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DUI Defense: No Actual Physical Control

The DUI law in Arizona used to read that any intoxicated person sitting in a car with the keys in the ignition is in “actual physical control” of their car. However, in 1995, David Michael Cantor took the case, State vs. Love, to the Arizona Supreme Court in order to change the law. He argued and won the case. Since 1995, the definition regarding whether a person has actual physical control of their vehicle while intoxicated depends on a totality of the circumstances. For example, if a person pulled over and stopped only to turn the air conditioner or heater on, then they cannot be charged with being in physical control of their vehicle. Other situations where a person would not be in “actual physical control” of a vehicle would be if a person is sitting in the car and waiting for a ride, or if an intoxicated driver is “sleeping it off”. David Michael Cantor has argued and won countless cases pertaining to individuals being charged with DUIs.

Watch this short video about the DUI Defense, No Actual Physical Control:

Each case is different, but our firm is very good at defending DUI cases. We defend individuals who may not have been in actual physical control of their vehicles during their brief intoxication. Some of the possible indications of the ‘No Actual Physical Control’ DUI defense are: if the engine or parking brake were on or off during the arrest; if the car was off the main travel road; if the car was in neutral; and if the car was in a bus pullout, parking lot or outside of a drive-thru. These are instances where attorneys can argue that the individual, though intoxicated, was not in actual physical control of their vehicle because the vehicle was not moving or putting anyone in harm’s way. However, it would be hard to argue if a person was passed out a green light, hit a pole or blew out their tires while intoxicated. This is evidence that the person was intoxicated and in actual physical control of their vehicle prior to passing out.

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If one of these situations applies to you, then contact our offices at 602-307-0808 or send us an email to get a Free Case Consultation. We are ready to discuss your case with you and find the best possible defense for your case.

 

 


How Does a DUI Affect Your CDL in Arizona?

CDL is needed to drive a Semi-TruckReceiving a conviction for DUI (driving under the influence) in Arizona can present significant problems for the defendant with a CDL. It is not necessary to be operating a commercial vehicle for a conviction to impact the commercial license status because any general driving privilege suspension period will include a suspension for the commercial driver’s license as well. The damage done by an impaired driving charge depends on the particulars of the case and the possibility of aggravated or enhanced DUI charges, as Arizona has structured a unique comprehensive approach to combat driving under the influence.

All states have stricter standards for commercial drivers who are arrested and convicted for driving under the influence in a commercial vehicle. The universal blood alcohol content level of .08 that all states have adopted for general impaired driving charges does not apply. The standard for commercial drivers to be legally intoxicated in Arizona is .04 BAC level. Commercial drivers that receive a conviction for driving under the influence in Arizona will receive a one year commercial license suspension period regardless of the vehicle the defendant was driving. Two convictions for driving under the influence will result in a lifetime suspension of the commercial driver’s license.

Receiving an intoxicated driving conviction does not necessarily restrict an individual from receiving a commercial driver’s license. An applicant can receive a commercial driver’s license if the previous driver’s license suspension period is completed, but the CDL holder will lose that license if convicted again. The law also makes no distinction between classes of commercial licenses. The suspensions apply to smaller class commercial vehicle operators as well as tractor-trailers.

The impact that a conviction for DUI (driving under the influence) can have on a professional transporter can be immense. Many individuals have invested significantly in their profession and could sacrifice a high income and comfortable standard of living for a simple infraction. In addition to drivers license suspensions, the convicted commercial license holder will receive a much harsher fine than a typical convicted impaired driver.

Convictions for driving under the influence can be a basis for immediate discharge from employment by any transportation company. Many trucking and transportation companies maintain a zero-tolerance policy for impaired driving among employees because of the impact on commercial driving insurance rates and contracted bonding agreements.

Commercial license holders should be aware that states share information concerning DUI convictions. Any CDL applicant should always list a previous conviction that is still effective during their drivers license record period. Any application that does not contain a pertinent conviction will be automatically rejected by the Arizona Department of Motor Vehicles.

If you have a CDL and have been arrested or are suspected of a DUI, give us a call. Our team of DUI defense lawyers will listen to the circumstances of your case and help to formulate defenses to the charge. Call us (or email us) today at (602) 307-0808 to schedule a free consultation.


Possible Defenses for DUI, DWI, Extreme DUI in AZ

There are many defenses to DUI in AZ, DWI, & Extreme DUI charges. Don’t believe the prosecutor-there are very few hopeless cases. A DWI or DUI in AZ conviction has lifelong consequences, and-depending on the facts surrounding the individual case-Dismissal or Acquittal is Possible. This article will discuss possible defenses for DUI, DWI and Extreme DUI in AZ.

Below is a partial list of Possible Defenses for DUI, DWI, or Extreme DUI in AZ:
“No Reasonable Suspicion to Stop” Officers are not permitted to stop or detain someone based on pretexts regarding race, religion, gender, age, sexual preference nor on a host of other possible unjustifiable reasons.

“No Actual Physical Control” If a person has had too much to drink, pulls off the roadway, leaves the engine running with the A/C or heater on, and attempts to “sleep it off”, then they are not in “actual physical control” of their vehicle and are not guilty of DWI or DUI in AZ.

“No Probable Cause for Arrest” If an officer did not have probable cause that a person was actually under the influence of alcohol, then the arrest will be invalidated (i.e. if the Field Sobriety Tests (FSTs) were improperly administered). The National Highway Traffic Safety Administration (NHTSA) has set forth guidelines regarding FSTs. The tests should not be given if the suspect:

  • is 50 pounds or more overweight
  • is 65 years of age or older
  • has any back, hip, leg, knee, or ankle injuries
  • has any disability effecting balance
  • is wearing shoes with heels two (2) inches or higher

Remember, you always have the right to refuse Field Sobriety Tests (i.e., the “physical” tests). Do not believe the Officer if he tells you otherwise!

If the Horizontal Gaze Nystagmus (HGN) or “eye test” was given by an officer not yet certified to give that test, it will be inadmissible in a DUI in AZ case.

Note: if the only basis for arrest is refusing to perform FSTs, then the arrest will be invalidated.

“Denial of Right to Counsel” When arrested for DUI, DWI, or Extreme DUI in AZ, upon requesting a DUI in AZ Lawyer, the police must get you to a phone as soon as it is reasonably possible. If they ignore your request, or wait too long, this could be grounds for dismissal. (See also THE RIGHT TO REMAIN SILENT-USE IT! Section).

“Inaccuracy of the Breath or Blood Testing Device” The AZ Department of Health Services (DHS) has set forth rules for the proper maintenance of breath testing devices. They must be calibrated to within a 10% accuracy range every thirty-one (31) days. In addition, the machine goes through a seven (7) test Standard Quality Assurance Procedure (SQAP) every ninety (90) days. If any of the maintenance checks are “out of tolerance”, then all breath tests given during the time interval between the two maintenance checks will be inadmissible. The prosecutor will not point this out for you.

“Retrograde Extrapolation below .08% BAC at Time of Driving” (Or below .15% If Extreme DUI in AZ). It can be shown through a math calculation that any alcohol drank in the last hour prior to being stopped would still be in your stomach and not in your blood system “at the time of driving”. For example, a one hundred and fifty (150) pound man who had a breath test of .15% an hour after he was stopped, yet he drank three beers in the last hour before leaving the bar, it can be shown that his BAC “at the time of driving” was as low as .075%. This number can go even lower due to other factors such as a ten percent variance and inaccurate blood to breath conversion ratios (i.e., “2100-1″) which are inherent to all breath testing devices. As of 7/17/00 the Legislature passed a law stating that this is only a defense to the DUI in AZ charge, not the DWI or the Extreme DWI charges. However, we will be challenging this change in the law as unconstitutional. This has already been successfully reversed in Delaware and Pennsylvania. We are currently challenging this law in the Appellate Courts. See us immediately to discuss the ongoing status of the “BAC at the time of driving” defense.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about a DUI in Arizona, visit our site.


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