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A.R.S. § 28-1382: Driving or Actual Physical Control While Under the Extreme Influence: BAC of .20 or More

Introduction

Arizona is known to have extremely strict and dynamic DUI laws. At its base, there are four ways an individual can commit DUI found in Arizona Statute § 28-1381. From there, a number of factors can affect the punishment, sentencing, and gravity of the crime. First, an individual must have been driving or was in actual physical control while in the state of Arizona and have committed one of the following:

1. The person was under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substance if the person is impaired to the slightest degree.
2. The person has a blood alcohol concentration (BAC) of .08 or more within two hours of driving.
3. The person had any drug defined in A.R.S. 13-3401 or its metabolite in the person’s body.
4. The suspect vehicle is a commercial motor vehicle that requires a commercial driver license (CDL) and the person has a BAC of .04 or more.

Super Extreme DUI

In a separate statute, Arizona has created a law that hands down harsher punishment the higher the blood alcohol concentration is. Arizona Statute § 28-1382 defines what is known as Extreme DUI and Super Extreme DUI:

A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state if the person has an alcohol concentration as follows within two hours of driving or being in actual physical control of the vehicle and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle:

1. 0.15 or more but less than 0.20.
2. 0.20 or more.

Under this statute, having a BAC of .15 or more but less than .20 is considered an Extreme DUI and having a BAC of .20 or more is considered a Super Extreme DUI. While the differences are a matter of a hundredths of a decimal, the consequences can be severe.

Super Extreme DUI Penalties and Consequences

First-Time Offense

Super Extreme DUI is classified as a class one misdemeanor in Arizona. The jail time for a first-time Super Extreme DUI offense is a minimum 45 consecutive days in jail. However, if the driver installs an ignition interlock device, up to 31 days of the sentence may be suspended so that the driver could potentially only serve 14 days in jail. For this offense, the driver will be required to equip a certified ignition interlock device for a mandatory 1-year term. Additionally, the court will impose a minimum of $2,750 in fines, require completion of a traffic survival school course, and may require community restitution.

Second DUI Offense

Just like punishing offenses with higher BAC levels, Arizona has laws that punish subsequent DUI offenses. If a driver is charged with Super Extreme DUI and has any DUI within the past 84 months (7 years), whether a regular, extreme, super extreme or aggravated DUI, the penalties become more severe. This includes a DUI conviction in Arizona or a DUI conviction in another state that would have been a DUI in Arizona had it occurred here.

For a second DUI offense that is charged as a Super Extreme DUI, a driver faces a minimum 180 consecutive days in jail with up to 90 days that can be suspended. The court will impose no less than $3,750 in fines, require 30 hours of community restitution, and require completion of a traffic survival school course. The court will also revoke the driver’s driving privilege for at least one year, however, this may be reinstated to a special ignition interlock restricted driver license status after 45 days of revocation if the ignition interlock device is installed.

Third DUI Offense

For a third DUI offense with any BAC level .08 or above that has been committed within 84 months, or 7 years, of the previous two offenses, a driver will be charged with Aggravated DUI. An Aggravated DUI charge requires probation with a mandatory 4-month prison term. Most concerning, Aggravated DUI is a felony offense with harsher fines and fees, probation terms, and future consequences.

Offenses Outside of 84 Months

The dates the driver committed DUI is the date used in tolling the time for the 84-month period. So, if a driver was pulled over for DUI on January 1st, 2010 and was later charged and convicted of DUI either by taking a plea deal or being found guilty at trial, the key date would be January 1st, 2010. Any subsequent DUI committed between January 1st, 2010 and January 1st, 2017 would be charged as a second DUI offense. Any DUI that occurs on January 2nd, 2017 or after would restart the tolling time for the harsher, second DUI offense penalties. However, while a prior DUI may fall outside of the 84-month period, the state and prosecutor will most likely still use the prior DUI conviction at sentencing to argue that the driver has not learned his lesson and should not receive a lenient sentence.

Driving and Actual Physical Control

An important element in the DUI statute requires that a person “drive or be in actual physical control of a vehicle.” Whether or not a person was driving relies heavily on witness observation and testimony of the suspect driving. Because most DUI’s occur after a collision or traffic stop, there is sufficient testimony, whether by a witness or an officer, to show the suspect was driving. However, there are certain cases where an individual was never seen driving but is still charged with DUI. In many of these cases, the suspect is either asleep in the driver’s seat, parked and off the side of the road, or other circumstances similar to this. When this is the case, the state must show that the suspect was in actual physical control (APC) of the vehicle. The jury will make this determination and the following jury instruction given at trial will be what guides them:

In determining the defendant was in actual physical control of the vehicle, you should consider the totality of circumstances shown by the evidence and whether the defendant's current or imminent control of the vehicle presented a real danger to [himself] [herself] or others at the time alleged. Factors to be considered might include, but are not limited to:

1. whether the vehicle was running;
2. whether the ignition was on;
3. where the ignition key was located;
4. where and in what position the driver was found in the vehicle;
5. whether the person was awake or asleep;
6. whether the vehicle's headlights were on;
7. where the vehicle was stopped;
8. whether the driver had voluntarily pulled off the road;
9. time of day;
10. weather conditions;
11. whether the heater or air conditioner was on;
12. whether the windows were up or down;
13. any explanation of the circumstances shown by the evidence.

This list is not meant to be all-inclusive. It is up to you to examine all the available evidence and weigh its credibility in determining whether the defendant actually posed a threat to the public by the exercise of present or imminent control of the vehicle while impaired.

RAJI (Criminal) NCSTI 28.1381(A)(1) (4th ed.)

There are a number of defenses and challenges a suspect can raise during the process after being charged with Super Extreme DUI. Whether it is challenging the validity of the stop, the administration of any of the field sobriety tests, or the procedure of obtaining a warrant or fighting for better terms of a plea deal, an experienced attorney will navigate this process with you.

At Tucson DUI Lawyer, you get top-notch representation with personable communication - call today.