You may have seen messages like these on freeways across the Valley: “Drive Hammered, Get Nailed,” “Only Sparklers Should be Lit – Drive Sober” and “Drink and Drive? Meet Police and See New Bars!”

Such messages, often with amusing riffs on current events or pop culture, are posted on ADOT’s dynamic message boards to increase awareness about traffic safety. Whether bold, clever, or tongue-in-cheek, these messages contain an important truth about drinking and driving: in more ways than one, it is a risky business. In fact, Arizona is considered to have some of the toughest DUI laws in the country.

This issue of “From the Bench” provides general information about DUIs in Arizona, including what constitutes a DUI, what evidence can be used, one’s constitutional rights, the mandatory penalties, and how to avoid getting a DUI in the first place (spoiler alert: it’s easy). For legal advice about DUIs or any other topic, please consult with an attorney.

What constitutes a DUI?

DUI means driving under the influence, typically of alcohol or drugs. In Arizona, it is against the law to drive a motor vehicle “while impaired to the slightest degree” by alcohol, drugs, or any combination of alcohol and drugs. Under this standard, one does not have to be “hammered” to commit a DUI.

It is also against Arizona’s DUI laws to be “in actual physical control” (APC) of a vehicle while impaired, even if the person is not driving. For example, an impaired driver may stop at a red light and promptly fall asleep, maybe with their foot on the brake or maybe not, and remain there for some time; such a driver can be charged with DUI for being in APC of the vehicle while impaired.

Arizona also has DUI per se (Latin for “in itself”) laws, which make it illegal to drive while having a blood or breath alcohol concentration (BAC) that is at or above a certain limit. There are three levels of per se DUI in Arizona: Regular (BAC .08 or more); Extreme (.15 or more), and Super Extreme (.20 and above), each with increasingly higher mandatory penalties. The DUI per se laws likely originated in what is known as “universal impairment,” the scientific principle that at a BAC of .08, everyone – regardless of age, sex, alcohol tolerance, physical condition, or drinking history – is impaired to at least the slightest degree. With a BAC charge, the State does not have to prove impairment.

A person can also be charged with DUI based on drugs. The DUI drug laws apply whether the drug is legal or illegal, and even if it has been prescribed. If the drug is legal or was prescribed to the driver, the State would have to prove that it impaired the driver to the slightest degree. Otherwise, the State need only prove that the drug was in the person’s body.

Some people are surprised to learn that one can commit a DUI while taking their prescribed medication. But when the effects of certain drugs are considered – narcotic painkillers and sleeping pills, for just two examples – it makes sense for the safety of everyone. While people should take their medications as prescribed, if the drug is one that may impair to the slightest degree (something that should be discussed with one’s health care provider), they should not drive while it is in their body.

Arizona’s DUI penalties

The legal penalties for a DUI conviction are significant. In Arizona, jail is mandatory. For a first offense misdemeanor, the minimum jail is either 10, 30, or 45 days, depending on the person’s BAC. For a second such DUI within 7 years, the minimum jail is 90, 120, or 180 days (again, depending on the BAC). While a person may be eligible for home detention or suspension of some of the jail time, a certain number of days must be served in jail.

A DUI conviction is also expensive. The mandatory minimum fines, fees and assessments range from about $1,500 for a regular first offense DUI, to about $4,600 for a second Super Extreme DUI. One must also pay for the mandatory alcohol or drug program, jail costs, home detention costs, restitution for economic loss sustained by any victim, installing and maintaining the required interlock device, traffic survival school, and any attorney’s fees. MVD will also suspend or revoke the person’s license.

Can a 'first DUI' be a felony?

Yes. Even if a person has never had a DUI, there is no guarantee that a first offense will result in misdemeanor charges, with the potential maximum jail sentence of six months. If there are aggravating factors, one may be charged with a felony, with the possibility of years or even decades in prison.

For example, a first offense DUI for a driver alone in the vehicle, with no accident, personal injury, or property damage, is often charged as a misdemeanor. But that exact scenario can result in felony charges for an Aggravated DUI if it is committed while someone under the age of 15 is in the vehicle; while the person’s license is suspended or revoked; or while they were driving the wrong way. A DUI is also a felony if the person’s license is restricted due to a prior DUI, or they were required at the time to have a certified ignition interlock device on the vehicle.

Perhaps most sobering is the fact that drinking and driving may contribute to an accident which results in serious injury or death. If a death occurs, a DUI driver may be charged with manslaughter, negligent homicide, or second-degree murder, even if they have never had as much as a speeding ticket in the past.

What evidence is used to prove a DUI?

A DUI arrest may start with a civil traffic violation, such as speeding, a cell phone violation, weaving in the lane, or anything else. Once the officer contacts the driver – even if they were pulled over simply because a taillight was out – the officer may note aspects of the person’s demeanor and presentation that might be attributed to alcohol or drug use.

For example, is there an odor of alcohol or drugs, is the person’s speech slurred, are their eyes bloodshot? Are they able to follow instructions (provide a license and other documents as requested) and answer basic questions while doing so? Is there evidence of alcohol or drug use in view? If the driver is asked to get out of the vehicle, do they do it just fine, do they stumble or hang on the car door, or something in between? And once out of the vehicle, how is their balance?

While none of these or other things the officer may note are conclusive, and there may be other reasons for what the officer is seeing, if the driver is ultimately arrested for DUI then all of those observations may be considered by the jury.

While still at the scene of the traffic stop, if the officer suspects DUI they may ask the person to submit to field sobriety tests (FSTs), such as the Walk and Turn and the One Leg Stand. These and other FSTs were developed and standardized by NHTSA, the National Highway Traffic Safety Administration. The FSTs are used to test one’s ability to divide their attention – that is, to complete a physical task and a mental task at the same time – since driving is a divided attention task. If the officer is certified, they may conduct an eye test known as HGN, or Horizontal Gaze Nystagmus. They may also ask the driver to submit to a preliminary breath test, which may indicate alcohol consumption.

If the totality of the circumstances establishes probable cause to believe the person was driving while impaired by drugs or alcohol, or is over the legal limit, the officer may arrest the person for DUI.

After the arrest, police will ask the driver to submit to a breath test or blood draw (sometimes both), to determine their BAC. Under Arizona’s “implied consent” law, one who drives a vehicle in Arizona is deemed to have given consent to a chemical test to determine BAC. The driver has the right to consult with an attorney before submitting to the test, so long as it does not interfere with the DUI investigation.

While a person has the power to refuse to submit to the breath test or blood draw, they do not have the legal right to do so. One who refuses may lose their

driver’s license for a year simply for the act of refusing. And the refusal is usually not the end of it: the officer can apply for a telephonic search warrant from an on-duty judge to get the evidence anyway. If a search warrant is granted, police can draw the person’s blood even though they said no or continue to refuse.

Constitutional rights in a DUI case

It is important to know that in any DUI – from the traffic stop to the investigation to the resulting court proceeding – one has constitutional and statutory rights.

Among their constitutional rights, a defendant in a criminal case has the right to remain silent, to not incriminate oneself, to gather and present evidence in their own behalf, to cross examine the State’s witnesses as to the truthfulness of their testimony, and to be presumed innocent unless or until the State proves guilt beyond a reasonable doubt. In any DUI, one has the right to a trial by jury.

And, as in every criminal case, one has the right to be represented by an attorney at all stages of the proceeding. If the defendant cannot afford to hire an attorney, the court will appoint one for them, at a reduced cost or at no cost.

In Surprise City Court, at the defendant’s first court appearance (typically, the arraignment), the judge will advise the defendant of their constitutional rights. The Court also provides an experienced criminal defense attorney at the arraignment, to serve as advisory counsel at that time. The defendant will hear the terms of the State’s plea offer and can consult with the advisory defense attorney before deciding how they wish to proceed. The defendant may ask the Court to formally appoint a criminal defense attorney for them; may choose to resolve their case by accepting the State’s plea offer; or, if they wish to consult with their own attorney or simply want more time to consider their options, may get a new court date.

Whatever decision the defendant may make at their arraignment, the judges of Surprise City Court are committed to presiding over the case fairly, impartially,

and respectfully, honoring the defendant’s constitutional and statutory rights throughout the proceeding.

How to avoid getting a DUI

Alcohol and many drugs are substances that impair a person’s ability to safely operate a motor vehicle – whether in their reasoning, reaction time, vision, hearing, muscle coordination, motor skills, concentration, judgment, or all of the above. Studies also show that impaired drivers cannot accurately assess their own impairment.

And yet, there is good news: getting a DUI is entirely preventable. As NHTSA’s literature says, being a responsible driver “… is simple: if you are drinking, do not drive.” No matter what your plans, it is always a good idea to plan your safe ride home before you even go out - keeping in mind, of course, that “a designated driver is NOT the person who drank the least.”

With the substantial direct and collateral consequences that a DUI arrest or conviction can entail, why take the chance? Instead, “Be wise, Surprise – don’t drink and drive.”

Editor’s Note: Judge Catherine Gaudreau is the associate judge of the Surprise City Court.