DUI & Criminal FAQ's in Phoenix, ArizonaWhen facing DUI or criminal charges the entire process can be complicated and confusing. Factor in the evidence against you and the toll that it takes on a person can be devastating.
For that purpose we have compiled a list of frequently asked questions that we receive on a daily basis. Although you may not find your answer below, rest assured that Aaron is always available to help.
You can contact Aaron by simply filling out the form on our contact page or by calling 480-729-1683 for a free consultation.
Please note that our frequently asked questions are provided for your reference and should not take the place of professional legal advice.
DUI Frequently Asked Questions
Criminal Defense Frequently Asked Questions
Phoenix DUI and Criminal Defense Attorney Aaron Black
What is ARS §28-1381?A.R.S. §28-138 defines the legal limit in Arizona. The limit of alcoholic intoxication in is 0.08 percent of blood alcohol concentration (BAC). For commercial drivers, the legal limit is .04 BAC.
Reaching the limit is different for everyone, but the best indicator is if you’re feeling a bit different after drinking you’ve reached the slightly impaired territory. Anything beyond the legal level brings increasingly serious DUI penalties.
What should I do if I’ve been pulled over by the police?The best thing to do when the officer starts asking questions, such as “Have you been drinking this afternoon?”, is to decline to answer in a respectful tone and invoke your Fifth Amendment right to remain silent and that you want to speak to an attorney.
It may seem awkward to refuse a law officer, but you have the right not to incriminate yourself, and the officer knows it. In stopping the questioning, you begin your defense because anything said becomes evidence against you.
The Constitution’s Fifth Amendment right provides protections for individuals, including that a person cannot “be compelled in any criminal case to be a witness against himself.” Police officers know all about the Fifth Amendment and a person’s right to remain silent and they must respect that or the case can be thrown out of court.
I refused the PBT (Preliminary Breath Test). What are the repercussions of doing so?In Arizona, if you are suspected of DUI the police will often ask you to blow into a PBT (Preliminary Breath Test). The test is not admissible in court and it is only used by the police to obtain probable cause to arrest you. Your license will not be suspended if you refuse the PBT. I encourage you to politely refuse the test and ask for an attorney.
Can a Breathalyzer Cause a Wrongful DUI Conviction?Test results can be wrong because of the device’s design, its calibration or police officers improperly using them. You have a right to remain silent and that’s best for your defense.
If you think you may fail a breath test you have the option of refusing to take the test. But doing so means a year-long suspension of your driver’s license.
A restricted license may be issued after 90 days. I recommend not answering questions posed by the police.
Can Blood Tests for a DUI be inaccurate?Blood testing to determine blood-alcohol concentration (BAC) is not infallible.
To prove BAC accuracy, the blood must be drawn within two hours under Arizona law. If the blood draw occurred after two hours or longer the authorities can call in chemists and toxicologists to use a scientific and mathematical process called “retrograde extrapolation.” Even if no alcohol was detected after several hours, retrograding determines what the BAC level had been within two hours and the results will be used against the defendant.
Potential DUI Blood Test Issues
- Tainted blood draw
- Errors during the blood draw
- Procedural issues
- Laboratory & Equipment errors
- Blood sample storage problems
What is ARS-28-1321?It happens. One more drink, a burned-out brake light, flashing red lights behind and the officer suspects you are intoxicated. Standard procedure is asking you to submit to a test to determine your blood alcohol concentration (BAC) or testing for drugs, even opiated prescription drugs.
The Arizona Revised Statutes has a law applicable to this situation called “implied consent,” A.R.S. § 28-1321, which states that refusing to submit to tests measuring the level of intoxication by breath, blood, or urine samples results in a suspension of your driver’s license.
It’s crucial to tell the officer that you want to have a confidential call to an attorney, that’s your constitutional right under the Sixth Amendment. I also advise to politely decline to answer any of the officer’s questions, such as have you been drinking tonight or may I look at your eyes with a pin light, or ask you to stand on one leg or walk a straight line.
That’s your right under the Fourth Amendment and anything you say becomes state’s evidence to bolster their case.
What is ARS-28-1385?If you’re arrested on suspicion of driving under the Influence (DUI) your driver’s license will be suspended for 90 days under the Admin Per Se Doctrine in the Arizona Revised Statutes Section 28-1385. If however you refuse the blood or breath test your license will be suspended for one year.
If you’ve had a license suspension within the previous seven years you cannot get a restricted license and the 90 days are added to the year-long license suspension if you are convicted of DUI.
I advise my clients to respectfully decline testing because to prove its case the prosecution only needs to prove your blood alcohol concentration (BAC) reached or surpassed 0.08 percent, or 0.04 BAC for those who drive commercial vehicles, or that the test showed you had been using drugs.
A drug includes marijuana, cocaine, PCP, and certain prescription medications, and its presence is determined by the drug’s metabolite, which is the byproduct of the original drug.
I've been charged with a DUI, am I going to Jail?
Jail time is mandatory under Arizona’s DUI laws, however, the Arizona legislature changed the law in 2012 that made it possible to spend less time in jail than previously.
The state has intricate sentencing guidelines for mitigated, minimum, presumptive, maximum and aggravated levels, each with increasing jail time.
Judges are allowed to use discretion in deciding sentences and there can be differences among cities in which the offense occurred.
The main issue in determining the length of time in jail is how much over the legal limit was the blood-alcohol concentration (BAC) level detected by breathalyzer and or blood tests.
Having an experienced DUI defense attorney at your side beginning from the arrest is necessary to navigate through the complex sentencing phase of a case to achieve the best possible outcome.
I have been charged with a DUI, what are the chances of me getting home detention instead of serving my time in jail?The answer lies in where you were arrested albeit the city or the county. For example, if you are pulled over by a Maricopa County sheriff’s deputy or the Arizona Department of Public Safety officers you will be processed through the County justice courts. In Maricopa County the judges are prohibited from handing down-home detention sentences, therefore, serving your time in jail is the only option.
Almost all of the city courts in the greater Phoenix area offer home detention. By law, an individual must serve 20% of their sentence in jail before they can begin home detention.
What is ARS 28-3473?
Arizona Revised Statute §28-3473 allows suspending, revoking, canceling, or refusing to issue a license for the privilege to drive on the state’s roadways. This section also allows the state to commandeer a license if the person is disqualified from driving, such as advanced age.
Your driver’s license can be suspended for a number of reasons, including a DUI. For DUI convictions a driver’s license can be suspended for 90 days under the law’s Admin Per Se Doctrine. (ARS-28-1385)
Other reasons for suspension include the following.
- Refusal to submit to a breath, urine, or blood test
- You were at fault for a crash causing serious injury or death to someone
- Fleeing from a crash
- Driving aggressively or recklessly
- Not having auto insurance
- Using fake identification
- Accumulating more than 12 points against the driver’s license within 12 months
Driving on a suspended license is a class 1 misdemeanor which is the most serious of the misdemeanor classes. A driver who has a suspended license has the right to have the Arizona Motor Vehicle Division (MVD) hold a hearing to determine if the license can be reinstated.
Can I be charged with Criminal Damage if I’ve been charged with a DUI?
A conviction for criminal damage requires a person to have acted recklessly or intentionally in committing the offense. Intentionally means a person’s true objective is to inflict damage or to engage in that conduct.
Arizona law defines reckless in criminal damage as acting in a way that shows complete disregard for the property and the consequences that are likely to occur.
In DUI cases the intent is not required for a conviction.
Arizona Revised Statute §13-1602 has a list of “reckless” behaviors that qualify as criminal damage.
How can I get my license reinstated after a DUI conviction?After the 90 days or one year of suspension has ended and you have successfully completed the alcohol and drug education and screening you may go to the nearest Motor Vehicles Department (MVD) facility to request a license reinstatement. Of course, you can also go the MVD online and complete the necessary forms, which includes providing proof of insurance.
The process is relatively straight forward but you must do everything. Please note that the agency won’t notify you when you’re eligible for license reinstatement.
Before starting the process you’ll need to have ready your vehicle’s VIN number, the year and make of the vehicle, and accept MVD’s disclaimer statement about insurance.
You also will need to ensure your address is correct, have your driver license number, proof of insurance, and a method of paying the $50 suspension reinstatement fee.
I was sleeping it off in my car, can I be charged with a DUI?It’s possible to be arrested for DUI even if no one saw you driving, based on circumstantial evidence such as sleeping in the driver’s seat with the engine running or the ignition key handy.
The section of Arizona DUI law that comes into play in this situation is called APC, meaning Actual Physical Control, A.R.S.§28-1381. But this law doesn’t specifically address what is and isn’t actual physical control, and law enforcement can interpret the law based on the situation at hand.
I’ve just been charged with a second DUI am I going to jail?Jail is mandatory for any DUI in Arizona. A Second Time Extreme DUI (.15-.199) carries a 120-day jail sentence. A .20 second time DUI carries a mandatory 180 days.
If you are facing charges for a 2nd time Extreme DUI in Phoenix, it is essential to speak with a lawyer who has a clear understanding of the complexities of DUI laws. There are several possible DUI defenses that can be taken that may result in dismissal of the charges, not guilty verdicts, no jail time, or substantially reduced charges.
Can I get a DUI while using prescribed medication?In most instances, the state of Arizona will try to prosecute you for being “Impaired to the slightest degree.” Impaired to the slightest degree basically means that you are kind of tipsy.
What few people in Phoenix know is that when you are arrested for DUI you are always charged twice. The first charge is for being over the legal limit of .08 BAC (Blood Alcohol Content.) The second charge is for driving or being in actual physical control of a vehicle while under the influence of an intoxicating substance and "impaired to the slightest degree."
For drug cases, even prescribed medication, there is a third charge for driving with the drug in your system. With this charge, it is the defense’s burden to prove you were using the medication as prescribed.
What are the Punishments for a DUI while under the influence of prescription drugs?Depending on the circumstances surrounding your case you can be charged with a misdemeanor driving under the influence or be facing a felony conviction.
- Misdemeanor - A prescription drug DUI charge has the same penalties as a misdemeanor driving under the influence of alcohol if convicted
- Felony DUI - DUI’s become felonies if the impaired driver has a child younger than 15 in the vehicle at the time, which is a Class 6 felony. A more severe Class 4 felony is charged if the DUI occurred while the driver’s license was suspended, revoked, or restricted, or if the offense happened when an ignition interlock device was supposed to be on the vehicle.
- A second offense under the Arizona statutes within seven years from the first elevates the charges to the far more serious felony class and a prison sentence
My Child has been charged with a DUI, what should I do?Teenage Motorists younger than 21 caught drinking and driving or in physical control of a motor vehicle in Phoenix face a severe criminal offense. Nicknamed “Baby DUI,” the state of Arizona’s no tolerance legislation, ARS, 4-244(34), the blood alcohol concentration (BAC) doesn’t need to be much, in fact hardly a trace over 0.00.
1st Teen drunk driving penalties in Phoenix, AZ
- Requires a minimum of 24 hours to a maximum of 10 days in custody
- Fine of $1,600
- Suspension of the driving privilege from 90 to 360 days
What is an Ignition Interlock Device (IID)?An ignition interlock device is installed on your car to deter drinking and driving. Once installed, before the vehicle can be started you must deliver a breath sample into the device.
If you refuse to provide a breath sample or the sample exceeds a set blood alcohol level the IID (Ignition Interlock Device) device will log the event and then warn you that you must provide a breath sample or let you know that you’ve exceeded the set blood alcohol level. An alarm will then go off until the ignition is either turned off or a clean breath sample is provided.
I have a medical marijuana card, can I get charged with driving under the influence?Yes, you can be charged and prosecuted to the fullest extent of the law. The problem with these cases is that the defense must prove to the jury that you were not impaired by the amount of marijuana in your system. This is very difficult to do and requires the defendant to testify because no expert can testify if someone was or was not impaired by marijuana. There is one current study that correlates 13ng of THC to the equivalent .08 BAC.
What is ARS 13-3415?Under ARS 13-3415 possessing drug paraphernalia is a criminal offense in Arizona. The statute is broad enough to include just about anything as paraphernalia.
Possessing drug paraphernalia in Maricopa County is a class six felony, the lowest in the felony chain, but still a serious charge. It means incarceration if convicted and has consequences impacting your quality of life after serving a sentence.
How do I obtain bail in Arizona?To apply for a bail bond requires the defendant’s full name, birthdate, the charges if they are known to you, a driver’s license or passport with a photo ID, cash or a credit card to pay the fees.
After the bond is arranged it takes six to eight hours for the defendant to be released.
Arizona law requires bail for those charged with a felony. But those facing a misdemeanor or minor offense may be released on their own recognizance, which is a personal promise to attend court proceedings without the financial costs for a bond.
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My case was dismissed by the Grand Jury, does that mean my case has been dismissed?A Grand Jury is a secret hearing where a group of people decides if there is probable cause to hold your case over for trial. Consisting of 16 grand jurors, a prosecutor, and the government's witness. The governments' witness is typically the Police.
The language of the law can be confusing. “Dismissed to the grand jury,” for example, doesn’t mean your case is dropped and you can go on your merry way. The phrase means the prosecution is presenting its case in secret to a grand jury, which will decide if enough evidence exists to charge you with a crime, instead of using the preliminary hearing procedure.
- Maricopa County Grand Jury - The Maricopa County Grand Jury hears serious felony cases originating in Phoenix and the rest of the county, such as drug offenses, assaults and other crimes against individuals.
- Arizona Grand Jury - The Arizona Grand Jury has jurisdiction in Phoenix and across the state for white-collar crimes such as fraud and forgery.
- Federal Grand Jury - The Federal Grand Jury in Phoenix hears federal offenses occurring across Arizona such as bank robbery, kidnapping, and crimes crossing state borders.
What is admin per se?If you are pulled over for DUI in Arizona the police will serve you with a pink and yellow Admin Per Se / Implied Consent Affidavit. If you consent to the chemical test your license will go into suspension 15 days after the date of your arrest. If you refused the chemical test your license will be suspended 1 year after the date of your arrest.
What is an Initial Pretrial Conference?The IPTC (Initial Pretrial Conference) is usually when the prosecutor makes the first plea offer. At this hearing, the judge will check on the status of negotiations, investigations, and witness interviews.
What constitutes Conspiracy?Under A.R.S. §13-1003(A) a person who has the intent to promote or help a conspiracy no matter how small the role is just as guilty as the conspiracy’s ring leader. That’s because the small roll the person played is an overt act to further the criminal goal of the conspiracy. Only one member of the conspiracy needs to make an overt act.
The law specifies that an overt act isn’t required if the goal of the conspiracy was a first-degree felony burglary or arson of an occupied structure.
A conspiracy, by legal definition in Arizona, requires two or more participants conducting a secret plan to do something outside the law. The criminal goal of the conspiracy doesn’t need to be attempted or accomplished for the state to achieve a conspiracy conviction.
If a conspiracy’s objective is to commit several offenses the conspirators can be found guilty of only one count of conspiracy but for the most serious criminal objective sought.
What is a Supervening Indictment?If you’ve been served with a supervening indictment you are en route to trial based on your circumstances on one or more serious felonies equipped with years of incarceration.
A supervening indictment lists all the charges and will require you to appear in court to be arraigned on a specified date. Failing to appear at the arraignment will result in a bench warrant for your arrest, and you’ll be remanded to custody.
A supervening indictment is issued after the initial appearance, which will be held shortly after your arrest. At that appearance, you will be scheduled for a preliminary hearing.
In the meantime, the prosecution may bypass the preliminary hearing stage by taking its evidence to a grand jury, which is the state’s prerogative to keep the investigation confidential. In that case, the previously scheduled preliminary hearing will be vacated.
How can I bond out of jail?Bonding out of jail can occur a few different ways. If a judge orders a $1000 secured bond you could either A) Post the $1000 yourself or B) Hire a bond company. If you hire a bond company they will charge you 10% ($100) to post your bond. However, they will also require $1000 worth of collateral. For example, the title to your car.
If the bond is a cash bond ($1000 Cash) then the entire bond must be posted in cash.
For Bond Assistance or Questions contact Sanctuary Bail Bonds
Can I get my record expunged?Unfortunately, there is no such thing as expunging a record in Arizona.
I failed to appear on my court date, is there a warrant out for my arrest?Yes, if you failed to appear for court then a warrant was issued for your arrest. In addition, notice was sent to MVD and your license will remain suspended until you appear in court and quash the warrant. If there is a bench warrant issued in your case a motion to quash the warrant must be filed.
What’s a bench warrant?Missing an appearance in Arizona’s criminal courts is a crime and a judge right then and there can issue an arrest warrant from the bench, the judge’s seat, which is how a bench warrant gets its name. This offense is a violation of the court.
Typically, a bench warrant in Arizona doesn’t expire over time. The bench warrant is listed in the court system and remains there until you surrender or are arrested. A bench warrant arrest can happen at home, work, social gatherings, or during minor traffic violations and be quite embarrassing.
Some Arizona courts have a warrant review date to consider recalling the warrant and the prosecution can ask that the warrant be reaffirmed.
When you’re arrested on a bench warrant you’ll usually be taken into the court or held in jail until the judge issuing the warrant is available to hold a hearing in your case.
I’ve been falsely accused of sexual assault, can you represent me?Absolutely. Not only do I represent people charged with DUI, but I also handle all felony matters. Sexual assaults are tricky cases. We will need to get you evaluated by a therapist right away and start building a defense. Often times, these cases are pure “he said she said,” and we argue the case by destroying the credibility of the accuser.
What constitutes negligent homicide?Arizona law, §13-105(D), defines criminal negligence as committing an offense by failing to perceive a substantial and unjustifiable risk and the result of that risk also, that the risk must be a gross deviation from the standard of care toward someone else that a “reasonable” person would observe in the specific situation.
Codified in Arizona Revised Statute §13-1102, negligent homicide is defined as someone causing death by acting with “criminal negligence,” which spans a vast spectrum of behaviors. A negligent homicide case hinges on the legal definition of criminal negligence.
Most criminally negligent acts stem from alcohol or drug-related fatal crashes on Arizona’s roads, but it also can result from street racing or driving at an excessive speed. Beyond the roadways, other actions or failures to act can lead to this crime, such as failing to install adequate safeguards to keep neighborhood children from getting into the pool and drowning.
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How long have you been in practice as a Criminal/DUI Defense Attorney?I have been a Criminal/DUI defense attorney for ten + years. I started practicing at the Maricopa County Public Defender’s Office where I worked in the Vehicular Unit for almost five years. I defended all Felony DUI cases, Vehicular Aggravated Assault, Vehicular Manslaughter and Vehicular 2nd Degree Murder.
Why I choose to defend people accused of crimes
I am often asked why I choose to defend criminals. This is not an unusual question considering the violence, depravity, and decay of civility in our society today. Nor is it a surprise considering the intolerant attitudes held by many toward those accused of crimes, in some ways primed by crime news and true-crime TV shows.
Fair trial is embedded in me as I’m from a family of criminal defense lawyers. I began my legal career as a public defender representing people who didn’t have the resources to retain a lawyer.
I chose criminal defense work as a career for the following reasons.
- To uphold the U.S. Constitution
- To protect the accused from the excesses of law enforcement
- Because it truly is satisfying to help people in trouble
My goal for each client that I represent is to get the state to dismiss cases long before trial or to negotiate a plea agreement that benefits a person who made a mistake.
Why should I hire the Law Office of Aaron Black when I have the option to get a public defender for free?Public Defenders are some of the best lawyers who know the courts well. I too was a public defender and benefited from the same training. However, Public defenders are overworked and you will not receive personalized attention on your case because they have too many clients.
When you hire me, you not only get my cell phone number, you get personalized attention, and you get years of felony and misdemeanor experience. My work has been recognized and honored by my induction into Super Lawyers Magazine. No public defender has been recognized by Super Lawyers.