Criminal Law Article


Driving Under the Influence (DUI) In Detail

According to the National Highway Traffic Safety Administration (NHTSA), an average of 30 Americans die in alcohol-related vehicle crashes every day, which means that more than 10,000 Americans die as a result of drinking and driving each year.

All of us know that when driving a vehicle we need stay alert and be able to make quick decisions and that anything that serves to distract us or to reduce our reaction time greatly raises our chances of being in an accident. A person does not need to be visibly drunk or high – or even to feel drunk or high – for their judgment and concentration to be impaired to the point that they pose a serious danger not only to their own safety but also to the safety of their passengers, other drivers, cyclists, and pedestrians.

According to the NHTSA, alcohol-impaired driving causes 28% of all vehicle crash fatalities and marijuana users are 25% more likely to be involved in a vehicle crash of one kind or another. Statistics prove that drinking or doing drugs – including medical marijuana – then getting behind the wheel of a vehicle drastically increases the likelihood that you will kill or injure someone else or be killed or injured yourself.

It is not surprising, then, that every state, including Arizona, has strict laws against driving under the influence (DUI). This article provides an overview of how Arizona penalizes people who drink (or do drugs) and drive.

What is DUI in Arizona?


Here in Arizona, it is unlawful for any person to drive or be in actual physical control of a vehicle while under the influence of alcohol or drugs. (Arizona Revised Statutes (A.R.S.) Section 28-1381(A) states that being “under the influence” means being “impaired to the slightest degree.”)

It is also unlawful for any person to have a blood alcohol concentration of 0.08 or more (0.04 or more for commercial vehicles) within two hours of driving or being in actual physical control of a vehicle if that alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle.

It is also unlawful for any person under 21 years of age to have any alcohol at all in their system while driving or in actual physical control of a vehicle.

And it is also unlawful for any person (regardless of age) to drive or be in actual physical control of a vehicle if they have any unlawful drug or its metabolite in their body.

What does it mean to be in “actual physical control” of a vehicle?

Although A.R.S. § 28-1381(A) states that it is unlawful “to drive or be in actual physical control of a vehicle” while under the influence of alcohol or drugs, it does not define what “actual physical control” is.

However, Arizona courts have suggested that there is a difference between “driving” a vehicle and merely being in “actual physical control” of a vehicle, and that in certain circumstances a person may be in “actual physical control” of a vehicle while under the influence of alcohol or drugs – and therefore breaking the law – even if they are not driving and even if the vehicle is not moving.

In a 2009 case called State of Arizona v. Zaragoza, the Supreme Court of Arizona decided that whenever a jury is charged with determining whether a person was in “actual physical control” of a vehicle while under the influence of alcohol or drugs, the jury should consider “the totality of the circumstances shown by the evidence and whether the defendant’s current or imminent control of the vehicle presented a real danger to [himself or herself] or others at the time alleged.” The factors that the jury may consider include (but are not limited to):
    - whether the vehicle was running
    - whether the ignition was on
    - where the ignition 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 had voluntarily pulled off the road
    - time of day
    - weather conditions
    - whether the heater or the air conditioner was on
    - whether the windows were up or down
    - any explanation of the circumstances shown by the evidence.

In other words, the bottom line is that here in Arizona a person may be convicted of DUI without actually driving a vehicle while under the influence of alcohol or drugs if “the totally of the circumstances shown by the evidence” lead to the conclusion that their then-present or impending control of the vehicle presented a real danger to themselves or to others.

To what kinds of vehicles do DUI laws apply?

The prohibition in A.R.S. § 28-1381(A) against driving or being in actual physical control of a vehicle while under the influence of alcohol or drugs applies any motor vehicle, including cars, trucks, vans, motorcycles, motorized scooters, motorized bicycles, ATVs, golf carts, riding mowers, recreational vehicles, commercial vehicles, construction equipment, and farm equipment. (Similar rules apply to boats, which are covered separately, under A.R.S. § 5-395.)

Do DUI laws apply to (non-motorized) bicycles?

No. Even though under Arizona law a person riding a bicycle is “subject to all of the duties applicable to the driver of a vehicle” (A.R.S. § 28-812), a “vehicle” is defined as any “device in, on or by which a person or property is or may be transported or drawn on a public highway, excluding devices moved by human power...” (A.R.S. 28-101(67)). This means that, unless your bicycle is motorized, you cannot be charged with DUI while cycling. (However, most other traffic laws and all general rules about personal injury and property damage absolutely still apply).

What if I have a medical marijuana card? Does that matter?

No. Being a qualified patient with a state-issued medical marijuana ID card makes no difference whatsoever. Driving or being in actual physical control of a vehicle while impaired at all by any alcohol or drug – whether it is legal or illegal and whether or not you are authorized to use it – is driving or being in actual physical control of a vehicle while under the influence and therefore unlawful.

What happens if I am suspected of DUI?


If a law enforcement officer has reason to believe that you are or have been driving or in actual physical control of a vehicle while under the influence of alcohol or drugs, that officer has a legal right to request that you submit to a blood alcohol and drug content (BADC) test of your blood, breath, urine, or other bodily substance in order to measure the amount of alcohol or drugs that are present in your bloodstream.

Contrary to popular belief, a person who is suspected by a law enforcement officer to have committed DUI may not simply refuse such a test without legal consequences, because whenever we apply for and acquire the right to operate a vehicle here in Arizona – for example, through the process of obtaining or renewing a driver license through ADOT – we automatically consent to BADC testing. The “implied consent” rule in A.R.S. § 28-1321 means that if you are suspected of DUI but refuse to permit a law enforcement officer to conduct a BADC test, you will be required to surrender your license and your license will automatically be suspended (for one year for a first offense and for two years for a second offense).

What are the penalties for DUI?

If a BADC test conducted by a law enforcement officer establishes that your blood alcohol concentration is 0.08 or more (or 0.04 or more if you are driving or are in actual physical control of a commercial vehicle that requires a commercial driver license), then you will lose your privilege to drive right then and there. You will also be required to complete alcohol and/or drug screening in the future before you can obtain a restricted permit or reinstate your license.

If you fail a BADC test, the result will be the same as if you refuse to permit a law enforcement  officer to conduct the test in the first place: you will automatically lose your privilege to drive for 12 months for a first offense and 24 months for a second offense.

There are criminal penalties as well. If you are convicted of DUI, a first offense will result in at least 10 days in jail and a fine of at least $1,250. If you are convicted of DUI more than once, any future offense will result in at least 90 days in jail and a fine of at least $3,000. After any conviction for DUI, you will also be required to equip any vehicle you drive with a certified ignition interlock device.

If you are convicted of “extreme DUI” – because you had an alcohol concentration of 0.15 or higher – you will be jailed for at least 30 days with no eligibility for either probation or a suspended sentence and any subsequent similar offenses will result in at least 120 days (4 months) in jail.

If you are convicted of “aggravated DUI” – because you committed DUI while your license was suspended or revoked or because you committed a third DUI within a period of 7 years or because you committed DUI while a child under the age of 15 was in the vehicle or because you refused to submit to a BADC test while under a certified ignition interlock device order – you may be imprisoned for up to two years.

What other costs may result from DUI?

Even beyond the jail time and fines, DUI convictions are expensive. Certified ignition interlock devices can cost up to $2,000 to install and maintain for one year. (A certified ignition interlock device is a breath alcohol testing instrument that is connected to the ignition and power system of a vehicle. The driver blows into the device before attempting to turn the ignition. If the driver’s breath alcohol concentration is above a certain level, then the vehicle will not start. While the vehicle is operating, the driver also must blow into the device at random intervals.) Your insurance premiums also will rise substantially. And if you plead not guilty to a DUI charge and hire a defense attorney, then you will also incur attorneys’ fees and court costs, which themselves may total several thousand dollars.

The long-term consequences of a DUI conviction include not only possible credit issues (if the various costs involved are paid with borrowed money) but also a criminal record, which may complicate your ability to obtain or maintain housing or employment.

How can I avoid a DUI?


Needless to say, the only sure way to avoid a DUI is by abstaining from alcohol and drugs before you get behind the wheel of a vehicle. Beyond abstention, other alternatives to drinking (and/or drugging) and driving – which, as we have seen, has serious legal consequences (in addition to the possibility that someone will be injured or killed) – include:
    - relying on a designated driver
    - taking public transportation
    - taking a taxi or rideshare (Uber/Lyft)
If while you are already driving you realize that you are “impaired to the slightest degree,” you should carefully steer the vehicle off the road and to a place of safety, where your vehicle will pose no risk to other vehicles (or bicycles) and where other vehicles will pose no risk to you. You then should do your best to make sure that you are not in “actual physical control” of the vehicle, taking into consideration the various factors listed above. (It would be wise, for example, in most situations, to avoid sitting in the driver’s seat with the keys in the ignition and the vehicle’s engine running.)

For more information on DUI, please click on the following links:

Resources and further reading

Arizona Department of Public Safety – “Impaired Driving”: www.azdps.gov/safety/impaired-driving

Arizona Department of Transportation – “DUI”: http://www.azdot.gov/motor-vehicles/driver-services/driver-improvement/dui

Arizona Revised Statutes (A.R.S.) Title 28 Chapter 4 (“Driving Under the Influence”): https://www.azleg.gov/arsDetail/?title=28

National Highway Traffic Safety Administration – “Drugged Driving”: www.nhtsa.gov/risky-driving/drugged-driving

National Highway Traffic Safety Administration – “Drunk Driving”: www.nhtsa.gov/risky-driving/drunk-driving

National Highway Traffic Safety Administration – “The ABCs of BAC: A Guide to Understanding Blood Alcohol Concentration and Alcohol Impairment”: www.nhtsa.gov/staticfiles/nti/pdf/809844-TheABCsOfBAC.pdf

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