June 1, 2015


If you are reading this, then most likely you (or someone you care about) has been charged with DUI, Extreme DUI, Aggravated Assault or even a Vehicular Homicide. The best advice that can be given over the internet without knowing the details of your case is the same advice you would give to anyone feeling the effects of a trauma:

1. Take a deep breath.

“Easy for me to say, right?” No one can really know what your are going through but you. Even your attorney can only imagine your pain. However, right now (as difficult as it may seem) remember these are still merely allegations. Being charged with a crime is just the start a process. It does not automatically mean you will be convicted.

2. Knowledge is power.

Standing in the face of criminal charges is an emotionally charged problem that you will have difficulty understanding. Moreover, there is a stunning lack of rhyme or reason to many parts of our DUI laws and the justice system. This creates a barrier to truly understanding your situation. It can cause a crippling uncertainty within you.

Francis Bacon, one of the great refiners of the Scientific Method, proclaimed: “knowledge is power.” That is, the more one knows, the more one will be able to control events. Control over your situation is probably the exact thing you are looking for right now. So, let’s get some knowledge – and control.


The term “DUI” is commonly thought of as “drunk-driving.” In Arizona it refers to a group of laws that concern impaired driving. Whether you are charged in Phoenix or Scottsdale the alleged violation is not for driving while drunk. Rather, it is for operating a motor vehicle while being impaired while driving.

However, an Arizona DUI charge will almost always have another companion charge(s). This is called the per se count. In Latin, per se loosely translates to “by itself”. Here, the per se refers to having a blood (or breath) alcohol concentration of .08 or greater. Factually this charge is actually the same as the impaired driving charge. Sound confusing? Then you are following along properly. Let’s dig a little deeper.

 The Two Basic Charges

In Arizona DUI cases (i.e., Phoenix, Scottsdale, Tempe, felony, or misdemeanor) the two charges you will usually see in various forms are driving:

(1) while impaired; and

(2) with an alcohol concentration of .08 or greater.

Both of these are found in the same statute (A.R.S. 28-1381.)

Impaired While Driving

The Arizona legislature has not defined “impaired.” They have merely qualified and confused it with the words “to the slightest degree.” In the absence of a legal definition, courts look to the scientific community’s definition. They generally define impairment as a measurable difference below the way you normally perform a task. If you normally walk down the hall without issue, then that is your baseline. Impairment for this task would be if you have a measurable change in your gait as you walk – as a result of consuming too much alcohol.

.08 Or Greater Alcohol Concentration

A legally separate charge is the claim of having an alcohol concentration of .08 or greater. Practically speaking, law enforcement takes a sample of your blood, breath or urine and then attempts to measure the amount of alcohol in your sample. If their machine prints out a piece of paper with a number at or above .08, then you will be charged with this per se count as well.

The legislature provided law enforcement a two hour window to complete the task of obtaining a biological sample from the accused. The statute is violated if the person had an alcohol concentration at or above the legal limit at some point within that two hour window. Thus, they have removed the requirement of proving an alcohol concentration at the time of driving.

Samples taken outside the two hour window present a variety of proof problems for law enforcement.

They Are Really The Same Thing

It is generally accepted in the scientific community that if you have an alcohol concentration of .08 or greater, then just about everyone will be impaired for the task of driving an automobile.

Think of it this way. As stated above, per se refers to a specific element of a larger thing. The per se charge of being above .08 is a specific factual element of impairment due to alcohol. Accordingly, from a scientific perspective, both counts mean the same thing for the overwhelming portion of the population. As will be discussed later, this factual reality is also a fundamental premise in defending allegations of impaired driving.

Legally, the charges also mean the same thing. A conviction for either single count, triggers mandatory penalties. Similarly, being convicted of both charges results in the same penalty. For example:

  • Impaired driving conviction only = triggers minimum penalties;
  • .08 or greater conviction only = triggers the same minimum penalties;
  • Convicted for both = triggers the same minimum penalties as if convicted for only one count.

People tend to mistakenly think of the impaired to the slightest degree count of being a “lesser” charge. While the language of the statute does imply it is a “smaller” crime, in reality it is not.

If they are legally and factually the same thing, then why are there two separate counts? The cynical answer is: reasonable people when faced with a difficult decision tend to compromise. The reasonable people here would be jurors. In Arizona, juries are not informed of the penalties associated with their vote. Thus, they may assume it is somehow a lesser punishment to vote for merely an impaired count. In reality, a guilty vote for either count results in the same punishment.


The “extreme” charge, like the .08 or greater, is a form of per se violation.  It separately criminalizes having an alcohol concentration of .150 or above. A conviction under this statute results in a substantially higher penalty.

Cases involving this allegation result in a person receiving a citation for three separate counts:

  • Impaired driving
  • .08 or greater
  • .150 or greater

It is not the number of counts that enhances the punishment for an extreme DUI conviction, but the separate provisions of the extreme DUI statute (A.R.S. 28-1382). Thus, if a person is convicted of a single count of extreme DUI, they would be subject to the same minimum punishment as the person convicted of all three counts. That is, they would both be subjected to a minimum of 30 days of jail (potentially reduced by home detention) regardless of how many counts they were charged/convicted.


If you search the Arizona revised statutes you will not find a law titled “super-extreme DUI.” However, having a blood alcohol concentration at or above a .200 has been labeled with this name since its inception years ago. As with the extreme DUI, it is this separate provision of the law (not the number of counts charged with it) that inflicts the minimum penalties. This statute includes a minimum 45 day jail sentence.


Similar to an alcohol related DUI, a person arrested for “drugged” driving or impaired driving due to drugs will usually receive two charges. A person violates Arizona law if they are driving:

  • While impaired by a drug; or
  • While there was an illegal drug or its metabolite in your system.

The first charge alleges that you drove while being impaired by a drug/prescription drug regardless of the legality of how you obtained it.  For example, if you recently had surgery and a physician prescribed Vicodin for the pain, then you obviously possessed and consumed this medication legally.  However, it will undoubtedly impair your ability to drive.  Driving while impaired by the Vicodin, even after legally consuming it, is prohibited by Arizona law.

There is also a companion per se drug DUI charge that commonly accompanies an impaired by drugs charge.  There are two categories of drugs for purposes of Arizona law:

  • Illegal drugs (e., cocaine, ecstasy and methamphetamine); and
  • Prescription medications

Under A.R.S. 28-1381(a)(3), it is illegal to drive “[w]hile there is any drug defined in section 13-3401 or its metabolite in the person’s body.”  Just about every illegal drug and prescription medication you could think of is listed (in some form) in A.R.S. 13-3401.

Let’s look at a common scenarios this part of the statute covers. You smoke marijuana about 14 hours before driving.  The impairing effects of this drug would be long gone by the time you drive.  However, if you are pulled over by a police officer and admit that you ingested the drug earlier, you are still at risk for violating Arizona law.

To illustrate, THC is the active ingredient in marijuana. It eventually metabolizes into Hydroxy-THC.  If your blood is taken, and Hydroxy-THC his found, then you are still at risk for a drug DUI regardless of impairment.  However, if you have an Arizona medical marijuana card that is a legal defense to the per se charge. If you have been legally prescribed the marijuana, then the only available means of prosecution is if the State can show you were actually impaired while driving.


After reading everything above you could probably use a bit good news.

They Are Only Allegations Right Now – remember these are just allegations at the moment. Being charged does not automatically mean you will be convicted.

The Mandatory Minimums Can Be Reduced – even if you are convicted, the frightening numbers above can be dramatically reduced through some legal maneuvering in most cases.

These Cases Are Not Black & White – most people jump to the conclusion that “they have a machine that says I am over the legal limit so there is nothing that can be done.” Maybe, but for many people that is not the case.

How many people where given a falsely high result by the defective software used in the Scottsdale Crime Lab?

How many people were provided an incorrect measurement of their alcohol concentration because the Arizona Department of Public Safety’s (DPS) Crime Lab used the wrong calibration data for almost a year?

How many people were wrongfully convicted because the laboratory information software used by the Phoenix Crime Lab assigned the wrong data to the wrong name?

These are only a few of the issues we have come to learn about over the years concerning these “crime labs” that create the measurement of a person’s purported blood alcohol concentrations used to both convict them in Arizona and as a basis for enhancing their punishments. Arizona DUI cases are far from black and white.

Keep reading by clicking here or if all of this has given you headache, you can contact the firm directly by calling (602) 494-3444.

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