Phoenix DUI Law Blog

October 28, 2022

Refusing a Breath Test on the Road: What Are My Rights in Arizona?

In our practice, we often meet with clients who are not familiar with their rights when pulled over by a police officer. Because officers will be more attentive and aggressive during the upcoming holiday season, it is especially important to learn the relevant laws so that you can know exactly what to say and do if you are pulled over for suspected drinking and driving.

In Arizona, all drivers are operating under the Implied Consent Law, A.R.S. 28-1321. This statute says that all drivers are subject to breath and chemical testing if they have been arrested for driving under the influence. Thus, if a police officer pulls you over with no reason to think you have been drinking (except under the specific circumstance of a DUI checkpoint), that officer cannot legally force you to take a test. However, if an officer suspects that you are under the influence of alcohol or drugs while operating a motor vehicle, that officer can require you to take a breath or chemical test.

However, police officers still need a warrant to conduct breath or chemical tests, unless the driver explicitly consents to the test. Refusing to expressly consent to a breath test can be risky because officers can still impose consequences for a failure to submit to the test. Importantly, these consequences include a one-year driver’s license suspension. If you refuse to submit to a test a second time, you can face two years with a suspended license.

October 12, 2022

Arizona Court Denies Defendant’s Appeal but Reduces His Sentence in DUI Case

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

In a recent opinion coming out of an Arizona court, the defendant’s appeal of his aggravated DUI conviction was denied. The court found no reason to reverse the jury’s guilty verdict; they did, however, notice that the defendant’s sentence was calculated incorrectly and that he should have been given less time in prison. Because of that error, the court modified the defendant’s sentence by taking away ten days of time in prison.

Facts of the Case

According to the opinion, a police offer received a call from local patrons that there was disorderly conduct at a nearby bar. The officer arrived at the scene and approached the defendant in this case, who he immediately identified as the source of the patrons’ complaint. The defendant had watery eyes, slurred speech, and difficulties with balance. The officer told the defendant he needed to leave the premises on foot, which he did.

Minutes later, some of the witnesses informed the officer that the defendant had driven away in his car. The officer left the property in his own car, eventually finding the defendant driving a few miles away. At the time, the defendant’s truck was weaving significantly between lanes.

September 20, 2022

Arizona Court Denies Defendant’s Appeal in DUI Case, Despite Argument that Counsel was Ineffective

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

Recently, an Arizona court ruled on a defendant’s appeal in a case involving charges of driving under the influence and leaving the scene of an accident. On appeal, the defendant argued that his lawyer was ineffective in the lower court proceedings and that he was not given a fair chance to litigate his case. The court considered the defendant’s argument but ultimately disagreed, affirming the original guilty conviction.

Facts of the Case

According to the opinion, a woman in Arizona was stopped at a red light when the car behind her crashed into her automobile from behind. The woman’s car sprung forward, and she collided with the car in front of her. When the woman got out of her car, she looked behind her and saw the defendant exiting the vehicle which had been the original catalyst of the crash. He ran away, and the woman told police officers what he looked like when they arrived at the scene.

Several witnesses were also able to provide descriptions of the defendant’s appearance, and officers soon tracked him down in a nearby neighborhood. The defendant was charged with and convicted of driving under the influence and leaving the scene of an accident. He promptly appealed.

September 10, 2022

Court Sides with Defendant in Aggravated DUI Case

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

Recently, an Arizona court addressed the State’s appeal in a case involving aggravated and extreme aggravated driving under the influence. On appeal, the State argued that the lower court should not have allowed the defendant to be granted an early end to her probation. Looking at the text of the statute involved, the court disagreed with the State and affirmed that it was acceptable for the defendant’s probation to be terminated early.

Facts of the Case

According to the opinion, the defendant was charged in 2019 with multiple counts of aggravated and extreme aggravated driving under the influence. After being charged, the defendant sold her car to pay for an attorney to represent her in criminal court. She pled guilty and was sentenced to two years of supervised probation with a 45-day jail sentence.

The sentencing order stated specifically that all but 14 days of the sentence could be suspended if the defendant put a “certified ignition interlock device” on any car she operated for a period of 12 months. This device would allow for more surveillance of the defendant’s driving and would keep her from committing the same offense again.

August 31, 2022

Know Your Rights: Implied Consent and Suspected DUIs in Arizona

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

Too often in our practice, we meet with clients that are not aware of their rights when on the road in Arizona. If a police officer pulls you over for suspected driving under the influence, there are laws that are important to know and remember as you interact with the officer. Perhaps most importantly, Arizona’s implied consent law makes it difficult for drivers to refuse to take a blood, breath, or urine test.

Implied Consent Law

Under the implied consent law, any person operating a motor vehicle in Arizona automatically gives consent to a test that allows law enforcement to determine alcohol concentration or drug content if that person is arrested for a DUI. Thus, if an officer has reasonable grounds to believe that a driver is under the influence of alcohol or drugs, the officer can require that driver to take any test of the officer’s choice. The officer can also legally require this test if he or she suspects a driver under the age of 21 has any alcohol in their body.

If the driver refuses the test, the officer can serve a notice of a 12-month suspension of the driver’s license or a notice of suspension of the privilege to drive (if the driver is from a different state). Importantly, a driver who refuses the test can be subject to a warrant that allows the officer to take a blood sample even despite their refusal.

July 26, 2022

Arizona Defendant Loses Appeal in Negligent Homicide Case Stemming from DUI Accident

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

In a recent case coming out of an Arizona court, the defendant appealed his convictions for negligent homicide, endangerment, criminal damage, and driving under the influence. On appeal, the defendant brought forth several arguments, one of which was that the trial court improperly excluded evidence that could have swayed the jury in his favor. The court of appeals considered the defendant’s argument and disagreed, ultimately denying the appeal.

Facts of the Case

According to the opinion, the defendant was drinking with friends one evening at a birthday party. Around 1:30 am, the defendant decided to drive home, thinking he was sober enough to operate a vehicle without danger to any others on the road. As the defendant drove, though, he entered into what he later described as a dreamlike state and became confused. He stopped his car, stood in the middle of the highway, and realized he had been driving southbound in a northbound lane.

The defendant got back in his car but continued driving in the wrong direction on the road. He directly collided with another car, and all four passengers in the second car died immediately. The defendant was taken to the hospital, and blood alcohol tests revealed that he had a blood alcohol concentration of approximately .083 at the time of the collision.

July 18, 2022

Know Your Rights: Implied Consent and Blood Alcohol Tests in Arizona

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

At The Law Office of James E. Novak, we too often speak with clients in Arizona who are not fully aware of their rights when they get pulled over for a suspected DUI or DWI. Part of our job as defense attorneys is to ensure that you are well prepared for any interaction with law enforcement that might come your way, especially when laws change and the legal landscape can be difficult to track. If you are ever pulled over for alleged drunk driving, know that you have rights and that you are not automatically subject to unfair policies or procedures.

Considerations of Refusing a Breath Test

You can be found guilty of driving while intoxicated if your blood alcohol concentration is found to be at least .08 percent. For those driving under 21, however, any alcohol concentration at all found can lead to a license suspension. For officers to determine your blood alcohol concentration, they often conduct blood, breath, or urine tests to measure the amount of alcohol or drugs present in your bloodstream.

A police officer cannot legally require you to take one of these tests if that officer does not have probable cause to believe you have been drinking. This means that if an officer witnesses suspicious driving (for example, swerving, running a stop sign, or failing to use proper signals), that officer might have reason to pull you over and tell you that you are required to take a test measuring your blood alcohol concentration.

June 26, 2022

Arizona Court Affirms Motion to Dismiss in DUI Case, Siding with Defendant

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

In a recent DUI case coming out of an Arizona court, the state unsuccessfully argued that the defendant’s motion to dismiss should not have been affirmed. On appeal, the higher court confirmed that the defendant had no reasonable way of knowing that he was required to have an ignition interlock system installed on his vehicle.

Facts of the Case

According to the opinion, the defendant in this case was originally convicted in June 2012 of one count of driving under the influence and one count of possession of marijuana. In 2012, Arizona law included a provision that required DUI offenders to install an ignition interlock device in their cars for one year upon having their licenses reinstated. By 2016, that provision had been changed, and it began to only apply to DUI convictions involving intoxicating liquor.

The defendant’s license was reinstated in 2017, one year after this relevant change to the law. Confusingly, the defendant’s Motor Vehicle Department record continued to state that he was required to install this ignition interlock device. In 2018, when he was stopped and charged with two counts of aggravated DUI, both charges were based on the fact that the defendant was intoxicated while he was required to have an ignition interlock device.

May 26, 2022

Arizona Defendant in Aggravated DUI Case Loses Appeal

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

In a recent DUI case coming out of an Arizona court, the defendant’s appeal of his guilty conviction was unsuccessful. The defendant had originally pointed out on appeal that the police officer who arrested him did not have his body camera turned on, and he argued that the trial court should have instructed the jury as to the officer’s error. The higher court concluded that the jury instruction was ultimately unnecessary and that the defendant’s conviction should be affirmed.

Facts of the Case

According to the opinion, the defendant was driving his Dodge Charger when he rear-ended another car, which pushed it into a nearby wall. A witness who had witnessed the accident followed the defendant, watching him as he drove into a nearby parking lot. The witness inquired as to whether the defendant was going to check on the driver of the second car. The defendant said yes and promptly headed back to the scene of the accident.

By the time the defendant returned to the collision site, a police officer was at the scene. This officer observed that the defendant had watery and bloodshot eyes, as well as that he smelled of alcohol. Approximately one hour after the accident, the defendant submitted to a blood draw, which revealed a blood alcohol concentration of .164 percent. Around that time, the defendant admitted to the officer that he had rear-ended the second car and that he was alone in his Dodge Charger.

May 10, 2022

Arizona Court Vacates Defendant’s Manslaughter Conviction Following DUI Accident Based on Insufficient Jury Instructions

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

In a recent case coming out of an Arizona court, the defendant appealed his conviction for manslaughter. Originally, the defendant was found guilty when he hit a pedestrian while driving his car above the neighborhood’s posted speed limit. The pedestrian died, the defendant was charged, and a jury eventually found the defendant guilty of manslaughter. On appeal, the defendant argued that the court failed to properly instruct the jury as to who exactly had the right of way during the accident. Agreeing with the defendant, the court vacated the manslaughter conviction.

Facts of the Case

According to the opinion, the defendant was driving between 44 and 55 miles per hour in an area where the speed limit was posted as 40 miles per hour. As he was driving, the defendant struck and killed a victim as she stepped off the median and began to walk into the roadway. At the time, the victim was walking along a brick pathway that ran perpendicular to the road on which the defendant was driving.

Immediately after the crash, a police officer came to the scene. While speaking with the defendant, the officer noticed that the defendant was slurring his speech and had drooping eyes. A subsequent blood sample revealed that the defendant had a blood concentration of 36 nanograms of Xanax and 14 nanograms of THC per milliliter.