Criminal Defense Lawyer

Common Misconceptions About DUI

Driving Under the Influence (commonly known as DUI) is one of the most misunderstood crimes on the books. After arresting impaired drivers for several years, prosecuting them for a couple more, and now, having defended them for seventeen years, I have come to appreciate that the average law-abiding citizen has no clue as to what gives rise to a DUI violation and, more importantly, just how serious the consequences can be. While, obviously, some of my criminal defense clients could easily be labeled as “bad,” more often than not, my DUI clients are in reality very good people who just did something stupid.

I. The Flavors of DUI.

In order to help erase the common misconceptions about DUI, we must first review the DUI statute. There are three basic ways to violate Arizona’s DUI laws: 1) Be impaired by alcohol and/or drugs; 2) Have a blood alcohol content that is over the legal limit; or 3) Have certain drugs in your system.

A. The Impaired Driver.

This type of DUI has been around the longest so I refer to it as “old-fashioned DUI.” Simply put, if you voluntarily ingest anything in your body (alcohol, drugs or any combination of the two) and it affects your ability to safely drive a motor vehicle then you are guilty of DUI.

Each one of us has a unique tolerance level to alcohol. Someone who drinks on a regular basis can consume high volumes of alcohol and show no outward signs of impairment. A first-time drinker may only consume one beer and yet seem plastered.

As a result, for an old-fashioned DUI, the chemical test is not that important, while the driving pattern and field sobriety tests are the most damaging prosecution evidence. For example, a conviction is almost certain under old fashioned DUI whenever the arresting officer describes any of the following frequently seen conduct:

• A driver that is stopped at a green light; or
• A driver that has bounced off the curb several times, or
• A driver that cannot recite the alphabet without singing it.

All these behaviors (and many others too numerous to list) will make a jury believe that the defendant had motor and mental skills that were impaired. Thus, in old-fashioned DUI, people are routinely convicted when their blood alcohol content was less than the legal limit, or where there was no blood test at all.

B. The “Over the Legal Limit” Driver.

Even if one is not impaired by the alcohol in his or her system, Arizona, like most states, has a clearly defined alcohol line that a driver cannot cross. This line is defined by the amount of alcohol in the body and is called the “blood-alcohol content” and is commonly written as “BAC.” In Arizona, any BAC in excess of 0.08% is a violation of the traffic code. (A BAC of 0.08% simply means that for every thousand drops of blood in your system, you cannot have more than eight drops of pure alcohol.)

Lack of a driving pattern or excellent results on field sobriety tests are no defense to a BAC prosecution. This violation lives or dies on the chemical test. Most cities in Maricopa County now have their own in-house labs that specialize in testing blood for its alcohol content. While breath testing machines have some small margin for error, the modern equipment that tests a defendant’s blood are very precise and provide a test result that is computed to the third decimal point.

C. The DUI/Drugs Driver.

Consuming any legal drug that impairs your ability to drive, or ingesting any illegal drug and driving will violate this subsection of the DUI statutes. The prosecution does not have to prove a certain legal level nor does the evidence have to show you were impaired. The DUI/drug subsection is a ZERO TOLERANCE statute. Consequently, as with the BAC violation, the chemical test is the key piece of evidence the prosecution possesses. Urine tests are the most common method of demonstrating that a person had drugs in their system.

II. The Major Misconceptions

Now that you understand what constitutes a violation of the DUI statutes, we can review and dispel the common misconceptions.

Misconception #1 – You have to be “fall-down” drunk to be DUI.

Our routine body chemistry can fluctuate based on variations in our daily lifestyle. For example, someone who has developed a generally high tolerance to alcohol can be impaired by a small amount if he or she is suffering from sleep deprivation, or is mixing alcohol and prescription pain-killers.

Even more importantly, one need not consume huge amounts of alcohol to exceed the legal limit of 0.08%. A man weighing 150 pounds will be at 0.08% after just three beers. Drink something with a higher alcohol content than beer (like rum, tequila, or vodka) and you will quickly find yourself over the legal limit.

Misconception #2 – A valid prescription is a “Get Out of Jail Free” card.

A large number of common depression and sleeping medications contain substances that slow-down the central nervous system and make one an impaired driver. Common prescriptions for adult ADHD are highly powerful stimulants.

In spite of the brightly colored sticker on the prescription bottle, some are quick to blame their doctors or their pharmacists for not emphasizing that they should not take their medication and drive. Such blame transferal (even when true) is never a defense to DUI.

Misconception #3 – First time offenders never do jail time.

Let me be clear: ANY VIOLATION OF THE DUI STATUTES INVOKES MANDATORY INCARCERATION! (Sorry I screamed, but this is important!) Every year, dozens of hard-working, tax-paying, first-time clients are in shock and awe when I tell them they must be incarcerated for their first DUI arrest.

While it is true that an “impaired driver” violation or a BAC just barely over 0.08% only mandates twenty-four hours in the county jail, most people who visit my office do not want be incarcerated for even one day. Repeat offenders, however, must be sentenced to much longer periods (thirty days, sixty days, or in some cases longer, depending on the specific facts).

The even harsher reality is that most first-time offenders in Arizona have a much higher BAC than 0.08%. That is why Arizona invented the “Extreme DUI” statute a few years ago. First time offenders with a BAC over 0.15% must do ten consecutive days in jail. And even though the courts commonly permit DUI defendants to only spend nights and weekends in jail (commonly known as “work release”), once again I know of no one who enjoyed going to jail for ten days, (especially when they had to pay for the privilege at a higher rate daily than most decent motels).

Just recently, as of September 2007, Arizona has a new subsection to the Extreme DUI violation. If your BAC is over 0.20%, then, for a first offense, you must be sentenced to forty-five (45) consecutive days in jail.

And yes, even juveniles who violate the DUI statutes are locked up. While juveniles are not sent to adult jails, teenagers who violate the DUI statutes for the first time are sentenced to time in a juvenile detention facility.

Misconception #4 – If I happen to be DUI in an accident, the consequences will not increase because I did not intend to hurt anybody.

DUI is a non-intent crime. The State does not have to prove an evil and black heart. Even if you are lucky enough to stay in misdemeanor court, criminal courts often punish the result, not the intent. Every prosecutor and every judge I have ever met always increases the punishment when an innocent person gets hurt. The lowest level of DUI is a class one misdemeanor. All the jail times we have previously discussed are only the mandatory minimums. The maximum penalty for a class one misdemeanor is six months!

If your DUI accident does serious injury (for example, you turn left in front of a little old lady and break some bones or you put a small child in the hospital), regardless of how low your BAC was, the State will almost certainly charge you with felony aggravated assault. The law presumes that anyone who drinks and gets behind a steering wheel is being reckless in their conduct. Thus, you do not have to intend to hurt anyone. Felony aggravated assault is usually charged when guns and knives are involved but cars can also be used as deadly weapons. Felony aggravated assault carries a minimum sentence of five years in prison. (These initial client consultations are usually accompanied by smelling salts and a full box of tissues.)

III. Conclusion.

DUI is a common crime often committed by good people. Jail time is mandatory and the number of days increases dramatically if you have a high BAC or are a repeat offender. And just because your doctor prescribed that sleeping pill or that anti-depressant, you can still violate the law if you take a prescription medication that impairs your motor skills.

This article has not attempted to detail the financial consequences of a DUI, which are substantial. In addition to the basic fines, there are additional huge assessments to train cops, to build more prisons, and to install and maintain an interlock device. And while not ordered by the court, for the next couple of years, your car insurance premium, will absolutely blast into the stratosphere.

The smartest people in life tend to learn from the mistakes of others. After seventeen years, I have never met a DUI client who enjoyed the experience.

Mr. Strong is a former police officer whose practice, since joining the firm in 1990, has focused on criminal defense. Mr. Strong travels throughout the state and routinely appears in the courts of every county in Arizona. Mr. Strong has also successfully argued cases before the Arizona Supreme Court.