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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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