DUI Lawyer in Phoenix How do you prove a DUI? There are several types of DUI. These include DUI for begin impaired to the slightest degree; DUI for having a blood alcohol concentration above the legal limit; and DUI for having drugs in your system; as well as many other types, such as aggravated class four and six felony DUI, not covered in this article. The basic DUI arrested consists of the following elements, which a Phoenix DUI lawyer can explain: 1. The person is driving a vehicle or is in control of a vehicle, and is under the influence of alcohol or drugs and is impaired to the slightest degree. Please see A.R.S. 28- 1381(A)(1), (B); or 2. The person has driven or been in control of a motor vehicle and has a blood alcohol concentration of greater than .08 within two hours of driving. Please see 28-1381(A)(2); or 3. The person drives or is in control of a vehicle with a non-prescribed drug or its metabolite in his or her system. Please see 28-1381 (A)(3), (D). Here we have the three most basic forms of DUI, commonly referred to as “A1”, “A2”, and “A3”. Each of these DUI’s has one common element: the person must drive or be in actual physical control of a motor vehicle. Case law is slim on what it means to be driving, for that is a common term and is easily defined as operating a vehicle in motion. Actual physical control is more difficult. Here, questions are raised as to whether the potential driver had the keys in the ignition, the car in drive, the transmission in gear; etc.; or whether he or she was simply, for example, seeking shelter in a car, not actually controlling it or ready to operate it as a motor vehicle. The state needs to prove, beyond a reasonable doubt, that a vehicle was either being driven, or was in a potential driver’s “actually physical control.” As of the date of this writing, there is no bright line test for APC, just a totality of the circumstances view. Phoenix DUI Defense Lawyer The (A)(1) DUI sounds like it is the easiest to prove: impaired to the slightest degree? One or two drinks, right? Not true. As a general rule, if a prosecutor does not think he can win the (A)(2) or (3) count (prove the existence of drugs or illegal amounts of alcohol), he will not proceed to trial just on the (A)(1). It is my opinion that if juries really understood the law, that wouldn’t be the case. However, it appears juries do not want to convicted on “slightest degree” alone; however, there are plenty of exceptions. Because the (A)(1) conviction is usually a bi-product of the (A)(2), most defense lawyer and attorney work is done trying to rebuff the (A)(2) allegation. This is generally done by examining closely the relevant chemical tests to determine if they were conducted properly, etc.; to make sure the law was followed; and to make sure all of the state’s evidence is admissible at trial. Why two hours after? A driver used to be able to claim that at the time of driving, his blood alcohol was below the limit, and only after driving and being tested by the police did his blood alcohol rise to illegal limits. Some DUI attorneys refer to this as the “rising alcohol defense.” Johnny took six shots of vodka at 1:00am, and at 1:02 he was pulled over. In those two minutes, his blood alcohol had not risen to illegal limits (most of it was still just beginning to become absorbed). Therefore, acquit. No more – now there are up to two hours after driving for which a driver, who has not subsequently consumed alcohol, can had his blood tested and be convicted. The (A)(3) is relatively bogus, to use a very non-legal term. Smoke pot on day 1, drive on day 16, you are likely guilty of (A)(3) DUI. Moreover, your license will be suspended nine months longer than (A)(1) and (2), and, ridiculous as it may be, you will be required to obtain an ignition interlock. I hope this helps the notice student or recent recipient of a DUI in Arizona, Phoenix, and Maricopa County understand the basic elements of DUI in Arizona. Please contact a Phoenix DUI attorney, at the Law Offices of David A. Black, to discuss the details of your case.
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