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Possible Defenses for DUI Cases

In Arizona, DUI cases carry tough penalties even at the misdemeanor level. These are serious charges and require a skilled DUI defense attorney to help fight your case. With no prior convictions, a defendant convicted of a regular DUI or DWI must serve a mandatory minimum 10 days in jail (though 9 can be waived once an alcohol screening that the defendant pays for has been completed). On top of jail time, first time DUI convicts must take recommended classes that can cost up to $500 out of pocket on top of the minimum fine of $1,537. Those convicted will also have to have an “Ignition Interlock Device” installed into their vehicle for the year following their conviction and also face a maximum punishment of 6 months in jail.

In light of these severe consequences, it is important for citizens to understand the defenses that their attorney might use in these cases, as well as the rights they have upon being stopped. Knowing how to approach a DUI arrest can make the difference in being convicted or having your case dismissed. Additionally, it is important to note that all DUI defendants have the right to be heard by a jury trial in Arizona as of 2012.

The first type of defense we’ll look at concerns whether the officer has probable cause to make the arrest. If the officer does not have probable cause that the person was under the influence then the arrest is dismissed. Most commonly, this defense will be used by an attorney in cases where Field Sobriety Tests were improperly administered. There are guidelines that officers must follow that are set by the National Highway Traffic Safety Administration. Some possible ways they can be broken include someone participating in certain tests that fit the following criteria: having hip, leg, knee, back, or ankle injuries, having a disability that affects one’s balance, wearing 2 inch or higher high heels, or being more than 50 pounds overweight.

Some Field Sobriety Tests also require a certification to perform them that certain officers may not have at the time of administering them. They will then be made null and the case can be dropped. This happens with the Horizontal Gaze Nystagmus Test or “Eye Test” which requires certification. Also, if the only probable cause an officer has is that they refused to participate, then the arrest is invalidated.

A second defense used in these cases is called “No Actual Physical Control.” This is when someone is arrested for a DUI but was not driving at the time of the arrest. At first glance this makes almost too obvious sense and you’d wonder why someone would be arrested for a DUI if not driving the car. However, there is one key example where this defense would be used. Say someone drank over the legal limit and pulled over to sleep off their inebriation. The AC may be running and the engine as well and an officer could arrest for a DUI. In this case though, because the defendant wasn’t in physical control of the car at the time, the case would be dismissed, as the car is essentially parked.

Another common defense in DUI, DWI, and Extreme DUI cases is called “No Reasonable Suspicion to Stop.” Officers in Arizona cannot detain someone without having reasonable suspicion that they were breaking a law. If it can be proven that there was no reasonable suspicion, and the officer was discriminating based on some consideration of race, gender, age, religion, etc. the case may be dismissed because they were not pulled over for suspicion of doing something illegal.

Occasionally, defenses can use the “Denial of Right to Counsel” defense. In Arizona, police must give the defendant access to a DUI lawyer if requested. As soon as they make the request, police must give them access to a phone as soon as is reasonably possible so they can discuss the steps to take in their case. If arrested for a DUI, it is recommended that you make this request immediately and speak to a DUI attorney as soon as possible. If this request is denied or drawn out too long, the case will likely be dismissed entirely.

The breath test is a key field test in DUI cases. Oftentimes defenses can be built around some sort of violation of the guidelines that the Arizona Department of Health Services made for the proper usage of these devices. Notably, every 31 days they have to be calibrated within 10% accuracy and also go through a Standard Quality Assurance Procedure every 90 days. The procedure has seven checks within it, and if any of the 7 are considered “out of tolerance” then all the tests done by the particular machine since the last check will be thrown out. The defense team will have to ask this question, as the prosecution will do their best to make sure it doesn’t come up.

Another piece of the breath test defense is the use of “Retrograde Extrapolation” which can be done to show that a person had a lower BAC when driving than when they were tested. This occurs in cases where the person drank right before getting in the car and it hadn’t hit their bloodstream yet. A hypothetical scenario could see a 150 pound man drinking 3 beers before leaving a bar, getting arrested while driving home and taking a BAC test an hour later. Over the course of that hour, the alcohol will enter into the bloodstream, causing him to blow a higher BAC than he actually had while driving. The defense can do this calculation to potentially get the case dismissed.

Finally, more general defenses can be used as well and are important to consider. A good defense team will always check to see if a Miranda Rights Violation occurred by showing that police coerced the defendant into self-incrimination or failed to read them their rights during the arrest.

Carlos L. Williams

About the Author Carlos Williams & Associates, PLLC is a firm that services the Oklahoma
community. Over the years, we have demonstrated our skills and expertise
as a leading single source for legal support throughout Oklahoma.

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