It is important to know that a driver does NOT need to submit to any field sobriety tests. In fact, attorneys generally advise people not to submit to any field testing. The tests are structured to measure divided attention and have very specific instructions. Any deviation from any instruction will be used against the driver.

In addition to questioning and field sobriety tests, officers will make observations about behavior, lack of coordination, physical appearance and other details that can lead to a conclusion of possible impairment by alcohol or drugs. Some things that officers commonly list in their police reports are: bloodshot or watery eyes, slurred speech, stumbling or weaving, odor of alcohol, flushed face, inability to follow directions, slow reaction of pupils, abusive speech, uncoordinated movements when exiting a vehicle, leaning, imbalance, and sleepiness.

Any driver who is stopped for a possible DUI should remember that it is best to request to speak with a DUI attorney before answering any questions by a police officer. If you are subsequently arrested, again, you should request to speak with an attorney in order to protect yourself and your rights.

When you’ve had your vehicle impounded by a Gilbert City Police Department Officer it is done so under the authority found in ARS 28-3511. 

Why Can My Vehicle Be Impounded?

In short, a Gilbert Police Officer will impound your vehicle if any of the following occur:

• If you are found operating a vehicle without a proper certified ignition interlock device as ordered by a court.
• If you are arrested for Extreme or Aggravated DUI. (**You may ask yourself how would a police officer know if I am am Extreme DUI if they only drew my blood and the results are not back? Remember, an extreme DUI can be alleged if you blow into a Portable Breathalyzer and it displays a reading of .15 or greater. You do not have to blow into a Portable Breathalyzer. These tests are so inaccurate, they are not allowed into evidence against you during trial.)
• If you had an accident AND you have no proof of insurance AND your license is either suspended, revoked or cancelled for any reason, or you have never been issued a driver’s license.
• If your operating a vehicle and your license is revoked OR suspended for any reason.
• If you have never been issued a driver’s license or a driving permit in Arizona or by any other jurisdiction.
•  If you are under 21 (the legal drinking age in Arizona) and you have ANY alcohol in your body.

How Many Days Will My Vehicle Be Impounded?

The Gilbert Police Department will impound your vehicle for 30 days if any of the above situations apply to your case; however, there are times and situations where the above may be applicable, but will not apply. You may retrieve your vehicle before the end of the 30 days and sometimes you may have to request a “Post-Towing Hearing” if any of the following circumstances occur:

• The owner of the vehicle presents proof that the owner’s driving privilege has been reinstated.
• The vehicle was reported as a stolen vehicle prior to it being impounded.
• The vehicle is subject to “bailment” and was operated by an employee of a business. In this case, the business can request for the return of the vehicle.
• The owner or owner’s agent was not the person driving the vehicle at the time of impoundment AND the owner or the owner’s agent is in the business of renting vehicles without drivers and the vehicle is registered

How do I Get My Vehicle Back Before the 30 Days Ends?

You must request a “Post-Storage Hearing” by calling the Gilbert Tow Hearing Specialist at (480) 635-7511 and leaving a message with your contact information.

• Hearings are by appointment only.
• Hearings must be scheduled within 10 days of the vehicle being towed.  After the 10 days have elapsed, a hearing will not be granted. You should call the Gilbert Tow Hearing Specialist right away or call the Gilbert DUI Lawyers at Morrison|Skupin to help you!
• The hearings are to determine the validity of the impoundment or to determine whether the vehicle may be released prior the end of the 30-day impoundment period.
• Hearings are held at the Gilbert Police Department, 75 E. Civic Center Dr., Gilbert, Arizona.
• A $100 administrative fee is payable in cash at the time of the hearing, no other form of payment will be accepted.
• In certain situations, the spouse of the owner may also enter into an agreement with the Gilbert Police Department stating they will not let a driver arrested for Extreme or Aggravated DUI, or a minor in possession of alcohol to drive the vehicle for one year.  If the agreement is violated, there is no relief available from the 30-day impoundment period.
• The vehicle may be released to the lien holder or repossession agent identified on the MVD record before the end of the 30-day impoundment period.

After the 30 day impoundment period has expired, you may obtain release paperwork by:

• Paying the $100 administrative fee in cash (no other form of payment will be accepted).
• Take your release paperwork, identification, and proof of vehicle ownership to the tow company and pay any tow/storage fees directly to the tow company by cash, money order, certified check, or credit card.
• By Arizona law, tow companies are not required to release vehicles after normal business hours; doing so could result in a gate fee.

Arizona law allows tow companies to file for an abandoned title to seek ownership of the vehicle if it is left at the tow yard, unclaimed, for more than 10 days past the 30-day impoundment period.  If you have difficulty paying for the tow and storage fees, you should contact the tow company if you wish to retain ownership of your vehicle.

For help with any DUI, call the DUI Attorneys at Morrison|Skupin at (602) 232-2000 for a Free Consultation.

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There are many other changes to the Arizona DUI laws that can affect how a person reacts or decides to proceed with their case.  Additionally, courts may have different interpretations and policies on how they implement these changes.  For example, some courts in the East Valley have already begun to allow people to benefit from some of the new laws, while other courts will only apply them to citations that occur on or after January 1, 2012.

If you have recently been cited for a DUI, it is important to contact an experienced DUI attorney who is familiar with the recent changes in the Arizona DUI laws and who appears regularly in different courts throughout the Valley.  A knowledgeable DUI lawyer will be able to help their client benefit from the new changes to the law.  Only an experienced attorney can fully inform you of your rights, options, and best course of action on your particular case.

A driver does not need to actually be operating a moving vehicle to be charged with a DUI.  For example, a person can be in a parked vehicle, sitting in the driver’s seat, with the engine running and be charged with a DUI.  A driver can even be prosecuted if they have made a decision to pull off the road and turn the ignition off – if the facts of the case suggest that the driver “actually posed a threat to the public by the exercise of present or imminent control over it [the vehicle] while impaired.” (State v. Love, 182 Ariz. 324 (1995)).

The cases where a person was not driving are very fact specific and at trial a jury can consider many circumstances when deciding whether a driver had actual physical control of a vehicle.  Some of the things that a jury can consider when deciding if a driver was in “actual physical control” of a vehicle include the following, which are listed in an Arizona Supreme Court decision, State v. Zaragoza, 221 Ariz. 49 (2009).

1. Whether the vehicle was running
2. Whether the ignition was on
3. Where the key was located
4. Where and what position the driver was in
5. Whether the person was awake or asleep
6. Time of day
7. Weather conditions
8. Whether the heater or air conditioner was on
9. An explanation of the circumstances shown by the evidence.

This list is not all-inclusive.  If you are charged with a DUI and you were not driving, you may be in a situation where the State believes you were in “actual physical control” of the vehicle and can still prosecute you for DUI.  An experienced DUI attorney can review the facts of the case and advise you of the best options and best defense strategy in this type of matter.  Every case is different and only an experienced attorney can best protect your rights.

Gilbert DUI Attorney

If a driver refuses to cooperate with a blood (or any bodily fluid test that the officer selects), it is deemed to be a “refusal” situation.  In a “refusal” case, the police officer must inform the driver of the consequences which include a 12 month suspension of their driver’s license (or for 2 years if it is a second refusal within 84 months).  In Arizona, a driver has the power to refuse a test, however he does not have a right to refuse.  The only exception involves cases when a driver has been ordered to use an ignition interlock device.  In that situation, it is a crime to refuse.   See A.R.S. 28-1383(A)(4)(a).

If a driver initially refuses to cooperate with a blood test, they may change their mind –but only up to a certain point.  It is determined by the facts of the situation.  If a refusal is withdrawn, then there are no additional consequences.  If the driver continues to refuse, an officer will request a warrant from a magistrate or judge and will, nonetheless, collect a sample of the driver’s blood.

Believe it or not – officers do NOT need to give a driver any Miranda warnings before administering a blood test (or any other chemical test).  Tests result in physical evidence and are not testimonial in nature, so there is no privilege against self-incrimination that attaches.  However, as a matter of practice, most officers have advised a driver of their Miranda warnings prior to this point due to them being taken into custody.

Officers have the right to choose which test they will conduct when a person is arrested and suspected of DUI.    The police departments in Chandler, Scottsdale, Gilbert, and Mesa collect blood samples for blood alcohol analysis.  A urine sample is collected when an officer suspects the presence of other drugs or medications.  Some officers are certified to collect the blood sample themselves.  Many times, however, the officers will have a phlebotomist available to draw the blood samples.  The procedures for collecting blood samples are outlined by statute (A.R.S. 28-1388) and the testing procedures are delineated by the Arizona Department of Public Safety.

There are many things that can affect the quality of a blood sample and many variables that can contaminate a blood sample or make a blood alcohol test inaccurate.   Only an experienced DUI attorney can explain the complicated blood testing process and possible problems that may exist in any particular DUI case.

Yes! In Arizona, you can be charged with a DUI even if you have a valid prescription for the medication. If the drug has the ability to impair you in the slightest way, you could be charged with a DUI. Most of the commonly used prescription medications used to treat anxiety, depression, pain, and insomnia are listed in the Arizona DUI laws. Valium, Ambien, Vicodin, Percocet, OxyContin (oxycodone), Darvocet and Xanax are a few of the legal medications listed in the Arizona DUI laws.

Under ARS 28-1381(A)(1) “it is unlawful for a person to drive . . . a vehicle while under the influence of . . . any drug . . . if the person is impaired to the slightest degree.” This statute is commonly referred to as the A1 charge. This language means that even if you have a valid prescription for your medication and even if your doctor recommends that you use the medication, you can still be charged and convicted of a DUI if the medication can be shown to cause impairment to the “slightest degree.”

Additionally, under ARS 28-1381(A)(3) “[i]t is unlawful for a person to drive . . .a vehicle while there is any drug define in section 13-3401 or its metabolite in the person’s body.” This statute, commonly referred to as the A3 charge covers all illegal drugs such as cocaine, marijuana and methamphetamine. However, it also cites a very long list of legal medications including Valium, Ambien, Vicodin, Percocet, OxyContin (oxycodone), Darvocet and Xanax. The medications are listed by their chemical names not brand names. The actual list is too long to write here. Having a valid prescription is a defense to this particular statute. However, even if you have a valid prescription for the medication, you can still be charged for a DUI under the A1 statute referenced above.

Many Arizona drivers are not aware of this potential risk for being charged and convicted of DUI. Many people take legal prescription medications and drive. If a police officer suspects that a driver is impaired and asks the driver questions about their medical conditions and any medications they are taking, everything that is told to the officer can generally be held against them in court. Drivers must be aware of the risks they assume if they consume prescribed legal drugs for their medical conditions and drive a vehicle in Arizona. The consequences are severe. An experienced DUI attorney can explain the possible consequences and help inform you of your rights and best defenses to this type of DUI charge.

There are limits on DUI Checkpoints. There is a balancing test that has been set out by the United States Supreme Court and the State must balance the need of a DUI checkpoint with citizen’s rights – trying to minimize any intrusion on the rights of citizens.

A driver who does not stop at a checkpoint can be stopped independently. Checkpoints can be moved from place to place, however Arizona law does not allow officers to conduct “roving” stops in which officers stop cars without a reason. In order for a checkpoint to be legal – officers must stop all vehicles that drive through the designated area – the checkpoints cannot be used in a discretionary way to only stop some drivers. Also, the detention should be brief, usually less than half a minute. Checkpoints can be used for DUIs and also to check drivers’ licenses and registrations.

If an officer has reasonable suspicion for a DUI during a checkpoint stop, then the driver can be held for further investigation.

Something else to be aware of is the new use by some law enforcement agencies of a “fake checkpoint.” In this instance, officers post warning signs of a checkpoint without actually conducting stops or checks. Officers will observe drivers’ behaviors and take note of suspicious behavior such as drivers throwing objects out of their cars or attempting to avoid the checkpoint and possibly use this information for stopping individual vehicles.

As with any DUI matter, it is important to understand your rights. Anyone facing a DUI in Arizona should consult with an experienced DUI lawyer.

1) 28-1381(A)(1) Driving while impaired;

2) 28-1381(A)(2) Driving with a BAC above .08;

3) Driving with a BAC above a .15;

4) 28-1382(A)(1); Driving with a BAC above .20 (super-extreme DUI); and

5) 28-1381(A)(3) Driving with prohibited drug or metabolite in the person’s body – this can include prescription medications.

These are all class 1 misdemeanors which carry a maximum sentence of $2500 plus 84% surcharges, 5 years of probation, counseling, and jail. The amount of jail requirement depends on the level of the blood alcohol concentration. The length of required jail time will also become more severe if a person has had a prior conviction for a DUI within 84 months (7 years.) Some courts will also allow home-detention to substitute for a percentage of the ordered jail time. An experienced DUI attorney can review a matter and explain the possible consequences, inform you of your rights, be a strong advocate, and help guide you through the process.

If you are required to have an ignition interlock device, you must provide the MVD proof that you have had one installed by an MVD authorized company. The cost for an interlock device can range from $70/month to $145/month. It is best to call around to get the best price.

Here is a list of authorized MVD installers: ( http://www.azdot.gov/mvd/driver/CertifiedInstallers.asp)

DRAEGER INTERLOCK/SAFE HARBOR
866-429-7233
www.azsafeharbor.net

LIFESAFER INTERLOCK
800-635-4410
www.aziid.com

GUARDIAN INTERLOCK/DRIVER ADVISORS
888-442-2749
www.driveradvisors.com

ALCOHOL DETECTION SERVICES
888-786-7384
www.adsdui.com

1A SMART START
800-916-6384
www.smartstartinc.com

ALCOHOL COUNTERMEASURE SYSTEMS
888-937-9209
www.acs-corp.com

MONITECH/QUICKSTART
888-717-8278
www.quickstartaz.com

CST/AZ MOBILE ACCESS
888-560-2628
www.arizmat.com