It is negotiating a DUI down to reckless driving, possibly negotiating a DUI down to attempted DUI, possibly negotiating a DUI down to endangerment or getting the case dismissed. There is also the possibility of preventing the ignition interlock device by dealing with the case as a DUI drug or DUI medication case, but the downfall those two types of convictions is that you would end up having a one-year license revocation with no ability to get any sort of restricted license.
What Is An Attempted DUI?
It is something that I taught at the last seminar that happened about a year ago. Other states make it clear that there is attempted DUI. Arizona, in my mind, has made it clear that it is an applicable type of charge. You really need to have the right facts in order to get that as an option for the jury. Allowing the jury to consider it as a lesser included offense is basically taking some steps towards driving under the influence without actually completing the driving or being in actual physical control of the vehicle while under the influence of alcohol or having alcohol above the prescribed limits, drugs or medications that are illegally present in your system. It is kind of a new concept. It is something that was, for the most part, in some ways upheld by the Arizona Court of Appeals about twenty years ago.
In some ways, it was given the impression that it would not be appropriate in misdemeanors but the reason why it may not have been appropriate for misdemeanor DUIs back twenty years ago no longer applies today. So that is why it is applicable today to be able to deal with DUI cases as attempted DUI cases if the facts are appropriate. Technically, if we are able to deal with the case as an attempted DUI, it would be a Class 2 misdemeanor. There is no minimum jail requirements although you are facing anywhere from zero days in jail up to four months. There is no requirement that you do at least some jail time, there is no required minimum fines and fees, there is no required ignition interlock device, there is no required license suspension.
Although some attorneys have been able to get plea agreements, it is still rare and prosecutors do not really understand it, they do not like it. They do not want to deal with the case that way. Usually, the best types of cases where we deal with this, is, where there is not a perfect shelter rule defense, where maybe a person is sleeping in their vehicle, the engine is on for air-conditioning but they are sleeping, they are not in actual physical control of the vehicle, but when the officer knocks on the window to wake them up, they reach for the gearshift. A perfect shelter rule defense that also should not necessarily be a DUI case, in theory, could be someone who is obviously stumbling drunk that walks over to the vehicle and opens up their car door when the police officers come. They were not in actual physical control, they were, maybe, about to be, they were not actually driving, that might be a type of issue where it could be charged or possibly pled to as an attempted DUI.
What Can An Attorney Do For Someone Prior To Having An Interlock Device Ordered?
That is where having an attorney that knows what they are doing is most helpful. At the time of sentencing, not necessarily after the fact, I am not sure if an attorney can really be helpful after the fact if there is a violation of an ignition interlock device.
If Someone Uses A Mouth Wash Or A Medicine With An Alcohol Base, Will It Show As Alcohol In An Interlock Device?
It definitely can, especially mouthwash. That is why if it tests positive for alcohol, they will tend to test you about five minutes later just to see if it is something like mouthwash which would dissipate quite quickly. Any type of medication that has alcohol in it including over-the-counter cough medication can test positive in an ignition interlock device. You want to make sure that you do not have anything that is alcohol related in your mouth if you are going to be driving.
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