Phoenix DUI Law Blog

January 14, 2020

What Is Retrograde Extrapolation in an Arizona DUI Case?

When someone consumes alcohol, their blood-alcohol content (BAC) will increase over time, before it starts to decrease as the alcohol dissipates from their blood. For many Arizona DUI offenses, the prosecution must prove that the defendant’s blood was above the legal limit. Thus, police officers will often try to take a driver’s blood as quickly as they can; however, in some cases, a driver’s blood is not taken until a later time. Typically, blood must be drawn within two hours of the time when the defendant was driving.

Recently, a state appellate court issued a written opinion in an Arizona DUI case discussing a process called “retrograde extrapolation” by which a chemist can estimate what a person’s BAC was at a specific time by looking at what their BAC was at a later time. The process is used by prosecutors to estimate what a defendant’s BAC would be at the time they were driving. Prosecutors will especially rely on this technique when they were unable to take a defendant’s blood within the two-hour time frame

According to the court’s opinion, witnesses observed the defendant get into a car accident between 4 and 6 p.m. After the accident, the witnesses noticed that the defendant smelled of alcohol and seemed off balance. Police officers arrived on the scene at 8 p.m, and the defendant’s blood was taken at 9 p.m. The results indicated that the defendant’s BAC was .336. Because the defendant’s blood was not taken until between three to five hours after the accident, prosecutors called an expert witness to explain the concept of retrograde extrapolation, and provide the jury an estimate of the defendant’s BAC at the time of the accident.

December 26, 2019

The Right to a Jury Trial for Arizona DUI Offenses

by James E. Novak, P.L.L.C.

The United States and Arizona Constitutions each provide the citizens of Arizona with many important rights when they are charged with a crime. As a matter of constitutional law, the protections provided by federal law act as a floor, meaning that states cannot offer their citizens fewer rights. However, states can choose to provide citizens with additional rights through a state statute or constitution.

In the case of the right to a jury trial, the Sixth Amendment to the U.S. Constitution provides that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Since the ratification of the Bill of Rights, this has been interpreted to mean all defendants facing charges of “serious” crimes.

Many states have abolished the distinction between serious and non-serious crimes when it comes to the right to a jury trial, and they allow for all defendants to demand a jury trial, regardless of the seriousness of the charge that they are facing. However, while Arizona state law provides some additional protections for criminal defendants, state law does not allow jury trials for all defendants.

December 6, 2019

Are Arizona Breathalyzer Results Accurate?

by James E. Novak, P.L.L.C.

Getting pulled over for a DUI is a terrifying experience. While each Arizona DUI arrest is different, one of the more common ways police officers arrest someone for driving under the influence of alcohol is to tell the driver that they are suspected of DUI and to conduct a roadside breath-alcohol test. Police officers must articulate some basis for requesting a breath test, however, the officer’s subjective belief that a driver is under the influence will often be sufficient. Obviously, introducing this type of subjectivity raises concerns that can be addressed in pre-trial motions to suppress.

Putting the validity of the traffic stop aside for the moment, once an officer determines that a driver is potentially intoxicated, the driver is asked to blow into a tube that is connected to a small machine. The machine analyzes the alcohol content in the driver’s breath, and returns a number that represents an approximation of the person’s blood-alcohol content (BAC). In Arizona, the legal limit is a .08 BAC.

For those unfamiliar with the process, it may seem that once a result above .08 is returned there is no defense and the only option is to plead guilty. The reality is that most people who are arrested for DUI end up pleading guilty to negotiated or reduced charges because it is easier and quicker than taking the case to trial where, if they are found guilty, they may face a more serious sentence. However, if challenged, the prosecution must be able to prove that the machine used to administer the test was accurate, properly calibrated, and correctly used by the police officer.

November 19, 2019

Can Arizona Law Enforcement Force a Motorist to Take a Blood Test?

by James E. Novak, P.L.L.C.

Seeing the red and blue lights of a police cruiser in the rear-view mirror is among the worst fears for many motorists, especially those who have had a few drinks. Part of what makes getting pulled over for an Arizona DUI so nerve-wracking is the knowledge gap between police officers who do this every day, and motorists who may have never been pulled over before. Learning about motorists’ rights, and the procedure that police must follow when executing an Arizona DUI stop, may put some of these anxieties to rest.

One of the most common questions is whether a police officer can require a motorist to give their blood for a blood test. The short answer is no, however, the question is really more complicated. By obtaining an Arizona driver’s license, motorists agree to consent to blood testing at the request of police. This is referred to as implied consent. However, police officers cannot physically require a person to submit to a blood test.

Thus, under Arizona DUI law, all motorists agree to undergo testing at the request of police. However, if a motorist refuses testing, the police cannot physically force them to give blood. The only way that police can physically force a suspect to give blood is if they obtain a warrant. However, in practice, warrants are rarely obtained in DUI cases.

November 11, 2019

Arizona Law Enforcement Stepped Up DUI Enforcement Over Halloween Week

by James E. Novak, P.L.L.C.

According to a recent news report, Arizona law enforcement agencies stepped up their DUI enforcement efforts over Halloween week in an attempt to curb the number of Arizona DUI cases. The statistics from the enforcement effort have not yet been released; however, last Halloween, there were a total of 364 Arizona DUI arrests made over the Halloween holiday. This figure was down significantly from 2017, in which there were 447 DUI arrests on Halloween.

In the recent article, a spokesperson for the Governor’s Office of Highway Safety encouraged everyone to have a good time, which, he acknowledged, may involve consuming alcohol. However, he urged those who drank alcohol to take an Uber, Lyft, or some other form of transportation rather than get behind the wheel.

The period beginning on Halloween and going through the New Year is a time when law enforcement is out in droves searching for those who are driving under the influence. While motorists are advised to arrange for alternate transportation when they have had too much to drink, it is also vital they understand their rights when there is an increased police presence on the road.

October 29, 2019

What Are the Differences Between the Arizona DUI Offenses?

by James E. Novak, P.L.L.C.

In Arizona, DUI law can be quite complicated. One reason for this is that there are several different Arizona DUI laws on the books, and the differences between each of the offenses is not necessarily apparent. Starting with the least serious, the most common drunk driving crimes in Arizona are as follows:

Misdemeanor DUI: Most first and second DUI offenses are considered misdemeanors under Arizona law. Typically, a misdemeanor DUI requires the prosecution to prove that a motorist’s blood-alcohol content (BAC) was at least 0.08%, or that they had a controlled substance in their system. However, DUI convictions can be sustained on evidence that a driver was “impaired to the slightest degree,” even without a blood or breath test. Even for a first-time DUI arrest, the consequences of a conviction can be severe, and typically include:

At least one day in jail;

October 14, 2019

Arizona Appellate Court Rejects Defendant’s Claims on Appeal, Affirming Conviction

by James E. Novak, P.L.L.C.

Earlier this month, a state appellate court issued a written opinion in an Arizona DUI case affirming the defendant’s conviction. The case required the court to determine if police were required to obtain a warrant before taking the defendant’s blood. Ultimately, because the defendant gave his consent for the blood draw, the court determined that no warrant was necessary.

Consent is one of the primary ways that law enforcement officers are able to take a motorist’s blood. Under the state and federal constitutions, police officers need to have a warrant before they can conduct a “search” of a person. Courts have held that a blood draw constitutes a search, and thus, police officers need to obtain a warrant before taking a blood sample. However, no warrant is necessary if a motorist provides their consent to the blood draw. And given the administrative penalties associated with refusing to comply with a request for a blood draw, many motorists end up consenting to a blood test.

Providing consent to an Arizona blood draw can raise several issues. Most importantly, consent must be validly given to be effective. In other words, police cannot coerce a motorist into giving their consent by making threats. Additionally, even if a motorist gives consent, they are allowed to change their minds and revoke consent at any time. If consent is revoked, then the police officers must go through the proper channels to obtain a warrant. Notably, the U.S. Supreme Court has recently issued some important decisions which made some significant changes to this area of the law.

September 25, 2019

How the Legalization of Marijuana May Affect the Enforcement of Arizona DUI Laws

by James E. Novak, P.L.L.C.

Over the past decade, there has been a shift in society’s attitude towards marijuana. As a result, many states have legalized medical marijuana, decriminalized possession of a small amount of marijuana, and even legalized recreational use of marijuana. According to a recent news report, a 2020 ballot initiative in Arizona seeks to legalize recreational use of marijuana. Often, this raises questions about how Arizona DUI law will be impacted.

Under the new ballot initiative, recreational marijuana would be legalized for adults over the age of 21. The law would regulate where cannabis could be smoked, and also continues to make it illegal to operate a vehicle, boat, or airplane while “impaired even to the slightest degree.”

How the criminal justice system answers the question of when someone is “impaired” by marijuana is going to be critical to the fair enforcement of the state’s DUI laws. Even for a casual smoker, marijuana can stay in their system for weeks after use. However, any mind-altering effects of the drug wear off after just a few hours. Thus, it is possible that someone could smoke marijuana at night, get up to go to work, get pulled over on the way for an unrelated traffic offense, and be arrested for DUI. Certainly, this is not the intent of lawmakers who hoped to allow the responsible use of marijuana and only criminalize those who drive while actually impaired.

September 12, 2019

Types of Field Sobriety Tests Used by Arizona Law Enforcement

by James E. Novak, P.L.L.C.

When a police officer pulls someone over for suspicion of driving under the influence of alcohol or drugs, the officer may perform field sobriety tests (FSTs) on the driver before administering a breath or blood test. Officers use field sobriety tests to determine, in their opinion, whether someone is intoxicated. If the officer believes that a driver is impaired, they will then likely conduct a blood or breath test. However, blood and breath tests require that the officer have probable cause to believe that the motorist is intoxicated. Thus, FSTs are a tool police officers use to develop probable cause. There are three common types of Arizona field sobriety tests, described below:

The One-Legged Stand Test: In this FST, an officer will instruct a driver to stand up straight while raising one foot about six inches off the ground. After a few seconds, the officer will then tell the motorist to place their foot back on the ground. The officer is looking for whether the driver loses their balance, uses their arms to keep themselves up, or fluctuates the height of their raised foot.

The Walk-and-Turn Test: For this FST, the officer asks the driver to take nine steps forward, heel-to-toe, before turning around and coming back the same way. This FST tests a motorist’s ability to follow instructions, as well as their balance. Aside from signs of imbalance, cues of intoxication include when drivers take the incorrect number of steps, are unable to negotiate the turn, or otherwise fail to follow the instructions.

August 28, 2019

Can Arizona Police Use Blood Drawn for Medical Purposes to Check for Drugs or Alcohol?

by James E. Novak, P.L.L.C.

The admissibility of blood-test evidence is currently a hot topic in DUI law, with the United States Supreme Court deciding three cases on the subject in the past few years. Often, the issue that comes up in these cases is whether the police officers were able to legally obtain a blood sample based on the surrounding circumstances. Earlier this month, a state appellate court issued a written opinion illustrating police officers’ ability to obtain a blood sample that a nurse took from the defendant for medical purposes.

According to the court’s opinion, a state trooper stopped the defendant for following too closely and failing to stay within his lane. While the trooper was interacting with the defendant, he noticed a smell of alcohol on the defendant’s breath, and that the defendant’s eyes were bloodshot. When asked, the defendant admitted to having two drinks, and also that his license was in suspension.

The trooper asked the defendant to get out of the car and performed a series of field sobriety tests. Ultimately, the trooper concluded that the defendant was under the influence of alcohol and arrested him for DUI. Another trooper arrived on the scene, and the two discussed bringing the defendant into the station for a breath test. During this conversation, the defendant called for medical assistance because he was having a heart attack and a seizure.