Phoenix Beware of Arizona’s Slightest Degree Impairment Law

by Aaron M. Black • April 02, 2021

Arizona Slightest Degree Impairment Law - Zero ToleranceThe pandemic and stay at home orders kept people off the roads but DUI arrests are happening even when drivers in Phoenix and Scottsdale are under the legal limit for drinking and driving.

A motorist does not need to be intoxicated to be arrested and convicted of drunk driving in Arizona. Our state has some of the toughest DUI laws in the nation including impairment to the “slightest degree.” This is part of Arizona’s “zero tolerance” approach.

Under Arizona Revised Statute §2801(A)(1), a person who is even a little tipsy will face the same charge and consequences as someone who is legally drunk with a blood alcohol level of 0.08 percent, the state’s baseline level, or higher.

And you do not need to be driving at the time. All that is necessary for a conviction is to be in “actual physical control” of a vehicle while impaired to the slightest degree under Arizona Revised Statute §2801(A)(2).

The DUI law applies to illicit and prescription drugs, including medical marijuana, vapes, as well as alcohol and all are charged as Class 1 misdemeanors, the most serious of the misdemeanor range.

It does not matter how little a person had to drink. Any amount of impairment fits the “slightest degree.” It is an evaluation made by the traffic officer who had probable cause or a reasonable suspicion to make a traffic stop, such as making a wide turn or crossing a lane line. Even a driver’s side window down on a cold night can tip off the officer.

Factors of slightly impaired

Slightly impaired will be different from person to person. The varying factors are gender, age, weight, and how fast or slow a person’s metabolism absorbs and eliminates alcohol. Experienced drinkers have a tolerance for alcohol, and having food before drinking can slow intoxication.

One drink is defined by the National Highway Safety Administration (NHTSA) as 1.5 ounces of 80 proof liquor, 12 ounces of beer which has 4.5 percent alcohol, or a 5-ounce glass of wine which has 12 percent alcohol.

Another gauge is offered by the Arizona Department of Public Safety. For example, using a “standard” for a person weighing 140 pounds and consuming three drinks will have a BAC of 0.069. A 180-pound person consuming four drinks nears the legal limit at 0.72 BAC.

You know your limits, so the best thing to do is if you start to feel a little bit different you shouldn’t drive. If you’ve been out drinking in Phoenix or Scottsdale, be safe and arrange for a designated driver or hire a ride home.

Actual physical control

This law is used if the DUI suspect had “present or imminent” access to a motorized vehicle, including scooters. Numerous situations satisfy the definition. A motorist who is stopped at the side of the road or in a parking lot can attract an officer’s attention to investigate.

Car Keys - Location Matters in a Phoenix DUI CaseTo be in actual physical control is determined by a number of factors. These include:
  • Was the vehicle’s engine running?
  • Was the key in the ignition?
  • Where was the key?
  • Was the driver asleep or awake?
  • Where was the driver positioned in the vehicle?
Avoiding this charge can happen if the engine was stopped, the ignition key was not handy or even outside of the vehicle such as placed on a tire or in the trunk. Simply saying that you did not intend to drive is not going to save you.

Actual physical control under Arizona Revised Statute §28-1381 (A)(1) is a Class 1 misdemeanor.

Arizona’s underage drinking laws

Arizona's Underage Drinking LawsCongress in 1984, responding to an increase in teenage drinking and driving fatalities, set the age for drinking at 21 for all states under a national Zero Tolerance policy. Any state that did not implement the policy would lose their share of federal highway construction funds. By 1988 every state had adopted the minimum age for drinking at 21.

The Centers for Disease Control and Prevention (CDC) reports that drinking minors ranging in age from 12 to 20 are responsible for consuming 11 percent of all the alcohol consumed nationwide.

Minors are violating Arizona’s DUI law if their BAC level is merely 0.01 to 0.02. They also will be charged with underage drinking under Arizona Revised Statute 4-244(34)(41). The exception is if alcohol is used in religious or ceremonial services. Underage possession or consumption of alcohol is a Class 1 misdemeanor. The driver’s license of a convicted minor can be suspended for as long as an entire year.

Class 1 misdemeanor DUI consequences

A serious misdemeanor conviction has long range consequences although not as harsh as a felony.

For a first time DUI conviction, the range of incarceration is at least one day to six months in jail, although the minimum is 10 days in jail, but nine of those days may be suspended if the defendant successfully completes an alcohol or drug class. Fines and fees could reach $1,510.50 and suspension of the privilege to drive for 30 days, followed by 60 days with a restricted license to drive to work or school. If the charge relates to drugs, the license is revoked for one year. The court can also order a term of restrictive probation that could be for as long as five years.

Repeated DUI offenses carry increased penalties.

At the traffic stop

The officer will ask you leading questions such as “how much have you had to drink tonight?”  Be sure to invoke your constitutional rights to avoid self-incrimination and to have an attorney present during questioning.

You will be asked to submit to a standard field sobriety test comprised of three tests; balancing on one foot, walk and turn, and the “horizontal gaze nystagmus” (HGN) test, which involves the involuntary jerking of the eyeball or having difficulty to smoothly track a moving object.

You will be asked to blow into a breathalyzer device that detects alcohol, or the officer will obtain a search warrant to take a blood sample at the police station or a hospital within two hours of the traffic stop.

Refusing these tests will mean a temporary license suspension but you will not be convicting yourself.

Slightest degree defenses in Phoenix and Scottsdale AZ

Several defenses are available. The traffic officer may not have a legal reason to stop the vehicle, the officer did not recite the Miranda rights to avoid self-incrimination or the right to have an attorney involved during questioning. There may be physical ailments that eschewed the field sobriety test and the level of intoxication can be challenged. All cases are unique, so other defenses may come into play.

Getting legal representation

The Law Office of Aaron M. Black is dedicated to providing a thorough and aggressive defense to DUI charges, always with the goal of winning a dismissal. As a seasoned criminal defense attorney, I have extensive experience protecting the civil rights of clients whether in procedural matters, plea negotiations, or at trial.

I have a strong record of providing legal representation on a personalized level, so you will never be assigned to a legal assistant. You will be talking directly to me throughout the case. While social distancing is the norm, we can communicate online using FaceTime, and by phone, text, and email.

I am listed in the top one percent of the finest lawyers in the nation by the National Association of Distinguished Counsel. I am also among the Top 100 trial lawyers by the National Trial Lawyers Association. Learn more about me on my website.

Contact me by calling 480-729-1683 at any time, day or night, weekends or holidays. Or use my quick contact form. I will respond promptly unless I am in court. I defend DUI and other criminal charges in federal, state, city and justice courts in and near Maricopa County. This includes the cities of Phoenix, AZ and Scottsdale, AZ.


About the Author

Aaron Black Phoenix DUI LawyerAaron Black is the founder and sole attorney of the Law Office of Aaron Black. Located in Phoenix, Arizona, his DUI and criminal defense law firm provides legal services to people who have received felony or misdemeanor charges from the state.

Aaron has developed a strong interest in defending people who have been arrested and received criminal charges for driving under the influence. With his professionalism and knowledge of Arizona DUI and criminal law, he has acted as a check and balance on the police, prosecution and courts and has protected a great number of his clients from excessive and unfair sentencing.

Along with DUI defense, Aaron handles a range of other criminal defense matters, including aggravated assault, burglary, domestic violence, drug possession, drug trafficking, fraud defense, insurance fraud, sex crimes, and white-collar crime cases.

After graduating college in 2003 from the University of Arizona, Aaron decided to pursue a law degree. He followed a family long tradition and went to the University of South Dakota School of Law where he pursued his goal of becoming a criminal defense lawyer.

After passing the Arizona and South Dakota bar exams, Aaron joined the Maricopa County Office of the Public Defender where he defended hundreds of people charged with serious criminal offenses. His work as a public defender helped him sharpen his litigation skills and gave him a unique insight into the Arizona criminal justice system.

Over the course of his 15-year legal career, Aaron has spent a considerable amount of time in both Arizona justice, municipal, state and federal courts. He has argued over 50 jury trials, tried over 100 bench trials and has become one of the highest-rated criminal and DUI defense attorneys in Phoenix and the surrounding areas. He has received a 10/10 rating from the legal directory Avvo because of his legal background and successful case record. Since 2014, he has received the Super Lawyer rating for his work as a Phoenix DUI Attorney and criminal defense attorney.

You can review Aaron’s Attorney Bio page for more information about his background, education and experience as a Phoenix DUI and criminal defense attorney.
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