DUI & Criminal Defense

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Phoenix, AZ 85006

First Offense DUI Arizona


The Ultimate Guide

First Offense DUI Arizona

Being impaired or having an alcohol concentration above the legal limit

It’s not what you thought.  Before today you had an idea of what a DUI was in you mind.  Chances are you’re are discovering  the offense is much different than you imagined. 

An Arizona DUI Citation

After being arrested you get a piece of paper called a citation. It’s just a list of everything they claim you did wrong. You expect it to say DUI. But, it says more. The citation claims that you committed two DUI’s. At this point, you’re thinking this is crazy. After all, how can someone get two DUI’s for the same case?

Arizona law essentially divides a DUI into two legally separate, but factually related offenses.  The specific statute that contains both offenses is A.R.S. 28-1381.  The first way to violate the law is by driving while impaired by alcohol.  The second is driving with an alcohol concentration of at least .08.

Let me explain:

Just about everyone arrested for a DUI in Arizona will get charged with, at least two, separate but related DUI offenses.

The two Arizona DUI offenses are driving:

1. While being impaired to the slightest by alcohol

2. Having an alcohol concentration of .08 or greater. 

What's the Difference?

Scientifically speaking, there is not much difference between the two charges.  It is generally accepted in the scientific community that if you have an alcohol concentration of .08, then you are impaired for the task of driving. Put another way, if you are impaired by alcohol, then you also likely have an alcohol concentration above the legal limit (and vis-versa). The law makes a distinction without there being much of a factual difference as to what is going on in your body

First Offense Arizona DUI

Impaired While Driving

Arizona DUI

Within 2 Hours

The real legal difference is the timing of a DUI violation.  The impaired charge concerns your physical and mental condition at the time of driving. However, the per se charge that alleges your alcohol concentration is above the legal limit goes beyond the time of driving.  It concerns your alcohol concentration up to 2 hours after driving.

Here’s the kicker:

So how do your two DUI charges become one? The answer is Arizona DUI laws requires that, if you are convicted of both charges, the penalties must run concurrently.  Put another way, courts are not permitted to increase the penalty if you are convicted of both counts of DUI.

Why Two DUI Crimes?

The law’s legislative history does not state why Arizona’s DUI statute has two separate charges that basically mean the same thing.  However, it’s fairly obvious it was (at least in part) to make defending DUI allegations more difficult.

Juries are not told anything about punishment.  However, it’s human nature to think about it.  In cases where they struggle to make a decision, sometimes they work backward using false assumptions about punishment. They come to think, in the end, that the judge will do the right thing.  They do this not knowing a conviction removes a judge’s discretion from deviating from mandatory minimum sentences.

Therefore, despite being instructed not to compromise, it commonly occurs.  They split the verdict by voting guilty on one count and not guilty on the other.

It's Not Only Driving

Arizona’s DUI laws cover more than just driving while impaired or being above the legal limit.  Being in actual physical control of a vehicle is considered the same as driving.  

§ 28-1381(A)(1). Driving or actual physical control while under the influence

A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:

1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree.

§ 28-1381(A)(1). Driving or actual physical control while under the influence

A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:

2. If the person has an alcohol concentration of 0.08 or more within two hours of driving or being in actual physical control of the vehicle and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle.

Arizona DUI First Offense FAQS

Is an Arizona DUI a Felony or Misdemeanor?

A first offense DUI is a misdemeanor unless there other specific circumstances present (i.e. suspended license, wrong way driving, child in vehicle, etc). Misdemeanor DUI cases are usually prosecuted in Municipal (City) courts or Justice Courts. Theses are called limited jurisdiction courts. Accordingly, if a case is filed in Scottsdale City Court, Phoenix Municipal Court or West Mesa Justice Court then it can’t be a felony. Because those types of courts don’t have jurisdiction to hear anything but misdemeanors.

What is The Required Culpable Mental State for DUI?

The crime of DUI does not require proof of a culpable mental state.

Do You Have A Right To Get Your Own Blood Test?

A power suspected DUI has a due process right to gather independent evidence of sobriety while it still exists, so long as the exercise of that right does not unduly delay or interfere with the law enforcement investigation. 

Do You Have The Right To Talk With An Attorney Before A Blood Test?

Despite the statutory two-hour window for taking a breath test, a defendant is entitled to the advice of counsel when in custody, and the state may not unreasonably restrict that right.

What are the defenses to an Arizona DUI?

Yes.  Here is an entire section devoted exclusively to DUI defenses.  LET’S GO.

Drunk Driving | Out-of-State Visitors

What if I am an out-of-state visitor who was arrested for DUI?

It is extremely common that someone who is visiting Arizona from another state is arrested for DUI. I regulalry handle these cases.  I make every effort to have you appear telephonically with both the court and the Department of Motor Vehicles.

what happens if you get a dui out of state Arizona

An Arizona DUI may affect your driving privileges in the state you reside in. Consequences vary by state. In addition, depending on the court in which your DUI is being prosecuted and the facts of the case, you may be able to resolve your DUI without retuning to Arizona.

Arizona DUI Laws First Offense | Arizona DUI First Offense

In Arizona what is the punishment for your first dui offense?

The penalties for being convicted of a DUI in Arizona can include:

  • Driver License Suspension
  • Fines
  • Incarceration (a term of jail)
  • Installation of an Ignition Interlock Device
  • Substance abuse screening and recommended treatment


Arizona misdemeanor DUI penalties in plain English

Why should I hire an experienced DUI/DWI attorney?

Arizona DUI law is extremely complicated and has severe consequences. DUI law is commonly referred to as a minefield. An attorney must be competent in the Arizona Rules of “Criminal” Procedure, the Arizona Rules of Evidence, the United States and Arizona Constitutions, and the Arizona Department of Motor Vehicles Rules and Regulations.

An attorney cannot do anything for you unless he or she has extensive experience in these areas.  Police officers are only human and do commit legal errors.  However, only an experienced DUI attorney will be able to find these errors and use them to help his or her client.

You should choose an experienced DUI attorney for the same reason you should choose a qualified doctor. If you break your wrist, you go to a doctor that specializes in wrist injuries. When you are charged with a DUI, you should hire a qualified DUI attorney.

An experienced Arizona DUI attorney can analyze your case for legal errors and defenses. He or she can have blood samples independently analyzed, look for suppression issues, review calibration / COBRA records of breath machines, find the right expert witnesses for your trial, and assist you with your driver’s license issues.

Do You Have An Arizona DUI Problem?

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2501 N. 7th Street | Phoenix AZ 85006 | (602) 494-3444