Fitzgibbons Law Offices - Casa Grande and Maricopa Lawyers

520-426-3824

 
 
 

James Sena, Casa Grande Criminal Attorney

 

Fitzgibbons Law Offices
1115 E. Cottonwood Lane
Suite 150
Casa Grande, AZ 85122

 

 

 

Criminal Law

March 2019

Do‘s and Don’ts of DUI in Arizona

Under Arizona law, it is unlawful not only for a person to drive while under the influence of intoxicating liquor, but also to be merely in physical control of a vehicle ... driving or not.

Here’s an unfortunate scenario to avoid: Imagine that you have just left your favorite watering hole and had what you believe were a few too many drinks. Being a responsible person, you get behind the wheel with the intent to sleep it off. You turn on the ignition to run the air conditioner, and then you fall asleep. Your intent is to sleep until you feel safe enough to drive.

Soon, you are awakened by a police officer tapping on your window with a flashlight. The officer asks whether you have been drinking. You tell the officer you have but that you haven’t driven and are just sleeping it off in the parking lot.

The officer asks you to step out of your vehicle and turn off the ignition. Once outside the vehicle, the officer has you do a series of standard field sobriety tests and a preliminary breath test, all of which you fail. You again tell the officer, as he places you in handcuffs, that you haven’t driven and are just sleeping it off in the parking lot. As you are placed under arrest for DUI and riding to the police station, you wonder, What did I do wrong? I wasn’t even driving!

Legally, you may be found guilty, despite your sincere lack of intent to drive.

Control of the Vehicle. Under Arizona law (A.R.S. § 28-1381), it is unlawful not only for a person to drive while under the influence of intoxicating liquor, but also to be merely in physical control of a vehicle – driving or not. “Actual physical control” is determined by whether the driver’s current or imminent control of the vehicle presented a real danger to the driver or others at the time. Factors to be considered might include, but are not limited to:

• whether the vehicle was running

• whether the ignition was on

• where the key was located

• where and in what position the driver was found in the vehicle

• whether the person was awake or asleep

• whether the vehicle’s headlights were on

• where the vehicle was stopped

• whether the driver voluntarily pulled off the road

• time of day

• weather conditions

• whether the heater or air conditioner was on

• whether the windows were up or down

• any explanation of circumstances shown by the evidence.

Given these factors, if you are going to sleep it off in your vehicle:

• Take the keys out of the ignition while you are behind the wheel.

• Better yet, do not sit in the driver’s seat (especially if you are going to run the air conditioner or heater while sleeping it off).

The Limitations of “Sleeping It Off.” Even if you take those precautions, sleeping it off before you take control of the vehicle is probably not the best strategy. Given the amount of time for alcohol to be absorbed by your body (in many cases, more than eight hours), it is best to call a cab or ask someone to drive you home. Even if you sleep for a while and no longer feel intoxicated, your blood alcohol content may still be over the legal limit to drive.

Avoiding a DUI Citation

Do not drive while you are under the influence of anything. You could accidentally hurt or kill someone.

You should never be impolite to a police officer.

If the police officer is questioning you but has not arrested you, you should never participate in tests or answer questions apart from confirming your identification (more below). Many people get nervous and make mistakes that imply intoxication, so it is always safer to decline to follow a pen light, walk a line, blow into a roadside breath test, or participate in another form of roadside testing. Officers may not appreciate it when you do this, but they will respect your right to decline. This is not a time to show off knowing your rights; rather, it is a time to invoke your rights by politely declining to participate in the tests.

Keep your conversation with law enforcement to a minimum. You should politely decline to comment regarding anything beyond verification of your identity and the accuracy of the information on your license, registration and proof of insurance, and confirming or denying the presence of any weapons or sharp objects in the vehicle or on your person. You do not need to answer questions pertaining to your speed, consumption of alcohol, fatigue or any other conditions that might give the officer information which could be later used against you in court.

If you are asked why you refuse to talk or cooperate, simply say “I’m sorry, Officer. I mean no disrespect. I have an attorney friend who advised me to say as little as possible to police in situations like this, and I’m going to follow that advice.” Then remain completely silent except to ask if you are free to leave.

DUI Blood and Breathalyzer Tests

In Arizona, a person who operates a motor vehicle gives consent to a test or tests of the person’s blood, breath, urine or other bodily substance for the purpose of determining alcohol concentration or drug content, if the person is arrested for driving or being in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs.

The tests are administered by a law enforcement officer who has “reasonable grounds” to believe that the person was driving, or was in actual physical control of, a motor vehicle while under the influence of intoxicating liquor or drugs, or if the person is under 21 years of age and has spirituous liquor in his or her body.

If the driver’s blood or breath test reveals an alcohol concentration of 0.08 or more, his or her driver’s license will be suspended or denied for not less than 90 consecutive days.

If the driver refuses the tests, his or her driver’s license will be suspended or denied for 12 months, or for 24 months for a second or subsequent refusal within an 84-month period. The police must advise the driver of the consequences of refusal.

Remember, submit to a blood or breath test only after you have been placed under arrest.

When you are faced with this situation and have been actually arrested, it is wise to go ahead and take the tests. If you refuse, the officer will likely be able to obtain a warrant and compel you to take the test, and you will still suffer the suspension. It is wiser to allow them to collect a blood or breath sample.

Continue avoiding unnecessary conversation with the officers, but always remain calm and polite. Assume anything you do or see is being recorded for the purpose of using against you in court.

After you have been released, contact an attorney right away to discuss your situation.

For assistance with a DUI charge, contact James Sena at the Fitzgibbons Law Offices (520-426-3824).