ARTICLES
- You’ve been charged with a DUI...
- After conviction, when will I go to jail?
- Do I have to list a conviction for DUI when I'm filling out an employment application?
You’ve been charged with a DUI …
It’s the morning after. As soon as you wake up, it hits you like a ton of bricks – you were charged with a DUI last night. You have never been charged with this before and have no idea what to expect. Although an entire book could be written on the variations of what may happen, here are some general things that you may be facing if this occurred in Arizona. This article is in no way designed to replace a consultation with an attorney experienced in DUI defense as to the specifics of your case. Since dealing with all of the variations is beyond the scope of this article, it is written for someone charged with a first offense misdemeanor DUI offense based on alcohol (not drugs). DUI’s are generally not felonies. However, if you have two prior convictions for DUI in the last seven years; or your driving privileges were suspended, revoked, cancelled, refused or restricted; or if you had a child under the age of 15 in the vehicle; or if someone was injured as the result of an accident, then you may potentially be facing felony charges.
The first thing you may realize is that your vehicle was towed. If you were not charged with Extreme DUI (an alcohol concentration of 0.15 or 0.20 or greater), you should be able to get it back immediately by following the instructions on the vehicle impound sheet that you were given. However, if you were charged with Extreme DUI, then the vehicle may have been impounded for 30 days. Although you are entitled to a hearing, realistically the only way to get your vehicle out before the end of those 30 days will be if someone else (i.e. a spouse or parent) is on the title or registration to that vehicle. If so, provided they possess a valid license and the vehicle is properly registered and insured, they should be able to pick it up.
The next thing you may realize is that the officer took your driver’s license. This only used to happen when breath testing and not blood testing was utilized, but under a change in the law that took effect January 1, 2009, they may now take your license either way. If they did, they should have given you a permit that states you can drive for the next 15 days, but after that your license will be suspended for 90 days (one year if you refused to submit to the required breath or blood testing). The first 30 days of that suspension you cannot drive at all. The remaining 60 days, provided you had a valid Arizona license and no prior DUI’s, you should be eligible for a work/school permit. However, to get that permit, you will need to attend a substance abuse screening (evaluation) first. This will take approximately two hours, and you can find a list of agencies that provide this screening at the azdot.gov website.
Although you can ask for a hearing and thereby delay this suspension, you can actually make things worse on yourself by asking for and prevailing at a hearing. On the other hand, there may be situations where you should ask for a hearing. Therefore, you really should consult with an attorney experienced in DUI defense as soon as possible to discuss what is best for you, as a hearing request must be received by the Motor Vehicle Department during those initial 15 days after your arrest.
Although not true in every case, in most situations the officer will have given you a "ticket" that lists the charges and the court date. You may notice that there are two DUI charges (and in the case of Extreme DUI maybe even three). How can that be? It is still just one DUI case, but essentially the State can prove it in either of two ways. The first charge is numbered 28-1381(A)(1) and will be called something like "DUI", "DUI – Impairment" or "DUI – Impaired to the Slightest Degree." This alleges that regardless of how much you drank, you were under the influence of alcohol to the point that your ability to drive was affected to the slightest degree. The prosecution can proceed on this charge even if you tested below the legal limit.
Assuming they are alleging that you were over that limit, you will also likely be charged with 28-1381(A)(2) called something like "DUI-BAC" or "BAC greater than .08." This alleges that regardless of any effect on you, you had an alcohol concentration of .08 or greater within two hours of driving. Even in cases of blood testing where the results are not yet known, you may still be charged with this offense. Only the blood test results or valid breath test results can be used to prove this charge. (A preliminary breath test done on a portable unit often carried by officers cannot be used to prove this charge and you are not required to take it). Even if your blood or breath was taken more than two hours after driving, this charge can still be prosecuted, although it does open the door to potential challenges. If you proceed to trial, to avoid a DUI conviction you must be found not guilty of both of these charges. A guilty verdict on either charge results in a DUI conviction.
If the officers have reason to believe you had an alcohol concentration of .15 or greater, you may be charged with 28-1382(A)(1) called "Extreme DUI" or "BAC .15 or greater." If it is greater than .20, then you may be charged with 28-1382(A)(2) called "Super Extreme DUI" or "BAC .20 or greater." Either way it is still a misdemeanor, but the mandatory minimum penalties are significantly increased. You may also be charged with other traffic or equipment violations in addition to the DUI charges.
Further down on the ticket you have a date, time and location to appear for court. This is called the arraignment. On this date, the judge will likely enter a plea of not guilty for you, regardless of your wishes. The judge at this point should not have the police report or your driving or criminal history, just the ticket that you were given. Therefore, because they do not know whether you have any prior convictions which would significantly enhance the minimum penalties, they generally will not even let those who want to plead guilty do so at the arraignment. You will be given a second court date called a Pretrial Conference to return to court where you have the ability to discuss your case with a prosecutor who will have access to that information and who may offer you a plea agreement. In some jurisdictions and in some situations, you will be given the opportunity on the date of the arraignment to conduct this pretrial conference with the prosecutor. If you hire an attorney, the attorney can waive the arraignment. If you do not hire an attorney, then you must personally appear.
The exact consequences of a conviction are again beyond the scope of this article. However, a conviction will result in at least 24 hours in jail (30 days for Extreme DUI, 45 days for Super Extreme), minimum fines, fees and assessments ranging from $1450 to $7500, a substance abuse evaluation and education, suspension of your driving privileges if that has not already occurred, a requirement that you install an ignition interlock device for at least one year, and eight points on your driving record. There are, of course, other potential consequences or penalties that may be imposed. While an attorney experienced in DUI defense may not necessarily be able to get you out of a DUI completely, they should be able to assist you in navigating through the case and hopefully minimizing the penalties and consequences.
If I get convicted of DUI and have to go to jail, do I have to go immediately, or can I schedule it when it's more convenient for me – or when the weather is not as hot?
In Arizona, if you are convicted of DUI, you will have to serve at least 24 consecutive hours in jail unless you were initially arrested and already served those hours. If you are convicted of having an alcohol concentration of .15 or higher (Extreme DUI), or convicted with a prior DUI conviction within the past 84 months, you will have to serve at least 30 days and possibly much more.
I do not know any judges who will make you go to jail immediately to serve your time. Most will allow you to self-surrender at a date and time you choose. Many judges will require that self-surrender date to occur within 30 days of being convicted. Others, with good reason, will allow you to extend it out further. If you are serving jail time in Maricopa County, and want work release, then that time will have to be served in Tent City outdoors. And yes, some judges will allow people to wait until the desert summer has passed to serve their time. It does depend on the judge.
The law allows and almost all judges will allow a person on a misdemeanor DUI to get work release. The law limits the release in DUI cases to 5 days per week and 12 hours per day and the person generally must serve either 24 or 48 hours before the release begins. Also, some jurisdictions will allow a person to serve the remainder of their sentence on home detention with alcohol monitoring after 15 actual days in jail have been served.
Do I have to list a conviction for an Arizona DUI when I'm filling out an employment application and they ask if I've ever been convicted of a crime?
It all depends on the wording of the question and exactly what you were convicted of. In most cases, an employer is only concerned with felony convictions. In Arizona, a DUI is generally a misdemeanor, unless you were convicted of Aggravated DUI or some other felony charge such as Aggravated Assault, Endangerment or Manslaughter. (Extreme DUI or even Super Extreme DUI are not felonies.) Therefore, if the application asks if you were convicted of a felony, and your conviction was not for Aggravated DUI or another felony, the honest answer is "no."
Even if the honest answer to the question is "no," you may consider, at some point during the interview process, disclosing the DUI conviction. For many jobs, the company will perform a background check. Although you may have honestly answered the question "no," they can easily discover the DUI conviction.
If the application asks if you have even been convicted of any crime or any misdemeanor, the only honest answer is "yes." This is true even if the conviction has since been set aside, as there is no expungement of the conviction in Arizona and therefore you are still considered convicted.
