ARS 28-1381 – Arizona DUI Statute

ARS 28-1381 is Arizona’s primary misdemeanor DUI statute. Under ARS 28-1381, driving under the influence is defined as driving a motor vehicle while impaired by the slightest degree by alcohol or drugs. It also criminalizes having a blood alcohol content (BAC) of 0.08% or greater while driving or within 2 hours of driving. The statute also defines the penalties for first- and second-time misdemeanor DUI convictions in Arizona.

In this article, we discuss: 

1. How does ARS 28-1381 define a DUI?
2. What are Arizona’s misdemenaor DUI penalties?
3. What if you BAC was below 0.08%?
4. Do you get a jury trial?
5. What are the consequences for your license?
6. The text of ARS 28-1381

1) How does ARS 28-1381 define a DUI?

Arizona Revised Statute 28-1381 states that a person commits DUI by:

1) driving while under the influence of a drug or alcohol while impaired to the slightest degree by that substance;

2) having a BAC of a 0.08% or greater while driving or within 2 hours of driving;

3) driving with a drug defined in ARS 13-3401 or its metabolite in the person’s body; or

4) driving a commercial motor vehicle that requires a person to obtain a commercial driver license (CDL)with a BAC of 0.04% or more.

2) What are Arizona’s misdemeanor DUI penalties?

Most DUIs that occur in Arizona are class 1 misdemeanors. Any class 1 misdemeanor has a maximum jail term of 6 months and maximum fines of $2500 plus surcharges. However, unlike other class 1 misdemeanors, ARS 28-1381 also provides for mandatory minimum penalties for misdemeanor DUIs. The mandatory minimum sentence depends on whether this is the defendant’s first or second DUI within 7 years. If a person has a DUI from a state other than Arizona, that DUI conviction will still count as a prior DUI, as long as the conviction would also have been a crime had it been committed in Arizona (i.e., as long as the other state’s statute is sufficiently similar to Arizona’s DUI laws).

Keep in mind that these are penalties for a violation of ARS 28-1381, which criminal law attorneys call a “regular DUI.” A driver with a BAC over 0.15% will be charged with an “Extreme DUI” and face harsher punishments, and a driver with a BAC over 0.20% will be charged with a “Super Extreme” DUI and face the most severe DUI penalties (with the exception of felony DUIs).

A DUI may also become an aggravated DUI, which is a felony, if any of the following is true:

• If this is the driver’s third DUI offense in 7 years,
• If the person’s drivers license was suspended;
• If the driver was required to maintain an ignition interlock device;
• If there was a child under the age of 15 in the car;
• If the driver was on the wrong side of the road.

Felony DUIs are punished the most harshly of any type of DUI, and they are the only type of DUI that can result in a sentence in the Arizona Department of Corrections (i.e., the state prison system).

3) What if your BAC was below 0.08%?

A BAC of 0.08% is the “legal limit” in Arizona. This means that if the prosecutor can prove that you drove with a BAC of a 0.08% or more, then you can be convicted of a violation of the DUI statute under ARS 28-1381(a)(2) (“having a BAC of a 0.08% or greater while driving or within 2 hours of driving”).

But even if a driver has a BAC under the legal limit, he can still be convicted of a DUI under a different section of the DUI law. The prosecutor can still proceed under ARS 28-1381(a)(1) (“driving while under the influence of a drug or alcohol while impaired to the slightest degree by that substance”) if the prosecutor can prove actual impairment.

In such a case, however, the prosecutor has the burden of proving actual impairment. The prosecutor cannot rely on a test of the driver’s BAC alone to show that the driver was impaired. Instead, the prosecutor will often try to rely on the driver’s performance of the roadside Field Sobriety Tests (or FSTs) to try to prove impairment. But poor performance on FSTs can also be attributed to other factors besides alcohol impairment, such as a physical or medical condition, poor sleep, or balance issues. Furthermore, good performance on the FSTs can be used as evidence that the driver was not impaired.

A subsection of ARS 28-1381 also provides certain “presumptions” that a jury can use when deciding guilt or innocence in a DUI case. Under ARS 28-1381(G) the jury can presume that a person whose BAC is over a 0.08% is impaired. If the BAC is between 0.05% and 0.08% there is no presumption of impairment either way. And if the BAC is lower than a 0.05%, the jury can presume that the driver was not impaired.

4) Do you get a jury trial?

Yes, a defendant is allowed to have a jury trial in all DUI cases. In fact, a DUI is one of the most common types of jury trial in Arizona. If a defendant does not wish to have a jury trial, the defendant can also request a bench trial, which means the case is decided by a judge rather than a jury (although strategically, it will often be beneficial to the defendant to have a jury trial).

Most DUI cases, however, are resolved through negotiations between the defense attorney and the prosecutor. This can often lead to a favorable plea agreement that avoids some of the risks of trial or which pleads the case down to lesser charges. In some cases, it may also result in a dismissal of the defendant’s case, such as in instances where the defense attorney convinces the prosecutor that there is not enough evidence for the state to prove its case beyond a reasonable doubt.

5) What are the consequences for your license?

When a person is arrested for a DUI, they face two different types of legal consequences. The first are criminal consequences. This occurs when the state charges the driver with a DUI and he gets a court date in a city court or justice court. The second consequence or administrative consequences for your license, which can result in a license suspension. The suspension occurs independent on whatever happens in the driver’s criminal case, and it is also subject to a lower burden of proof, so there are less protections against the license suspension.

When a person is arrested for DUI and the police believe they have probable cause (i.e., they have reasonable grounds to believe the driver is DUI even if they can’t prove it beyond a reasonable doubt), then they will submit to the Arizona Department of Transportation (ADOT) an “admin per se” affidavit. On this affidavit they will attest to their belief that the driver was under the influence.

A driver’s license will automatically be suspended within 15 days of the DUI arrest when the police submit the admin per se affidavit. This will result in a license suspension for 90 days. After 30 days of the suspension period, the driver may be able to get a restricted license for the remaining suspension period that will allow him to drive to work and school. A second DUI can will result in a 1 year suspension of the driver’s license, but most drivers can drive after 45 days if they install an ignition interlock device on their car.

If the driver refused to provide a chemical test during the DUI arrest (either by providing a breath sample or a blood sample when requested by the police), then a driver’s license will be revoked for a 1-year period. This will occur regardless of whether the driver was over the legal limit or not. 

The automatic license suspension can be put on hold, however, if a motion is filed with ADOT for an administrative MVD hearing. The MVD hearing is difficult to win because the police do not need to prove impairment beyond a reasonable doubt. However, requesting an MVD hearing has the effect of stopping the automatic license suspension. This can have positive consequences for the driver by providing extra time to make arrangements for the license suspension rather than have it occur automatically within 15 days of the DUI arrest.

6) The text of ARS 28-1381

28-1381. Driving or actual physical control while under the influence; trial by jury; presumptions; admissible evidence; sentencing; classification

A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:

1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree.

2. If the person has an alcohol concentration of 0.08 or more within two hours of driving or being in actual physical control of the vehicle and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle.

3. While there is any drug defined in section 13-3401 or its metabolite in the person’s body.

4. If the vehicle is a commercial motor vehicle that requires a person to obtain a commercial driver license as defined in section 28-3001 and the person has an alcohol concentration of 0.04 or more.

B. It is not a defense to a charge of a violation of subsection A, paragraph 1 of this section that the person is or has been entitled to use the drug under the laws of this state.

C. A person who is convicted of a violation of this section is guilty of a class 1 misdemeanor.

D. A person using a drug as prescribed by a medical practitioner who is licensed pursuant to title 32 and who is authorized to prescribe the drug is not guilty of violating subsection A, paragraph 3 of this section.

E. In any prosecution for a violation of this section, the state shall allege, for the purpose of classification and sentencing pursuant to this section, all prior convictions of violating this section, section 28-1382 or section 28-1383 occurring within the past thirty-six months, unless there is an insufficient legal or factual basis to do so.

F. At the arraignment, the court shall inform the defendant that the defendant may request a trial by jury and that the request, if made, shall be granted.

G. In a trial, action or proceeding for a violation of this section or section 28-1383 other than a trial, action or proceeding involving driving or being in actual physical control of a commercial vehicle, the defendant’s alcohol concentration within two hours of the time of driving or being in actual physical control as shown by analysis of the defendant’s blood, breath or other bodily substance gives rise to the following presumptions:

1. If there was at that time 0.05 or less alcohol concentration in the defendant’s blood, breath or other bodily substance, it may be presumed that the defendant was not under the influence of intoxicating liquor.

2. If there was at that time in excess of 0.05 but less than 0.08 alcohol concentration in the defendant’s blood, breath or other bodily substance, that fact shall not give rise to a presumption that the defendant was or was not under the influence of intoxicating liquor, but that fact may be considered with other competent evidence in determining the guilt or innocence of the defendant.

3. If there was at that time 0.08 or more alcohol concentration in the defendant’s blood, breath or other bodily substance, it may be presumed that the defendant was under the influence of intoxicating liquor.

H. Subsection G of this section does not limit the introduction of any other competent evidence bearing on the question of whether or not the defendant was under the influence of intoxicating liquor.

I. A person who is convicted of a violation of this section:

1. Shall be sentenced to serve not less than ten consecutive days in jail and is not eligible for probation or suspension of execution of sentence unless the entire sentence is served.

2. Shall pay a fine of not less than $250.

3. May be ordered by a court to perform community restitution.

4. Shall pay an additional assessment of $500 to be deposited by the state treasurer in the prison construction and operations fund established by section 41-1651.  This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer.  If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.

5. Shall pay an additional assessment of $500 to be deposited by the state treasurer in the public safety equipment fund established by section 41-1723. This assessment is not subject to any surcharge.  If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.

6. If the violation involved intoxicating liquor, shall be required by the department, on report of the conviction, to equip any motor vehicle the person operates with a certified ignition interlock device pursuant to section 28-3319. In addition, the court may order the person to equip any motor vehicle the person operates with a certified ignition interlock device for more than twelve months beginning on the date the person successfully completes the alcohol or other drug screening, education or treatment program requirements of this title and the person is otherwise eligible to reinstate the person’s driver license or driving privilege. The person who operates a motor vehicle with a certified ignition interlock device under this paragraph shall comply with article 5 of this chapter.

7. Shall be required by the department to attend and successfully complete an approved traffic survival school course.

J. Notwithstanding subsection I, paragraph 1 of this section, at the time of sentencing the judge may suspend all but one day of the sentence if the person completes a court ordered alcohol or other drug screening, education or treatment program. If the person fails to complete the court ordered alcohol or other drug screening, education or treatment program and has not been placed on probation, the court shall issue an order to show cause to the defendant as to why the remaining jail sentence should not be served.

K. If within a period of eighty-four months a person is convicted of a second violation of this section or is convicted of a violation of this section and has previously been convicted of a violation of section 28-1382 or 28-1383 or an act in another jurisdiction that if committed in this state would be a violation of this section or section 28-1382 or 28-1383, the person:

1. Shall be sentenced to serve not less than ninety days in jail, thirty days of which shall be served consecutively, and is not eligible for probation or suspension of execution of sentence unless the entire sentence has been served.

2. Shall pay a fine of not less than $500.

3. Shall be ordered by a court to perform at least thirty hours of community restitution.

4. Shall have the person’s driving privilege revoked for one year.  The court shall report the conviction to the department. On receipt of the report, the department shall revoke the person’s driving privilege and, if the violation involved intoxicating liquor, shall require the person to equip any motor vehicle the person operates with a certified ignition interlock device pursuant to section 28-3319.  In addition, the court may order the person to equip any motor vehicle the person operates with a certified ignition interlock device for more than twelve months beginning on the date the person successfully completes the alcohol or other drug screening, education or treatment program requirements of this title and the person is otherwise eligible to reinstate the person’s driver license or driving privilege.  The person who operates a motor vehicle with a certified ignition interlock device under this paragraph shall comply with article 5 of this chapter.

5. Shall pay an additional assessment of $1,250 to be deposited by the state treasurer in the prison construction and operations fund established by section 41-1651. This assessment is not subject to any surcharge.  If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer.  If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.

6. Shall pay an additional assessment of $1,250 to be deposited by the state treasurer in the public safety equipment fund established by section 41-1723. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.

7. Shall be required by the department to attend and successfully complete an approved traffic survival school course.

L. Notwithstanding subsection K, paragraph 1 of this section, at the time of sentencing, the judge may suspend all but thirty days of the sentence if the person completes a court ordered alcohol or other drug screening, education or treatment program. If the person fails to complete the court ordered alcohol or other drug screening, education or treatment program and has not been placed on probation, the court shall issue an order to show cause as to why the remaining jail sentence should not be served.

M. In applying the eighty-four month provision of subsection K of this section, the dates of the commission of the offense shall be the determining factor, irrespective of the sequence in which the offenses were committed.

N. A second violation for which a conviction occurs as provided in this section shall not include a conviction for an offense arising out of the same series of acts.

O. After completing forty-five days of the revocation period prescribed by subsection K of this section, a person whose driving privilege is revoked for a violation of this section and who is sentenced pursuant to subsection K of this section is eligible for a special ignition interlock restricted driver license pursuant to section 28-1401.

P. The court may order a person who is convicted of a violation of this section that does not involve intoxicating liquor to equip any motor vehicle the person operates with a certified ignition interlock device pursuant to section 28-3319. On receipt of the report of conviction and certified ignition interlock device requirement, the department shall require the person to equip any motor vehicle the person operates with a certified ignition interlock device pursuant to section 28-3319. In addition, the court may order the person to equip any motor vehicle the person operates with a certified ignition interlock device for more than twelve months beginning on the date the person successfully completes the alcohol or other drug screening, education or treatment program requirements of this title and the person is otherwise eligible to reinstate the person’s driver license or driving privilege. The person who operates a motor vehicle with a certified ignition interlock device under this subsection shall comply with article 5 of this chapter.

A.R.S. 28-1381

If you have been arrested or charged with a violation of Arizona’s DUI laws, call the Salwin Law Group to schedule your consultation. Our DUI attorneys have defended clients of DUI crimes for years and has a track record of getting charges reduced or dismissed.