Interviewer: In Arizona, there is a facet of the law called “impaired to the slightest degree.” Does that mean someone below a 0.08 will still get charged with DUI?
Brian: Yes, in Arizona, there are two standard initial ways of being charged with DUI. The first one, you are driving or your ability to drive was impaired to the slightest degree by the use of alcohol, drugs- illegal or prescription, and/or vapor-releasing substances.
That is a more factual way of proving DUI. It is basically impairment. Also, it is driving or being in actual physical control of the vehicle.
The second way is more scientific. You were driving and you had a blood alcohol level at or above a 0.08, tested within two hours of driving; or you had illegal drugs or medication in your system. Illegal can be prescription medication that is not taken as prescribed.
So impairment can be by way of prescription medications, even if you are taking them completely as prescribed. It is not a defense to you, being impaired by prescription medications. It can also be impairment by vapor releasing substances, which we most commonly see with paint huffing. You can see it, absolutely, with alcohol.
In Arizona, there are presumptions of impairment. Someone tested at or above a 0.08 alcohol level is presumed, under Arizona law, to be impaired. If they are between a 0.04 and a 0.08, the law has no presumption. If they are between a 0.01 and a 0.04, they are presumed not to be impaired.
However, in theory the prosecutor could still choose to go forward at trial and argue impairment, despite the law’s presumption that someone is not impaired to that degree.
For example, I was talking to that guy today whose blood alcohol level came back at a 0.054. Under Arizona law, there is no presumption of impairment. However, there was a horrendous car accident they want to blame on my client, so they are doing the exception to the rule. They decided to charge him with DUI.
There is no presumption. It is a case that would normally be dismissed. Prosecutors would decide not to file it. However, there was a pretty bad accident, and they are going forward with such a low blood alcohol content and no drugs.
Interviewer: A typical person on a chemical registers a 0.08 or above. Does the person actually face two different charges: impaired and driving or operating a vehicle; and the concentration of alcohol in their blood is above a certain level?
Brian: Yes, just about everyone charged with DUI is charged with two or more counts. That is two or more ways the prosecutor can try to prove them guilty at trial. Under count one, they can try to prove the person was impaired to the slightest degree. Under count two, they can prove they were above the legal limit, a 0.08.
