maandag 21 maart 2011

MUST READ: Why you shouldn't drive under influence (DUI)

I wanted to share this with you; it's a temporaly piece of text from a friend working on a thesis. As it seems people in their 20's and older, don't get it why they shouldn't drive under influence it's good she made this her subject

Text: DUI In Arizona (source: click here)
It goes without saying (but I'm saying it) that if you drink, you shouldn't drive. In Arizona, if you are over 21, it is NOT illegal to drive after drinking. However, driving after drinking an unknown amount of alcohol is illegal. Since it is next to impossible to figure out what that unknown amount is, it's best not to take the chance.
If you do make the mistake of drinking and driving in Arizona, and if you are pulled over by an Arizona law enforcement officer, then this article will give an extremely brief overview as to what you should generally expect and what you should generally do. Use this merely as a guide. For help on an individual case, you need to consult with an attorney.
The DUI Stop
You can be stopped for DUI in a variety of ways. The most common are:
  • an officer stops you for some type of traffic infraction (or perceived traffic infraction) such as speeding, weaving, or failure to yield.
  • an officer responds to an accident scene where he does not necessarily witness you driving.
Either way, just about every DUI police report will begin with the Officer's observations of signs of alcohol ingestion, such as odor of alcohol and bloodshot, watery eyes. Notwithstanding the fact that these are signs only indicative of ingestion, not necessarily impairment, the Officer will use this as a basis for "further investigation."
"Further Investigation" in this context means asking you to step out of your car and perform field sobriety tests. The Officer will pay close attention to how you exit the car, the manner in which you provide him with your driver's license, registration and insurance and the manner of your speech. Then the Officer will ask you to do Field Sobriety Tests. Depending on what the Officer observes and his suspicions, he will place you under arrest for DUI.
So, if you've been stopped for DUI, how do you respond? First -- and most importantly -- you must be courteous. Don't try to bargain your way out of this. Be respectful. Second, ask for a private place to speak to an attorney. The Officer probably will not allow you to speak to one immediately, however, if he ultimately does not honor your request, your entire case can be thrown out.
I am very skeptical about Field Sobriety Tests (FSTs). For example, I defended a client at a DUI jury trial where the Officer admitted to the jury that my client passed the Field Sobriety Tests, yet he arrested him anyway. The reason for this is simple. Once the Officer stops your vehicle for some reason, for example, weaving, and then observes the odor of alcohol and bloodshot, watery eyes, he's already made up his mind what type of case this is. Everything after that is merely a procedure for gathering additional evidence of guilt. It is not a process to prove your innocence, regardless of what the Officer may tell you. Moreover, the Field Sobriety Tests themselves are merely coordination tests that are difficult to pass even under the most optimal of conditions. Because of these concerns, I don't see any value in agreeing to perform the FSTs. Politely decline. The Officer will probably arrest you anyway.
In case you are wondering, in the example I gave above the client was not convicted!
DUI and Arizona Courts
Misdemeanor DUIs are generally prosecuted in Municipal Courts or Justice Courts in Arizona. Generally, Superior Court handles felony DUIs. Regardless of whether your case is a felony or a misdemeanor, NOBODY should make any decision as to how to proceed on a DUI case without the advice/guidance of an experienced attorney. If you are indigent, you will qualify for a public defender.
Your defense lawyer will review the evidence against you and advise you accordingly. Sometimes it is better to plead out prior to trial. Sometimes it is better to go to trial. It depends on your case. If you go to trial, you have the right to a jury trial. You can also waive a jury and just try your case to the judge. Again, which option is best depends on your case and the judge.
DUI Sentencing and Mandatory Jail Time in Arizona
If you are convicted of DUI in Arizona you will go to jail. It is mandatory. The amount of jail depends on your alcohol concentration, your prior criminal history (particularly DUI history), as well as the circumstances of your case. For a first offense, if your reading is below .15, then the minimum amount of jail is 24 hours. If your reading is between .15 and .20, then the minimum is 30 days in jail. If your reading is above .20, then the minimum jail time is 45 days. Keep in mind that the State has to prove that your actual alcohol concentration was above those minimum amounts in order for you to be subject to the enhanced jail sentence.
As you can well imagine, if it's not your first offense, then the penalties grow exponentially. The jail time is mandatorily enhanced if you have, and the State proves that you have, a DUI prior within 84 months of the current charge. For example, a second offense DUI, with a reading of less than .15, has a 30 day minimum jail sentence in Arizona. A second offense with a reading of between .15 and .20 is 120 days in jail. A second offense with a reading of over .20 is 180 days in jail.
In addition to the jail time, there are mandatory fines in Arizona which also depend on alcohol concentration and prior DUI history. Alcohol classes will be ordered. You will be required to install an ignition interlock device in your vehicle.
DUI in Arizona - The Bottom Line
If you drink, don't drive. But if you do, know your rights. Be respectful to the Officer. Ask to speak to a lawyer in private. Decline the Field Sobriety Tests. Once placed under arrest, agree to the blood test. Request an MVD hearing if your reading is too high. Finally, DO NOT go through this alone. Either hire an attorney experienced in these matters or apply for a public defender. Every DUI case is different. Even seemingly hopeless cases can be effectively fought.

Allow the Blood Test?
Once placed under arrest, you will be given some type of test to determine alcohol concentration. Typically this test is a blood test. The results usually take a few weeks. If you refuse the test, the general procedure is for the Officer to obtain a search warrant from a judge to allow him to forcibly take your blood. So, you see, they'll get the test anyway. Plus, if you refuse the blood test, regardless of the outcome of the criminal case, your license will be suspended for 12 months. If you're thinking that doesn't sound like a good strategy, you are correct. Just take the blood test.
Results of the DUI Blood Test
If the results of the blood test are greater than a .08, then Arizona MVD will send a written notice (via regular mail to your last address on file at MVD) that your license will be suspended for 90 days, the last 60 days of which you may be allowed to drive to and from work, school, or counseling.
Hearings and Suspensions
You may request a civil hearing which, at worst, can delay the start of the 90 day suspension, and, at best, may void the suspension and/or possibly obtain helpful, under oath, statements from the arresting officers. The only downside to requesting a hearing relates to timing of the suspension. Would it be easier for you to serve your suspension earlier rather than later? If that's the case, then perhaps declining a hearing is your better choice, since it often takes at least 45 days to get a MVD hearing.
If you request a hearing because you believe you have a chance there of having the case dismissed, please be aware that it is rare; when these hearings are held, the suspensions are generally upheld. So what's the advantage? You can have more time to prepare for the suspension and you get a sneak peek at the Officer's case against you.
If your blood test reading is less than a .08, then there is no 90 day suspension, unless you're ultimately convicted of the DUI in criminal court (yes, it is possible to be convicted of DUI with readings less than a .08). Note, that if you already served your 90 day suspension, you will not have to serve another 90 day suspension if you are convicted of the DUI. It's a onetime suspension.

How states like Arizona handle with DUI.

Arizona and every other state has DUI laws that are meant to stop drivers from getting behind the wheel of a car after a few glasses of wine, or beer, or alcohol. The limit in our state, sometimes ironically called the "legal limit," is .08%. The best advice any attorney can give you is don't drink and drive. Period. Imagine how many cab rides you can pay for with the money you'd spend on fines and attorneys' fees in a DUI case.
So, let's say you've left the party thinking you're okay to drive only to have the flashing red and blues greet you. How to handle the DUI stop? First, stay in your car unless the officer asks you to step out and if you have your seat belt on, leave it on! Second, know these ten things:
1 - Provide identification. The officer will ask for your driver's license and registration. How easily you find these items will be noted on the officer's report. If you fumble around for them, it will look like you've had too much to drink.
2 - Politely refuse to take field tests. Field tests for DUI are: walking the line, touching your finger to your nose, counting on your fingers, saying your ABCs, holding your leg up while counting, and HGN, the one where the officer asks you to follow a light with your eyes. When you do field tests, you are giving evidence that will be used against you. There is no law requiring you to do the tests. Some officers will tell you they will take you to jail if you don't do the tests. Don't fall for it. They were going to take you to jail anyway.
3 - If asked, politely explain that you will not agree to a search of your car. If the officer has to ask you to agree, it's a red flag. Just say no. If an officer has enough reason to get a search warrant, he or she will. If not, then why search? Usually the question will come at you like: You don't mind if I look in your car, do you? You don't have a problem with my looking in your car? I'm just going to take a quick look inside, okay? Say no--politely, but firmly--and don't explain. And hope your no makes it into the report.
4 - Politely refuse to answer questions. Usually the officer will ask you a few questions about what you've had to drink and then move on to more questions later at the station. Your best response is: "I can only answer your questions on the advice of my attorney." You don't have to call an attorney right then. The statement effectively stops any questioning of you by invoking your constitutional rights. Even when the officer reads Miranda rights to you, the answer should be the same.
5 - Cooperate, cooperate, cooperate. Cooperation means having a good attitude and being polite. It doesn't mean answering questions or doing field tests or talking. Your attitude, appearance and words all become part of the officer's report. Your disposition indicates your level of intoxication. This is not the time to crack jokes, cry, apologize or confess.
6 - Take a breath, blood or urine test if one is offered. When your driver's license was issued, you agreed to take such a test if you were ever pulled over. It's called the Implied Consent Law and even if you don't remember agreeing, you did. If you don't take the test, your license will be suspended for a minimum of one year, even if you are not convicted of DUI. If you take the test and the reading is greater than .08%, your license will be suspended from 30 to 90 days.
After the investigation on the street, the officer will usually take you to the station or to a testing site. Some cities will offer you a blood test, others will offer a breath test. If your test shows your blood alcohol concentration (BAC) to be less than .08%, you may not be charged. If you are, you might be able to later have the case dismissed. If your BAC is .08% to .14%, you will be charged with DUI, and DUI with a BAC over .08%. If your BAC is .15% or more, you will be charged with DUI, DUI with BAC over .08%, and Extreme DUI.
7 - After completing the test, the officer may give you a form that asks whether you want to preserve a sample of your test or waive a sample. NEVER waive! Always ask that a sample be preserved if you are given that choice.
8 - As soon as you are released, go to a hospital, a lab, or call your doctor to arrange to have your own test done immediately. If that test shows a lower BAC, you can use it in your case. If the level is the same or higher, you need not provide that information to the prosecutor.
9 - If you don't want to lose your license, ask for a hearing at the Motor Vehicle Division within fifteen days. The officer will give you a form when he or she takes your license. This Admin Per Se/Implied Consent Affidavit has a paragraph telling you how to request a hearing.
If you are charged with DUI, you are not required to have an attorney. In some cases, a court will appoint one for you. At any stage in the process, you might choose to hire an attorney to help you with your case. If you understand intoxilyzers and how they operate, you can handle the case yourself. If you can interview police officers and question witnesses at trial, you can handle the case yourself. Or if you just feel better walking in and pleading guilty, you can handle the case yourself.
10 - If you decide to hire an attorney, find one who has experience with DUI cases. Hire a qualified attorney you trust, an attorney you meet in person at your first consultation. A good attorney will personally appear in court on your behalf, interview the officer, gather records, prepare motions, and negotiate with the prosecutor. A good attorney will keep you informed about the progress of your case, but don't expect a daily call! Beware of attorneys you don't meet until your first day in court or who aggressively go head to head with the prosecutor during pretrial negotiations. You need an advocate who won't alienate the other side and paint you into a corner.
Do you really need to take a cab after only one drink? No, not after one ounce of alcohol. Generally speaking, your blood alcohol level rises about .025% for each drink you have. The actual percent is based on your weight, sex, and other factors. Your body eliminates alcohol over time. And now there are relatively inexpensive devices to test your alcohol level. Local stores and catalogs carry personal breath testing devices. Since all devices have an error factor, don't drive if yours reads .05% or over. But remember, the state doesn't have to prove you had a .08%, you are guilty if your ability to drive is impaired to the slightest degree.
The safest bet is to drive sober always. You're more likely to get where you're headed without that stop at the police station! You're less likely to need an attorney, pay fines, go to jail, pay higher insurance rates, and lose your driving privilege. . . or you could always call a cab.