DUI’s in Arizona

DUI laws in the State of Arizona carry some of the harshest penalties in the nation. By statute, almost every DUI conviction must result in jail and, in some cases, prison. It is critical to know your rights and how to exercise them properly. If you’ve been arrested for suspicion of DUI, contact Millar Law to have a Former DUI Prosecutor on your side— 602-900-0545.

DUI Issues and Defenses

A DUI in Arizona is a severe offense, but it doesn’t mean your rights can be infringed. There are several ways an experienced criminal defense DUI attorney can defend your constitutional rights in a DUI case. The prosecutor always has the burden of proving a person “guilty beyond a reasonable doubt.” Here are a few possible defenses for DUI/DWI in Arizona:

The Reason for the Stop

Officers must have “reasonable suspicion” to detain you during a traffic stop. An officer can’t stop your vehicle just off a “hunch” of a possible DUI. If you are seen leaving a bar with a group of friends, this alone will not suffice for a valid stop. Officers also cannot make a stop based on race, gender, age, religion, or sexual preference.

The Reason for the Arrest

An officer must have “probable cause” to arrest a person for DUI. The arrest is invalid if an officer makes an arrest solely because you invoked your right to refuse Field Sobriety Tests (FSTs).

Field Sobriety Tests (FST) must be administered correctly— if a person is over 65 years old, 50 lbs. overweight, has specific injuries/disabilities, or is wearing improper footwear, the FSTs shouldn’t be done and could be invalidated. There are particular guidelines that officers must follow to use FSTs to support an arrest properly, and if these guidelines are not followed, the test may be considered compromised.

A certified officer must do HGN/eye testing. The officer also has HGN logs to verify their accuracy when performing the tests— if they have low accuracy, then the HGN test should carry much less weight.

Portable Breath Tests (PBT), a handheld device used before/after FSTs, are not permitted in court. However, they can be used to establish “probable cause” for arrest or the presence of alcohol. Do not let an officer convince you to take a PBT by saying, “this can’t be used in court, and it’s just for me to check to see where you’re at.”

You were not in “actual physical control” of the vehicle. If you were not driving your vehicle but sleeping in the car, there are grounds to challenge the “actual physical control.”

Violation of Constitutional Rights

If you are denied your right to counsel or an officer continues to ask questions after you invoke a constitutional right, evidence may be suppressed, or the entire case can be dismissed. You always have a right to remain silent, and communication with an attorney must be allowed as soon as possible. You should not only know your constitutional rights— Invoke them!

Issues with Alcohol Testing

Arizona Law requires breath and blood tests to follow strict guidelines. Breath test machines (Intoxilyzer) must be calibrated to specific standards and be used appropriately. Blood must be taken by a qualified individual and handled properly before lab testing (mixing, temperature-controlled storage, a chain of custody, sealed, etc.). The evidence may be suppressed if there are any issues with the blood draw or mishandling.

These tests are never exact— they are estimates and have errors involved with them. No measuring device can tell your BAC with 100% accuracy, not even blood tests.

Testing done at the station will only estimate your BAC at the time you were at the station, not when you were driving. The prosecutor may attempt to call an expert witness to conduct a “BAC retrograde,” but these linear regressions/extrapolations are based on averages. Every person is unique, and several factors affect these calculations— weight, tolerance, when you had your last drink, and even how much and when you ate. Retrogrades also work under the assumption that your BAC was declining from the time you were “driving” or in “actual physical control.” Depending on when you had your last beverage, your BAC could have been lower at the time of driving.

Speak with a Former DUI Prosecutor Now - 602-900-0545

Felony DUI Laws

A.R.S. § 28-1383(A)(1): Aggravated Driving or Actual Physical Control While Under the Influence when Suspended or with DUI Restriction, a class 4 Felony

It is considered a Felony Aggravated DUI if a person to commits a DUI while the person's driver license or privilege to drive is suspended, canceled, revoked or refused or while a restriction is placed on the person's driver license or privilege to drive as a result of a prior DUI.

A.R.S. § 28-1383(A)(2): Aggravated Driving or Actual Physical Control While Under the Influence— Third or Subsequent DUI in 84 Months, a class 4 Felony

It is considered a Felony Aggravated DUI if, within a period of eighty-four months, a person commits a third or subsequent DUI.

Note: DUI’s from outside of Arizona may be used if the same offense would be considered a DUI violation in Arizona.

A.R.S. § 28-1383(A)(3): Aggravated Driving or Actual Physical Control While Under the Influence with Person Under 15 Years of Age in Vehicle, a class 6 Felony

It is considered a Felony Aggravated DUI if a person commits a DUI while a person under fifteen years of age is in the vehicle.

A.R.S. § 28-1383(A)(4): Aggravated Driving or Actual Physical Control While Under the Influence and In Violation of Interlock Requirement, a class 4 Felony

It is considered a Felony Aggravated DUI if a person commits a DUI while they are ordered by the court or required pursuant to A.R.S. § 28-3319 by the department to equip any motor vehicle the person operates with a certified ignition interlock device.

A.R.S. § 28-1383(A)(5): Aggravated Driving or Actual Physical Control While Under the Influence and Driving the Wrong Way on a Highway, a class 4 Felony

It is considered a Felony Aggravated DUI if a person commits a DUI while driving the wrong way on a highway.

Felony DUI Penalties

All Felony Aggravated DUIs must Include:

  • Fine from $750 up to $150,000, plus surcharge; $3,250 in assessments

  • Probation for up to 10 years

  • Mandatory Revocation of Driving Privileges

  • Traffic Survivor School

  • Ignition interlock (Aggravated DUI involving Drugs may not require an ignition interlock)

  • Alcohol/Drug Screening and Treatment

Aggravated DUI when Suspended or DUI Restriction — A.R.S. § 28-1383(A)(1):

Class 4 Felony — Prison from 4 months to 15 years, depending on the circumstances

Aggravated DUI Third or Subsequent DUI in 84 Months — A.R.S. § 28-1383(A)(2):

Class 4 Felony — Prison from 4 months to 15 years, depending on the circumstances

Aggravated DUI with Person Under 15 in Vehicle — A.R.S. § 28-1383(A)(3):

Class 6 Felony — Jail time from 1 day up to 5.75 years in prison, depending on the circumstances

Aggravated DUI in Violation of Ignition Interlock Requirement — A.R.S. § 28-1383(A)(4):

Class 4 Felony — Prison from 4 months to 15 years, depending on the circumstances

Aggravated DUI while Driving the Wrong Way on Highway — A.R.S. § 28-1383(A)(5):

Class 4 Felony — Prison from 4 months to 15 years, depending on the circumstances

Misdemeanor DUI Laws

Underage DUI —A.R.S. § 4-244.34: Underage Driving or Physical Control While Under the Influence

It is unlawful for a person under the age of 21 to drive or be in physical control of a motor vehicle while there is any spirituous liquor in the person's body.
Note: this type of DUI is not considered a strike for Felony Aggravated DUI, but it can be used at sentencing as an aggravating factor to increase the penalty.

An Underage DUI in Arizona is the only DUI that does not come with mandatory jail time. However, one significant impact is that the person will lose their license for two years. There are circumstances where the judge may allow a restricted license, but this would have to be litigated; an experienced DUI attorney is essential to defend this type of DUI.

DUI Regular, Impaired to the Slightest Degree — A.R.S. § 28-1381(A)(1): Driving or Actual Physical Control While Under the Influence/Impaired to the Slightest Degree

It is unlawful for a person to drive or be in actual physical control of a vehicle in Arizona 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 type of DUI does not require a person have a BAC above 0.08. If you are below a 0.08 in Arizona, you can still get a DUI if you are impaired while driving.

DUI Regular, BAC 0.08 or more — A.R.S. § 28-1381(A)(2): Driving Under the Influence with Alcohol Concentration of 0.08 or more

It is unlawful for a person to drive or be in actual physical control of a vehicle in Arizona 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.

This DUI does not require any impairment, which means you could appear perfectly sober and still be charged with a DUI if your alcohol concentration is 0.08 or more.

DUI Regular, Drugs — A.R.S. § 28-1381(A)(3): Driving Under the Influence of Any Drug or Metabolite

It is unlawful for a person to drive or be in actual physical control of a vehicle in Arizona while there is any drug defined in A.R.S. § 13-3401 or its metabolite in the person's body.

This type of DUI also does not require any impairment to be found. You can be charged with DUI Regular Drugs for having the drugs in your body and operating a vehicle.

Extreme DUI — A.R.S. § 28-1382(A)(1): Driving Under the Influence with Alcohol Concentration of 0.15 or more

It is unlawful for a person to drive or be in actual physical control of a vehicle in Arizona if the person has an alcohol concentration of 0.15 or more but less than 0.20 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.

Super Extreme DUI — A.R.S. § 28-1382(A)(2): Driving Under the Influence with Alcohol Concentration of 0.20 or more

It is unlawful for a person to drive or be in actual physical control of a vehicle in Arizona if the person has an alcohol concentration of 0.20 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.

This is the highest class of misdemeanor DUI in Arizona and carries the harshest penalties; see below.

CDL DUI — A.R.S. § 28-1381(A)(4): Driving Under the Influence while Operating a Commercial Motor Vehicle

It is unlawful for a person to drive or be in actual physical control of a vehicle in Arizona if the vehicle is a commercial motor vehicle that requires a person to obtain a commercial driver's license as defined in A.R.S. § 28-3001 and the person has an alcohol concentration of 0.04 or more.

A CDL DUI has a much lower BAC requirement, only 0.04, and does not require any impairment to be found. In addition, a CDL driver will lose their license to drive commercially for one year if convicted of any DUI statute, regardless of whether they were operating a commercial or personal vehicle.

DUI/DWI Penalties

Underage DUI — A.R.S. § 4-244.34:

*Jail time from 0 days up to 6 months;
*Mandatory Suspension of Driving Privileges for two (2) years;

  • A judge may grant a restricted license to attend school, go to work, etc.

*Fine from $250 up to $2,500, plus surcharge (78% in 2022);
*Probation for up to 3 years;
*Other possible penalties, including community service, classes or ignition interlock

Regular DUI/DUI Drugs — A.R.S. § 28-1381(A)(1); A.R.S. § 28-1381(A)(2); and A.R.S. § 28-1381(A)(3):

*Jail time from 10 days to 6 months;

  • A judge may suspend all but 1 day if you complete an alcohol/drug screening and treatment

*Suspension of Driving Privileges for minimum of 90 days;

  • Requires alcohol/drug screening, ignition interlock, and SR-22 Insurance (high-risk policy) to get license reinstated. Additional 90 day suspension may occur due to MVD points

*Fine from $250 up to $2,500, plus surcharge; $1,000 in assessments; jail costs;
*Probation for up to 5 years;
*Other possible penalties— including community service, classes, or ignition interlock;
*Note: DUI Drugs typically does not require an interlock

For a Second Offense within 84 months Penalties Increase Significantly:

*90 days jail and 30 days must be served consecutively;

  • A judge may suspend all but 30 days if you complete alcohol/drug screening and treatment

*Increased Fine from $500 up to $2,500, plus surcharge; $2,500 in assessments; jail costs;
*Mandatory community service of at least 30 hours;
*Mandatory Revocation of Driving Privileges for 1 year

Extreme DUI — A.R.S. § 28-1382(A)(1):

*Jail time from 30 days to 6 months;

  • A judge may suspend all but 9 days if you install an ignition interlock

*Suspension of Driving Privileges for minimum of 90 days;

  • Requires alcohol/drug screening, ignition interlock, and SR-22 Insurance (high-risk policy) to get license reinstated

*Fine from $250 up to $2,500, plus surcharge; $2,250 in assessments; jail costs;
*Probation for up to 5 years;
*Traffic Survivor School;
*Other possible penalties— including community service, classes, or ignition interlock;

For a Second Offense within 84 months Penalties Increase Significantly:

*120 days jail and 60 days must be served consecutively

  • A judge cannot suspend any jail

*Increased Fine from $500 up to $2,500, plus surcharge; $2,750 in assessments; and jail costs
*Mandatory community service of at least 30 hours
*Mandatory Revocation of Driving Privileges for 1 year

Super Extreme DUI — A.R.S. § 28-1382(A)(2):

*Jail time from 45 days to 6 months

  • A judge may suspend all but 14 days if you install an ignition interlock

*Suspension of Driving Privileges for minimum of 90 days

  • Requires alcohol/drug screening, ignition interlock, and SR-22 Insurance (high-risk policy) to get license reinstated

*Fine from $500 up to $2,500, plus surcharge; $2,250 in assessments; jail costs
*Probation for up to 5 years
*Traffic Survivor School
*Other possible penalties— including community service, classes, or ignition interlock

For a Second Offense within 84 months Penalties Increase Significantly:

*180 days jail and 90 days must be served consecutively

  • A judge cannot suspend any jail

*Increased Fine from $1,000 up to $2,500, plus surcharge; $2,750 in assessments; jail costs
*Mandatory community service of at least 30 hours
*Mandatory Revocation of Driving Privileges for 1 year

Handling a DUI Stop

Don’t Drink and Drive.

First and foremost, do not get behind the wheel if you’ve had too much to drink. A taxi only costs a small amount but can save lives, your career, and keep you out of jail/prison.

Be Respectful.

Be Respectful to the officer and have documentation ready when they approach you. Getting upset and arguing will only escalate the situation and might even incentivize the officer to investigate more. Also, aimlessly searching the vehicle for documentation could be used as evidence of impairment.

Don’t Do Field Sobriety Tests or make Admissions.

Do not make any admissions or do any Field Sobriety Tests, including HGN/eye tests or Portable Breath Tests (PBT). Many people think they must do these tests and answer questions— this is incorrect! Any admission or test result will be used against you as evidence in court. Also, don’t try to talk your way out of it. You may believe you’re fooling the officer, but they are likely gathering evidence against you.

Invoke your right to an attorney as soon as possible.

Don’t Do Breath or Blood Testing.

Don’t consent to any testing if you are arrested UNLESS a warrant is served on you. The officer can use force to draw blood from you if the officer has a warrant. Fighting them can result in more charges against you, including Felony Aggravated Assault on an Officer. Contact an experienced criminal DUI defense attorney at Millar Law to guide you through the process and protect your rights. If you are arrested at the station, you must be allowed to speak with an attorney as soon as reasonably possible.

Note: Refusing “Implied Consent” Breath/Blood testing might result in a suspension of your driving privileges for one year (possibly two years if you have a prior refusal). The officer must inform you of this consequence to obtain a proper “refusal” that leads to suspension.

Phoenix DUI Attorney

DUI Frequently Asked Questions

  • Underage DUI, DUI impaired to the slightest degree, DUI Drugs, DUI with BAC equal or greater than 0.08, DUI with BAC equal or greater than 0.15, DUI with BAC equal or greater than 0.20, and DUI in a commercial vehicle.

    There are many different ways to get a DUI in Arizona. Contact Millar Law today to find out more information.

  • In Arizona, a DUI is a class one misdemeanor and is punishable by up to six (6) months in jail, a fine of $2,500 plus a 78% surcharge, probation for up to five (5) years, suspension of driving privileges, and more.

  • Felony Aggravated DUI occurs when you have three or more DUIs in 84 months, getting a DUI when your license is suspended or revoked, DUI when a person under 15 years old is in the car, DUI when you have an interlock restriction, and DUI while driving the wrong way on a highway.

    Felony Aggravated DUI is a severe offense and may require extensive prison time. You can call us at 602-900-0545 for a Free Case Review.

  • Depending on the circumstances, Felony Aggravated DUI in Arizona can carry a jail sentence of one (1) day up to 15 years in prison.

  • Every DUI has mandatory jail time (except for Underage DUI) or possibly prison if you are convicted of a Felony Aggravated DUI.

  • Absolutely. A DUI offense may have statutory penalties, but an experienced DUI attorney can fight on your behalf to possibly reduce the offense or even have it dismissed. Contact our office today to see how we can assist you.

  • Absolutely not. Police officers are trained to gather evidence against you, including for a DUI investigation. By completing Field Sobriety Tests (FSTs), you are giving the State evidence that can be used against you in court.

  • Yes, you can. Without consent, a police officer cannot force you to conduct further testing without a warrant issued by a court. However, Arizona has an “Implied Consent” statute, and a refusal may lead to suspension of your driving privileges for up to two (2) years. This suspension can be challenged in a civil hearing, but only if the hearing is requested within 15 days.

    If you refused an Implied Consent Breath/Blood test, contact our office today to challenge the suspension— 602-900-0545.

  • Absolutely. A blood/breath test only shows a Blood Alcohol Concentration (BAC) “estimate” at the time of the test, not while driving. There is no way to know a driver’s exact BAC content while driving.

    Contact us today to discuss other possible defenses to your case.

  • Absolutely. Although Marijuana is now legal in Arizona, you can still be charged with DUI. The State can prove impairment to the slightest degree, A.R.S. §28-1381(A)(1), even with a legal drug in your system.

  • Yes! You have a constitutional right to speak to an attorney before making any statements to the police. Only under certain circumstances can this right be refused. If an officer improperly refuses your right to counsel, the charges against you may be dismissed.

    Contact Millar Law to speak with an Experienced DUI Attorney for a Free In-Depth, No Obligation Case Review.

  • No. Invoking a constitutional right can never be used against you as evidence. There are some situations where a constitutional right hasn’t attached, or only a physical right exists.

    Contact us today for a No Obligation Case Review to determine if your rights were infringed.