12|2022
What are 5 DUI defenses in Arizona? This is a common question due to how harshly Arizona prosecutes DUI cases. A conviction carries far-reaching impacts and consequences. Indeed, it could destroy a person’s life. Luckily, DUI defenses could be available depending upon the specifics of each case. A defendant asserts a DUI defense at trial or pre-trial. And it could result in a suppression of evidence and/or dismissal of charges. Therefore, the identification and framing of a DUI defense is critical. As such, it is imperative to consult with an experienced Arizona DUI attorney. Less experienced attorneys may not correctly identify or frame possible defenses. An experienced DUI attorney battle-tested in jury trials and evidentiary hearings will generally identify and frame the correct issues.
Five Most Common DUI Defenses
The 5 most common DUI defenses asserted include:
(1) No Actual Physical Control
(2) No Reasonable Suspicion for the Traffic Stop
(3) Denial of Right to Counsel
(4) Breath Test is Not Accurate
(5) Blood Test is Not Accurate
DUI Defense in Arizona #1: No Actual Physical Control of Motor Vehicle
For a detailed discussion concerning No Actual Physical Control as a DUI defense see Huss Law blog article: “Is No Actual Physical Control a DUI Defense”.
DUI Defense in Arizona #2: No Reasonable Suspicion for the Stop
Pursuant to the Fourth Amendment of the United States Constitution, law enforcement may not conduct an unreasonable search or seizure. Indeed, a law enforcement officer may only conduct a traffic stop on a vehicle if the officer can articulate a reasonable suspicion. This is not a high standard but it is more than a “hunch.” A reasonable articulable suspicion may be someone going 3 MPH over the speed limit, failing to use a turn signal, following too closely, or making too wide of a turn. Indeed, many DUI traffic stops are the result of a driver making too wide of a turn. Specifically, a driver turning into an outside lane from the inside lane will result in a traffic stop. Turning too wide is a common “reasonable suspicion”.
Indeed, a “reasonable articulable suspicion” is not a high standard. It requires an officer to articulate one suspicious behavior. However, officer observation may be in question due to vantage point or subjectiveness. As such, competent defense counsel should analyze police reports closely. An attorney may file a motion to suppress a stop and evidence if conducted without reasonable suspicion.
DUI Defense in Arizona #3: Violation of Right to Counsel
All people have a right to consult with an attorney during any criminal investigation. This right exists before and after an arrest. And is one of the bedrocks of the American criminal justice system. However, limitations to this right exist if it will unreasonable delay or impede a DUI investigation. Nevertheless, law enforcement cannot interfere with one’s right to counsel.
This issue arises prior to driver submission to a chemical breath or blood test. And generally after law enforcement advises a driver of the Admin Per Se/Implied Consent Affidavit. Specifically, this affidavit advises a driver they must submit to chemical testing of blood, breath or urine or lose driving privileges for one year. It is law enforcement discretion which chemical test, or combination, a driver will submit.
Indeed, many drivers ask to consult with an attorney prior to submitting to the chemical test. Although law enforcement must comply, the exigency of DUI investigations outweighs this right. And a driver may not unreasonably delay or impede a DUI investigation. As such, law enforcement must provide a driver with a “phone book” and a phone to consult with an attorney. But, a driver does not have unlimited time to consult and must not delay an investigation. Blood and breath evidence may dissipate quickly. As such, the law allows the police to obtain a warrant should a driver unreasonably delay the investigation. Nevertheless, law enforcement may go too far or may unconstitutionally interfere with a driver’s right to counsel. It is important to identify and frame issues properly for a pre-trial motion to suppress. Success on this type of motion results in a suppression of blood or breath evidence.
DUI Defense #4: Breath Test is Not Accurate
Breath tests determine the amount of breath alcohol in a person’s lungs and provides a measurement of the blood alcohol level. This is not a direct measurement of blood alcohol and may result in an inaccurate reading. There are numerous factors that may impact a person’s breath test reading to cause higher false reads. The five most common factors are discussed below.
First, the Intoxilyzer 8000 has a 10% error rate, acknowledged by state criminalists and experts. Second, a person’s “core body temperature” and “end-expired breath temperature” makes a difference of nearly 10% for each degree different from what the breath test estimates. Third, the composition of blood is variable which may impact breath testing. Whole blood is a solid particle mixture in liquid suspension. Because alcohol is water soluble, the higher concentration of liquid in the driver’s blood impacts the amount of alcohol present. Fourth, the Intoxilyzer does not test for alcohol but for any molecule with a carbon/hydrogen bond. As such, the breath test may detect several substances found on human breath. Fifth, the breath test assumes there is a predictable ratio of alcohol in the blood and vapor above it when heated like breath is (2100 to 1). However, numerous studies suggest this is not scientifically accurate.
Other factors may impact a breath test (i.e., mouth alcohol; Diabetes and other health issues; testing during the absorptive stage; breathing patterns; Intoxilyzer maintenance and calibration; how hard and long the driver blows into Intoxilyzer tube, etc.). It is important to consult with and retain an experienced DUI attorney like Huss Law, PLLC if facing issues with the Intoxilyzer breath test.
DUI Defense #5: Blood Test is Not Accurate
Contrary to some belief, DUI blood draws are legal in Arizona. In fact, many law enforcement agencies are moving towards obtaining blood samples during DUI investigations. Indeed, blood tests directly measure alcohol in the blood. As discussed, this is not true with breath testing. Rather, breath testing is an indirect measurement achieved by estimating alcohol in the blood by estimating alcohol in the breath. Nevertheless, merely because blood is a direct measurement of alcohol in the blood does not necessarily mean blood testing is more accurate.
Multiple avenues attacking blood results are available. This includes challenging the analysis methods (most common is gas chromatography), collection, storage and transportation of the sample. Additionally, it includes analyzing sample preparation and methods employed or not employed by a state crime lab impacting results. The most common sources of inaccuracy come from: contamination of the sample during (i.e., contamination caused by equipment used to draw blood) or after the draw (i.e., contamination in vial blood drawn into); differences between venous blood draws and arterial blood draws; differences in analysis between whole blood and plasma and outside contaminants.
Although blood testing is the most potentially accurate chemical test, there are possibilities for inaccuracies and error. Any person charged with DUI should consult with and retain an experienced DUI attorney.
Huss Law, PLLC is Arizona’s Top DUI Attorney
Defenses could be present in any DUI case. It takes an experienced DUI attorney to identify and correctly frame them. Huss Law, PLLC found Jeremy L. Huss has 20 years’ experience handling all DUI offenses. He spent 13 years as a felony DUI prosecutor and has spent time training law enforcement on DUI investigations. Huss Law, PLLC is Arizona’s top DUI attorney and is in the best position to identify DUI defenses. Call Huss Law today for a free consultation!
