How to Completely Avoid DUI Jail Time
If you’re reading this, chances are you or someone you care about has been charged recently with misdemeanor DUI in or near Tucson. You are worried about jail. Here’s three basic thoughts that may help you get your bearings during the time of covid.
Types of DUI
First, let’s figure out what kind of DUI it is. They’re usually misdemeanors unless there’s been an accident, had children under 15 in the car, or you’ve had problems in the past. Most of the time when they give you a citation and let you go home it’s a misdemeanor.
And there’s two basic types of misdemeanor DUI’s in Arizona: “Simple” and “Extreme.” If your blood or breath sample returns under a .15 BAC it will be a “simple”; if you are over you will be an “extreme” (or even more ominously if you are over a .20 BAC it will be a “super extreme.”
If there was an accident, you might also be charged with “criminal damage” and “endangerment.” These can either be charged as misdemeanors or felonies.
Minimum Penalties vs. Likely Penalties
Second, although the “maximum penalties” are scary sounding, in almost every misdemeanor non-accident case in the Tucson area, the most people are facing, even with extreme dui’s is no more than a few days in jail, and a week or so of home detention.
Simply put, for first-offense non-accident DUI with Blood or Breath Alcohol Levels under a .15 the most you are usually looking at in Tucson is a single day (24 hours) in the County jail.
Now, if you are over a .15, you are according to the law you are supposedly looking at minimum 30 days in jail. In Tucson the reality is no judge or prosecutor, with maybe one phlegmatic exception, even thinks about wanting to give you anything close to 30 days-even cases well over a .15. In reality, for first offense non-accident extreme DUI’s, in Tucson you are only looking in most cases at two days or so, followed by a stretch of home detention.
DUI if you are Under 21
Something to be aware of in Arizona: If you or your son or daughter is under 21, and received a DUI in Tucson, take a good look at the citation again. There’s often a third charge, enumerated ARS § 4-244.35 Underage Driving with Alcohol. The problem with this charge is it’s so easy for the prosecutor to prove: Any quantifiable or admitted amount of alcohol, even if it’ just a sip is enough to get you convicted. And although it doesn’t carry any mandatory jail time, it carries a mandatory two year suspension of your Arizona driving privileges (even if you are an out-of stater and a college student). Yes, you can get a “restricted license” for those two years if the judge so orders (and they almost always so order) but only if a priori you install an interlock ignition device and keep it on for two years. Capiche? That little charge 4-244.35, per ipsum can hang up a lot of otherwise ostensibly defensible DUI cases, especially in the low reading zones.
Misdemeanor DUI with Prior
Now here is where it gets problematic. If you have had a DUI in the past 84 months (seven years), the penalties increase algo rhythmically, especially if you are in the upper echelons of ETOH levels. It breaks down like this: (1) if you are over a.08 but below a .15 and have a prior you are looking at 30 days minimum; (2)if you are over a .15 and less than a .20 you are looking at 120 days; and if you are unlucky enough to come in over a .20 BAC you are looking at 180 days flat at the County Jail.
Covid & Jail
Third, right now, both the Tucson City Prosecutor’s Office, and the Pima County Attorney’s Office, are allowing people to completely avoid jail. Instead of jail, for all misdemeanors, you will do “home detention.” For those cases pending in Tucson City Court, Home Detention must be completed by September 1, 2021. For those cases pending in Pima County Justice Court, there is no end date yet stated, but the program is directly related to COVID issues. For those cases pending in Oro Valley, unfortunately, the program does not apply. The bottom line is, these programs, in the major jurisdictions, are terrific, and give people an incentive to resolve their cases early.
To take advantage of the home detention in lieu of jail program you have to apply and qualify for home detention. The only things that seem to be eliminators are past violent crimes. Anecdotally, I’ve never had a client who did not qualify for home detention at any time. It’s hugely advantageous, especially for people who are facing significant jail time.
The Supreme Court in a 9-0 opinion held that when a minor offense alone is involved, police officers can't enter the home without a warrant.
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About Michael Harwin
Michael’s skill and experience have been recognized repeatedly. He holds an A-V 5/5 preeminent rating by Martindale Hubbell. He has been named one of the top lawyers in Arizona by Southwest Superlawyers, and one of the best lawyers in Tucson by Tucson Lifestyle Magazine. He also has been named one of the best lawyers in the United States by BestofUS.com , and given the highest rating possible by AVVO, 10/10 Superb. Amazon Books