Phoenix DUI Lawyer Blog

5 reasons police conduct Preliminary Breath Tests

Arizona is one of a majority of states with Preliminary Breath Test (PBT) Laws.

The PBT is a small mobile device used to establish the presence of alcohol in a person's system. The PBT is intended to be used as an early detection or screening tool by police. Arizona does not allow a PBT to be admitted as evidence in court against a person accused of DUI, because the machines historically are not considered accurate in measuring exact Blood Alcohol Content (BAC) Levels. In addition, PBT units are not calibrated or routinely maintained like the official Breath Tests Machines.

Arizona Portable Breath Test (PBT) Law

Under A.R.S. 28 § 1322 Preliminary Breath Test law a police officer who has reasonable suspicion to believe a person is driving under the influence of drugs or alcohol has authority to request that a person submit to a preliminary breath test.

Under this law, the officer may also require the person to submit to further testing
pursuant to the Implied Consent Law A.R.S. 28 § 1321. This includes DUI blood, breath, urine testing.

5 reasons PBTs are commonly used in Arizona

The National Highway Safety Administration recognizes that although the PBT is useful, it is not admissible as sole evidence to determine BAC; but is generally reliable in determining if any alcohol at all is present in a person's system. Arizona courts do consider PBT evidence to be admissible in court as evidence against a defendant facing DUI charges. Below the police may likely choose a PBT in a DUI field investigation:

• To determine or rule out DUI influence of alcohol v. drugs;
• Drivers who may have a high alcohol tolerance level, and can perform field sobriety tests or other tasks to a greater degree than those with lower tolerance levels;
• To detect if an underage 21 person is under the influence of any alcohol in violation of the state's Zero Tolerance law;
• As a preliminary DUI screening test only; and if positive, will be followed up with an Official Breath Test Machine.
• At the scene of a DUI collision where the driver is suspected of DUI, but has been injured and is unable to perform Standard Field Sobriety Tests (FSTs).

Criminal Defense for DUI Chandler AZ

Arizona laws and penalties are some of the toughest in the country. If you have been arrested for any type of DUI you should always consult a qualified criminal attorney to discuss your charges. You should do this before you appear in court or plead guilty to the charges. You have the constitutional right to defend your charges, and this is done by pleading not guilty and retaining proper legal representation. There may be defenses that you are not aware of that if used, may lead to a dismissal of charges, sentencing, or other favorable outcome in your case.

Additional Resources:

• Arizona State Legislature - Portable Breath Test Laws A.R.S. 28 § 1322

• Arizona State Legislature - Implied Consent Laws A.R.S. 28 § 1321

• Arizona Department of State - Public Safety - Determining Alcohol Concentration

• Arizona Governor's Office of Highway Safety - DUI laws

Continue reading " Portable Breath Test (PBT) Laws " »

In Carillo v. Houser Maricopa County, the Arizona Supreme Court held that the Implied Consent Law, A.R.S. § 28-1321 did not authorize police to conduct DUI blood testing without a warrant. The exception is if the suspect expressly gives their consent for officers to administer the chemical test.

It is not enough for a suspect to object to the blood or urine test. They must expressly refuse, or consent to it. Failure of a person to expressly agree, or to consent to completing the chemical test is considered a refusal.

If a driver refuses a DUI breath test the police may obtain a warrant to collect a blood or urine sample. In order to obtain a warrant the police must have "probable cause" to believe that a motorist was driving impaired under the influence of drugs or alcohol.

If a driver refuses to participate in the chemical testing, there are civil and criminal consequences. A refusal of a DUI chemical testing with a valid warrant will result in a 12 month suspension of the motorist's driver's license. The police may proceed with a DUI arrest with probable cause for DUI charges.

Arizona Implied Consent Law

Under the Implied Consent Law A.R.S. § 28-1321 a motorist driving in Arizona inherently gives their consent to DUI breath, blood or urine test if requested by police to determine if they are driving under the influence of alcohol or drugs.
The Police Officer who makes the DUI stop decides what type of test should be administered. The officer must have cause to believe that the person was driving or in actual physical control of a motor vehicle either alcohol or drugs.

Implied Consent Law - Underage 21 Drinking

Arizona is a "Zero Tolerance" state with regard to underage 21 drinking. This means an underage drinker may be arrested for being under the influence of any alcohol in their blood stream. The Implied Consent Law A.R.S. § 28-1321 also gives authority to police in Arizona to administer chemical testing to a person under the age of 21 years of age. They police may administer the test to determine if the person under age 21 has in their body, whether or not they were driving or in actual physical control of a vehicle.

DUI Lawyer Tempe AZ - Defense

If you were arrested for DUI based on breath or blood testing, there may defenses you are not aware of that can lead to suppression of evidence or even a dismissal of charges. An arrest is not a conviction. Anyone arrested has a constitutional right to defend their charges. In order to make sure your rights are protected, and to defend your charges, you should always retain the services of a qualified criminal defense attorney.

Additional Resources:

• Arizona Legislature Implied Consent Law

• Arizona Legislature DUI law

• Arizona Supreme Court JOSE CARRILLO v. HON. ROBERT HOUSER Ref: CV-09-0285-PR

• Arizona Department of Transportation

Continue reading "DUI Blood Test Laws: DUI chemical tests taken without consent not admissible in Court" »

DUI Field Sobriety Tests

Field Sobriety Tests are a battery of preliminary roadside test that police administer to detect DUI drivers. National Highway Traffic Safety Administration (NHTSA) developed to these roadside tests to be used in early detection of DUI impaired, and DWI drivers. Police officers who ar formally trained and accredited to administer the tests, conduct them on the roadside following a DUI stop. The police must have the consent of the driver in order to administer them. These tests are not mandatory under current Arizona state law.

Standard Field Sobriety Test

Police officers have been known to conduct other DUI sobriety tests. However, NHTSA has only approved three official FSTs, known as Standard Field Sobriety Tests (SFST)s. They are:

1. The Horizontal Gaze Nystagmus (HGN);
2. The Walk-and-Turn;
3. The One-Leg Stand.

If any other FSTs were conducted, outside of the SFSTs, your criminal defense attorney can move to have the results suppressed, so the results cannot be admitted as evidence against a suspect.

Consequences of Refusing Field Sobriety Testing in Tempe AZ

A driver stopped for DUI investigation, has the right to refuse the FSTs since they are not mandatory in Arizona. However, persons should be aware, that there are consequences of refusal. If you refuse the FST and the police feel they have other "probable cause" to make a DUI arrest, the may proceed with arresting someone on "suspicion of DUI".

Why Criminal Defense Attorneys Advise Against Them in Tempe AZ

Most attorneys will advise you to politely refuse to participate in any Field Sobriety Testing. You have a constitutional right to avoid self-incrimination. In most cases these roadside tests will not serve to help a suspect's defense, whether they are driving impaired due to alcohol or drugs or unimpaired. There are many reasons for this:

• Historically, and statistically, even the Standard FSTs have proven inaccurate.
• The FSTs are administered, judged, and graded unilaterally by police officer who is trying to arrest you, often resulting in bias or non-objectivity of results.
• Many people unimpaired by alcohol or drugs cannot pass the roadside tests. If the suspect fails, it can be used as evidence against them, even if they were not under the influence of drugs or alcohol.
• NHTSA rules have strict guidelines regarding instructions and administration of the test; environmental factors; lighting; clothing; landscaping; traffic conditions; candidacy of persons taking it that relate to age, weight, medical conditions and more. If strict guidelines are not followed, the tests results may be invalid.
• They are generally used as evidence against a person and rarely if ever help their defense.

If you were charged with DUI, and either participated in Roadside DUI testing or refused to participate in them, you should consult a DUI attorney to discuss your case. If retained they will defend your charges, and protect your rights through the criminal justice process. There may be defenses you are not aware of that could lead to a dismissal of charges; suppression of evidence; or reduction of penalties.

Continue reading "DUI Field Sobriety Tests (FST): Why you should refuse to take them. " »

In cases where an Arizona DUI with Drugs is suspected, you will typically be required to undergo a urine drug test. A urine drug test is the least accurate means for measuring blood alcohol level. However, to gain evidence against you for a DUI arrest, urine drug tests are routinely used and more effective in detecting the presence of illegal drugs in the body.

A urine test detects the amount of alcohol in a person's urine. Typically, a person is asked to empty their bladder and wait 20 minutes before providing a sample to be tested. However, since water remains in the body's system over a period of time, urine is not as accurate an indicator of blood alcohol content as blood itself. As a result, in borderline cases a urine test could erroneously indicate a BAC in excess of .08 when in reality a person's BAC is within the legal limit.

Urine Drug Tests detect the presence of drugs in the body days after a drug has been used. Due to the manner in which drugs are metabolized and eliminated from the body, traces of marijuana, cocaine, heroin, and other drugs may be detected in the urine long after they were initially used. As such, a urine test can only determine if a drug was used - not when it was used. Consequently, people arrested for an AZ DUI drug charge may not have been under the influence of a drug at the time of the AZ DUI stop when arrested even though their urine sample tested positive for drugs. Also, cases exist where over the counter medications such cough medicines, certain pain relievers, and cold medicines have mistakenly resulted in a positive indication for marijuana, heroin, or other illegal drugs.

A good DUI Attorney will gather evidence from lab technicians and forensic specialists when challenging urine tests. This is because technicians and police often fail to follow proper Arizona DUI Law protocol since questions often arise pertaining to the accuracy of the tests and the dependability of the results. Many defendants have been convicted of Arizona drunk driving charges due to an improper, inaccurate urine test. If there has been mishandling in test administration or handling protocol, your Arizona DUI Lawyer may be able to get the urine test results thrown out, and in some cases the case itself dismissed.

Continue reading "Urine Drug Test - ARIZONA DUI LAWS" »

1. DUI Portable Breath Test (PBT)
If stopped for suspicion of Arizona DUI, the police will ask you a series of questions. Possibly before or after requesting AZ DUI field sobriety tests (FST) the Arizona police will request to have you blow into a small hand held device on the side of the road, in an effort to continue building a case to charge you with a DUI in Arizona.

This small device is called a portable breath test (PBT). The purpose is to determine if you were drinking alcohol and supply an approximate reading of how much was in your system. This device can be used as evidence of probable cause to make an arrest for an Arizona DUI, or Arizona DWI. You can think of this one as a preliminary test. The reading on this machine cannot be used against you as evidence in court because it has not passed the necessary scientific tests to be considered an accurate alcohol concentration measuring device to meet proper AZ DUI Law testing standards. It has not been calibrated or maintained for reliability.

If the reading was 0.0 blood alcohol content (BAC) police may still suspect you of driving while drug impaired. In that event, they may continue their investigation with drug impairment testing for AZ DUI drug charges.

2. DUI Breath Test
In Arizona, the official breath test for Arizona DUI testing is done with the Intoxilyzer device. The machine analyzes the DUI suspect's breath sample without destroying it through a process of infrared spectroscopy, thereby determining the amount of ethyl alcohol present in the sample.

This machine is required to be calibrated and tested on a regular basis by the police agencies responsible for them. At times, like all machines, they have problems and may need to be taken out of service for repair or sent back to the manufacturer. It is imperative to inspect the machine records to determine if it was working properly. If a history of prior problems or defects exists with the machine, the machine and results may be invalid, and the evidence may be suppressed. In absence of machine defect or administration error, these machine results are valid and may be used as evidence against you in trial.

Top Arizona DUI defense Attorney will examine all of these elements. Your AZ DUI Lawyer should understand the factors that may affect the accuracy of the machine readings, including test protocol, temperature, and individual human body variances that may affect the outcome of your test results and your AZ DUI case. That is why it is important to select an experienced Arizona DUI lawyer who will have invalid evidence against you thrown out, and make efforts to help you avoid an Arizona DUI conviction.

Continue reading "Arizona DUI Tests-Two Breath Tests Given in AZ DUI Stop " »

Phoenix Criminal Attorneys

Arizona DUI testing is the fourth of four major evidence categories that the state of Arizona can use against you for an Arizona DUI arrest under current Arizona DUI laws. DUI Testing includes a number of methods which will be expanded upon in greater detail in future articles:

Arizona DUI Field Sobriety Tests (FSTs)
A battery of field sobriety tests (FSTs) are given including heel-to-toe, finger-to-nose, one-leg stand, eye test called "horizontal gaze nystagmus" test, alphabet recitation, modified position of attention (Rhomberg), fingers-to-thumb, hand pat and others. In Arizona, most officers will use a set of six common tests. Arizona DUI law does not require you to take any of the Field Sobriety Tests (FSTs).

Arizona DUI Breath Test
Breath tests are used to determine the blood alcohol content (BAC) level of drivers suspected of driving drunk. Since alcohol is absorbed into the blood and blood flows through the lungs, alcohol is present in the lung's air sacs. A breathalyzer machine is used. Rather than ask drivers to submit to invasive, impractical blood or urine tests in the field, many law enforcement agency's use breath tests as a means for determining the blood alcohol level of drivers suspected of DUI in Arizona.

Arizona DUI Blood Test
Arizona DUI Blood tests are sometimes performed in order to determine the blood alcohol content (BAC) level in your system, if you are suspected of DUI. A blood test is more reliable than a breath test but may still be inaccurate due to a variety of issues. An experienced and knowledgeable Phoenix Arizona Defense Attorney will be able to investigate to determine if the blood is drawn incorrectly, if chemicals are present in the proper amount, and if the proper protocol was followed, and if not, can be challenged.

Arizona DUI Urine Test
Urine tests are typically given in DUI / DWI cases where Arizona police officers believe a driver may also be under the influence of drugs. Although urine tests are the least accurate means for measuring blood alcohol level, they are routinely used to detect the presence of illegal drugs in the body.

Again, questions arise pertaining to the accuracy of the tests, dependability of the results, and protocol that was followed. The results can then be challenged by an experienced Arizona DUI defense attorney.

Phoenix DUI Lawyer - Phoenix DUI Defense Attorney

If you or someone you know has been charged with an Arizona DUI or other Criminal offense contact the Law Office of James Novak. Call now for your Free Consultation at (480) 413-1499, with experienced Phoenix Criminal and DUI Defense Attorney and James Novak (Former Prosecutor).

The Law Office of James Novak represents clients facing DUI & criminal charges throughout Phoenix DUI Attorney, Tempe DUI Attorney, Scottsdale DUI Attorney, Chandler DUI Attorney, Gilbert DUI Attorney, Mesa DUI Attorney and the surrounding areas of Greater Phoenix in Maricopa County, Arizona.

Phoenix DUI Attorneys - Arizona DUI Laws

According to Arizona DUI Laws it is not illegal to drink and drive if you are 21 years of age or older. However, it is illegal to drink and drive and/or be chemically impaired to the slightest degree while driving. You don't need Top Criminal Defense Attorneys to tell you that the absolute best way to avoid an Arizona DUI is not to drink and drive at all. The second best way to avoid getting an Arizona DUI Charge is to be aware of how much alcohol you can drink before you may become impaired. So if you're concerned, that sometime you may be charged with an Arizona DUI, you will want to read on:

The drink chart displayed to the right can be found on many web sites on the internet. It provides a rough estimate of a person's blood alcohol level (BAC).The Arizona drunk driving chart is based on the number of drinks consumed and the person's weight. The problem with this information is people rely a bit to much on such charts in order to determine whether they may have been impaired after drinking a number of alcoholic drinks. A "one size fits all" chart does not work. You must take into account many other factors
and each and every person has a different set of circumstances.

Please do not consider this information as a license to drink irresponsibly. Keep in mind that everyone is different, and alcohol affects each person in many different ways. Only you know your limits. And while some people are sure they know their limits, they may still be driving under the influence according to Arizona Law which carry some of the toughest impairment thresholds, laws, rules, penalties, jail time and fees in the Country. So please drink responsibly.

The scientific and Arizona DUI legal issues associated with breath testing in Phoenix, Tempe, Gilbert, Mesa, Scottsdale, Chandler, Maricopa County DUI cases are complex. An experienced Phoenix, Arizona DUI lawyer has the knowledge and skill to evaluate the importance of your Arizona DUI defense including the legality of the breath test DUI evidence.

Phoenix DUI Lawyer - Arizona DUI Defense Attorney

If you or someone you know has been charged with an Arizona DUI or other Criminal offense contact the Law Office of James Novak. Call now for your Free Consultation at (480) 413-1499, with experienced Phoenix Criminal and DUI Defense Attorney and James Novak (Former Prosecutor).

The Law Office of James Novak represents clients facing DUI & criminal charges throughout Phoenix, Tempe, Scottsdale, Chandler, Gilbert, Mesa and the surrounding areas of Greater Phoenix in Maricopa County, Arizona.