National Association of Criminal Defense Lawyers

Arizona DUI Defenses

The best defense is to attack.”
– Proverbs

Potential Defenses For DUI Charges in Arizona

Phoenix DUI Attorney – Sheena Lemmons, Managing Attorney

Trial-tested potential defenses to driving under the influence charges in Arizona apply to a wide range of circumstances. This list is provided by Civil Rights Restored for example purposes only and does not represent a full or complete list of possible available defenses. Every case has a unique set of facts and each person has a unique history. See our DUI Pages for more information. Call us today to discuss your case with an Arizona DUI defense lawyer and build your defense strategy today.

No Reasonable Suspicion for the Stop

An illegal stop is an unconstitutional violation of a person’s Fourth Amendment right against unreasonable search and seizure. Our criminal defense attorney carefully reviews the context and procedures surrounding our client’s contact with police for any potential violations. We absolutely file legal challenges where a person’s rights were violated due to “no reasonable suspicion for the stop.” This may result in the case being dismissed altogether.

A lawful stop or detention requires the state to show that at the time of the stop, the officer had reasonable suspicion the person is engaged in criminal activity. Reasonable suspicion is based on the totality of the circumstances. Police are not permitted to stop or detain individuals based merely on inarticulable legal reasons or merely a hunch.

No Actual Physical Control (APC)

In order to be proved guilty of driving under the influence, the state must prove that a person was either driving or had APC of a vehicle while under the influence of alcohol or drugs. A driver has APC if the jury finds by a totality of the circumstances that the driver is readily capable of putting the vehicle into traffic while impaired.

The Safe Harbor Defense

Our Phoenix DUI defense lawyer will look for evidence to show that you had relinquished ACP and were using the vehicle as a “safe harbor.” Examples of circumstances to consider include:

Where the car is located,

The condition of the vehicle,

The location of your car keys,

Whether the ignition was on or the vehicle was running,

Where the driver was seated in the vehicle,

Whether the driver was sleeping or awake,

The time of day and any other relevant factors.

No Probable Cause for the Arrest

If the officer lacked probable cause to make an arrest for violation of DUI, the arrest will be invalidated as unconstitutional. If our Arizona DUI defense lawyer wins on a motion to suppress the evidence for lack of probable cause to arrest, we have just destroyed the state’s case and it will likely be dismissed. The Fourth Amendment protections against unreasonable search and seizure require an arresting officer to have probable cause to make an arrest. Probable cause is established when an officer reasonably believes, based on trustworthy information, that the person has committed a crime.

In order to establish probable cause to make an arrest for DUI, an officer must be able to provide specific articulable facts that a person was under the influence of alcohol or drugs. The arrest must be based on sufficient probable cause in order to justify the officer’s intrusion on the person’s Fourth Amendment rights. For instance, in Arizona it is not illegal to have a drink and drive. It is only illegal to do so if the driver is a 0.08 BAC or more, or if they are impaired to the slightest degree.

Our criminal defense attorney will review factors such as:

The manner of driving leading to the stop;

Whether physical or mental signs or symptoms of impairment were apparent;

Whether Field Sobriety Tests (FSTs) were administered improperly;

Whether the Horizontal Gaze Nystagmus field sobriety test (HGN) was administered improperly or by an officer not certified to perform the test;

The result of any portable breath test given; and

Any other relevant factor to determine probable cause.

Miranda Warning Violation

The landmark Miranda case held that Fifth Amendment Miranda Warnings must be given PRIOR to custodial interrogation.

The Fifth Amendment provides that “[n]o person shall be compelled in any criminal case to be a witness against himself.”

You have the right to remain silent. Use it.

The Miranda case created a Fifth Amendment right to counsel to protect the privilege against self-incrimination during the inherently coercive nature of custodial police interrogation. Miranda Warnings are a protective device. It is used to relieve the coercion that is inherent during intimidating, custodial interrogation. Thus, it is a way to ensure statements made by the defendant are voluntary.

Miranda Warnings are triggered by custodial interrogation. Therefore, a defendant does not have to be advised of her rights the moment she is arrested, but she must be advised prior to being asked questions likely to produce incriminating answers after taken into custody. Any spontaneous statements the defendant makes voluntarily after being arrested, absent interrogation and absent Miranda Warnings, are admissible.

What are Miranda Rights?

YOU HAVE THE RIGHT TO REMAIN SILENT;

ANYTHING YOU SAY CAN (AND WILL) BE USED AGAINST YOU IN A COURT OF LAW;

YOU HAVE THE RIGHT TO THE PRESENCE OF AN ATTORNEY;

IF YOU CANNOT AFFORD AN ATTORNEY, ONE WILL BE APPOINTED FOR YOU PRIOR TO QUESTIONING, IF YOU SO DESIRE.

Do You Have a Right to Counsel During a DUI Traffic Stop?

No. A lawful traffic stop based on reasonable suspicion is an investigatory stop and is not custodial. Although officers conducting a DUI investigation ask questions and you and you may not feel free to leave, the seizure is temporary in nature. Generally, a legal traffic stop does not deprive a person freedom in a significant way to trigger Miranda because you are not being interrogated while in custody.

You have the right to remain silent. You may also choose to refuse to perform field sobriety tests. If you choose to do the tests, the evidence is admissible in court for or against you.

Do You Have a Right to Counsel After a DUI Arrest?

Generally, yes. While an officer does not have to recite a Miranda Warning immediately upon arrest, the officer must provide the warning prior to any questioning likely to produce an incriminating response.

You must clearly and unequivocally invoke your right to counsel prior to answering any questions. You may clearly and politely state, “I want to speak with a lawyer and I am not answering any questions.” This will shut down any further questioning until the defendant is afforded the opportunity to speak with an attorney.

A person may also inadvertently waive their Miranda Rights. A waiver must be voluntary, knowing, and intelligent after the person shows they understood the Miranda Warning. For example, a waiver may be found where a person acknowledges that they understand the warning and then later makes voluntary statements that are incriminating. Our Arizona DUI defense lawyer stresses the importance of using your right to remain silent.

What is the Remedy for a Miranda Violation?

A Miranda violation can manifest itself in several different ways such as:

The officer failed to give a Miranda Warning prior to custodial interrogation;

Police continued questioning after defendant invoked their right to remain silent;

Police continued questioning after defendant invoked their right to speak with an attorney;

Police used threatening, intimidating, or coercive tactics to convince defendant to waive their rights.

Civil Rights Restored DUI defense lawyer will carefully analyze your case to determine the presence of any legal issues. We will file for the suppression of any evidence obtained in violation of Miranda. This means any statements made in violation of Miranda would be inadmissible to be used against you in a court of law. Keep in mind that any other evidence lawfully obtained outside of the Miranda violation is still admissible, such as any statements made to police during the traffic stop and field sobriety tests, for example.

Having evidence suppressed obtained in violation of Miranda Warnings may greatly hamper the prosecution’s case against you. Depending on the circumstances, this can lead to reduced charges or even full dismissal.

Violation of Right to Counsel

DUI cases are unlike other criminal charges in that the evidence the State is seeking to obtain from you via breath or blood is evanescent in nature. The State seeks to obtain that evidence as soon as possible before it dissipates. It follows then that it is just as important for the defendant to collect evidence as close in time to the arrest as well. One way to collect evidence of lack of impairment or sobriety is through the advice of counsel. Therefore, the Arizona Supreme Court has decided that the state must provide an opportunity to speak with counsel, promptly. This is conditioned on whether it would hinder the police investigation.

A violation of an individual’s right to counsel in the context of DUI law can result in suppression of the evidence obtained and even a full dismissal of all charges.

Call Civil Rights Restored today to speak with an Arizona DUI defense lawyer and discuss the facts of your case.

No Warrant

A driver’s license is a privilege to drive, not a right. As such, anyone who drives a vehicle in Arizona gives implied consent to chemical testing if you are pulled over on suspicion of DUI. The test is to determine the alcohol concentration or drug content in the person’s body while they were driving. A person may always consent to the testing, which requires no warrant. However, if the person refuses the test, police must obtain a warrant prior to a blood draw. Failure to obtain a warrant prior to the blood draw may result in the suppression of evidence.

If our Phoenix DUI attorney wins on a suppression hearing and the blood is suppressed in a blood case – the state will likely dismiss the case or offer reduced charges!

In light of a person’s refusal to test their blood, a search warrant must be obtained based on probable cause prior to a blood draw. This is required under the Fourth Amendment protection against any unreasonable search or seizure. The warrant must be 1) based on probable cause that the person has violated the DUI statute and 2) the person did not give their unequivocal consent to the blood draw.

For example, if the state failed to obtain a warrant prior to the blood draw, or if the warrant is defective, our DUI attorney will request an evidentiary hearing. The purpose is of the motion is to suppress the blood alcohol result obtained in violation of the Fourth Amendment. Consequently, this will greatly harm the state’s case as the chemical evidence is the strongest evidence against you.

Call Civil Rights Restored to speak with an Arizona DUI defense lawyer today.

Identity – Desureault Hearing

As in other criminal cases, identity, specifically the identity of the driver, may be at issue or brought into focus. In cases where there is a disconnect in time or location/distance between the car and suspected driver, the State may face challenges to an unduly suggestive witness identification of the driver which could result in suppression of an in-court identification.

Pretrial Identification – unduly suggestive, for example, a suspect in handcuffs standing next to a police officer.

In trial identification – is it independently reliable from the unduly suggestive pretrial identification?

When arresting officers rely upon identification procedures during a criminal investigation, Due Process requires that they be “fundamentally fair and secure the suspect’s right to a fair trial.” Thus, investigating officers violate a defendant’s Due Process rights when they perform identification procedures in such a way as to undermine the fundamental fairness of the defendant’s trial.

Contact Civil Rights Restored to discuss your case with an Arizona DUI defense lawyer today.

Valid Prescription for Prescription Medication

In Arizona, a person can be charged with a DUI for driving or being in actual physical control of a motor vehicle if:

There is any controlled substance or active metabolite in the person’s body such as marijuana or prescription medication; or

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.

This means that a person can be arrested for DUI if the officer believes the person was driving or in APC if they were impaired to the slightest degree while under the influence drugs and/or alcohol.

It is an affirmative defense to one of the DUI charges if the person has a valid prescription for medication. They must also be taking it as prescribed. A valid prescription is a defense to the A.R.S. 28-1381(A)(3) charge.

However, Arizona has a zero tolerance policy on DUI’s. Therefore, having a valid prescription and taking as prescribed is not a defense to the impaired to the slightest degree charge. Here, the state must prove beyond a reasonable doubt that the person was driving or in APC of a motor vehicle while impaired to the slightest degree of prescription medication. The jury, as the fact finder, may consider the presence of the valid prescription and the manner of the person’s use and their driving behavior.

Call Civil Rights Restored to speak with a Phoenix DUI defense lawyer today.

Improper Administration of Field Sobriety Tests

First off, you may refuse to perform field sobriety tests (FSTs). You may politely decline.

Police use FSTs as part of the DUI investigation as a way to build probable cause to make an arrest for DUI (or to dispel their suspicions).

FSTs are standardized tests. As such, there are national standards that govern how FSTs are to be administered. According to the National Highway and Traffic Safety Administration, NHTSA, improperly administered FSTs are not valid evidence of intoxication. FSTs commonly include:

Horizontal Gaze Nystagmus (HGN)

Walk and Turn

One Leg Stand

Officers must be properly trained and vetted via their instructors and peers to properly administer the validated and standardized FSTs. Even officers with years of experience administering HGN, the W&T and OLS still take short cuts. Sometimes they modify the instructions or just merely make mistakes and administer the test incorrectly. This means that the tests were not preformed in a validated and standardized fashion.

A skilled and experienced Phoenix DUI defense lawyer must be able to attack the officer’s administration of the tests to full effect for the prosecutor, the court, or a jury. At Civil Rights Restored, we do this by articulating what is being done incorrectly and explain why a faulty administration of the tests matters in your case.

The FSTs are not validated nor standardized under the following conditions:

Is injured or suffers from back, knee, leg, or hip pain;

Has a disability that impairs the persons balance;

Elderly;

Obese;

Is wearing high heels 2 inches or higher. (The officer will ask you to take off your shoes and do it anyway! You may politely decline).

FSTs should also not be administered if the landscape is uneven, on a slope or hill, in mud, or near heavy passing traffic.

Improperly administered FSTs will result in the evidence being inaccurate, which bears greatly on the credibility of the results, and in some cases could result in suppression of the FSTs in court.

Call Civil Rights Restored for a free consultation with an Arizona DUI defense lawyer today!

Attacking the Reported Chemical Test Results

Suppress the Blood / Breath Alcohol Result

Without the reported blood alcohol concentration—the State’s likelihood for a conviction has been dealt a potentially insurmountable blow. In most cases, this means the State will file a motion to dismiss. Our experienced Arizona criminal defense attorneys have successfully argued to suppress the reported test results leading to a dismissal of all DUI charges.

To name a few violations for example: The reported blood alcohol concentration can be suppressed due to the officer coercing consent for a blood draw; violating the accused’s right to an independent test; and not allowing an attorney phone call.

Call today and speak with an Arizona DUI defense lawyer, SEASONED IN DUI DEFENSE.

Challenging the Reported Result in Court

The State’s case never looks better than on day 1, prior to a good defense team tearing it apart. In the world of DUI prosecution there is a blood draw, usually done by a police officer that has received some venipuncture classes. Additionally, the blood must be safely stored. Next, a crime lab will analyze the blood using some brand of headspace gas chromatography. And finally, the State will produce a report with an alleged accurate blood alcohol test result.

Each and every step mentioned above, from the collection, storing, analysis, and reporting can be attacked in Court. Humans are involved in every step of the process—and humans make mistakes. Additionally, there are machines and software involved which may have glitches. Essentially, the entire process is subject to error, miscalculation and mistakes.

It takes a knowledgeable, aggressive and skilled criminal defense attorney that is experienced in DUI defense to successfully challenge and persuade a jury to come back with an acquittal.

Don’t delay, start your defense today. Call and speak with a DUI defense lawyer.