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DUI/Criminal Law FAQs


Why was I charged with four different offenses?


There are four (4) different classifications of drinking and driving offenses.

First, it is unlawful to drive or be in actual physical control of a motor vehicle while under the influence of intoxicating liquor, drug, vapor or any combination thereof.

Second, it is unlawful to drive or be in actual physical control of a motor vehicle with an alcohol concentration of .08 or more within two hours of driving.

Third, it is unlawful to drive or be in actual physical control of a motor vehicle with an alcohol concentration of .15 or more within two hours of driving.

Fourth, it is unlawful to drive or be in actual physical control of a motor vehicle with an alcohol concentration of .20 or more within two hours of driving.

These are separate charges. A driver can be charged with one or all. If a driver refuses to submit to a chemical test and none is performed consensually, he/she will only be charged with driving under the influence, assuming the officer has enough evidence to establish probable cause for the arrest. Additionally, it is a Class 4 felony if either of these offenses is committed while a child who is 15 years of age or younger is in the vehicle.

If I am stopped for suspicion of DUI, should I perform the field sobriety tests?

It is extremely important to understand the difference between field sobriety tests and a test of your breath or blood for alcohol concentration.

If you refuse to successfully complete a breath or blood test to determine alcohol concentration, you will lose all driving privileges for 12 months.

There is no such penalty for refusing to perform field sobriety tests like the walk and turn, one leg stand, finger to nose, finger count, any verbal tests that requires reciting the alphabet or numbers, or horizontal gaze nystagmus.

Horizontal gaze nystagmus is a test in which the person will be asked to follow the top of a pen being moved in front of his/her eyes.

You have the right not to perform these field sobriety tests.

If I am stopped for suspicion of DUI, do I have the right to refuse to answer questions without an attorney?

The United States Constitution guarantees the right of every person not to be a witness against him/her self.

Usually, if you are a DUI suspect and an officer advises you of your rights pursuant to Miranda, you should invoke those rights and refuse to answer any questions.

You also have a right to have counsel present at every critical stage of the proceedings. No matter what time of the day it is, you should request to speak with a lawyer. The officer then has the obligation to give you a chance to speak to an attorney so long as it would not unnecessarily hinder the investigation. Your lawyer can give you advice on other issues including your right to an independent test of your breath or blood to determine alcohol concentration.


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If I am arrested for DUI, should I hire a lawyer?

If you want to contest the charges, you should definitely hire a lawyer.

If it is your first or second offense and you feel comfortable with the sentence that will be imposed, then you may not need a lawyer.

Second-time offenders may find a lawyer helpful in obtaining a sentence which includes work release or home arrest.

If you are charged with a felony, you should be represented by a lawyer.

What is implied consent?

Any person who operates a motor vehicle within the state of Arizona and is arrested for an offense related to drinking and driving is presumed to have given consent to a test of his/her breath, blood, urine or other bodily substance, for the purpose of determining alcohol concentration.

The peace officer has the authority to decide what type of test the driver must complete and the power to require more than one type of test.

What is the penalty for refusing to submit to a breath or blood test once a driver has been arrested?

If the driver refuses to submit to or successfully complete any one of the tests requested, the officer must inform the driver that a refusal shall result in a license suspension for 12 months.

Almost any failure to expressly agree to the test(s) or successfully complete them will be deemed a refusal and result in a 12-month revocation of driving privileges.

If a driver refuses to complete the test(s) as requested by the officer then the statute mandates that none shall be given with two exceptions.

  • First, the officer can attempt to obtain a search warrant for a blood sample.
  • Second, if a sample of the driver's blood or urine is taken for any other reason within two hours of the time of driving (e.g., a doctor may require a blood sample because some medical procedures cannot be safely performed if alcohol or drugs are within the body), the officer is entitled to a portion of that sample.

What is a restricted driver's license?

A restricted driver's license allows a driver to operate a motor vehicle to and from work, school, medical appointments and counseling sessions.

If a driver completes a breath or blood test that indicates an alcohol concentration of .08 or more and holds a non-commercial driver’s license, then driving privileges will be suspended for 90 days.

However, so long as the driver did not cause serious physical injury to another person, has not been convicted of a prior drinking and driving charge in the past 84 months, and has not had his/her privilege to drive suspended for a prior drinking and driving charge, he/she is entitled to a reduced punishment of a 30-day suspension and a 60-day restricted license.

If the driver holds a commercial driver's license and is arrested while operating a commercial vehicle he/she is subject to the same punishments if the tests indicate an alcohol concentration of .04 or more. These individuals may also be subject to other non-statutory punishments including loss of employment.

When I was arrested for DUI, my breath test indicated a BAC of .08. Will my driver's license automatically be suspended, even before I go to trial?

In cases like this, if the DMV believes a suspension of your driving privilege is warranted, the suspension will commence 15 days from the date the ticket is issued.

However, if you or your attorney takes appropriate action quickly enough, you can, at the very least, postpone the suspension for a while, and possibly even avoid it completely.

The suspension will be stayed if you or your attorney requests either summary review or a hearing within 15 days of the date of issuance.

If summary review is requested, your attorney will submit a written argument as to why your driving privileges should not be suspended. Your driving privileges remain in effect for at least 20 days from the date of the request.

The documents submitted by your attorney will be reviewed by the MVD without a hearing and you will be notified of the decision within 20 days of the request.

What happens if I challenge the suspension by requesting a hearing with the DMV?

If you or your attorney requests a hearing, the suspension is stayed and you are considered to have a valid license at least until the day of the hearing.

The hearing will usually take place in the county in which the offense occurred unless the officer requests otherwise.

If you refused to submit to or successfully complete a test of your breath, blood, urine or other bodily substance and a hearing is requested, then the State must prove that the officer had reasonable grounds to believe that you were driving a vehicle while under the influence; that you were placed under arrest; that you refused to submit to the test(s); and that you were informed of the consequences of refusal.

If you submitted to chemical testing (non-refusal), the State must prove that the officer had reasonable grounds to believe you were driving while under the influence; that you were placed under arrest; that a valid and reliable test was completed and it indicated a result of .08 or more for a non-commercial license, or .04 or more for a commercial license while driving a commercial vehicle; and that the result was accurately evaluated.

If a suspension is ordered, you have the right to review.

A non-refusal case requires a motion for rehearing to be filed with the Motor Vehicle Division and must be ruled upon before a petition for review may be filed with Superior Court. In a refusal case, a motion for rehearing is not required before a petition for review is filed in Superior Court. A petition for review must be filed within 30 days of the Motor Vehicle Division's final order of suspension and will be heard on an expedited basis.

If my license is suspended for a period of time, will it automatically be reinstated once that time period is over?

Driving privileges are not automatically reinstated following a period of suspension. The driver must complete some paperwork and pay a fee to have his/her privileges reinstated. Otherwise his/her privileges to drive are still considered to be suspended.

This fact is sometimes overlooked by drivers and may result in stiff penalties should the driver commit another driving offense while his/her license is still considered suspended.

If we win at the Motor Vehicle Division hearing, does that mean my license will not be suspended?

For the time being, yes, but remember, Motor Vehicle Division hearings usually occur before any criminal trial. If the state fails to meet its burden of proof at the MVD hearing, your driving privileges will not be suspended.

However, this does not mean your driving privileges are immune from suspension. A conviction in the criminal portion of the drinking and driving charge will result in a suspension for the same time period that would have been ordered had the state met its burden at the Motor Vehicle Division hearing.

The major difference is that a suspension that results from a criminal conviction will ultimately require the driver to obtain SR-22 insurance, which is usually more expensive, to have his/her driving privileges reinstated while a suspension which stems from a Motor Vehicle Division hearing will not create this situation.

Can my driver's license be revoked for a DUI conviction?

For a first-time DUI misdemeanor conviction the answer is no. However, for a first-time DUI conviction your license is subject to a 90-day suspension as discussed above through either the MVD or by order of the Court if no MVD suspension has occurred pursuant to an Admin Per Se/Implied Consent suspension hearing.

For a second DUI misdemeanor conviction within 84 months (seven years), your license is subject to a one-year revocation and you will be required to re-instate your license at the end of the suspension period and comply with all requirements dictated by the MVD.

A third DUI conviction within 84 months is a Class 4 felony and your license is subject to being revoked for a period of three years.

What are the penalties for a first-offense, non-extreme DUI?

If you are convicted of one or both of the charges, you will be deemed guilty of a Class 1 misdemeanor.

First-time offenders must complete an alcohol abuse screening. The court may order you to obtain counseling, education or treatment if the court of the screening facility deems it necessary.

If you have the financial resources to pay all or part of the screening, counseling, education or treatment, then the court will order you to do so. All programs must be approved by the Department of Health Services.

The statute requires the court to sentence a first-time offender to serve not less than ten consecutive days in jail. However, the court may suspend all but 24 consecutive hours of the sentence if you complete an alcohol abuse screening, and any proscribed treatment. Since the statute stipulates consecutive hours, the court cannot give credit for any time served on the day of the arrest. The statute also requires a fine of not less than $450.00 plus a $500.00 surcharge for the prison construction fund.

The court may also add on some additional processing fee and/or incarceration fees if deemed appropriate.

The court may also order you to perform up to 40 hours of community service and attend a class sponsored by Mothers Against Drunk Driving, known as the Victim Impact Panel. Offenders are usually places on a minimum of 12 months probation as well. Lastly, if any property damage was sustained as a result of your actions, the Court can order that you pay restitution to the alleged victims.

What are the penalties for a second-offense, non-extreme DUI conviction?

A person convicted of a second offense within eighty-four (84) months of the first is guilty of a Class 1 misdemeanor. The dates of commission of the offenses are the dispositive dates in determining the 84-month period.

A second-time offender is subject to the same sanctions as a first-time offender regarding an alcohol screening, counseling, education, treatment and payment. The statute requires the court to sentence a second-time offender to serve not less than 90 days in jail. The court may suspend all but 30 days of the sentence if the person completes a court-ordered alcohol screening, counseling, education and treatment program.

If I have to spend time in jail, how will I keep my job?

Depending on the amount of jail that you are sentenced to, there are several options.

First, most courts allow you to pick the date that you wish to report to jail within 30 days from the sentencing date. That allows you to report on any day within that 30-day period depending on your own personal schedule. For example if you work weekends, it is possible to get a report date during the week. Alternatively, if you have a work schedule that occurs within the “normal” workweek, you can do your sentence on the weekend. Keep in mind that the jails in Arizona are open seven days a week and 24 hours a day. As such, most jails accept report dates on any day of the week and at any time of the day or night.

Second, if you are sentenced to more than one day for a first-time misdemeanor DUI, most courts allow you to do work release for any time after the mandatory minimum of 48 hours in custody. Work release is subject to eligibility and requires that you be “pre-screened” by the jail to have your eligibility determined. Work release entails 12 hours in and 12 hours out with the 12 hours in done overnight. A person eligible for work release is generally released from jail from 6 a.m. to 6 p.m.

Third, some cases result in greater than 15 days of jail (second offenses or cases with aggravating factors). If you are sentenced to greater than 15 days, it is possible to have home detention granted for a portion of your sentence. Generally, a person who is eligible for home detention must be screened to have their eligibility determined and then must serve at least 48 hours of jail straight followed by 13 days of work release with the remainder of their sentence completed on home detention.

Lastly, in some limited felony matters, it is possible to seek work furlough. Work furlough is similar to work release and is subject to the same eligibility requirements, but is left entirely up to the discretion of the sentencing judge.

Is it possible to serve the required time under home arrest instead of in jail?

In certain circumstances, second-time offenders might be eligible for home arrest. There are several requirements that must be satisfied before a person may be accepted into this program.

The probation department's approval is necessary before the court will place someone in the home arrest program.

The home arrest sentence may include 48 consecutive hours in jail, 13 days on work release and 45 days of home detention. The person will be allowed to leave the home to work, attend school or attend treatment. If a conviction is completely unavoidable, the help of a skilled and experienced DUI attorney could prove extremely beneficial in obtaining a home arrest sentence instead of straight jail time.

What is aggravated DUI?

A person convicted of an aggravated drinking and driving offense is guilty of a Class 4 felony. Either driving under the influence, being in actual physical control of a motor vehicle or driving with a blood alcohol content of .08 or more will be considered an aggravated offense if it is committed while the person's license is suspended, canceled, revoked, refused or restricted, and the State can prove that the person knew the status of his driving privileges.

Likewise, if a person has been previously convicted of two prior drinking and driving offenses, with all these offenses occurring within 84 months, then the third conviction will result in an aggravated sentence. The dates of commission of the offenses are the dispositive dates in determining the 84-month period.

What are the penalties for aggravated DUI?

An aggravated sentence includes a minimum of four months in prison followed by a period of probation. Suspension of sentence or release on any other basis is not available until the person serves at least four months in custody. The sentence will also include up to ten years of supervised probation and alcohol screening, counseling, education and treatment. If the person fails to complete the screening, counseling, education or treatment the court may re-sentence the person to an additional term in county jail or prison. The court may also impose a fine up to $150,000. In addition to all of the aforementioned sanctions, the court may order the motor vehicle owned and operated by the person at the time of the offense forfeited. A person convicted of either driving under the influence or driving with a blood alcohol content of .08 or more who has three or more prior convictions within the last 84 months is guilty of a Class 4 felony. The sentence will be similar to the one stated above in that the person must serve a minimum of four months in prison.

What are the penalties for DUI if a minor was present?

If you are convicted of DUI while a minor who is 15 years of age or younger is in the vehicle, the court will sentence you pursuant to the guidelines established for a Class 6 felony. The sentence may vary depending upon the circumstances; however, it will generally range from four months to two years in prison, and probation may be available

When is a DUI conviction cleared from a driving record?

The Motor Vehicle Division keeps a record of DUI conviction indefinitely.

Arizona Law (ARS 28-450 (D)) prevents insurance companies from getting any records older than 39 months from the date of the violation. Thus, the “public” record you can obtain from the MVD only goes back 39 months.

Attorneys, licensed investigators, government agencies and people getting their own record can obtain information going back farther than 39 months. Most of these requests are for five-year records.

Under the DUI laws, a DUI conviction can be used to increase the penalties on any new DUI arrest for up to seven years. For example, a person convicted of a DUI who has a prior DUI conviction within seven years, faces mandatory jail for 30 days and a one-year license revocation. Three DUIs within seven years is a felony carrying four months in prison and a three-year revocation.

Serving clients in Phoenix, Mesa, Tempe, Tucson, Gilbert, Chandler and throughout Arizona For a free consultation with compassionate, experienced legal counsel, call 520-325-6500 or 480-366-5786