A.R.S. § 28-1381: Driving or Actual Physical Control While Under the Influence

Introduction

Arizona is known to have extremely strict and dynamic DUI laws. At its base, there are four ways an individual can commit DUI found in Arizona Statute § 28-1381. From there, a number of factors can affect the punishment, sentencing, and gravity of the crime. First, an individual must have been driving or was in actual physical control while in the state of Arizona and have committed one of the following:

1. The person was 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 substance if the person is impaired to the slightest degree.
2. The person has a blood alcohol concentration (BAC) of .08 or more within two hours of driving.
3. The person had any drug defined in A.R.S. 13-3401 or its metabolite in the person’s body.
4. The suspect vehicle is a commercial motor vehicle that requires a commercial driver license (CDL) and the person has a BAC of .04 or more.

Driving and Actual Physical Control

The DUI statute requires that a person “drive or be in actual physical control of a vehicle.” Whether or not a person was driving relies heavily on witness observation and testimony of the suspect driving. Because most DUI’s occur after a collision or traffic stop, there is sufficient testimony, whether by a witness or an officer, to show the suspect was driving. However, there are certain cases where an individual was never seen driving but is still charged with DUI. In many of these cases, the suspect is either asleep in the driver’s seat, parked and off the side of the road, or other circumstances similar to this. When this is the case, the state must show that the suspect was in actual physical control (APC) of the vehicle. The jury will make this determination and the following jury instruction given at trial will be what guides them:

In determining the defendant was in actual physical control of the vehicle, you should consider the totality of circumstances shown by the evidence and whether the defendant's current or imminent control of the vehicle presented a real danger to [himself] [herself] or others at the time alleged.

Factors to be considered might include, but are not limited to:

1. whether the vehicle was running;
2. whether the ignition was on;
3. where the ignition key was located;
4. where and in what position the driver was found in the vehicle;
5. whether the person was awake or asleep;
6. whether the vehicle's headlights were on;
7. where the vehicle was stopped;
8. whether the driver had voluntarily pulled off the road;
9. time of day;
10. weather conditions;
11. whether the heater or air conditioner was on;
12. whether the windows were up or down;
13. any explanation of the circumstances shown by the evidence.

This list is not meant to be all-inclusive. It is up to you to examine all the available evidence and weigh its credibility in determining whether the defendant actually posed a threat to the public by the exercise of present or imminent control of the vehicle while impaired.

RAJI (Criminal) NCSTI 28.1381(A)(1) (4th ed.)

Impaired to the Slightest Degree

The first violation, known as 1381(A)(1), will almost always be accompanied with any other DUI charge. This charge gives the state a second bite at the apple in prosecuting an individual. Someone can be charged with having a BAC of .08 or more or a drug or its metabolite in his body and being impaired to the slightest degree. While both violations come from the same exact crime, there are different elements to the crime which allow the state to prosecute for both offenses.

For this offense, the state must prove two things: (1) the suspect was under the influence of intoxicating liquor, any drug, or a vapor releasing toxic substance, and (2) the suspect was impaired to the slightest degree by reason of the liquor, drug, or substance. Impaired to the slightest degree is a factual determination that a jury must decide. There is no instruction that explains to them what that means or looks like, but the jury will just rely on the evidence presented at trial.

In order to show impairment, a prosecutor will most likely point to the driving habits of the suspect, presence of a collision, performance on field sobriety tests, and the blood alcohol concentration of the suspect. Most of the time, police begin a DUI investigation because the suspect was either swerving between lanes, speeding, running a red light, making a wide turn, or a number of other traffic infractions. These infractions can give rise to the conclusion that the suspect was impaired. Additionally, if the suspect was involved in a collision of any sort, whether or not it was his fault, the prosecutor will use this as evidence of impairment because he was impaired and caused the collision or was too impaired to avoid it. Once the officer initiates a traffic stop or responds to a collision report, the officer can start a DUI investigation if he has reasonable suspicion of a DUI violation. The officer will start a DUI investigation if he smells the odor of alcohol, observes bloodshot watery eyes, notices slurred speech, or any other signs or symptoms that a person is under the influence.

Once an officer has suspicion of that someone violated the DUI statute, he will perform a DUI investigation. This investigation entails conducting field sobriety tests. The most common field sobriety tests include the Horizontal Gaze Nystagmus (HGN), which observes the involuntary movement of the eyes caused by alcohol, the Walk and Turn test, the One Leg Stand test, and other tests such as the Rhomberg test. These tests are used to determine whether an individual has enough autonomous control of his muscles and functions to multitask without losing balance. If a suspect does poorly on these tests, the prosecutor will use this to persuade the jury that he was impaired to the slightest degree.

One important thing to keep in mind if there is a blood alcohol concentration of .08 or more is the presumption of impairment. The DUI statute includes a presumption that states, “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.” This same description is given to the jury in a jury instruction that informs them of this presumption. Also, a blood toxicologist will be called to testify and will explain the effects of alcohol on the body and will testify that every person is impaired for the purpose of driving if their BAC is .08 or more. The prosecutor will clarify to the jury that if they find the suspect had a BAC of .08 or more and they accept the toxicologist’s testimony, then they must find that he was impaired to the slightest degree.

Because of the state’s ample evidence and the low threshold of “to the slightest degree,” it is imperative to have a trained and experience attorney to help with this charge.

The Other DUI Charges

Other DUI charges include having a BAC of .08 or more, having an unpermitted drug or its metabolite in a person’s body, or driving a commercial vehicle with a BAC of .04 or more. Each of these charges have their own complications and elements the state must prove at trial. Most importantly, these crimes require officers to perform a breath and/or blood test. Once the officer has probable cause to arrest an individual, they will take them to a processing unit to perform breath test or blood draw. If a person does not consent to the test, the officer must obtain a warrant. When the breath sample is collected or the blood sample is drawn, the sample will be sent for a test to determine the blood alcohol concentration. Depending on the results of this test, an individual will be charged accordingly.

There are a number of defenses and challenges a suspect can raise during the process after being charged with DUI. Whether it is challenging the validity of the stop, the administration of any of the field sobriety tests, or the procedure of obtaining a warrant or fighting for better terms of a plea deal, an experienced attorney will navigate this process with you. At Surprise DUI Lawyer, you get top-notch representation with personable communication - call today.