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
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
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
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
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
Remember, submit to a blood or breath test only after you have been placed under
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
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
For assistance with a DUI charge, contact
James Sena at the Fitzgibbons Law Offices (520-426-3824).