Over a .08 DUI – ARS § 28-138
Driving while over the legal limit, .08 BAC is a crime in Arizona, a class one misdemeanor, punishable by a minimum of one 24 hour period in jail, even if the defendant has never been in before. The crime is codified at .08 BAC as codified at ARS § 28-1381(a)(2).
In order to be found guilty of being over a .08BAC, the State must prove only that with within two hours of driving, your blood was drawn, tested on an “approved device” and returned a result of .08 or above.
Generally speaking, police will draw your blood right at the scene or at a nearby station. Many police officer are now “qualified” phlebotomists.
If you don’t fully consent to a blood test, police will try to obtain a warrant and, if granted draw your blood anyway without your consent. In Arizona, police may forcibly draw your blood, if they have a warrant in hand.
Additionally, if do not consent to a blood test, and police have to obtain a warrant, police not only will take your blood anyway but will serve you with a formal notice that your license will be suspended for one year as punishment for refusing to consent to the blood test. This suspension for one year may occur whether or not you win your criminal case.
What’s more, if you wish to challenge the one year “refusal” suspension, you must do so within fifteen days of the date of arrest by filing and perfecting your request in a secondary administrative driver’s license court, a state-wide court that is a part of Arizona Department of Motor Vehicles. This is completely separate from the criminal court. There are directions on the back of the pink order of suspension the police serve you with. If you fail to formally challenge and perfect your challenge in a timely manner—fifteen days from the date of arrest—the one year suspension automatically goes into effect.
Occasionally police will resort to another accepted testing method– breath testing. Typically it’s done in the field on a portable Intoxylizer 9000 that sits mounted in the back of a patrol vehicle. If using breath only police will engage in replicate breath testing, two separate breath tests on an approved device within 5-9 minutes apart. The results must reasonably close to each other to pass muster.
If you submit to breath tests at the scene and the results come in over a .08, the police not only will charge you with driving with a BAC of over a .08 pursuant to ARS § 28-1381(a)(2), they will also serve you at the same time they arrest you with an order suspending your license for 90 days beginning fifteen days from arrest. Again, you may challenge this administrative suspension in a secondary MVD administrative court, but must do so within fifteen days from the date of arrest. If you fail to do so, timely, the suspension will automatically take effect
But in the case of the administrative suspension for being over a .08, the 90 days are broken up into two segments 30 days and 60 daays. For the first thirty days you may not drive at all, but for the next 60 days so long as you complete a one hour alcohol screening at an MVD-approved screening service, you may receive a “restricted license” to drive to and from work, school, medical appointments and court. At the end of the 90 day period you may reinstate your driver’s license. Once again this 90 suspension applies even if you win your criminal case. It depends only on alcohol level.
Known as the per se charge, ARS § 28-1381(a)(2) over a .08 exposes to criminal liability, and administrative liability, to all those who test over the legal limit for alcohol .08, even if there are no obvious signs of impairment. There may be no bad driving. The person may speak and act normally. The person might pass one or more of the field sobriety tests. But according to Arizona law, if you are over the “limit,” you can be found guilty of DUI with little more.
Moreover, police and criminal prosecutors almost always charge both, pairing the per se .08 charge, § 1381(a)(2) with the impaired to the slightest degree charge, § 1381(a)(1), as a double-barreled charging duo. The over a .08 charge will either appear right there on your ticket, or the prosecutor will charge the §1381(a)(2) charge separately and later.
This pairing of twin charges gives prosecutors an advantage at a jury trial because a jury would have to come back not guilty on both separate charges, in order for you to have a meaningful victory.
The .08 charge, then especially when paired with the slightest degree charge, combine with the administrative suspension , is another example of how difficult and strict DUI laws are designed to be in Arizona.