Arizona has some of the most stringent DUI laws in the country. Charges for aggravated DUI can have serious and long-lasting consequences. You can pay hefty fines in addition to jail time and community work. If you or your loved one is facing charges for aggravated DUI, contact the Phoenix Criminal Attorney for legal assistance.
What Is Aggravated DUI?
You are said to be driving under the influence when your BAC level is .08 or higher. In such a case, you may be charged with a standard DUI. The arresting officer may choose to charge you with an aggravated DUI when there are mitigating factors present.
Aggravated DUI is the crime of driving under the influence and in the presence of mitigating factors such as:
- Driving with a suspended, revoked or restricted license
- DUI with a child below 15 years in the car
- Multiple DUI convictions within several years
Normally, the police officer will stop you when they suspect drunk driving. They will then request to take your BAC levels, and then subject you to a field sobriety test. The legal limit in Arizona is .08% and .04% for commercial vehicles.
Elements of Aggravated DUI
When you are charged with aggravated DUI, the prosecution has the burden of proving that you satisfied various elements beyond a reasonable doubt. Aggravated DUI can be charged if you were in actual physical control of a vehicle while:
- Being under the influence of liquor or any intoxicating substance that impaired you to the slightest degree
- You have an alcohol concentration of at least 0.08% two or more hours after driving or being in physical control of the car
- You have a controlled substance in your body
- You operated a commercial vehicle with a BAC level of 0.04% or more
The prosecution must prove that these elements existed without a reasonable doubt for a conviction. Depending on the type of aggravated DUI you are charged with, the prosecution may also prove additional elements such as the passenger is a minor below 15 years or present previous certificates for prior convictions.
Types of Aggravated DUI Felonies
An aggravated felony is charged as either a class 4 or class 6 felony. The type of aggravated DUI charge you get depends on the mitigating factors in your case.
Driving With A Restricted, Revoked Or Suspended License ARS 28-1383(A)(1)
Driving under the influence with a restricted, revoked, or suspended license is a class 4 felony. Once your license is revoked, canceled, or suspended, your driving rights have also been withdrawn. Therefore, being caught driving under the influence, without driving rights becomes a felony automatically. Your driving rights can be withdrawn for previous DUI convictions, accumulating points on your license, failure to appear in court for traffic violations or reckless driving.
Aggravated DUI for driving with a revoked, suspended or restricted license can have serious penalties when you are convicted. These penalties include administrative penalties, imprisonment, and payment of fines.
- Vehicle impoundment for a maximum of thirty days
- Mandatory imprisonment of at least four months. During this time, you cannot commute, suspend a sentence, serve probation, or be released. You will also serve a probation period after your release.
- Mandatory counseling
- The requirement to install an ignition interlock device for 24 months. The 24-month period begins on the date your driving privileges are reinstated.
- A three-year revocation on your license
- The requirement for regular alcohol assessments
Third DUI Conviction Within Seven Years
A third DUI conviction is charged as a first DUI felony offense when committed within seven years (84 months) of the first offense. You must also have had a BAC level of between .08 and .149% when you were arrested.
First felonies have no chance of being reduced to wet reckless charges meaning the penalties are often severe. Regular penalties for a first felony offense include:
- A jail term of between four months and two years
- A minimum fine of $750. The court may also charge fines between $4000 and $150,000
- Vehicle impoundment
- Suspension of your driver's license for three years
- Installation of an IID as soon as you regain your driving privileges
- Obtain an SR-22 insurance
- Mandatory alcohol treatment
- A community service of at least 30 days
In some cases, your driver’s license can be revoked for an indefinite period. If such is the case, you can request a reinstatement of the license after a certain time. You need to hire a criminal lawyer to help you with the process.
Aggravated DUI for Driving With A Minor Below 15 Years of Age
Arizona laws are strict on DUI offenses. When you are caught with drunk driving, and a minor is in the car, the charge automatically becomes a class 6 felony or aggravated DUI. Drunk driving with a minor, amounts to child endangerment, which substantially increases the severity of the penalties. The potential penalties include:
- First offenders will serve a jail term of between one day and two years, pay a fine of at least $4600, get alcohol counseling, install an IID for two years and may have their license revoked.
- A minimum and a mandatory prison term of thirty days if you have a prior DUI conviction
- A minimum of four months in prison if you have two prior DUI charges
- A prison sentence of between 9 months and 33 months if you have any previous felony charge
The penalties can also be stricter if the court decides to include child endangerment or child abuse charges into the case.
Consequences of an Aggravated DUI Conviction
A conviction for an aggravated DUI offense leaves a permanent mark on your record. It will always be there and cannot be removed. This means that you will always have a prior felony charge that will be recalled any time you are charged with another felony.
The consequences are worse if you are an underage offender. Arizona has zero tolerance laws for underage drunk driving. This means that it is illegal for anyone under 21 years to drive with any trace of alcohol in his or her system. If you are a minor under 18, you will be punished as a juvenile offender. If you are between 18 and 21, you are punished as an adult.
An underage aggravated DUI conviction remains on your record, meaning it will affect both your educational and career pursuits. When convicted, you will serve up to six months in jail, 24 months of license suspension and drive for three years with an ignition interlock device.
Other penalties include a fine not exceeding $5,000, three to five years’ probation and attending a mandatory court-approved drug abuse programs.
Legal Defenses for Aggravated DUI
The prosecution carried the burden of having to prove each element of aggravated DUI existed without a reasonable doubt. Such proof is required to avoid the conviction of innocent persons or to encourage law enforcement officials to perform standard procedures when arresting offenders or gathering evidence. The requirement to prove each element beyond a reasonable doubt gives criminal defense lawyers an avenue to defend their clients. Depending on the strength of the prosecution and the defense, your lawyer can successfully have the case dismissed, or penalties reduced. Here are some of the legal defenses for aggravated DUI
The Arresting Officer Deviated From Standard Police Procedures
The law requires that law enforcement officers follow standard procedures when arresting and collecting evidence for a DUI offense. The standards include stopping cars at the legally designated checkpoints and stopping cars for the right reasons. They must also adhere to standard guidelines when collecting BAC levels and arresting you.
An unlawful arrest can occur when the officer stops you for no justifiable reason and has no probable cause to arrest you. Even if you were driving under the influence, but the arrest was unlawful, the prosecution cannot legally convict you.
Some of the circumstances that can justify a police officer stopping you include:
- You have problems maintaining the proper lane position
- You are experiencing speeding and braking issues such as accelerating or decelerating for no reason and driving at a very slow speed (depending on the speed limit).
- You are not vigilant on the road. Indicators for lack of vigilance include slow response to officers’ or traffic signals, driving at night without headlights and driving on the wrong lane.
- Any indication of impairment such as inappropriate stops, following other cars too closely, improper or illegal turns, and unusual or inappropriate behavior.
Your lawyer will examine the arresting officer to determine their reason for stopping you from determining whether they were legal. Your lawyer will also inquire about what steps the officer took to determine whether you were intoxicated after they stopped you.
In most cases, police officers perform field sobriety tests in addition to BAC testing. The sobriety test taken must be NHTSA-approved for the evidence to be admissible in court. Before issuing a field sobriety test, the officer has to identify post-stop cues that could call for further investigating whether the driver is intoxicated. The cues include:
- Difficulty with exiting the vehicle
- Fumbling with the license
- Slurred speech or repeating questions and comments
- Problems with balance such as swaying or leaning on the vehicle
- Incorrect or inconsistent information
- Alcoholic odor or breath from the driver
- Slow comprehension or response to the officer's questions
The officer then determines to conduct other approved sobriety tests to determine whether you are under the influence. The tests approved in Arizona include:
- Horizontal Gaze Nystagmus test to check for involuntary side to side eye movements that indicate intoxication
- Walk and turn tests to check for balance and your ability to understand and execute verbal instructions.
- One-leg-stand test to determine the balance and stability of the person
Your lawyer will examine the circumstances surrounding the field sobriety tests, including any health conditions that could affect the success of your tests and the nature of the surface on which the sobriety test was taken. If the officer performed a non-approves test, then the results and any evidence based on the test is invalid.
Many officers also make mistakes when collecting BAC results and samples. These mistakes can work to your advantage and get the case dismissed for insufficient evidence. BAC tests are usually conducted to investigate further whether the person failed a field sobriety test due to intoxication. The police officer can also take a BAC test before a sobriety test at his discretion. Some of the circumstances that can discredit a BAC finding include:
- Improper storage of the test kit before use
- The driver has a medical condition that makes the test results unreliable
- The officer did not follow standard procedures when giving the test
- The officer failed to store or submit the blood or urine sample properly
Before the officer takes a BAC test, they need your consent before they can administer a test. If you deny consent, they must get a warrant from the court to conduct a BAC test.
You Were Not In Actual Physical Control Of The Vehicle
The prosecution must prove that the defendant had actual physical control of the vehicle during the time they were arrested for aggravated DUI. Actual physical control in Arizona could mean driving or being in a vehicle. Circumstances surrounding your occupation of the vehicle also determine whether you were in actual physical control of the vehicle. These factors include:
- Having keys in the ignition
- The place where you have parked, and whether it is a legal parking area
- The danger you are posing to yourself and other road users
- Whether you are awake or asleep
- Whether the headlights are on or off
Your lawyer can use these circumstances to argue favorably on your behalf. For example, if you pulled over and parked legally, and then decided to sleep until you were sober enough to drive, then you may not be guilty of aggravated DUI.
You Were Not Issued A Miranda Warning
When you are arrested, you have the legal right to remain silent and refuse to give any self-incriminating remarks to the police officers. It is also the responsibility of a police officer to read you the Miranda warnings. Miranda warnings are designed to protect offenders from self-incrimination. The warnings inform you of your right to keep silent, and that your remark can and might be used in court, your right to having an attorney during questioning, or have an attorney appointed if you cannot afford one.
If you give any remarks about your intoxication before your Miranda warnings are read to you, then the remarks cannot be used against you in court.
Wrong BAC Results From Your Diet Or A Medical Condition
Your diet or medical conditions you may be suffering can affect your breath tests. The diet or conditions may trigger the production of alcoholic chemicals from your body leading to a wrongful DUI arrest. One of these chemicals is ketones, which are produced:
- In people with diabetes and hypoglycemia
- When fasting
- When on a high protein/low-carb diet
When your body produces excess ketones, they are released in your urine and breath. This can lead to false BAC levels on a Breathalyzer and for urine tests.
If you were on a diet, or have any medical condition, it is wise to inform your lawyer, as it could be the reason for a false BAC level. You will then be required to provide medical records and expert witnesses who can explain the effect of your diet or condition on BAC levels.
For a person with diabetes, the body may produce excess ketones, leading to diabetic ketoacidosis whose symptoms may resemble those of intoxication. The symptoms include sluggishness, a flushed face, confusion, decreased coordination, and a fruity breath that almost resembles alcohol.
Similarly, a person with hypoglycemia occurs when the body has low blood sugar. Low blood sugar result in symptoms similar to those of an intoxicated person, such as confusion, blurred vision, anxiety, and shakiness.
Rising Blood Alcohol
It takes time before alcohol is fully absorbed into the bloodstream. This means that the results may differ depending on the time the test is taken. If your BAC limit was lower when driving, and then rose by the time the police tested you, then your lawyer can use this defense. You can successfully use this defense if:
- Significant time passed between being pulled over and getting the test
- Your BAC level was close to the legal limit
- You had no apparent signs of intoxication
- You were near your destination when you were stopped, therefore, could not have been guilty of a DUI
Find an Aggravated DUI Lawyer Near Me
Being charged with an aggravated DUI offense can have long-lasting and unfair consequences on your life, education, and employment. You could lose your job or miss important career growth opportunities if you are convicted. When you are facing charges for aggravated DUI in Phoenix, Arizona, you need the help of an experienced criminal defense lawyer who will build a solid defense strategy to protect your rights. If you have been charged with aggravated DUI contact our Phoenix Criminal Lawyer at 602-551-8092 for a free consultation.