Phoenix DUI Lawyer Blog

A common Arizona DUI arrest question is whether your DUI in Arizona can be dismissed because the Arizona DUI police did not read your Miranda rights or delayed in the reading. When stopped for an AZ DUI the police officer is not required to read you your Miranda rights immediately after the stop or after you're arrested for Arizona drunk driving.

The beginning phrase of the Miranda warning is "You have the right to remain silent. Anything you say can and will be used against you...." Most people assume that officers are required to read Miranda whenever they make any criminal arrest including a DUI arrest. That's not actually true.

There are two conditions that must be met before the police are required to read you your Miranda rights. First, you are placed under arrest. Second, in the event the officer continues to interrogate you. Your Miranda rights are to inform you that you don't have to answer any questions the policed asks you that would solicit incrimination statements. The Miranda rights are required when:

1. You're placed under arrest for DUI and the police continue to interrogate you.
2. "Under arrest" means that the Arizona DUI officer places you in handcuffs and into custody.
3. "Interrogation" means the Arizona police continue to ask questions designed to seek incriminating responses. This includes: "How many drinks did you have? What were you drinking? Do you feel intoxicated?"

Thus, if you are arrested for an Arizona DUI and are not asked and any questions about what occurred that could be used against you then there's no need for you to be read your Miranda rights, by the police officer. Normally, if you are not yet "in custody", as Arizona DUI law defines "custody", the Miranda rights need not be read. Word of caution: Police officers get around the Miranda requirement with DUI cases by asking questions before they arrest you, then whatever you say can go in the police report and be presented at trial, your DMV hearing, and used against you.

However, if the police didn't read you your rights and you gave incriminating statements harmful to your Arizona DUI defense, be sure to have an experienced Arizona DUI attorney review the facts to determine if anything you said may be suppressed or excluded from evidence as allowed by AZ DUI Law.

This post was intended to provide general information only and is not intended as specific legal advice. You should not rely upon this information alone, but should consult legal counsel regarding the application of the laws and regulations discussed and as applied to your specific case or circumstance.

Many don't realize there is a difference. In Arizona both Arizona DUI and Arizona DWI charges are serious offenses. They both carry similar DUI penalties that include jail, fines, counseling, and ignition interlock device, and other punishments. It is when you get charged with an Arizona Extreme DWI that the mandatory minimum Arizona DUI penalties increase. Here's a breakdown defined:

• DUI (A.R.S. §28-1381 (A)(1)) Driving Under the Influence of intoxicating liquor (or drugs).
• DWI (A.R.S. §28-1381 (A)(2)) Driving with a Blood Alcohol Content (BAC) of 0.08% or greater within two hours of driving.
• EXTREME DWI (A.R.S. §28-1382) Driving with a Blood Alcohol Content (BAC) of 0.15% or greater within two hours of driving.
• SUPER EXTREME DWI (A.R.S. §28-1382(D)(1)) Driving with a Blood Alcohol Concentration of 0.20% or greater within two hours of driving.

The Arizona DUI Lawyer you choose to defend you against the DUI charges will explain that the key to your defense is to understand the difference between these charges
The DUI charge ((A.R.S. §28-1381 (A)(1)), by itself, does not require a breath reading or blood results. The prosecution can proceed with evidence of impaired driving based on the manner of driving, physical characteristics of impairment, field sobriety tests, and admissions to drinking.

The Arizona DWI charge of 0.08 (A.R.S. §28-1381 (A)(2)), including the Extreme DWI 0.15 or greater, and the Super Extreme DWI, 0.20 or greater, does require the driver to have a Blood Alcohol Content (BAC) at that level or higher "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."

One defense is that your level was not at that level at the time of driving due to a possible defense known as "retrograde extrapolation". If it can be shown that your BAC was below the legal limit, then you may not have been driving illegally according to the Arizona DUI laws. Other defenses may include operation of testing equipment, operator error, time of blood draw, method and procedure of breath test, etc.

This is important to evaluate because a conviction at the higher level will force the judge to impose a harsher sentence including more jail and higher fines and fees. The police and prosecutors get many chances at getting a conviction. They are there to prosecute not to defend. Call James Novak for your FREE consultation with an Arizona DUI lawyer. 413-413-1499.