranda" warning: Can I get my case dismissed?
• The officer took away my copy of my driver's license and served me with a pink and yellow temporary license: How can they do that if I'm presumed innocent?
• Can I represent myself? What can an attorney do for me?
• What is "mouth alcohol"?
• What defenses are there in a D.U.I. case?
• Will My Car Insurance Increase?
• How do Breathalyzers Work?

What is DUI?

In Arizona, Driving While Under the Influence of Intoxicating Liquor or Drugs is also referred to as “DUI” or “DWI” for short. There is no difference between these three terms. To be charged with DUI, a defendant must operate a motor vehicle while impaired or with a blood or breath alcohol concentration in excess of the statutory limit.

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). These statutes are also referred to as an “A1 charge”, an “A2 charge”, an “A3 charge”, and an “A4 charge” respectively. Regardless of which violation you’re charged with , our Phoenix, Arizona DUI lawyers can help you.

An A1 Charge

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 slightly impaired by alcohol, drugs or any combination of the two. There are many factors that law enforcement, prosecutors, and our Phoenix, Mesa, Scottsdale, and Tucson area, Arizona DUI lawyers can take into consideration in evaluating or defending this charge. These factors include:

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

An A2 Charge

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 were arrested prior to August 31, 2001, the statutory limit is 0.10% or more Blood or Breath Alcohol Concentration. If the arrest took place after August 31, 2001, the limit statutory is 0.08% Blood or Breath Alcohol Concentration. If the defendant is tested and the results exceed the statutory limits, he/she will likely be charged with an "A2" charge.

It is also possible that the defendant will test below the statutory limit yet still charged with the "A1" charge. Our Phoenix and Tucson area DUI lawyers 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. Our Phoenix, Tucson area, Arizona DUI lawyers can often challenge this chemical evidence on several grounds, including:

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

An A3 Charge

A violation of §28-1381(A)(3) is a less common type of DUI and occurs if a person is driving or in actual physical control of a vehicle in Arizona 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. The person’s level of illegal drug concentration is immaterial. It only matters that the person operated a motor vehicle while an illegal drug was in his/her system.

Our Phoenix and Tucson area DUI lawyers regularly fight the reliability of the methods used by police in their attempt to determine whether or not a person was on drugs while operating the motor vehicle, as our attorneys believe that these tests are less scientific than many other types of tests available but not used. In addition to these tests, the State usually hopes for an admission from the defendant such as, "I took some X earlier today" or "Yes, I smoked some marijuana before driving".

Defendants charged with an A3 violation have a right to remain silent just as they would with any other criminal charge and we recommend that defendants offer no information. Our Phoenix, Arizona DUI lawyers will vigorously defend your A3 charge. Contact us.

An A4 Charge

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. Conviction of an A4 charge or any DUI violation can result in the loss of the commercial driver’s license.

Don’t lose your ability to make a living. Contact our Phoenix, Arizona DUI lawyers before pleading to an A4 or any DUI charge.

Our Phoenix, Tucson area, Arizona D.U.I. lawyers realize that D.U.I. is a difficult crime to understand. Often, a defendant charged with a D.U.I. violation is not guilty of the charge. For example, in an 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. For 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.

It is also possible that the machine used to test your blood or breath was not working accurately. A correctly working machine is an important issue and there are numerous laws and administrative regulations that require periodic testing of blood or breath testing devices. These testing records must be maintained and are available for our experienced D.U.I. attorneys to review. When something is wrong with the records, we can often use this information to win your case.

Many times, a defendant does not know what to do after he/she is stopped by the police and the defendant ends up making unnecessary incriminating statements that are harmful to his/her case. The police then might attempt to convince the defendant that he/she is guilty even when he/she may not have violated one of the statutes and/or the police have violated the defendant’s rights or procedure. Our experienced DUI attorneys can help you understand your rights and protect you from a possible wrongful conviction. Instead of pleading guilty or trying to handle your DUI case on your own, contact us for representation. Our Phoenix, Arizona DUI attorneys can help you.

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Do I Need to Hire DUI Lawyers?

The answer is Yes!

Experienced DUI lawyers can help you understand the DUI charges and all of the issues involved. DUI is a serious offense that requires a mandatory jail sentence upon conviction and a mandatory driver's license suspension. Involving DUI lawyers in the case may result in the charges being dropped, may result in the charges being reduced to a non-alcohol or non-drug related offense, or may result in some other more favorable outcome to the defendant.

There are several different types of D.U.I. offenses and prior D.U.I. convictions substantially increase the penalties. There are also two separate proceedings involved - one involving the criminal case and one involving a civil administrative case with the Department of Motor Vehicles. As a result, it is very important that defendants understand DUI law and receive a favorable outcome the first time he/she is arrested, and what he/she can do to avoid or minimize the damage on this offense as well as avoiding future arrests. Consulting with experienced Phoenix and Arizona DUI lawyers can help educate Arizona defendants on these factors and help defendants secure a favorable outcome to their DUI case.

DUI is one of the most common crimes people hire an attorney to defend. It seems like every year there are new harsher DUI laws and the penalties get more serious all the time. There is a substantial amount of Arizona case law on DUI 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 challenges by DUI lawyers. 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 DUI attorney such as the lawyers with Phillips and Associates in Phoenix. Our DUI lawyers can help you determine what, if any, defenses you have to your DUI 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 DUI case and you also have a right to request a hearing at the Motor Vehicle Division. Our DUI lawyers can represent you in both the criminal courts and at the motor vehicle division.

DUI & 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, our Phoenix and Arizona DUI lawyers understand what you are going through and we know how to get results. Contact us today to schedule a free consultation with one of our DUI lawyers.

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How Do I Find Very Good DUI Lawyers?

It may seem difficult to select DUI lawyers at first and we caution you against retaining the first attorney you meet. There are many lawyers in Phoenix and throughout Arizona who do not limit their practice to DUI and criminal cases and some of these lawyers only handle a few cases a year. Some Phoenix DUI lawyers may even be incompetent or inexperienced.

To find good Phoenix, Mesa, Scottsdale, and Tucson area, Arizona DUI lawyers, we suggest that you ask the following questions:

• Does your firm have lawyers who are highly experienced in DUI and criminal defense cases?
• Does your firm have DUI lawyers who are Board Certified as Specialists by the Arizona Board of Legal Specialization?
• Does your firm have lawyers who limit their practice to DUI and criminal defense?
• Does your firm have access to the State's most experienced expert witnesses on the forensic testing of blood and breath alcohol?
• Does your firm make promises as to the results that they can obtain? (Beware -- this is something ethical attorneys cannot do. Specific results cannot be accurately predicted.)
• Does your firm use a written flat fee agreement that includes trial if necessary? Or is the "fee" only a low initial retainer that does not cover the entire case or M.V.D. hearing? (Our Fee Agreements cover all legal fees. Costs, however, are extra).
• Will your firm actually handle the case or will you simply sign me up and refer me to another attorney or firm?

To discuss representation with our experienced Phoenix and Arizona DUI lawyers, contact Phillips and Associates today.

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What do police officers look for when searching for drunk drivers on the highways?

The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated. This list is based upon research conducted by the National Highway Traffic Administration:

• Turning with a wide radius
• Straddling center of lane marker
• "Appearing to be drunk"
• Almost striking object or vehicle
• Weaving
• Driving on other than designated highway
• Swerving
• Speed more than 10 mph below limit
• Stopping without cause in traffic lane
• Following too closely
• Drifting
• Tires on center or lane marker
• Braking erratically
• Driving into opposing or crossing traffic
• Signaling inconsistent with driving actions
• Slow response to traffic signals
• Stopping inappropriately (other than in lane)
• Turning abruptly or illegally
• Accelerating or decelerating rapidly
• Headlights off

Speeding is not a symptom of DUI, but it often leads to numerous traffic stops and may result in a DUI case. Most officers, however, note that they will only stop you for speeding if you are ten + miles per hour over the posted limit.

To discuss your DUI situation, contact our Phoenix DUI lawyers to schedule a free consultation.

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If I'm stopped by a police officer and he asks me if I've been drinking, what should I say?

Although you are not required to answer potentially incriminating questions, our Phoenix, Arizona DUI lawyers recommend that you be polite. For example, saying, "I would like to speak with an attorney before I answer any questions" is a good reply. On the other hand, if you only had a few drinks, saying that you had a few drinks may not be incriminating, as one or two drinks is usually not sufficient to cause intoxication and it may explain the odor of alcohol on the breath. This will also make you look honest which could be very important later in your defense.

If you are stopped and asked if you have been drinking, call us in Phoenix. We have DUI lawyers and other experienced legal professionals available to talk with you 24 hours a day.

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Do I have a right to an attorney when I'm stopped by an officer and asked to take a field sobriety test?

Yes, you have a right to speak with an attorney as soon as practical. However, you or the police may not be able to get your attorney on the phone that fast. It's best to refuse the Field Sobriety Tests, the Portable Breath Test, the pen to eye test, and then ask for a phone call to your attorney. In Arizona, there is a right to consult with counsel upon being arrested or before deciding whether to submit to chemical testing, if doing so does not unreasonably deny the timing of your chemical test. Contact our Phoenix, Mesa, Scottsdale, and Tucson area, Arizona DUI lawyers at Phillips and Associates. We have people available 24 hours a day to help you.

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What is the officer looking for during the initial detention at the scene?

The traditional symptoms of intoxication taught at the police academies are:

• Flushed face
• Red, watery, glassy and/or bloodshot eyes
• Odor of alcohol on breath
• Slurred speech
• Fumbling with wallet trying to get license
• Failure to comprehend the officer's questions
• Staggering when exiting vehicle
• Swaying/instability on feet
• Leaning on car for support
• Combative, argumentative, jovial or other "inappropriate" attitude
• Soiled, rumpled, disorderly clothing
• Stumbling while walking
• Disorientation as to time and place
• Inability to follow directions

It is important to remember your physical state when you were stopped. There may be other reasons that these symptoms are appearing and our Phoenix, Arizona DUI lawyers can use your explanations when negotiating with prosecutors or law enforcement.

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What should I do if I'm asked to take field sobriety tests?

There is a wide-range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, eye test called "horizontal gaze nystagmus" test, alphabet recitation, modified position of attention (Rhomberg), fingers-to-thumb, hand pat and others. In Arizona, most officers will use a set battery of six common tests.

Unlike the chemical test where refusal to submit may have serious consequences, you are not legally required to take any of the Field Sobriety Tests (FSTs). The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence which the suspect inevitably "fails". Thus, in most cases a polite refusal may be appropriate and smart.

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Why did the officer make me follow a penlight with my eyes to the left and right?

This is the "horizontal gaze nystagmus" test, a relatively recent development in DUI investigation. During this test, the officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical jargon for a distinctive eye oscillation). If this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go.

This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer's ability to recognize nystagmus and estimate the angle of onset. Because of this, and the fact that the test is not accepted by the medical community, it is not admissible as evidence in many states. Unfortunately, Arizona allows the test as evidence and it is widely used by law enforcement. Our Phoenix and Tucson area DUI lawyers believe it is one of the least reliable tests and we believe we are very successful in discrediting this test in court.

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Should I agree to take a chemical test? What happens if I don't?

The consequences of refusing to submit to a blood, breath or urine test is a twelve-month driver's license suspension. Generally, there are two adverse results:

• Your driver's license will be suspended for a period of twelve months. This may be true even if you are found not guilty of the DUI charge.
• The fact of refusal can be introduced into evidence as "consciousness of guilt" in your criminal court case. Of course, you or your DUI lawyers are free to offer other reasons for the refusal.

Thus, the decision is one of weighing the likelihood of a high blood-alcohol reading against the consequences for refusing. Most of our Phoenix, Arizona DUI lawyers like their chances for success on a refusal trial but the twelve-month license suspension is more severe to many people than a DUI conviction.

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Do I have a choice of chemical tests?

No! The police get to decide for you: breath, blood or urine. They also can demand that you do one or more tests. If you refuse at any time, even after you give a valid sample, you can still lose your license.

It is possible that they may let you choose your method of testing. If so, our Phoenix, Arizona DUI lawyers recommend a blood test. Analysis of a blood sample is potentially the most accurate. Breath machines are susceptible to a number of problems rendering them often unreliable. The least accurate by far, however, is urinalysis.

Thus, if given a choice and if you are confident that you are sober, a blood sample is the wise choice. If you believe that your blood-alcohol concentration is above the legal limit, choose a breath test or urine test, as these are the least accurate and most easily impeached by DUI lawyers.

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The officer never read me a "Miranda" warning: Can I get my case dismissed?

The officer is supposed to give a Fifth Amendment Miranda Warning after he arrests you. Sometimes, however, the officer may not. If the officer fails to give you a Miranda Warning, the consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest. If you were not given Miranda, tell your DUI lawyers immediately.

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The officer took away my copy of my driver's license and served me with a pink and yellow temporary license: How can they do that if I'm presumed innocent?

Agreed, it is completely unfair. But according to the law in Arizona, the "per se" statute provides for immediate confiscation of the license if the breath test result is above the legal limit or if you refuse to blow.

CAUTION: In Arizona, you must request an M.V.D. hearing within 15 days of your arrest (or the date you were served with a suspension notice). If you fail to request a hearing, you waive your rights to a hearing and your suspension begins after the fifteenth day passes. Thus, you should always contact DUI lawyers immediately after you are cited.

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Can I represent myself? What can DUI lawyers do for me?

You can represent yourself, but this is rarely done and not recommended. DUI is a very complex area of law with increasingly harsh consequences. There are many complicated procedural, evidentiary, constitutional, sentencing and administrative license issues.

Experienced DUI lawyers such as ours with the Phoenix firm of Phillips and Associates can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension or challenge your case in other ways. All cases are different so it's important to see an attorney as soon as possible.

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What is "mouth alcohol"?

Our Phoenix, Arizona DUI lawyers can help protect you against a wrongful conviction caused by mouth alcohol. "Mouth alcohol" refers to the existence of any alcohol in the mouth or esophagus. If mouth alcohol is present during a breath test, then the results will be falsely high and may lead to the wrongful conviction of some drivers. This is because the breath machine assumes that the breath is from the lungs and for complex physiological reasons, its internal computer multiplies the amount of alcohol in your breath by 2100 to obtain your estimated "blood" alcohol level. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact on the BAC reading.

Mouth alcohol can be caused in many ways. Belching, burping, hiccuping or vomiting within 20 to 30 minutes before taking the test could bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine's reading way up (such products as Binaca and Listerine have alcohol in them). Cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. Chewing tobacco or even gum could trap tiny micro particles of alcohol. A chronic "reflux" condition from gastric distress or a hiatal hernia can cause elevated BAC readings.

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What defenses are there in a DUI case?

Potential defenses in a given drunk driving case are almost limitless due to the complexities of the offense, which further emphasizes why it is so important to consult with experience DUI lawyers about your case. Please see the DUI Process page on this website for more detailed information. Roughly speaking, however, the majority can be broken down into the following areas:

• Driving Defenses: Intoxication is not enough. The prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of accidents, there are no witnesses to testify that the defendant was the driver of the vehicle.
• Challenge to Probable Cause: Evidence will be suppressed by if the officer did not have legal cause to (a) stop, (b) detain, and (c) arrest. Sobriety roadblocks present particularly complex issues.
• Failure to give Miranda Warning: Incriminating statements may be suppressed if warnings were not given at the appropriate time.
• Challenge to Implied Consent Warnings: If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, this may affect admissibility of the test results as well as the license suspension imposed by the motor vehicle department.
• Challenge to "Under the influence": The officer's observations and opinions as to intoxication can be questioned -- the circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as "failing". Witnesses can also testify that you appeared to be sober.
• Challenge to Blood-Alcohol Concentration: There exists a wide range of potential problems with blood, breath or urine testing. "Non-specific" analysis, for example -- most breath machines will register many chemical compounds found on the human breath as alcohol. And breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state's expert witness, and/or the defense can hire its own forensic chemist.
• Testing During the Absorptive Phase: The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol (it takes 30 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking "one for the road" can cause inaccurate test results.
• Retrograde Extrapolation: This refers to the issue the BAC be "related back" in time from the test to the driving. Again, a number of complex physiological problems are involved here.
• Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance.
• License suspension hearings. A number of issues can be raised in the context of an administrative hearing before the state's department of motor vehicles.

Don’t plead guilty. Contact our Phoenix, Arizona DUI lawyers to schedule a free consultation and discuss possible defenses to your DUI charge.

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Will My Car Insurance Increase?

Car insurance companies often will increase premiums after a DUI conviction sometimes by two or three times. While this might be a much higher increase than is mathematically required, there are few laws to regulate the premiums. It is not politically correct to be convicted of DUI and insurance quotes may vary widely from one company to another. Thus, our Phoenix or Tucson area DUI lawyers recommend that you shop around.

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How do Breathalyzers Work?

We hear and read about drivers who are charged with DUI after an accident, and usually a news report on the accident will say what the driver's blood alcohol level was and what the legal limit for blood alcohol is. A driver might be found to have a level of 0.15%, for example, and the legal limit is 0.08%. But what do those figures mean and how do police officers find out if a driver they suspect has been drinking is legally drunk? You have probably heard about the Breathalyzer, but may wonder exactly how a person's breath can show how much that person has had to drink.

It is important for public safety that drunken drivers are taken off the roads. Of the 42,000 traffic deaths in the United States in 1999, about 38 percent were related to alcohol. Drivers who can pass roadside sobriety tests -- they can touch their noses or walk a straight line -- still might be breaking the legal limit for blood alcohol and therefore are a hazard on the road.

Police officers use some of the latest technology to detect alcohol levels in suspected drunken drivers and remove them from the streets. Many officers in the field rely on breath alcohol testing devices (Breathalyzer is one type) to determine the blood alcohol concentration, referred to as BAC, in drunken-driving suspects. This technology has requirements that must be documented. Our Phoenix, Arizona DUI lawyers can help determine if the technology was properly used in your case.

For additional information, please refer to the DUI Testing page on this website.

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