If you refuse to take a chemical test from an officer who suspects you are driving under the influence, your license may be suspended for 1 year.  The lawyers at The Behan Law Group will fight to keep your driving privileges in tact.  However, even if your license suspension is upheld for one year, there are still ways to be able to get you back on the road. 

Arizona allows drivers facing a one-year suspension to obtain a restricted driving permit, called a Special Ignition Interlock Restricted Driver’s License (SIIRDL) for the last 9 months of the 1 year suspension. This license is separate from an ignition interlock device and is voluntary.

Requirements:

From recent high school graduates to college students, many underage drivers in Arizona are finding out that, while DUI consequences are certainly severe, it can be even worse if you receive an underage DUI.

If you have been charged with a DUI while under the age of 21, the following information is important for you to understand.

What are the Laws for Underage Drinking and Driving?  A.R.S. §4-244 (34) makes driving under the influence as a minor illegal. This underage DUI statute, which is titled “Minor Driving with Liquor in Body,”  is often called “Baby DUI” [insert link to statute] by police, prosecutors, and defense attorneys in Arizona.  

Many drivers facing a DUI charge in Arizona ask the same question: when are breath test results admissible as evidence against me? If you have been charged with a DUI, it is important to know the difference between the Portable Breath Test (PBT) and an Intoxilyzer:

Portable Breath Test (PBT).  This handheld device is often used by officer during the initial DUI investigation. However, because these tests are widely considered unreliable and inaccurate, the PBT test is not admissible to be used against you as evidence. Remember, you are not required to submit to a PBT test under any circumstances.  [internal link to pbt blog]

Intoxilyzer.  The second form of breath testing is through the Intoxilyzer 8000, which Arizona uses as its breath test device. However, unlike the PBT, the results from the Intoxilyzer 8000 can be admissible as evidence against you in court.

By Michelle Behan, The Behan Law Group

            In Arizona, the penalties for a DUI increase if the driver has previously been convicted of a DUI.  Penalty-enhancing prior convictions are not limited to DUIs that occurred in Arizona.  Under certain circumstances, an out-of-state conviction for DUI can enhance an Arizona DUI.  The penalties for second offense DUIs in Arizona that occur within seven years are harsh, and range from 30-180 days in jail, fines and fees in excess of $3,500, and supervised probation.  A third DUI within seven years is a felony, and will carry a sentence of 4 months -2.5 years in the state prison. 

            Statutory Elements

            In order for a court to determine whether an out-of-state DUI conviction can constitute a prior in Arizona, the court takes a look at the elements of the out-of-state statute the driver was convicted of violating.  If those elements are the same as the elements of the Arizona statute, then the out-of-state prior counts as a penalty enhancing Arizona prior.  In State v. Ault, the Arizona Supreme Court established that the reviewing court must conclude that the foreign conviction includes, “every element that would be required to prove an enumerated Arizona offense.”  157 Ariz. 516, 521, 759 P.2d 1320, 1325 (1988). 

A year-long investigation by the New York Times determined that breath alcohol tests are untrustworthy. The Times published an article revealing that tens of thousands of breath alcohol tests are scientifically unreliable. In an article titled These Machines Can Put You in Jail. Don’t Trust Them the Times wrote, “Alcohol breath tests, a linchpin of the criminal justice system, are often unreliable.”

The investigation included interviews of forensic scientists, industry representatives, independent experts, defense attorneys, court orders, and internal documents related to breath alcohol devices across the country.  As part of the investigation, the Times determined that there were several reasons why alcohol breath tests were unreliable.

The first reason that the test results are incorrect is due to the design flaws in the machines themselves.  The investigation uncovered that the basic programming of these breath alcohol machines, called ‘source code’ often contained mathematical errors that should have been discovered by even the most simple verification. Manufacturers fought tooth and nail to prevent defense attorneys and courts from gaining access to the source code.

DUI Arrest in Tucson? Breath Alcohol Test? For a long time, the Tucson Crime Lab has known that the breath testing device they use, called an Intoxilyzer 8000, can be off by as much as 11.7%.  The state tried to stop this information from being used in court.  But Tucson DUI Lawyer Michelle Behan, known nationwide as Miss DUI Arizona, together with other defense attorneys just won a three-hearing when a judge ruled to allow this evidence to be used in court to defend someone charged with DUI. This information could radically change your case.

DUI checkpoints, or DUI roadblocks, are run throughout Arizona. DUI Checkpoints often receive federal funding for checkpoints run around holidays such as July 4th (Independence Day), Memorial Day, Christmas, Thanksgiving and New Year’s Eve and Day. The roadblocks might pop up for several days or at several locations.

The United States Supreme Court has approved roadblocks but requires that they have several features:

• The roadblock should be well-lit with proper signage and safety cones etc.;
• Stops must be made systematically (such as every 3rd car) and not arbitrarily changed;
• Officers at checkpoints must be given very limited discretion as to what they can or cannot do;
• The purpose of the roadblock must be lawful (such as to catch drunk drivers) and not for the detection of ordinary criminal wrongdoing;
• There must be an operational plan approved by supervisory personnel;
• The location (or site selection) and time must be approved by supervisory personnel;
• There must be advance publicity announcing the checkpoint.

Many times, the police must meet certain minimum arrests or contacts in order to qualify for money from the federal government.

Recently, Attorneys Michelle Behan and Donald Ramsell co-authored an amicus curiae (“friend of the court”) brief which was filed with the United States Supreme Court on behalf of the National College for DUI Defense (NCDD). This brief was in support of the petitioner in the case of Gerald P. Mitchell v. Wisconsin.

The brief made a number of arguments regarding people’s rights when asked to submit to blood alcohol content (BAC) tests in DUI cases. First, it argued that tests such as blood draws are covered by the Fourth Amendment and that a warrant should be required in order to conduct this type of search. In addition, “implied consent” laws are problematic, since they waive a person’s Constitutional rights to give voluntary consent to a search.

Second, the brief argued that the electronic warrant procedures implemented by the majority of states should be used in DUI cases. The ability to obtain a warrant in minutes makes legislated consent unnecessary and helps avoid the over-broad application of implied consent rules.