Arizona penalizes DUIs stricter than any other state in our nation. Arizona is specifically known for carrying the harshest penalties and longest jail or prison sentences for DUI offenses. It is vital to mount an aggressive defense when charged with a DUI in Arizona. In this summary we will discuss the mandatory penalties for DUI. We will also discuss the most recent and viable defense that an aggressive DUI attorney can employ if you are charged with DUI.
If you are convicted of one of the DUI offenses below, you will be required to perform at least the terms listed below. In some misdemeanor cases in most city courts, Home Detention and/or Continuous Alcohol Monitoring (CAM) may be available after 20% of the jail sentence and/or days may be suspended upon installation of the Ignition Interlock Device. However, every court and case is different and these options are in no way guaranteed.
The above chart does not include felony aggravated DUI penalties. These penalties range from a minimum of 4 months in prison with probation and other minimum penalties to upwards 20 or more years in prison depending on a wide variety of prior history factors or case fact factors. If you find yourself charged with a serious DUI offense please seek advice from a skilled DUI attorney to mount the best DUI defense possible.
Generally after a DUI arrest the officer will fill out a form to impose an “Admin Per Se” suspension, which will impose a 90-day suspension/restriction on driving. The officer submits the form to the Arizona Department of Transportation (ADOT). When ADOT receives the form they will send a letter to the driver’s recorded address to advise of the suspension. They may advise how the 90-day suspension can be reduced to 30 days after meeting certain requirements.
For an Admin Per Se suspension to be approved the officer must submit that the driver showed signs of DUI with test results alleging the driver’s alcohol concentration exceeded .08 or that the driver had a drug in their system. After an arrest a driver or his/her counsel may submit a request for hearing within 15 days. If a hearing is validly requested, ADOT will stay the suspension to await the results of the hearing. At the hearing the driver or their counsel can challenge the grounds for the DUI arrest. At this time a judge can void the suspension. Or, a judge can uphold the suspension and if so the driver or their counsel can request suspension dates to start on a different date from when they would have begun after the arrest.
In some cases, it may be advantageous to challenge the admin per se suspension. In other cases it may not be due to the fact that if a DUI conviction is later entered without an admin per se suspension then further penalties can be imposed. It is important for an attorney to review whether or not to challenge an MVD suspension on a case by case basis.
An implied consent suspension is another type of suspension after a DUI arrest that an officer may seek. This is a more severe suspension. If you were served with a possible one year suspension it is imperative to seek counsel as soon as possible to challenge this suspension. If a challenge is viable the suspension will be voided. Additionally, in most cases there is an ability for the one year suspension to be reduced to 90 days with the remaining 9 months carrying certain driving restrictions.
Under certain circumstances, Arizona law permits officers to search a person’s body to determine their alcohol or drugs during a DUI investigation. Testing breath or blood are two main ways officers seek to test a person’s body for alcohol or drug presence. Because these methods involve searches of a person’s body an officer may employ different avenues to conduct a legally permissive search. Generally an officer will want to obtain consent from the driver.
In order to obtain consent, an officer will read admin per se admonitions sometime after a DUI arrest. The arrested person may choose to accept or refuse consent for blood or breath testing. If the arrested person refuses, the officer must advise them of refusal consequences, which would involve an implied consent one year driving suspension. At that time they may change their mind to avoid a possible one year implied consent suspension. If the arrested person still refuses then the officer will likely apply for a search warrant. If grounds can be shown to suspect DUI then a judge will often grant a search warrant request and a person can be forced to submit to breath or blood testing.
If a suspension was not submitted after the arrest then a suspension will occur after a DUI conviction. Additionally because the suspension was not served upfront, a driver will most likely face a penalty of having to obtain costly SR-22 high risk insurance. An attorney can work on behalf of their client by demanding that the officer submit the admin per se prior to any known case resolution to avoid the SR-22 penalty. If a person is convicted of a second DUI offense they will face a one year revocation.
Depending on a person’s DUI conviction they may be required to install an interlock device in their car. As of recently DUI drug convictions no longer require an ignition interlock device installation. The requisite time period for the interlock device will depend on what type of DUI conviction occurred, and what kind of conviction the court reports.
If a person is convicted of a second DUI or an aggravated DUI several types of suspensions can occur. Additionally, the MVD can revoke driving privileges or cancel privileges permanently. In these cases aggressive DUI defense is invaluable.
We have even uncovered a fair share of mistakes made by either the courts or the MVD that wrongly impact a person’s ability to drive. In some cases these mistakes can even be used in latter cases to penalize people more harshly. Therefore, it is imperative to preserve driving privileges as much as possible.
There are numerous DUI defenses to employ. This article will summarize some of the most current viable strategies. It is imperative to your defense to employ an attorney that is skilled in articulating DUI defenses. Your DUI attorney should be a member of local DUI defense groups and stay current with the most up to date DUI defense strategies. Your DUI attorney should have relationships with many of the State’s leading DUI scientific experts. Your DUI attorney should have a good solid relationship with both DUI prosecutors and personnel within the court system.
Many States no longer use breath testing as their main DUI alcohol concentration testing. The reason for this is simple. This is an archaic testing methodology that is inherently unreliable.
Breath testing machines are only equipped to give a best guess. The machine actually analyzes air that is assumed to be from deep within your lungs. The machines then uses assumed variables, which may or may not apply to you, to convert the analysis into an estimated blood alcohol concentration. In fact, the machines assumes a number of perfect variables exist on the subject at the time of testing. If any of these variables, in fact, do not exist the breath test estimations will be flat wrong. However, there is no way to travel back in time and test the subject’s body factors at the time of the test. Therefore, Arizona jurors are asked to assume a number of variables existed that the machine assumes to calculate an estimation. For instance, Arizona jurors must assume that during all breath tests the subjects body temperature was exactly 98.7 degrees Fahrenheit despite the fact that a human body’s temperature fluctuates throughout the day–hour– minute, and is generally warmer at night (when most DUI investigations occur).
As we explained breath test machines must make specific assumptions in order to calculate a breath to blood ratio. In cases where only breath testing was conducted and no blood test results exist the State might have an uphill battle convincing a jury that the result they say they have is in fact accurate. Alcock & Associates DUI attorneys have successfully argued that the State can not prove any of the variables that must be assumed breath machine blood alcohol content calculations.
If an officer failed to reliably test a person’s body temperature than how can the State prove a person’s body temperature was exactly 98.7 degrees Fahrenheit at the time of the test? The machine assumes this body temperature in its conversion calculation. If, however, a subject’s body temperature was just a 1/2 degree hotter than his/her actual blood alcohol level could actually be below the estimated number. As body temperatures rise the estimation becomes more and more of a falsely high inflated number.
In many cases, the State may also not be able to prove that a subject’s breathing pattern was perfectly normal at the time of the test. We often request the jail surveillance footage which would have recorded the breathing during the breath test to show any issues. If there is no available footage we might be able to request jury instructions to render the benefit to the Defendant’s favor as to what these videos would show if they were available. Without video footage of a subject taking a test, the State cannot prove how he/she actually blew prior to or during testing. If a subject was incredibly nervous while in police custody that could affect their breathing patterns. If one holds their breath before blowing during testing, which often occurs due to officer prompting, then the molecules in the air can compound more and result in falsely high readings. The test results could also be compromised if a the subject hyperventilated or when a number of other conditions could have arisen.
The State may also be unable to prove what the subject’s exact partition ratio, which is his/her breath to blood ratio, was during the test. For the machine’s estimation to be accurate the test subject’s exact partition ration during the test must have been 2100 parts to 1 part. Just like body temperatures a person’s partition ratio could fluctuate throughout the day. No two people have the exact same partition ratio all of the time. If at the time of the test a subject’s partition ratio was less than 2100 to 1, say it was 1500 or 1680 or 2000 or any number between 700-2100 then the conversion would equate a different result and the estimation by the machine would be falsely higher than the subject’s actual BAC.
The breath machine lacks the ability to eliminate all other substances when a subject blows into the spectrum. The more substance in the breath the higher the reading could be. If a test subject was working in a hair salon, as a mechanic, in construction or in many other fields or inhaled any fumes on the day or the test such circumstances could interfere with the machine’s light reader. There is no sure way to know whether or not other fumes were present in a person’s lungs at the time of the test and interfered with the test.
In order for a breath test to be admissible it must contain duplicate breath tests that were administered at intervals of not less than five minutes nor more than 10 minutes apart. The results of both interval test shall be within 0.020 alcohol concentration of each other. If the second interval test is not within 0.020 alcohol concentration of the first test, additional tests shall be administered until contain the results of two consecutive tests within 0.020 alcohol concentration. Therefore, the machine can only guarantee that its estimations are within .020 of the actual result. This is what’s known as the machine’s margin of error.
For instance, say the machine estimates a subject’s BAC to be .084. Under the margin of error the machine is only able to guarantee the true BAC is at least .064, which is well under the legal limit. This margin of error is an additional defense to the possible variables explained previously. Therefore, if in the same scenario above the subject also had a warmer body temperature, a partition ratio under 2200, an abnormal breathing pattern at any point before or during the testing, or had inhaled any fumes previous to the DUI investigation, among other variables than the subject’s true BAC could be even further below .064.
Breath test machines contain dry gas standards. These standards are run once before the first duplicate test and once after the second duplicate test. The standards must be within .010 of their alleged known value for a test to pass.
Therefore, the machine is allowed to be off by .010 or 10% from a known dry gas standard. Dry gas standards can not be scientifically related to human breath samples. It is like comparing apples to oranges. They each contain entirely different properties. But even taking a .010 margin of error, a subject that was estimated by a breath machine to have a .084 BAC may truly only have a .074 BAC. And again, this separate margin of error does not also account for the variables explained previously.
Blood test can also be successfully challenged by a skilled DUI attorney that understands the science and how to interpret numerous published studies. A jury or prosecutor could be convinced of a wide number of issues that could affect blood alcohol estimations. Successful defenses include:
Below is a summary of some of the common problems identified with police blood testing.
1. Forensic Laboratory Accuracy Rating Challenges:
The accuracy of most blood testing in DUI cases is likely far worse than what is claimed. Locally, most labs claim that they maintain a 5% accuracy rating among known sample runs conducted before suspect sample tests. However, according to the American Academy of Forensic Sciences the true scale of accuracy of labs is approximately under or over 10%. A gas chromatograph machine is what labs use to estimate alcohol levels in blood samples. However, a gas chromatograph machine does not innately know what a blood alcohol concentration is. This machine must be told this information.
A machine is calibrated each time before a test is conducted. During this calibration a lab is literally telling a machine what a given alcohol concentration looks like. For instance, the machine will be told what a .08 alcohol concentration looks like. It is a significant problem, however, when the lab testing the samples is the same lab that creates its own controls.
It is not possible to know whether or not these lab-created controls are actually accurate. Further, theses self-created “known” standards are based from water instead of blood. But, there are no alcohol in water DUI cases. Blood and water are not the same just as breath and dry gas are not the same. Water, unlike blood, does not contain cells, viruses, bacteria, etc. The testing controls should be made of blood. In fact, there are companies that manufacture blood controls. The troubles are compounded by the fact that no local forensic labs receive independent audits of their work. Rather, we are to just blindly believe their work is perfect.
2. Challenges During Collection of Blood:
In most DUI investigations, the medical procedure of blood collections are conducted by officers that have only taken one abbreviated blood draw course. During such “procedures”, no health care provider/patient relationship exists. The adversarial nature inherent in every criminal investigation is much different from a healthcare provider-patient relationship. A phlebotomist in the health care industry undergoes significant training in the science of drawing blood as well as conducts a large number of draws.
Conversely, during DUI investigations a police officer with no career background in medicine literally conducts a skilled medical procedure on a subject in an unusual adversarial circumstance. To become qualified, an officer merely completes one abbreviated course, often designed specifically for law enforcement, on phlebotomy. In this short class, officers are literally instructed how to not poke and/or contaminate themselves. They ultimately complete a small amount of blood draws wherein a “successful” draw is merely described as one wherein the officer did not ask for assistance.
A proper phlebotomist would either have a medical history chart or ask a draw subject whether they have any issues with blood clotting, blood pressure, blood-borne diseases, other medical conditions, and/or allergies. In DUI investigations it is rare that a subject is ever asked any of these questions and even more rarely would any of this information be documented. The answers to this information could significantly affect the results of a test. The way in which blood was collected can undoubtedly affect the integrity of the blood specimen. Published studies have shown blood draw errors can lead to false positive results as high as 50% of the time.
3. Chain of Custody, Fermentation and Protection of the Blood Sample
Published reports state that the rates of error can be up to 100% when a blood sample has been mishandled, not properly stored, and/or testing has been delayed. In most DUI investigations blood samples sit for long periods prior to testing at the lab. Conversely, in almost all medical settings blood test results are almost instantaneous or available within days.
All blood contains sugar, bacteria, and yeast. These properties create the perfect condition for fermentation to occur. Fermentation converts sugars into alcohol. This is how wine and other alcoholic beverages are produced. Most empty vials used to store blood are supposed to contain preservatives, which are designed to help cut down rates of fermentation. Despite various published studies showing that fermentation can and does occur in blood samples officers do little to be able to later rebut fermentation claims. It is common, even though it should not be, for an officer to either fail to measure the number of preservatives in the vial prior to blood entry or to photograph the evidence of vials prior to blood entry. And as above, the jury can not assume the preservative content in the vial was sufficient. Moreover, the longer alcohol sits in a vial with sugar, bacteria, yeast among other components the longer alcohol levels can increase through fermentation.
The defense can argue several points in this area dependent on the facts of an individual given case. Many of these arguments are backed by published studies.
A crime lab contains the perfect conditions for contamination to occur. Contamination can and does occur largely in crime labs. Contamination can easily come from employees not following established protocol while inside an environment containing many illicit drugs and high alcohol concentrated samples. It can also occur from an unknown interference. When compounds co-elute with ethanol people who are actually innocent can go to jail and or prison. Interruptions can go undetected and can be impossible to find in later reviews of sample run batch data. For example, batch data would not pick up a leak in the gas line of a gas chromatography machine which them allowed outside air containing fumes from drug or alcohol molecules to invade samples. Contamination can and does occur in many different ways.
In summary, in comparison to neutral research labs sound scientific methods may not exist in adversarial law enforcement forensics labs. The lack of sound scientific methodology is largely due to staff incompetence and lack of funding for independent and neutral third-party monitoring. The gas chromatograph machine is manufactured only to give presumptive results as opposed to conclusive results regarding alcohol content. It is likely that the conclusions are not entirely accurate. The controls may be far off, as we have described. The way in which the testing is performed leaves a wide opening for fermentation occurrence throughout the time the blood left the human vein to the time of testing.
As you have learned there are a number of challenges that can be raised by a skilled DUI attorney to rebut the State’s allegations regarding breath or blood tests. There are also a number of other defenses that can be raised to challenge many other parts of a DUI case. Theses defenses are vast and include, but are not limited to:
Please contact us today to explore your options of hiring a skilled attorney to mount a strong defense in your DUI case.
Here at Alcock and Associates our team and staff are dedicated to helping and representing YOU. The first step is to understand your case. We will take the time to get to know you and your legal situation so that we are best able to answer all of your questions. After your initial consultation with our attorneys, you will know what you are facing and what can happen to your case.
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Alcock & Associates P.C.
2 North Central Avenue, 26th Floor
Phoenix AZ 85004