April 22, 2010

DUI Categories


There are several DUI crimes in Arizona. Defendants are usually charged with at least two DUI crimes. The most common Arizona DUI crimes are as follows:


Driving While Impaired to the Slightest Degree

This charge is codified in A.R.S. 28-1381(A)(1), which states:

It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:

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.

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BAC Above .08

This charge is codified in A.R.S. 28-1381(A)(2), which states it is unlawful for a person to drive or be in actual physical control of a vehicle:

If the person has an alcohol concentration of 0.08 percent 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.

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Extreme DUI

This charge is codified in A.R.S. 28-1382(A), which states:

It is unlawful for a person to drive or be in actual physical control of a vehicle in this state if the person has an alcohol concentration of 0.15 percent 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.

Note: The penalties for Extreme DUI are higher.

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Aggravated/Felony DUI

This charge is codified in A.R.S. 28-1383, which states:

A. A person is guilty of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs if the person does any of the following:

  1. Commits a violation of section 28-1381, section 28-1382 or this section while the person’s driver’s license or privilege to drive is suspended, canceled, revoked or refused, or while a restriction is placed on the person’s driver’s license or privilege to drive as a result of violating section 28-1381 or 28-1382 or under section 28-1385.
  2. Within a period of 60 months commits a third or subsequent violation of section 28-1381, section 28-1382 or this section, or is convicted of a violation of section 28-1381, section 28-1382 or this section and has previously been convicted of any combination of convictions of section 28-1381, section 28-1382 or this section or acts in another jurisdiction that, if committed in this state, would be a violation of section 28-1381, section 28-1382 or this section.
  3. While a person under 15 years of age is in the vehicle, commits a violation of either:
    (a) Section 28-1381.
    (b) Section 28-1382.

In other words, a person may be guilty of aggravated DUI if that person:

  1. Is driving on a license suspended for DUI.
  2. Within 60 months (5 years) is convicted of a third (or more) DUI, whether the prior DUIs occurred in Arizona or another state.
  3. Is convicted of DUI while a minor under the age of 15 is in the vehicle.

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Drug DUI

This charge is codified in two places, 28-1381(A)(1) and A.R.S. 28-1381(A)(3).

A.R.S. 28-1381(A)(1) states that it is unlawful for a person to drive or be in actual physical control of a vehicle:

While under the influence of . . . 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.

A.R.S. 28-1381(A)(3) states that it is unlawful for a person 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 the person’s body.

The drugs defined in ARS 13-3401 are too many to list here, but generally they are drugs that are illegal to possess.

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Commercial DUI

Drivers of commercial vehicles need to have a BAC of only 0.04 percent to be charged with DUI.

This charge is codified in A.R.S. 28-1381(A)(4), which states that it is unlawful for a person to drive or be in actual physical control of a vehicle:

If the vehicle is a commercial motor vehicle that requires a person to obtain a commercial driver ‘s licenseā€¦and the person has an alcohol concentration of 0.04 percent or more.

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Boating DUI (OUI)

This charge is codified in A.R.S. 5-395, which states:

A. It is unlawful for any person to operate or be in actual physical control of a motorized watercraft that is underway within this state under any of the following circumstances:

  1. 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.
  2. If the person has an alcohol concentration of 0.08 percent or higher within two hours of operating or being in actual physical control of the motorized watercraft and the alcohol concentration results from alcohol consumed before or while operating or being in actual physical control of the motorized watercraft.
  3. While there is any drug as defined in section 13-3401 or its metabolite in the person’s body.
  4. If the motorized watercraft is a commercial motorized watercraft and the person has an alcohol concentration of 0.04 percent or more.

B. It is not a defense to a charge of a violation of subsection A, paragraph 1 of this section that the person is or has been entitled to use the drug under the laws of this state. A person using a drug prescribed by a medical practitioner licensed pursuant to title 32, chapter 7, 11, 13 or 17 is not guilty of violating subsection A, paragraph 3 of this section.

C. In any trial, action or proceeding for a violation of this section or section 5-396, other than a trial, action or proceeding involving operating or being in actual physical control of a commercial motorized watercraft, the defendant’s alcohol concentration within two hours of the time of operating 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 percent or lower 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 percent but less than 0.08 alcohol concentration in the defendant’s blood, breath or other bodily substance, such fact shall not give rise to any presumption that the defendant was or was not under the influence of intoxicating liquor, but such 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 percent or higher 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.

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