Arizona DUI Defense Blog

What Do Field Sobriety Tests Prove?

lk@azfirm.com (Lawrence Koplow) — Mon, 29 Jun 2009 12:53:02 -0700

The short answer is not much. At best, they may correlate to someone having a blood alcohol concentration over a .08. At worst, they prove nothing at all. To understand their meaning you must look at how they came into existence and who developed them.

In the late 1970’s, NHTSA (the National Highway Traffic and Safety Administration) paid for some research to see if tools could be developed for law enforcement to identify people who are potentially DUI / DWI.

There were several studies paid for by the government. Specifically, there are six primary studies relied on by law enforcement. However, none of the studies have been subject to peer review.

1977 Study (Not Peer Reviewed)

1981 Study (Not Peer Reviewed)

1983 Study (Not Peer Reviewed)

Colorado Study (Not Peer Reviewed)

Florida Study (Not Peer Reviewed)

San Diego Study (Not Peer Reviewed)

According to Wikipedia, peer review has been defined as:

...the process of subjecting an author's scholarly work, research, or ideas to the scrutiny of others who are experts in the same field. Peer review requires a community of experts in a given (and often narrowly defined) field, who are qualified and able to perform impartial review...Pragmatically, peer review refers to the work done during the screening of submitted manuscripts and funding applications. This process encourages authors to meet the accepted standards of their discipline and prevents the dissemination of irrelevant findings, unwarranted claims, unacceptable interpretations, and personal views. Publications that have not undergone peer review are likely to be regarded with suspicion by scholars and professionals.

Thus, the research has not been subject to scrutiny in the scientific community and begs the question why not? Only the government can answer this question.

So what does the government say these studies show? Unfortunately, much of law enforcement does not even know what their own research says. If you ask most officers who regularly conduct DUI investigations, they will tell you that field sobriety tests show “impairment.”

However, the government’s own research concludes this is not the case. If you are willing to accept these non-peer reviewed studies, then you may merely conclude that a poor performance correlates to a blood alcohol concentration above a .08. Moreover, the tests were previously used to show a blood alcohol concentration above a .10. Then the law changed in several jurisdictions, and somehow it also changed scientific results.

Consequently, even if you believe NHTSA’s own research, these agility tests do not show driving impairment.

A Person Accused Of DUI Deserves A True Second Opinion

lk@azfirm.com (Lawrence Koplow) — Mon, 15 Jun 2009 18:08:27 -0700

Arizona DUI cases almost always involve a chemical test. There is a movement in Arizona towards the exclusive use of blood testing. It is well settled that blood testing is more accurate than breath testing. But how accurate is blood testing? Can it truly determine a person's blood alcohol concentration? I believe that these are reasonable questions to be asked by a person accused of DUI and facing 30 to 45 days in jail.

Under our system of justice we should demand better answers from the government than "because we said so" or "because our lab has the highest standards." Simple conclusions are not good enough in science and they should not be good enough in justice.

So who checks the government's test results in Arizona? The simple answer is the government. They merely claim to check themselves. I have yet to see one Arizona crime lab that conducts blind testing by an independent party.

Here is how the actual process works. In Arizona DUI cases, The government expert will tell juries that they do double check their work. That is, they have a quality assurance program to make sure the blood alcohol test results are accurate. But the government's oversight of their work is not what you my think. Instead retesting every sample, or randomly retesting a portion of the samples, the lab merely does a technical review.

A "technical review" is not retesting. The Government toxicologist usually puts between 30 to 40 blood samples into a blood tester. Then they turn the blood tester on and leave. The blood tester commonly runs overnight and the printed results are reviewed by the government lab person.

This review of the printed documents is what is known as a technical review. The actual documents are called chromatograms. They are simply pieces of paper with graphs and data on them (retention times, area counts, etc...) If the run has the usual 30 to 40 samples there could be well over 100 pages of data.

In court, the government will tell the jury that they "double check" all the tests. What they actually do is take those 80 to 100 pieces of paper and give it to another employee of the same lab. That person then reviews the data. As long as the data appears to be consistent, they conclude it is an accurate test. In Court, they tell the jury they got a second opinon from another analyst to ensure the accuaracy of the tests.

A nationally recognized expert, Dr. A.W. Jones, has opined that in forensic testing of blood samples retesting should be done, not a mere a "technical review." It is his opinion, that a mere technical review is inadequate to ensure the accuracy of the test results.

This standard makes perfect sense in DUI cases because the level of punishment is often dependent upon the test result. If a person's blood alcohol concentration result is .165 the person is facing a minimum of 30 days in jail. If he was under a .150 then he is merely facing 1 day in jail. Is it too much to ask the government to check their work when 29 days of jail is at stake? I guess the answer depends on how important the result is to you.

If you were at the doctor and she said "the blood tests were back," "we need to operate," let's "prep for the mastectomy." Most people would seek a second opinion. Why...because the issue is too important to merely rely on the first test. When it matter to you - you retest.

P.S. I will address the Defendant's ability to do their own retesting in my next entry.

A Well Written Post on The Source Code Issue

lk@azfirm.com (Lawrence Koplow) — Mon, 26 Jan 2009 20:44:46 -0700

I ran across an excellent post discussing the source code issue. That is, the fight between criminal defense attorneys and the maker of the breath tester (CMI) to disclose the code used in their breath testers. CMI will not allow an inspection of the code. Consequently, it cannot be checked for accuracy. CMI essentially tells everyone charged with DUI to "just trust us."

Ed Brayton, a journalist and the co-founder of Michigan Citizens for Science, discusses the source code litigation in Florida.

Here's a very interesting case from Florida, where an appeals court has upheld a lower court ruling that threw out evidence from a breathalyzer test in a drunk driving case because the manufacturer of the device refused to release the source code and allow defense experts to analyze the accuracy of the machines.

The results of breath tests in more than 100 local drunken-driving cases will not be allowed at trial, a judge announced Tuesday.

The validity of those breathalyzer tests has been challenged for more than three years because of the Intoxilyzer 5000, a machine that uses a breath sample to measure a person's blood-alcohol content.

Manatee County Judge Doug Henderson ruled two years ago that any Intoxilyzer 5000 tests were inadmissible in trial, but prosecutors appealed. On Tuesday, Henderson told lawyers that his ruling had been affirmed by the Second District Court of Appeal and Circuit Court.

Breath analysis machines are notoriously inaccurate and this has been a problem for a very long time. Dr. David Hanson, a sociologist who has written on this issue for decades, writes:

Breath analyzers (Breathalyzer, Intoxilyzer, Alcosensor, Alcoscan and BAC Datamaster are common brand names) don't actually test blood alcohol concentration (BAC), which requires the analysis of a blood sample. Instead, they estimate BAC indirectly. Different types of machine use different techniqes and larger machines generally yield better estimates than do hand-held models. Therefore, some states don't permit data or "readings" from hand-held machines to be presented as evidence in court. South Dakota does not even permit evidence from any type or size breath tester but relies entirely on blood tests to ensure accuracy and protect the innocent.

A major problem with some machines is that they not only identify the ethyl alcohol (or ethanol) found in alcohol beverages, but also other substances similar in molecular structure. Those machines identify any compound containing the methyl group structure. Over one hundred compounds can be found in the human breath at any one time and 70 to 80 percent of them contain methyl group structure and will be incorrectly detected as ethyl alcohol. Important is the fact that the more different ethyl group substances the machine detects, the higher will be the false BAC estimate.

The National Highway Traffic Safety Administration (NHTSA) has found that dieters and diabetics can have acetone levels hundreds and even thousand of times higher than that in others. Acetone is one of the many substances that can be falsely identified as ethyl alcohol by some breath machines.

One investigator has reported that alcohol-free subjects can generate BAC readings of about .05 after eating various types of bread products.

Substances in the environment can also lead to false BAC readings. For example, an alcohol-free subject was asked to apply a pint of contact cement to a piece of plywood and then to apply a gallon of oil-base paint to a wall. The total activity lasted about an hour. Twenty minutes later the subject was tested on an Intoxilyzer, which registered a BAC of .12 percent. This level is 50% higher than a BAC of .08, which constitutes legal intoxication in many states.

Similarly, a painter with a protective mask spray painted a room for 20 minutes. Although a blood test showed no alcohol, an Intoxilyzer falsely reported his BAC as .075.

Any number of other products found in the environment can cause erroneous BAC results. These include compounds found in lacquers, paint removers, celluloid, gasoline, and cleaning fluids.

Other common things that can cause false BAC levels are alcohol, blood or vomit in the subject's mouth, electrical interference from cell phones and police radios, tobacco smoke, dirt, and moisture.

Breath testers can be very sensitive to temperature and will give false reasings if not adjusted or recalibrated to account for ambient or surrounding air temperatures. The temperature of the subject is also very important. Each one degree of body temperature above normal will cause a substantial elevation (about 8%) in apparent BAC.

Many breath testing machines asume a 2,100-to-1 ratio in converting alcohol in the breath to estimates of alcohol in the blood. However, this ratio varies from 1,900 to 2,400 among people and also within a person over time. This variation will lead to false BAC readings.

Physical activity and hyperventilation can lower apparent BAC levels. One study found that the BAC readings of subjects decreased 11 to 14% after running up one flight of stairs and 22-25% after doing so twice. Another study found a 15% decrease in BAC readings after vigorous exercise or hyperventilaion.

Some breath analysis machinnes assume a hematocrit (cell volume of blood) of 47%. However, hematocrit values range from 42 to 52% in men and from 37 to 47% in women. A person with a lower hematocrit will have a falsely high BAC reading.

It's about time a judge took a stand on this issue.

I Need to Hire the Guy that Made This Video.

lk@azfirm.com (Lawrence Koplow) — Sat, 03 Jan 2009 06:01:47 -0700

Here is a very well researched and produced video regarding an Ohio DUI case. While I do not agree with everything he argues, her certainly makes some vaild points. Enjoy:

Please Think About This Before You Drink And Drive This Holiday Season

lk@azfirm.com (Lawrence Koplow) — Sat, 20 Dec 2008 10:14:56 -0700

There is significantly more drinking and driving during the holidays. It happens every year, in every place. I have plenty of business. However, I don't want you to become a customer. Trust me, you have better things to do than hang out with me in a courtroom for the next three or four months. Thus, I am going to republish a post that I have previously written. The post is titled: "3 Things I Wish People Knew Before Drinking & Driving."

Before you read the post, please watch this video. The story is more persuasive than anything I could ever write.

This post was originally published on 07/31/08:

It's 5:00 p.m. on Friday afternoon in Phoenix, and Joe just walked through the door of his favorite restaurant to meet some friends for happy hour. He drove himself to the restaurant. When he is done, he is going to drive to his house in Scottsdale.

At the table, Joe sees everyone has one of the restaurant's signature margaritas in front of them. The waiter comes to the table and asks Joe: "can I get you something to drink?" Before Joe answers this question, I wish he would consider the following facts:

There is no crime of Drunk Driving in Arizona. Arizona law makes it illegal to drive while Joe is impaired to at least the slightest degree by alcohol. This means that if Joe's ability to drive is impaired to any degree, Joe is technically in violation of the law;
If Joe is stopped by the police, they will stick a needle in Joe's arm. Regardless of the law on this subject, it has been my experience that if Joe is stopped by a police officer for a traffic violation, and the officer smells any alcohol, Joe is going to end up taking a chemical test. Many police agencies are now using blood testing instead of breath testing. If the officer smells alcohol on Joe's breath (or just imagines it), Joe is going to have a needle stuck in his arm and a blood sample will be taken. The results of the blood test will probably take at least 30 days to come back. While Joe is waiting to find out the results of the blood test, he will not sleep very much or very well;
If Joe refuses the blood test, the officer will get a warrant and forcibly take his blood. Once the officer meets the requirements of Arizona's implied consent law, he may require Joe to submit to a chemical test. If Joe says "no," he will then lose his driver's license for 12 months. Moreover, the officer will then make a phone call to the judge. Within minutes, the judge can then issue a telephonic warrant. If Joe still refuses, he will be held down by several police officers, and a needle will be shoved into his vein.

Now if Joe knew these three things when the waiter asked him: "can I get you something to drink" - how might Joe answer? I think the average Joe would say: "Yes...Diet Coke."

Please consider the above before you drink and drive. Moreover, if you know someone who needs to become aware of these "3 Things" please use the "email this post" button at the bottom and send it to them. This is a subtle way of possibly preventing a life changing tragedy. Thanks!

This Video Demonstrates True Field Sobriety Testing

lk@azfirm.com (Lawrence Koplow) — Wed, 17 Dec 2008 22:35:47 -0700

In case you ever wondered what happens on the side of the road when a person is stopped for DUI, here is a video showing exactly what goes on. Enjoy:

DUI Stop from konu on Vimeo.

Wonder Bread Does it Again!

lk@azfirm.com (Lawrence Koplow) — Mon, 15 Dec 2008 15:53:39 -0700

It turns out my previous post showing Wonder Bread causing a false blood alcohol concentration reading was not an isolated incident. The same forensic toxicologist and drug recognition expert did another Wonder Bread experiment. Here it is:

Can Bread Cause the Intoxilyzer to Give a False Reading?

lk@azfirm.com (Lawrence Koplow) — Sat, 06 Dec 2008 13:37:13 -0700

As demonstrated below, it appears that Wonder Bread is like Kryptonite to the Intoxilyzer 8000. While I cannot guarantee the accuracy of the test that occurred in this video, I have very little reason to doubt its veracity. Especially since the manufacture of the Intoxilyzer 8000 (CMI) will not allow anyone (including the government) to inspect the source code used in this contraption. Enjoy:

Follow Arizona DUI Law Updates on our Twitter Feed

lk@azfirm.com (Lawrence Koplow) — Mon, 01 Dec 2008 15:45:22 -0700

You can keep track of all the news about the Arizona DUI laws by watching our Twitter Feed.

What are the New Arizona DUI Penalties in 2008?

lk@azfirm.com (Lawrence Koplow) — Mon, 17 Nov 2008 15:35:31 -0700

The legislature has once again raised the DUI penalties. However, the changes only affect those convicted of extreme DUI. That is, the penalties are only increased for those convicted of a DUI having a blood alcohol concentration between .150 and below .200. The new penalties are illustrated below:

If you need legal advice for a specific problem, you must consult with an Arizona DUI attorney. For more information about Arizona DUI law or a specific legal problem, please contact Koplow & Patane on-line or by phone at (602) 494-3444.

The Truth About Character Evidence

lk@azfirm.com (Lawrence Koplow) — Mon, 13 Oct 2008 10:43:11 -0700

I found a great website for information on jury research. Kathy Kellerman is a communications consultant who regularly posts answers to questions about how jurors make decisions. She has an informative post about the effectiveness of evidence of a defendant's good character in a criminal trial. I think most people (including attorneys) will be surprised by what the research concludes about this type of evidence.

Question:

Does character evidence help or hurt defendants in criminal trials?

Answer:

Recent research by Hunt and Budesheim (2004) studied the effects of positive character evidence when offered alone, and when followed by a prosecutor cross-examining about specific bad acts.

These researchers found that, on its own, general descriptions of a defendant's positive personality characteristics had little effect on juror decision-making; that is, positive character evidence did not reduce guilt perceptions or decisions to convict. Additionally, when a character witness was cross-examined with examples of a defendant's previous specific bad acts, jurors' impressions of the defendant were more negative, guilt perceptions higher, and conviction decisions more likely than when no information at all was provided about the defendant's character.

The researchers concluded that permissible positive character evidence does little to help a defendant, and negative character evidence in the form of specific bad acts cross-examination can hurt a defendant considerably.

Source: Hunt, J. S. & Budesheim, T. L. (2004). How jurors use and misuse character evidence. Journal of Applied Psychology, 2, pp. 347-361.

I recommend you check out her website here.

DISCLAIMER: The information in this blog is NOT legal advice, nor does it establish an attorney-client relationship between you and Koplow & Patane. Legal advice usually varies from case to case.

The Cutting Edge of Arizona Criminal Law

lk@azfirm.com (Lawrence Koplow) — Fri, 10 Oct 2008 18:25:18 -0700

To find out everything going on regarding Arizona criminal law check out our newest project:

www.arizonacriminaldefenseblog.com/

DUI Task Force This Weekend In Tempe, Arizona

lk@azfirm.com (Lawrence Koplow) — Fri, 22 Aug 2008 12:28:04 -0700

Lisa Halverstadt of The Arizona Republic is reporting that the Tempe Police will have a DUI task force this weekend. Her article states:

Tempe police will have its DUI task force at Dorsey Lane and University Drive this weekend. This is the last weekend before the fall semester begins Monday at Arizona State University.

The task force command post, which will operate from 8 p.m. to 3 a.m. on Friday and Saturday nights, will be located at the Tempe Fire Department/APS Joint Fire Training Center. The Tempe Police Department is collaborating with the Governor's Office of Highway Safety to host the anti-DUI effort.

Please be careful when driving this weekend.

3 Things I Wish People Knew Before Drinking & Driving

lk@azfirm.com (Lawrence Koplow) — Thu, 31 Jul 2008 10:04:55 -0700

There is no crime of Drunk Driving in Arizona. Arizona law makes it illegal to drive while Joe is impaired to at least the slightest degree by alcohol. This means that if Joe's ability to drive is impaired to any degree, Joe is technically in violation of the law;
If Joe is stopped by the police, they will stick a needle in Joe's arm. Regardless of the law on this subject, it has been my experience that if Joe is stopped by a police officer for a traffic violation, and the officer smells any alcohol, Joe is going to end up taking a chemical test. Many police agencies are now using blood testing instead of breath testing. If the officer smells alcohol on Joe's breath (or just imagines it), Joe is going to have a needle stuck in his arm and a blood sample will be taken. The results of the blood test will probably take at least 30 days to come back. While Joe is waiting to find out the results of the blood test, he will not sleep very much or very well;
If Joe refuses the blood test, the officer will get a warrant and forcibly take his blood. Once the officer meets the requirements of Arizona's implied consent law, he may require Joe to submit to a chemical test. If Joe says "no," he will then lose his driver's license for 12 months. Moreover, the officer will then make a phone call to the judge. Within minutes, the judge can then issue a telephonic warrant. If Joe still refuses, he will be held down by several police officers, and a needle will be shoved into his vein.

Now if Joe knew these three things when the waiter asked him: "can I get you something to drink" - how might Joe answer? I think the average Joe would say: "Yes...Diet Coke."

I Want To See A Replay

lk@azfirm.com (Lawrence Koplow) — Thu, 24 Jul 2008 13:30:35 -0700

I was reading DUI Attorney Mark Steven's blog and he touched upon a subject that concerns many DUI attorneys. Why don't more police officers videotape DUI arrests? Clearly, this would be the best evidence of a person's degree of impairment. So, why not use videotape in a DUI investigation?

Mark addresses this issue in his post Why Aren't Most New Hampshire DWI Arrests Video Recorded? He writes:

Just about everywhere you go today in public you are being videotaped. You are videotaped at your bank, supermarket, shopping mall, drive through lines for fast food, donut shops, even little convenience stores. Just about every place is equipped with a video camera these days. If someone holds up a little store or commits just about any crime in public there is a video of the event on the evening news, copied from a surveillance camera. It has become very inexpensive to capture a high quality audio and video recording for safety and security purposes of just about every aspect of our everyday lives.

When you watch cop shows at night all sorts of DWI and other arrests are captured on cruiser videos all over the country. You can see clearly and hear easily whether the driver is drunk or not on these video recordings made from cruiser cameras. Police departments all around the country also video and audio record bookings. With a good quality video recording little is left to the imagination as to whether the driver was really drunk or not. So why aren't most DWI arrests in New Hampshire video and audio recorded?

Is it a "safety issue"? It would seem unlikely that there is a safety issue here that doesn't exist in any other part of the United States. Is it cost? That seems unlikely with the massive amount of money being thrown into inefficient DWI roadblocks and inaccurate hand-held breath testing gadgets. Last year stories were published about a $400,000.00 "batmobile" for the local police to use during DWI roadblocks. It cannot seriously be argued that the police cannot afford to videotape DWI arrests.

So if it's not safety and it's not cost, what could it be? We all know that DWI is a serious law enforcement concern; we hear that all the time, year after road-blocking year. Wouldn't the best way to prosecute a drunk driving case be to show the judge or jury a videotape of the driver if he or she was really drunk? So why don't the police want to show a videotape of a drunk driver at a drunk driving trial?

Could it be that some of the people arrested for drunk driving are not drunk? Or that they really don't act and speak as drunkardly as the police reports describe? It is easy enough to form your own conclusions as to why most DWI arrests are not videotaped.

Think about the power a videotape could have in a DUI case. When a person has a blood test result of .200, there is an expectation that person will be acting in a certain manner (generally, this manner is face down, on the floor, drunk.) A video showing them walking around, following a police officer's instructions and responding appropriately to instructions may make a person (like a juror) question the accuracy and reliability of that test result.

Imaginary DUI?

lk@azfirm.com (Lawrence Koplow) — Wed, 09 Jul 2008 00:49:11 -0700

When police officers are attempting to determine whether to arrest someone for driving under the influence of alcohol (DUI), they usually ask them to perform some field sobriety tests. Police generally rely on a battery of tests recommended by the National Highway Traffic Safety Administration (NHTSA). One of these tests is referred to as the "Walk-and-Turn" test. The instructions for performing the Walk-and-Turn test are contained in the NHTSA DWI Detection and Standardized Field Sobriety Testing Manual.

In essence, the Walk-and-Turn test requires that a person walk a straight line, touching heel to toe, and then turn around and walk back. However, it seems many officers in Arizona (and apparently in other states as well) believe that using an imaginary line is a fair test. That is, instead of having a person walk on a true line (i.e. a painted line in a parking lot) they have the person imagine a line to walk on. Just this morning I was debating this issue with a Scottsdale Police Officer in a DUI case.

Austin, Texas DWI lawyer Jamie Spencer has written an excellent article entitled, Walking A Straight Line, arguing the merits of using an imaginary line during a Walk-and-Turn test. He writes:

One common misconception that I see over and over on the part of officers, up to and including some of the local Austin DWI task force officers, is the belief that the book doesn’t require that a designated actual line be used.

If asked why the defendant was asked to walk an imaginary line instead of an actual line, most officers reply – some smugly – that ‘the manual’, that is the NHTSA manual, doesn’t require it. Some offer to show the defense lawyer exactly where in the book it says they don’t have to use an actual line.

Invariably, the officer will flip the pages and find this portion of the manual:

Procedures for Walk and Turn Testing

1. Instructions Stage: Initial Positioning and Verbal Instructions

For standardization in the performance of this test, have the suspect assume the heel-to-toe stance by giving the following verbal instructions, accompanied by demonstrations:

“Place your left foot on the line” (real or imaginary). Demonstrate.

[I’m taking this from the February 2006 Edition, Student Manual, page VIII-9 from Session VIII: Concepts and Principles of the Standardized Field Sobriety Tests. It should be in Chapter 8 of most or all other manuals.]

That certainly looks at first blush as if the manual says there’s no difference between the difficulty between walking an actual line, or walking an imaginary line. Although, it literally begs the question, “Officer, how wide a line did my client imagine?”

But no. The officer who so testifies is wrong. (Sorry, WJ, you’re wrong too.)

Flip the page once more – VIII-11 in the one I’m reading now - and you come to the part entitled:

4. Test Conditions

Walk-and-Turn test [sic] requires a designated straight line, and should be conducted on a reasonable dry, hard, level, nonslippery surface.

Requires. So, how to explain the seeming discrepancy? Easy.

The first section is talking about “Verbal Instructions” and is clearly labeled so. It is the Instructions Stage. That means… it is talking about the portion of the test where the officer demonstrates the Walk and Turn to the suspect.

So, going by the book, it’s perfectly OK for the officer to show the defendant how to do the test on his own imaginary line if he wants to do it that way. Heck, we all know they don’t even have to demonstrate all 9 steps. They are allowed to do it that way.

But the NHTSA Manual makes no bones about it: if this test is going to be administered properly, then the defendant is supposed to be afforded the opportunity to do it on an actual line. It is literally: required. And yes, that’s a potentially reasonable explanation for someone stepping ‘off the line’ – it wasn’t there in the first place.

Jamie's point cannot be overstated: How can the officer say you stepped off a line that he cannot see? After all, the line is in your head. The officer does not know how long the line you imagined was; nor does the officer know how wide your imaginary line was. Moreover, when a real line is available (such as in a parking lot), isn't it just common sense to use it during the test?

5 Frequently Asked Questions About Arizona DUI Penalties

lk@azfirm.com (Lawrence Koplow) — Tue, 01 Jul 2008 23:16:28 -0700

1. If I am convicted of an Arizona DUI, do I have to go to jail?

The only way to avoid going to jail is to avoid a DUI conviction. However, if you are convicted, Arizona DUI law requires a mandatory term of jail. The amount of jail will depend on several factors. To start, the results of a blood alcohol concentration (BAC) test will generally control the amount of mandatory jail required. Here are the mandatory minimum terms of jail based on a person's BAC:

BAC under .150 - 1 day
BAC of .150 and below .200 (new laws) - 30 days
BAC of .200 and above - 45 days

These jail terms apply to first time DUI convictions. Second time DUI convictions have much longer mandatory minimums.

2. Will I lose my driver's license if I am convicted of a DUI in Arizona?

A person's driver's license will be suspended if the results of a chemical test are above .08. This suspension is actually through the Motor Vehicle Division - not the courts. Thus, the suspension often occurs prior to a court conviction.

To illustrate, take the example of a person who is arrested for DUI and performs a breath test. Suppose the breath test results are .100 and .101. Because the test results are above a .08, the officer will give that person a form called an admin per se / implied consent affidavit. The affidavit will state that the person's driver's license will be suspended in 15 days. The term of suspension is 90 days. However, after the first 30 days the person may be eligible for a restricted driving permit. Thus, a conviction is not even necessary for the suspension to take effect.

3. What is the penalty if I refuse to take a breath or a blood test?

Arizona law requires that a person submit to a chemical test. If a person refuses the test, then a 1 year driver's license suspension is triggered. However, the person may be eligible for a special restricted driver's license after the first 90 days. If a person is considering refusing a chemical test, they should attempt to contact an attorney to assist with this decision.

4. Are there any other penalties to my driver's license in addition to suspension?

Yes. After September 2007, all Arizona DUI convictions require a person to install an Ignition Interlock Device in their vehicle. This device takes a sample of a person's breath and measures if there is any alcohol in their system. If alcohol is found to be present in the person's system, then the vehicle will not start.

5. If I am convicted of a DUI, will I have to go to substance abuse treatment?

A conviction for DUI requires that a person go to a drug and alcohol screening. Based on the results of the screening the person will be required to attend substance abuse education and possibly treatment.

What is an Arizona Reckless Driving Charge?

lk@azfirm.com (Lawrence Koplow) — Mon, 23 Jun 2008 15:46:05 -0700

Reckless driving is one of the more serious misdemeanor offenses in Arizona. The crime can be either a class 1 or class 2 misdemeanor. When charged as a first time offense, as a class two misdemeanor, the statute has a maximum penalty of four months in jail and $750.00 fine. Moreover, there are some additional consequences to a person's driver's license. Reckless Driving is considered a serious moving violation and places 8 points on a person's driver's license. This in turn, requires the person to complete Traffic Survival School.

The crime of Reckless Driving is codified in section 28-693 of the Arizona Revised Statutes. The statute states:

A. A person who drives a vehicle in reckless disregard for the safety of persons or property is guilty of reckless driving.

B. A person convicted of reckless driving is guilty of a class 2 misdemeanor.

C. In addition, the judge may require the surrender to a police officer of any driver license of the convicted person, shall report the conviction to the department and may order the driving privileges of the person to be suspended for a period of not more than ninety days. On receipt of the abstract of conviction and order, the department shall suspend the driving privilege of the person for the period of time ordered by the judge.

D. If a person who is convicted of a violation of this section has been previously convicted of a violation of this section, section 13-1102 or section 13-1103, subsection A, paragraph 1, in the driving of a vehicle, or section 28-708, 28-1381, 28-1382 or 28-1383 within a period of twenty-four months:

1. The person is guilty of a class 1 misdemeanor.

2. The person is not eligible for probation, pardon, suspension of sentence or release on any basis until the person has served not less than twenty days in jail.

3. The judge may require the surrender to a police officer of any driver license of the person and shall immediately forward the abstract of conviction to the department.

4. On receipt of the abstract of conviction, the department shall revoke the driving privilege of the person.

E. The dates of the commission of the offense are the determining factor in applying subsection D of this section. A second or subsequent violation for which a conviction occurs as provided in this section does not include a conviction for an offense arising out of the same series of acts.

F. On pronouncement of a jail sentence under this section, and after the court receives confirmation that the person is employed or is a student, the court may provide in the sentence that if the defendant is employed or is a student the defendant can continue employment or schooling for not more than twelve hours per day nor more than five days per week. The defendant shall spend the remaining days or parts of days in jail until the sentence is served and shall be allowed out of jail only long enough to complete the defendant's actual hours of employment or schooling.

In sum, the crime of Reckless Driving can carry some very onerous consequences including jail, fines, traffic school and a driver's license suspension. However, unlike a DUI conviction, jail is merely discretionary. Thus, a person convicted of Reckless Driving does not necessarily have to serve a term of jail.

When Does a Person Get a Hearing Regarding a License Suspension

lk@azfirm.com (Lawrence Koplow) — Fri, 20 Jun 2008 16:54:53 -0700

In the context of a DUI case, there are two common scenarios when a motorist will receive an order of suspension for their driver's license:

After they refuse to take a chemical test pursuant to A.R.S. 28-1321(D)(2); and
After a test result of .08 or greater pursuant to A.R.S. 28-1385(A).

The Motor Vehicle Division of the Department of Transportation permits a person a hearing prior to the suspension. The hearing request can be made by mail, facsimile or email. The request for the hearing must be received by the department within 15 days after the notice. A timely request stays the suspension until at least the time of the hearing.

The hearing is a civil proceeding. The burden of proof for the government is only a preponderance of evidence, as opposed to the criminal standard of beyond reasonable doubt. The Arizona Rules of Evidence do not apply to the hearing. For example "reliable hearsay" evidence is admissible during the hearing.

Special Laws For Commercial Drivers Charged with DUI

lk@azfirm.com (Lawrence Koplow) — Fri, 20 Jun 2008 11:13:05 -0700

Drivers operating a vehicle with a commercial driver’s license (CDL) have different standards than other drivers. The reason is because of the safety issues associated with operating larger vehicles such as trucks, tractor-trailers and buses.

The Arizona DUI laws are much more restrictive for people with commercial drivers licenses (CDL). While most Arizona drivers will be in violation of the law if their blood alcohol concentration is .08 or greater, commercial driver have a much tougher standard. For drivers with a CDL, the legal limit is merely a blood alcohol concentration of .04 or greater. Section 28-1381(A)(4) of the Arizona Revised Statutes provides:

It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:

If the vehicle is a commercial motor vehicle that requires a person to obtain a commercial driver license as defined in section 28-3001 and the person has an alcohol concentration of 0.04 or more.

Moreover, a commercial driver may also face a disqualification of their license. Thus, a commercial driver’s livelihood may be put at risk.