If you are ever confronted by the police as a suspect, remember two rules: First, don’t lie. Don’t say anything to the police that is not true. Second, don’t incriminate yourself. Don’t say anything that admits a fact that could cause you to get in trouble. Here’s how this advice plays out in the context of a DUI. If you have been drinking and get pulled over driving a vehicle, the police will ask questions about your drinking. An officer will likely tell you he can smell the odor of an intoxicating beverage and ask how much you have had to drink. The answer is simple and can be stated in a number of ways. Invoke your Fifth Amendment right to remain silent. This can be done by simply stating, “I plead the Fifth.” Alternately, you can state, “I do not want to answer any questions.” When you invoke your right to remain silent, your silence cannot be used against you in court. This means that the officer is not permitted to testify even that he asked the question, let alone that you refused to answer it.
Once an officer has detected the odor of an intoxicating beverage, he will typically ask you to exit the vehicle so he can make sure you are okay to drive. If an officer asks you to exit your vehicle to perform field sobriety tests (including a portable breath test in the field), you should politely decline. If the officer concludes there is enough evidence to suspect that you are driving under the influence, you will likely be arrested, regardless of field sobriety tests. If you are told to exit your vehicle because you are being placed under arrest for DUI, you should exit the vehicle and inform the officer that you want to call an attorney immediately. If the officer does not allow you to call an attorney, your DUI case, in Arizona, will be dismissed. If the officer allows you to make the call, then you should call an attorney who can give you additional advice on what to do.
If the officer has informed you that you are under arrest for DUI, you will be asked to submit to chemical testing to determine your blood alcohol concentration (BAC). If you fail to submit to the test or tests requested by the officer, your Arizona driver’s license or your privilege to drive in Arizona (if you are an out of state licensee) will be suspended for one year. If you agree to the testing and your BAC is over .08, your license will be suspended for 90 days. If you complete a substance abuse screening at an MVD approved facility, you may obtain a restricted permit, which allows you to drive to work, school, medical appointments and probation appointments. Ignition interlock device requirements may apply. At the end of the 90 days, you must pay a reinstatement fee (and complete the screening if you haven’t already) in order to get your license back.
There are a number of different types of DUI in Arizona. DUI with a BAC over .08, Extreme DUI over .15, “Super” Extreme DUI over .20, DUI with Drugs in your system, and Driving While Impaired (by drugs or alcohol) to the slightest degree. If it is a first offense, with a valid license, these are all Class 1 misdemeanors. If your license is suspended (even for a first offense) or if it is a third offense within seven years, it is a Class 4 felony. If there is a child in the vehicle, it is a Class 6 felony.
The minimum punishment for DUI is set by the legislature and is mandatory for a conviction. All DUI convictions require jail time, substance abuse screening, a license suspension or revocation, an ignition interlock device and a fine (between $1,600-$5,000) and community service for repeat offenses. For a first offense, a .08 or Impaired to the Slightest Degree, a conviction carries a sentence of 10 days in jail, with nine days being suspended with substance abuse screening and any recommended counseling. An Extreme DUI brings 30 days in jail reduced to nine with one year of an ignition interlock. A Super Extreme brings 45 days in jail reduced to 14 with an ignition interlock. For a second offense, the jail time increases to between 30 and 180 days and also causes a one-year driver’s license revocation. FBN
By Wendy A. Edwards
Wendy A. Edwards is a partner in the law firm of Aspey, Watkins and Diesel and practices out of both the Flagstaff and Sedona offices. Edwards is active in many non-profit and charitable organizations including service on the Board of Directors of the Flagstaff Symphony and as a volunteer at Hope Cottage. She actively participates in the Flagstaff and Sedona Chambers of Commerce and is a graduate of the Flagstaff Leadership Program.
Contact Edwards at 928-774-1478 or on her mobile phone at 928-380-2162.