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Top 10 DUI Defenses in Arizona

Arizona takes DUI very seriously, and our state has some of the harshest DUI laws in the country. If you are convicted of a DUI, your license will be suspended, and you face mandatory fines and jail time. An experienced Scottsdale DUI lawyer can help you identify unique issues in your case to give you the best defense possible.

Top 10 DUI Defenses in Arizona

Here are some of the best DUI defenses.

1. Violation of the Right to Counsel

The moment that the police stop you for suspicion of DUI, you have the right to remain silent and the right to speak with an attorney. The only thing that you are required to do during the DUI traffic stop is to provide the officer with your license and registration. You do not have to say anything to the officer during this stop or respond to his questions.

A police officer during a DUI stop will usually ask you questions such as “where are you coming from?” “where are you going?” and “did you have anything to drink?” The police are looking for evidence to arrest you, and they are hoping that you say that you are coming from a bar or another harmful statement.

At any point during the officer’s DUI investigation, if you request to speak to an attorney, the officer’s questioning must stop until he allows you to talk to a lawyer. Usually, the police know to stop questioning you if you request an attorney. However, this does not always happen.

If the police violate your right to counsel, this gives you one of the strongest defenses that you can have against a DUI charge.

If the court finds that police violated your right to counsel, it must dismiss the charges against you. In State v. Holland, 147 Ariz. 453 (1985), the Arizona Supreme Court held that dismissal of the charges was the appropriate remedy. The Court reasoned that the DUI defendant’s attorney may have advised him to gather evidence (i.e., by obtaining an independent blood test). Because the defendant did not have the benefit of his attorney’s advice, this impeded his ability to prepare a proper criminal defense, and the court ordered the case tossed out.

2. Inaccurate Breath Test Reading

The Intoxilyzer 8000 is the official breath-testing device in Arizona. Any police agency that uses breath testing devices to measure alcohol in Arizona will use the Intoxilyzer 8000. The Department of Public Safety maintains the intoxilyzers in Arizona, and DPS is supposed to conduct periodic tests on them to make sure they are functioning correctly.

However, numerous errors can occur during a breath test that can skew the results and make the reading inaccurate. Variations in your body temperature during the administration of the test can give a false high reading. There are even some studies that being on the popular Keto diet might affect breath test accuracy. The machines themselves are also subject to a 10% margin of error. In other words, even an intoxilyzer in proper working order can still overestimate a person’s BAC as 10% higher than it actually is.

Depending on the circumstances surrounding the administration of the breath test in your case, an expert criminologist may be able to testify that the breath test readings were inaccurate.

3. Illegal Stop

To lawfully pull somebody over, the police need to have reasonable suspicion that a driver has violated the law. They don’t need to have reasonable suspicion that you have committed a DUI--even a minor traffic violation is enough. Once you are stopped, if the police have reason to believe that you are driving under the influence, they can investigate you for DUI even if that was not the initial reason for the traffic stop.

However, if the police conduct an unlawful stop, they are not allowed to use any evidence of DUI that they discover against. For example, if a defense attorney can show the court the police has no basis to pull you over, then all the evidence the police acquired after the stop is inadmissible. This is what is known as the “exclusionary rule.”

The excluded evidence will almost always include key parts of the state’s case--your performance on the field sobriety tests, any statements you made to the police, and the breath or blood test. With this evidence thrown out, the prosecutor will often have no choice but to dismiss the charges against you.

Sometimes an attorney can use an officer’s “dash cam” footage (which records the officer’s point of view in his patrol car) to show that there was no driving violation.

4. No Probable Cause for Arrest

The police can only arrest you for suspicion of DUI if they have “probable cause.” In Arizona, probable cause means “such a state of facts as would lead a man of ordinary caution or prudence to believe and consciously entertain a strong suspicion of guilt.” State v. Emery, 131 Ariz. 493 (1982).

In other words, for a DUI arrest to be legal, the police must have specific facts to support their suspicion that a suspect was driving drunk. A defense attorney can challenge the police’s claim to have probable cause by showing evidence of the defendant’s sobriety, such as

  • No odor of alcohol
  • No bad driving
  • No Horizontal Gaze Nystagmus (eye check) test
  • No Field Sobriety Tests
  • No speech impairment
  • No balance problems getting out of the car

If the court finds that there was no probable cause for an arrest, a defense attorney can file a motion to suppress any evidence taken after the arrest. If the court grants the motion, it will toss out any evidence gathered by the police after an unlawful arrest. If this includes a blood or breath test, this will severely limit the prosecutor’s ability to move forward with a DUI charge.

5. No Evidence of Driving or Actual Physical Control

For the state to charge you with DUI, the prosecutor must show that you were either “driving” or “in actual physical control” of a vehicle. A.R.S. § 28-1381.

The definition of “driving” is pretty straightforward and it is usually not at issue in the typical DUI case. Typically, a police officer will witness a DUI defendant driving. An issue can arise, however, if the police arrest you for DUI but never observed you driving the car.

For example, the police might approach you for the first time when you are already out of the car. This commonly happens when the police arrive at the scene of an accident. To establish the element of the crime of “driving” the prosecutor will need to introduce evidence to show that you were driving drunk before the police arrived. If the evidence shows that you only started drinking after the accident, this can be a defense to a DUI charge.

A more difficult concept is the notion of “actual physical control.” Jurys often struggle with what this means exactly, and it can prove to be a more challenging case for the state to prove.

The notion of “actual physical control” means, essentially, that you were in control of the car and ready to drive off any minute you felt like it. Sitting in a stopped car with the ignition on and your hands on the wheel is a classic example of this.

The prosecutor will try to try to show evidence that you were in “actual physical control” by such things as

  • Were you in the driver’s seat?
  • Were the keys in the ignition?
  • Was the car running?
  • Was the car in drive?

Sometimes a DUI driver will pull over to the side of the road to try to “sleep it off.” Depending on the exact circumstances, the police might still arrest that driver. To be convicted of DUI, however, the prosecutor would need to show that the suspect was in “actual physical control” of the car at the time of the arrest.

A good DUI attorney can chip away at the state’s evidence to support the argument of “actual physical control” under those circumstances. Furthermore, such cases often have little jury appeal, because some jurors are inclined to “reward” a driver for “doing the right thing” by pulling over. As a result, prosecutors often can have a hard time proving a DUI based on actual physical control.

A defense attorney could negotiate for a favorable plea agreement under these circumstances. He also might secure a not guilty verdict after a trial.

6.Miranda Warning Violation

The police need to give you Miranda warnings before taking you “into custody.” Once in custody, the police must advise a suspect of his right to remain silent, to consult with an attorney, to have an attorney appointed if a suspect cannot afford one, and that anything they say can be used against them.

Prior to that point, however, the police may ask any question that they chose, and the answer will likely be admissible in a trial. But once a DUI suspect is in custody, the state has the burden to show that Miranda rights were given, understood, and voluntarily. Otherwise, any statements a suspect makes are not admissible as evidence.

The court will suppress all statements taken in violation of Miranda.

A defense attorney can evaluate the facts of your case to determine when you were taken “into custody.” Depending on this analysis, you may have a defense under Miranda.

7. Violation of Right to Independent Test

In Arizona, a DUI suspect has a right to get an independent test of his or her BAC during a DUI investigation. The Arizona Supreme Court has ruled that the Arizona Constitution guarantees a DUI suspect’s “fair chance” to arrange for an independent blood test.

In McNutt v. Superior Court, 133 Ariz. 7 (1982), the defendant was denied the opportunity to consult with his attorney to arrange an independent blood test of his BAC. The result of this test could have been helpful to the defense if it showed a lower BAC than the state’s test. But because alcohol metabolizes in a person’s body over time, the missed opportunity to conduct an independent test resulted in potentially crucial evidence being lost forever. The Supreme Court thus held that the state’s actions prevented the defendant from collecting potentially exculpatory evidence. The court said the DUI case must therefore be dismissed.

8. Violation of Implied Consent Law

A breath or blood test is a practical necessity for the state to proceed with DUI charges. The state will rarely if ever bring DUI charges against a defendant without a chemical test of the defendant’s BAC. However, to obtain a chemical test without a warrant, a driver must voluntarily agree to submit to either a breath or blood test.

Arizona has what is known as an Implied Consent Law. This law lets the MVD suspend a person’s driver's license if he refuses to give a breath or blood sample during a DUI investigation. Usually it is a good idea to consent to a test to avoid a long license suspension.

However, if a driver refuses to consent but the police take his blood anyway without obtaining a warrant, the results of the test must be tossed out. This constitutes an unlawful search.

If you have refused a chemical test during a DUI investigation, your attorney will analyze whether the police obtained a lawful warrant.

9. Improper Administration of Field Sobriety Tests

The National Highway Traffic Safety Administration (or “NHTSA”) has developed standardized field sobriety tests that police around the country use in DUI investigations. These tests help police determine whether a suspect has been driving under the influence on roadside conditions. They include such things as the one-legged stand, the walk-and-turn, and the eye check test (called the Horizontal Gaze Nystagmus Test or “HGN”).

However, many officers do not know how to conduct the tests properly. When I was a prosecutor, I even heard of how one of my tee-totaling fellow prosecutors was pulled over by a police officer who then attempted to perform the HGN test on him incorrectly, and my prosecutor colleague had to correct him.

A DUI attorney can cross-examine a police officer on his or her administration and knowledge of the field sobriety tests to expose the results as inaccurate.

10. Police Officer Did not Conduct a Proper 15-Minute Observation Period.

For a breath test to be admissible into evidence in Arizona, the state must show that the police officer conducting the test followed a 15-minute continuous observation period.

This observation period is required because, for the test to be accurate, the Intoxilyzer 8000 must sample the suspect’s deep lung air--called that “alveolar air.” To collect this deep lung air, it must pass through a person’s esophagus and mouth. However, if the DUI suspect eats, drinks, smokes, burps, or vomits before taking the breath test, these things will produce falsely high breath test readings.

The police are supposed to monitor the suspect to make sure that none of this happens for at least 15 minutes before taking the breath sample. But the police often fail to do so properly. For example, they might not notice if the suspect burps or partially regurgitates prior to the test because they are not watching closely enough.

While the police will nearly always testify that they conducted the observation period properly, this is not necessarily the case. A skilled defense attorney can cross-examine the officer to expose weaknesses in his testimony. The attorney may uncover that the officer did not observe the suspect as carefully as necessary to ensure a proper breath test.

Hire an Experienced Scottsdale DUI Attorney

If you have been arrested for DUI, you should speak to a knowledgeable attorney to see if you have any strong defenses. A strong defense may be able to get your charges lowered or dropped.

Call Salwin Law Group PLLC today at (480) 470-6119 to schedule a consultation.

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