Phoenix Arizona DUI Lawyer Answers Your Questions

ARRESTED? CALL or TEXT Attorney David Kephart
on his cell phone at 480-456-0025

If you have been charged for Driving Under the Influence (DUI) for violating ARS 28-1381(A)(1), (2), or (3), then the following information will be helpful to you. In addition to reviewing the information below, you need to consult Phoenix DUI Lawyer David Kephart as soon as possible so he can start preparing to defend you and your case.

What does the DUI charge of ARS 28-1381(A)(1) Impaired to the Slightest Degree mean?
It is unlawful for you to drive or be in actual physical control of a vehicle 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 you are impaired to the slightest degree.

What does the DUI charge of ARS 28-1381(A)(2) Blood Alcohol Concentration of 0.08 but less than .15 mean?
It is unlawful for you to drive or be in actual physical control of a vehicle if you have 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.

What does the DUI charge ARS 28-1381(A)(3) Drug or Drug Metabolite (includes prescription drugs and illegal drugs mean?
It is unlawful for you to drive or be in actual physical control of a vehicle while there is any drug defined in section 13-3401 or its metabolite in your body.

What if I am using a prescription and charged with Driving Under the Influence?
Unfortunately, it is not a defense to a charge of a violation of ARS 28-1381(A)(1) if you are or have been entitled to use the drug under the laws of Arizona, i.e., even if you are prescribed a drug you can not drive with it in your system if it impairs your ability to drive to the slightest degree. However, if you are using a drug as prescribed by a medical practitioner licensed pursuant to title 32, chapter 7, 11, 13 or 17 you are not guilty of violating ARS 28-1381(A)(3).

What level of offense is DUI if I am cited for violating ARS 28-1381(A)(1), (2), or (3)?
A person who is convicted of a violation of this section is guilty of a class 1 misdemeanor.

Am I entitled to a jury trial if I am charged with a DUI?
DUI’s are jury trial eligible in Arizona.

How does the State prove I was Impaired to the Slightest Degree or that my BAC was above 0.80 but less than 0.15?
In a trial, action or proceeding for a violation of these statutes, a defendant’s alcohol concentration within two hours of the time of driving or being in actual physical control as shown by analysis of the defendant’s blood, breath or other bodily substance gives rise to the following presumptions:

  1. If there was at that time 0.05 or less alcohol concentration in the defendant’s blood, breath or other bodily substance, it may be presumed that the defendant was not under the influence of intoxicating liquor.
  2. If there was at that time in excess of 0.05 but less than 0.08 alcohol concentration in the defendant’s blood, breath or other bodily substance, that fact shall not give rise to a presumption that the defendant was or was not under the influence of intoxicating liquor, but that fact may be considered with other competent evidence in determining the guilt or innocence of the defendant.
  3. If there was at that time 0.08 or more alcohol concentration in the defendant’s blood, breath or other bodily substance, it may be presumed that the defendant was under the influence of intoxicating liquor.

1, 2, and 3 above does not limit the introduction of any other competent evidence bearing on the question of whether or not the defendant was under the influence of intoxicating liquor.

What is the Mandatory Minimum Punishment for being Impaired to the Slightest Degree or having a BAC above 0.80 but less than 0.15?
Arizona state law requires that if you are found guilty, you shall

  1. Be sentenced to serve not less than ten consecutive days in jail and is not eligible for probation or suspension of execution of sentence unless the entire sentence is served. However, at the time of sentencing the judge will usually suspend all but one day of the sentence if the you complete a court ordered alcohol or other drug screening, education or treatment program. Essentially what this means is that you will likely only serve one day in jail. If the you fail to complete the court ordered alcohol or other drug screening, education or treatment program and you have not been placed on probation, the court shall issue an order to show cause to you and you must appear in court and explain why the remaining jail sentence should not be served.
  2. Shall pay a fine of not less than two hundred fifty dollars.
  3. May be ordered by a court to perform community restitution.
  4. Shall pay an additional assessment of five hundred dollars to be deposited by the state treasurer in the prison construction and operations fund established by section 41-1651. This assessment is not subject to any surcharge.
  5. Shall pay an additional assessment of five hundred dollars to be deposited by the state treasurer in the public safety equipment fund established by section 41-1723. This assessment is not subject to any surcharge.
  6. Shall be required by the department, on report of the conviction, to equip any motor vehicle the person operates with a certified ignition interlock device pursuant to section 28-3319. In addition, the court may order you to equip any motor vehicle the person operates with a certified ignition interlock device for more than twelve months beginning on the date of reinstatement of the person’s driving privilege following a suspension or revocation or on the date of the department’s receipt of the report of conviction, whichever occurs later.

What if I have a prior conviction for a DUI within the last 84 months?
Arizona law states that if within a period of eighty-four months you are convicted of a second violation of this section or are convicted of a violation of this section and have previously been convicted of a violation of section 28-1382 or 28-1383 or an act in another jurisdiction that if committed in Arizona would be a violation of this section or section 28-1382 or 28-1383, the person:

  1. Shall be sentenced to serve not less than ninety days in jail, thirty days of which shall be served consecutively, and you are not eligible for probation or suspension of execution of sentence unless the entire sentence has been served. The judge may suspend all but thirty days of the sentence if you complete a court ordered alcohol or other drug screening, education or treatment program. If you fail to complete the court ordered alcohol or other drug screening, education or treatment program and have been placed on probation, the court shall issue an order to show cause as to why the remaining jail sentence should not be served.
  2. Shall pay a fine of not less than five hundred dollars.
  3. Shall be ordered by a court to perform at least thirty hours of community restitution.
  4. Shall have your driving privilege revoked for one year. The motor vehicle department shall revoke your driving privilege and shall require you to equip any motor vehicle you operate with a certified ignition interlock device. In addition, the court may order you to equip any motor vehicle you operate with a certified ignition interlock device for more than twelve months beginning on the date of reinstatement of your driving privilege following a suspension or revocation or on the date of the department’s receipt of the report of conviction, whichever occurs later. After completing forty-five days of the revocation period you are eligible for a special ignition interlock restricted driver license pursuant to section 28-1401.
  5. Shall pay an additional assessment of one thousand two hundred fifty dollars to be deposited by the state treasurer in the prison construction and operations fund established by section 41-1651. This assessment is not subject to any surcharge.
  6. Shall pay an additional assessment of one thousand two hundred fifty dollars to be deposited by the state treasurer in the public safety equipment fund established by section 41-1723. This assessment is not subject to any surcharge.

Is the 84 months based on date of offense or date of conviction?
In applying the eighty-four month provision of subsection K of this section, the dates of the commission of the offense shall be the determining factor, irrespective of the sequence in which the offenses were committed.

Chart for DUI Offenses Committed on or after September 26, 2008 up until January 1, 2012:

Violation BAC Classification Incarceration Fine of at Least: Additional Assessments Driving Privileges Screening, Education or Treatment Other Penalties
DUI Charge
1st Violation
0.01 Thru 0.149 Class 1 Misdemeanor 24 hours To 10 days $250 $500 to PCOF $500 to GF 30 to 90 day suspension.(Drug DUI 1 year suspension) IID for 1 year.* If completed, the court may suspend all but 24 hours of the jail sentence. Possibly community service.
Extreme DUI Charge 1st Violation 0.15 Thru 0.199 Class 1 Misdemeanor 30 To 90 days (30 consecutive days) $250 $250 to DUIAF $1000 to PCOF $1000 to GF Revoked for 1 year with IID for 1 year after driving privileges are restored If completed, the court may suspend all but 30 days of the jail sentence. Possibly community service.

Super Extreme DUI 1st Violation
0.20 or greater Class 1 Misdemeanor 45 To 90 days (45 consecutive days) $500 $250 to DUIAF $1000 to PCOF $1000 to GF Revoked for 1 year with IID for 18 months after driving privileges are restored Required Possibly community service.
DUI Charge 2nd Violation within 7 years 0.01 Thru 0.149 Class 1 Misdemeanor 10 To 90 days $500 $1250 to PCOF $1250 to GF Revoked for 1 year with IID for 1 year after driving privileges are restored If completed, the court may suspend all but 30 days of the jail sentence. Possibly community service.
Extreme DUI Charge 2nd Violation within 7 years 0.15 Thru 0.199 Class 1 Misdemeanor 120 days with at least 60 consecutive days $500 $250 to DUIAF $1250 to PCOF $1250 to GF Revoked for 1 year with IID for 1 year after driving privileges are restored Required Possibly community service.
Super Extreme DUI Charge 2nd Violation within 7 years 0.20 or greater Class 1 Misdemeanor 180 days with at least 90 consecutive days $1000 $250 to DUIAF $1250 to PCOF $1250 to GF Revoked for 1 year with IID for 2 years after driving privileges are restored Required Possibly community service.
Aggravated DUI Charge 3rd or violation within 7 years 0.08 or greater Class 4 Felony 4 to 45 months in prison $750 $250 to DUIAF $1500 to PCOF $1500 to GF Revoked for 3 years with IID for 1 year after driving privileges are restored Required Possibly community service and/or possible forfeiture of vehicle
Aggravated DUI Charge: Suspended/Revoked for a prior DUI 0.08 or greater Class 4 Felony 4 to 45 months in prison $750 $250 to DUIAF $1500 to PCOF $1500 to GF Revoked for 3 years with IID for 1 year after driving privileges are restored Required Possibly community service and/or possible forfeiture of vehicle
Aggravated DUI Charge:Children under 15 years old in the vehicle 0.08 or greater Class 6 Felony 4 to 45 months in prison $750 $250 to DUIAF $1500 to PCOF $1500 to GF Revoked for 3 years, if BAC is 0.15 or higher, IID for 1 year after driving privileges are restored Required Possibly community service and/or possible forfeiture of vehicle
  • Non-Alcohol Drug DUI require a minimum of 1 year suspension
  • IID means Ignition Interlock Device that requires alcohol free breath in order to start and run a vehicle
  • Revocations require a follow up substance abuse evaluation by a licensed Independent Substance Abuse Counselor and compliance with all recommendations
  • M.A.D.D. Impact Panel Sessions may also be required by the court