ARIZONA DUI / DWI / DRUNK DRIVING DEFENSES


Society’s perspective on DUI (Driving Under the Influence) has changed dramatically over the past several years. DUI is no longer accepted as an unavoidable consequence of automobile travel. More and more, DUI is recognized as a completely preventative crime and, therefore, a very serious offense with severe consequences. Mandatory jail or prison time, stiff fines, license suspension or revocation, probation or parole and increased insurance costs are some of the consequences of being convicted of DUI.

In 2002, over 80,000 individual DUI / DWI charges were filed in Arizona. However, research shows many people arrested and charged with DUI are not guilty because they haven't had too much to drink. In many cases, police officers who are overzealous, improperly trained, or who otherwise make mistakes, incorrectly determine a driver who has been drinking is driving while under the influence. Field sobriety tests can be improperly administered and misinterpreted. Breath and blood alcohol testing equipment can malfunction or be improperly used. DUI suspects can be treated unfairly, resulting in important constitutional rights not being provided. If you feel your DUI charges are unfair, The Gillespie Law Firm, P.C. can help. The Firm has the expertise, the knowledge and the experience to help you fight these charges and win. The Firm has helped well over one thousand people in similar circumstances, knows the ins and outs of the judicial system, and is ready to fight to protect your rights.

Successfully defending against a DUI or a DWI charge depends on first recognizing that many cases are manageable and defensible. In Arizona, there are many potential defenses to drunk driving charges. Generally, the most common defenses can be summarized as follows:

  1. Lack of Driving or Actual Physical Control
  2. No Reasonable Suspicion to Stop
  3. No Probable Cause to Arrest
  4. Improperly Administered Field Sobriety Tests (FST's)
  5. Denial of the Right to Counsel
  6. Violation of Miranda Warnings
  7. Inaccuracy of the Breath Testing Device
  8. Subtractive Retrograde or "Rising BAC Defense"
  9. Deficiencies in Blood Alcohol Testing & Issues in Blood Cases
  10. Denial of Independent Test

1. Lack of Driving or Actual Physical Control. The prosecution must prove more than mere intoxication. Under Arizona law, the State must establish the defendant was driving or in actual physical control of a vehicle while impaired by alcohol or drug consumption or with a blood-alcohol concentration of .08 or more within two hours of driving. In some cases there are no witnesses to testify who was driving a vehicle. Therefore, the State may be unable to meet its burden of proving the accused was driving or was in actual physical control.

2. No Reasonable Suspicion to Stop. An investigatory stop is unconstitutional if the stop is not supported by reasonable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968); State v. Richcreek, 187 Ariz. 501, 930 P.2d 1304 (1997). Thus, if the law enforcement officer lacked a constitutionally valid reason for making the traffic stop, all evidence of drunk driving obtained as a result of the unlawful stop must be suppressed.

3. No Probable Cause to Arrest. "Probable cause to arrest" means reliable information within an officer's knowledge, which would lead a reasonable person to conclude that criminal activity has been or is being committed. If objective facts and circumstances, indicative of impairment or intoxication, did not exist at the time of the arrest, the arrest is unconstitutional and the case must be dismissed.

4. Improperly Administered Field Sobriety Tests ("FST's"). The National Highway Traffic Safety Administration (NHTSA) has established guidelines regarding the administration of FST's. The tests should not be given if the accused (a) is 50 pounds or more overweight; (b) is 60 years of age or older; (c) has any back, hip, leg, knee, or ankle injuries; (d) has any disability effecting balance or (e) is wearing shoes with heels two inches or higher.

Note: Arrests based solely on the accused's refusal to perform FST's are unconstitutional.

Although NHTSA has only officially standardized three FST's, (the horizontal gaze nystagmus, the walk and turn and the one leg stand), Arizona law enforcement agencies often request the performance of additional FST's not standardized by NHTSA, such as, counting backward, reciting the A B C's, touching finger to nose, and counting your fingers forward and backward to determine whether the person being investigated should be arrested for DUI.

The three standardized FST's include:

  (a) Horizontal Gaze Nystagmus Test ("HGN"): HGN is an eye test where the observer looks for "nystagmus" or an involuntary jerking of the eyes. Basically, the test measures the eyes' ability to follow a moving object in a horizontal and sometimes vertical plane. Although this phenomenon is frequently caused by the consumption of alcohol and/or certain drugs, nystagmus appears naturally in some people and may also be caused by the ingestion of certain antihistamines and other over-the-counter medications.

To properly administer the test, the officer must (1) hold the stimulus 12 - 15 inches in front of the suspect's face; (2) keep the tip of the stimulus slightly above the suspect's eyes; (3) move the stimulus smoothly; (4) check for all three clues in each eye; (5) check for clues in the order of lack of smooth pursuit, distinct nystagmus at maximum deviation and onset of nystagmus prior to 45 degrees; and (6) check for each clue at least twice in each eye. Consequently, the administering officer looks for three clues of neurological dysfunction in each eye, including: (1) lack of smooth pursuit; (2) moderate to distinct nystagmus at maximum deviation; and (3) onset prior to 45 degrees, for a total of six clues of impairment.

(b) Walk And Turn Test: The walk and turn test is a divided attention test intended to test your ability to follow instructions while standing heel to toe during the instruction phase and to walk a line heel to toe, for nine steps, turn around in small steps to your left, and return by taking nine heel to toe steps back. Should you (1) start before the instructions are finished; (2) lose your balance while listening to the instructions; (3) stop while walking to steady yourself; (4) miss heel to toe (5) step off the line; (6) use your arms to balance; or (7) walk the incorrect number of steps, these factors will count against you.

(c) One Leg Stand Test: The one-leg stand test is designed to test a person's ability to balance on one foot, while raising the other 6 inches off of the ground, and count 1 to 30. The administering officer will consider the following clues as signs of impairment: (1) sway back-to-front or side-to-side while balancing; (2) use your arms to balance; (3) hop; (4) put your foot down or (5) count incorrectly.

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Note: You have the right to refuse to do any of the field sobriety exercises mentioned above. Indeed, if you elect to perform the field sobriety exercises, you do so at your risk. Under stressful conditions, few people can perform the tests perfectly. Remember, if you have been drinking the police will attribute the poor performance of the FST's to possible intoxication. If arrested after performing these field sobriety exercises, this evidence will be used to prosecute you.

For each of the standardized NHTSA tests, a qualified DUI lawyer will be prepared to address inadequacies of the administering officer's instructions, demonstration, administration and scoring. In challenging the results of your performance on the FST's, an experienced DUI lawyer will investigate the possibility of inaccurate and/or unfair testing based upon, but not limited to, the following:

The Interested, Imperfect Officer. Experienced DUI lawyers can establish police officers have an interest in the outcome of the case and are capable of making mistakes. In almost all cases the officer has only told half the story in his police report. This is confirmed during the pretrial interview where the officer admits he only recorded the signs or symptoms which he believed were indicative of impairment and did not write down any behavior consistent with nonintoxication, i.e., that the client did not fumble retrieving his license from his wallet and had no trouble getting out of his car or that he was able to converse intelligently without slurring his words or stuttering. Through confirming he only wrote down the things he thought the driver did wrong we can establish the officer was more interested in creating a limited record for the sole purpose of supporting his decision to arrest, rather than making a fair and accurate record of all the facts and events as they actually transpired.

The Nervous Client. At trial, the officer may testify the driver fumbled with is wallet, slurred his words and seemed nervous or confused. However, the stress induced by a roadside confrontation with the police is enough to cause even the most well-spoken individual to stutter and the most coordinated to fumble and falter. It is normal for people to be nervous when confronted as the subject of a police investigation. This is often compounded when officers use a forceful tone and demeanor with suspects in order to establish command over the roadside stop and subsequent investigation.

Unnatural Tasks. The prosecution will invariably seek to show the FST's requested of the arrestee were such that any sober individual could easily perform them. However, in many cases, officers request suspects perform roadside tests without first inquiring whether the suspect had any disability or infirmity, mental or physical, which would preclude or hinder him from successfully completing the tests. If this is the case, the officer did not really care whether the FST's would be fair or accurate indicators of alcohol impairment. Showing the jury the only thing the officer was interested in was unfairly gathering incriminating evidence is a good way to successfully challenge his credibility. The officer will likely be asked by the prosecutor to demonstrate the ease with which these tests are performed. However, on cross examination, an experienced DUI lawyer will get the officer to admit that he repeatedly practices the tests every time he demonstrates and administers the tests to DUI suspects. In essence, practice makes perfect. Although the tests may be easily performed by the officer, this battery of tests is foreign to most drivers who are asked to perform them for the first time under extremely stressful circumstances.

Poor Instructions. Often the arresting officer will decide a suspect has failed a particular FST due to inadequate performance when in fact it was the failure of the officer to explicitly describe what he wanted the driver to do. For example, if the driver was merely told to tip his head back, hold his arms out to the side and touch his finger to his nose, he should not fail the test merely because he did not touch the tip of his finger to the tip of his nose. If any portion of his finger touched any part of his nose, he was just doing as he was told, and doing it well. If the officer states the subject swayed while performing the one-leg stand or any FST for that matter, then he should be asked if he told the driver not to sway. When he says no, it will confirm that the driver was unfairly judged on criteria he was not told would be on the test.

Unfavorable Conditions. Perhaps it was a dark, cold and stormy night when the driver was required to perform FST's on the road side. Perhaps the road was steeply graded or the emergency lane was filled with loose gravel. Maybe the citizen was asked to perform the one-leg stand and walk and turn in 5 inch stiletto heels. If the conditions under which the driver was administered these tests were poor, it may invalidate the test and/or offend the jury. Once it has been established that conditions for FST administration were not ideal, the officer should be asked if he considered giving the driver the test battery in the dry, warm, level, and well lit conditions of the police station. This will show the jury the officer was holding all the cards and controlling the outcome by unfairly administering the tests under conditions which guaranteed failure.

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5. Denial of the Right to Counsel. Under Arizona criminal law, when a drunk driving suspect requests a lawyer, the police must provide the defendant with an opportunity to speak with a lawyer telephonically as soon as is reasonably possible. Kunzler v. Pima County Superior Court, 154 Ariz. 568, 744 P.2d 669 (1987). Where the police unreasonably delay or deny the suspect's request to speak with an attorney, depending on the particular facts, the remedy in the criminal case is either dismissal or suppression of all the evidence obtained after the violation of his or her constitutional right to counsel. Kunzler v. Pima County Superior Court, 154 Ariz. 568, 744 P.2d 669 (1987).

Note: In Arizona, a DUI suspect has no right to the assistance of counsel in deciding whether or not to submit to a chemical, blood, breath or urine test as required by the implied consent law.

6. Violation of Miranda Warnings. Prior to any questioning initiated by law enforcement officers, after a person is taken into custody or otherwise deprived of his freedom in a significant way, the person must be warned that: (a) he or she has a right to remain silent; (b) any statement he or she does make may be used as evidence against him or her; (c) he or she has the right to the presence of an attorney; and (d) if he or she cannot afford an attorney, one will be appointed for him or her prior to any questioning if he or she so desires. Miranda v. Arizona, 384 U.S. 436, 88 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Unless these warnings or a waiver of these rights are shown, any incriminating statements made during the custodial interrogation may be suppressed.

7. Inaccuracy of the Breath Testing Device. The Arizona Department of Health Services (DHS) has promulgated rules for the proper administration of breath testing and the maintenance of breath testing devices. Accordingly, for the test to be valid, the DHS testing procedure must be followed and the device must be calibrated to within a 10% accuracy range every 31 days. Additionally, the Department evaluates the machine every 90 days using a seven (7) test Standard Quality Assurance Procedure (SQAP). As a result, if any of the maintenance checks appear out of tolerance, then all breath tests administered during the time interval between the two maintenance checks will be inadmissible.

Portable Breath Testing Devices ("PBT") Are Inadmissible in Court. : A "Preliminary breath test" usually refers to a hand-held breath testing instrument used at the scene and prior to an arrest for the purpose of obtaining a determination of alcohol concentration from a specimen of breath. Ariz. Admin. Code R9-14-401. The police frequently use a portable breath testing device to measure the quantity of alcohol in a person's blood prior to arrest. The results of the portable unit is not accepted as "evidence" to prove that the person has a certain measurement of alcohol present in their body, due to the device's scientific unreliability. Therefore, the digital results of the PBT are only useful to the police to help them determine whether or not to arrest the person being investigated. You have every right to refuse to blow into the PBT.

Intoxilyzer Devises. The Intoxilyzer Devices are breath-testing device manufactured by C.M.I., Inc., which the Arizona Department of Health Services has approved and designated for use in Arizona. 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. Although the device has the potential for accuracy and reliability, it rarely lives up to that possibility. Design flaws combined with rules governing its use and maintenance by Arizona law enforcement officers make the Intoxilyzer Devices prone to inaccuracy and unreliability. Consequently, there are many ways to challenge the prosecution's breath evidence in your drunk driving case.

Challenging the Accuracy of the Intoxilyzer Devices:

Inherent Margin of Error:
The Intoxilyzer Devices have an acknowledged + 10% margin of error. Thus, even when the device is calibrated and the administering officer determines it is operating properly, the Intoxilyzer Devices will have a 20% range of error.
Power Source & Radio Frequency Interference:
According to recent studies, the stability of the Intoxilyzer Device's power source and its proximity to other devices emitting radio waves may cast doubt on its accuracy.
Mouth Alcohol:
The Intoxilyzer Devices are frequently incapable of distinguishing between alcohol in a person's mouth and blood alcohol. Moreover, contaminants in a person's mouth, such as, smokeless tobacco, denture adhesives, mints, and lip balm may also result in erroneous breath alcohol readings.
Physical Condition:
A person's physical condition, or exposure to certain substances, may also cast doubt onto the accuracy of the Intoxilyzer Devices. For example, a person suffering from diabetes, esophagheal hernia, heartburn, liver disease, or other illnesses may get inaccurate results on the Intoxilyzer Devices.
Operator Error:
Law enforcement officers often lack proper training in the use of the Intoxilyzer Devices. Officers generally receive minimal training in the use of the device, and are not provided adequate written materials. Thus, inquiry into the officer's knowledge on the Intoxilyzer Device may be helpful to your case.
The Average Person Myth:

The accuracy of the Intoxilyzer device depends on the validity of several scientific assumptions about the average person. With respect to body temperature, for instance, the Intoxilyzer Devices assume that every test subject has a core body temperature of 37 degrees Celsius and an expired breath temperature of 34 degrees Celsius. Based on this fallacy, the DUI suspect's breath reading will be 6.8% higher for each degree above the average than the suspect's actual breath reading.

The Circadian Rhythm, which refers to the "body's internal clock," further dispels the average person myth. The human body undergoes periodic daily physiological changes, involving, body temperature, sleep, hormonal levels, mineral concentrations, physical coordination, etc. For instance, studies show that morning consumption of alcohol resulted in higher peak concentrations than evening consumption of alcohol. Thus, the time of day when an alcoholic beverage is consumed may affect the rate at which the DUI suspect's body absorbs alcohol.

Another scientific assumption regarding the average person, which underlies the Intoxilyzer Device's accuracy, is the partition ratio. The partition ratio is a model of how much alcohol leaves the blood and enters the breath, which assumes that the ratio between alcohol in the blood and alcohol in the breath is 2100:1. In other words, the Intoxilyzer Devices assume the alcohol concentration in the exhaled breath is 1/2100th of the blood-alcohol concentration. Yet, the actual ratio at which alcohol converts from blood to breath can range from 1300:1 to 3000:1. Thus, a DUI suspect with a blood-to-breath ratio of 1700:1 and a true BAC of .08 would register a .10 reading on an "accurate" Intoxilyzer Devices.

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8. Subtractive Retrograde or "Rising BAC Defense." The subtractive retrograde is a method to compensate for any alcohol consumed shortly before driving. Typically, the human body requires between 45 minutes and a few hours to absorb alcohol. For this reason, a person's blood alcohol concentration ("BAC") may continue rising after the traffic stop and show a much higher level during the subsequent breath or blood test. Simply stated, the total contribution of a drink to a defendant's alcohol concentration at the time of the breath or blood test is related back to the time of driving by subtracting the contribution of the drinks consumed shortly before the traffic stop.

Hypothetically, assume a 160 pound man consumed two beers within an hour of his being pulled over by the police, and approximately one hour later, the suspect submits to a breath test, which indicates a BAC of .12%. Between the time of the traffic stop and the time of the breath test, the suspect's BAC continued to rise as his body physiologically continued to absorb alcohol. Under this defense, although the breath test accurately reported a.12 BAC, the defendant's actual BAC at the time of driving will be retrograded or "back calculated" to a .08 BAC or below.

  Presumptions. Under Arizona law, the following presumptions apply in all misdemeanor and felony trials for DUI:

(i) If there was at the time of driving .05 or less alcohol concentration in the defendant's breath or blood, then it may be presumed that the defendant was not under the influence of intoxicating liquor;

(ii) If there was at the time of driving in excess of .05 but less than .10 alcohol concentration in the defendant's breath or blood, then no presumption arises, but that fact may be considered with other evidence in determining the defendant's guilt or innocence; and

(iii) If there was at the time of driving .10 or more alcohol concentration in the defendant's breath or blood, then it may be presumed that the defendant was under the influence of intoxicating liquor.

LEGAL UPDATE: With respect to a DWI charge pursuant to A.R.S. § 28-1381(A)(2), the Arizona legislature repealed the "Rising BAC Defense" on July 18, 2000. However, this defense still applies to a DUI charged under 28-1381(A)(1).

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9. Deficiencies in Blood Alcohol Testing & Issues in Blood Cases. Results of blood alcohol testing are only admissible as evidence against the defendant if the State can establish the blood was drawn by qualified personnel and the particular scientific analysis utilized complied with scientific standards and State requirements as to calibration and maintenance. Any foundational deficiencies in the State's collection, storage or analysis of the chemical evidence may require the test results to be suppressed.

In addition, the following issues may be present in any case where law enforcement officers draw the suspect's blood.

  The Blood Draw. Qualifications/Certification: In Arizona, the phlebotomist, or the person who drew the blood must have been trained in the practice of blood withdrawal to draw a DUI suspect's blood for blood alcohol concentration testing. State v. Nihiser, 191 Ariz.199, 953 P.2d 1252, (App. Div. 2 1997) citing State v. Tocco, 156 Ariz. 116,119-20, 750 P.2d 874, 877-78 (1988).

The Blood Swab used to cleanse the site of venepuncture must be contaminant free. Hospitals frequently use isopropyl alcohol to clean the cite of the blood draw. However, isopropyl alcohol can contaminate the blood sample. Also, if police used a NIK blood kit, due to a manufacture recall, the content of the forensic swab may be contaminated and should be the subject of a discovery request.

Was Whole Blood or Plasma Tested? Whole Blood is composed of cellular material, plasma and fibrinogen (clotting agent). In plasma draws hospitals typically test serum or plasma for the presence of alcohol. Conversely, forensic blood draws test for the precise blood-alcohol concentration. Medical blood draws, therefore, present several problems for DUI suspects. First, when the hospital lab tech centrifuges the blood sample, the solid, cellular material (the whole blood) is removed, which leaves the same amount of ETOH in a smaller volume of liquid. Thus, hospital tests may artificially inflate the DUI suspect's alcohol concentration by as much as 20% to 30%.

Hematocrit. This is the percentage of whole blood comprised of cellular material. For instance, a Hematocrit of 47 means that 47% of the person's blood is composed of cellular material, and the remaining 53% is plasma (mostly water). The Hematocrit for a male is 47% and for a female is slightly lower.

Hypothetically, if the DUI suspect had a Hematocrit of 60 and the hospital tested plasma, what results? The lab analysis will report a higher BAC for the DUI suspect, because he or she will have a lesser volume of liquid, and alcohol always gravitates toward the liquid. Thus, the higher the Hematocrit the higher the DUI suspect's BAC. Typically, hospital records will show Hematocrit.

Pre-Blood Draw IVs. Administering an IV to a DUI suspect prior to a blood draw artificially increases the person's blood-alcohol concentration. Because alcohol tends to follow water in the blood, intravenously administered liquid draw more alcohol out of body tissue, thereby, artificially increasing the DUI suspect's blood-alcohol concentration.

Blood Test Kits:
Expiration Date:
Blood test kits manufactured by NIK Public Safety, Inc., have expiration dates regarding the period that the vacuum in the vacutainer tube is warranted. Each tube contains a preservative and an anticoagulant. A precise vacuum exists in the vacutainer tube to assure a precise amount of blood will be drawn and mixed with these chemicals in a precise ratio. Thus, imprecision in the mix, i.e., too much chemical or not enough blood, can skew the test result.

Additionally, if the vacutainer leaks, air born microorganisms may contaminate the sample. Combining blood with microorganisms results in fermentation. ETOH is a byproduct of fermentation, and there is no way to distinguish between alcohol consumed by a DUI suspect and alcohol created by fermentation.
Vacutainer Tube Chemicals:
Each vacutainer kit is intended to take 10 ml of blood. Each kit contains two chemicals: 100 mg of sodium fluoride (a preservative to prevent fermentation and neo-production of ETOH) and 20 mg of potassium oxalate (an anticoagulant designed to prevent clotting of the blood). The issue is whether these chemicals were in the vacutainer tubes because these chemicals are critical to an accurate test result. Instructions in blood kit. NIK kits have two sets of instructions. One for the person drawing the blood and one for the cop. One of the instructions pertains to MIXING of the blood immediately after the blood draw. After the blood is in the vacutainer, the person drawing the blood is to properly mix the blood and chemicals in tubes.
Instructions in blood kit:
NIK kits have two sets of instructions. One for the person drawing the blood and one for the cop. One of the instructions pertains to MIXING of the blood immediately after the blood draw. After the blood is in the vacutainer, the person drawing the blood is to properly mix the blood and chemicals in tubes.

Gas Chromatography. There are two types of gas chromatography used in blood analysis: (1) direct measurement of the blood sample and (2) measurement of the gas in the head space above the liquid. Gas Chromatography ("G/C") is a method of (1) identifying a substance and (2) determining the concentration of that substance. The process is both qualitative (what is it?) and quantitative (how much is there?).

Gas Head Space Chromatography. In gas chromatography you are actually testing the DUI suspect's blood. In gas head space chromatography, you are testing the gas or vapor above the liquid--not the liquid itself. The head space is the space above the liquid. The alcohol evaporates (at a rate of speed determined by temperature) from the liquid to the gas in the head space above the liquid. The alcohol will evaporate until it reaches the point of equilibrium. Equilibrium is determined by temperature. The higher the temperature, the more alcohol in the gas above the liquid.

By way of analogy, this is why core body temperature variation and expired breath variation can artificially inflate a breath test reading. Breath testing is based on the relationship between alcohol in the blood and alcohol percolating from the blood into the vapor in the lungs. The assumption underlying breath testing is that whatever alcohol is present in one ml of breath, 2100 times that amount will be present in one ml of blood.

This same theory underlies gas head space chromatography. With this process, the lab makes up the same mixture of the blood plus the internal standard. They heat the sample and draw off the vapor for analysis. Then the vapor is injected into the chromatograph. The process assumes there is a relationship between the alcohol in this vapor and the actual alcohol in the blood. However, this assumption raises several questions. How is the temperature regulated? What was the temperature? What is the relationship between the ETOH in the head space and the ETOH in the blood? The primary disadvantage to head space chromatography is the partition ratio and the effect of temperature and pressure.

Machine Error. Like the IR Devices, the G/C has a 10% margin of error under Arizona's DHS administrative regs. A 20% margin of error is not uncommon. The process is not that precise.

Gas Chromatography analysis rides on the validity of the standards that are used to calibrate the chromatograph. The integrity of the whole process is determined by the accuracy of those standards.

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10. Denial of Independent Test. Under the Fourteenth Amendment to the United States Constitution, the defendant has a due process right to collect independent scientific evidence of his or her blood alcohol concentration (BAC). Independent chemical tests are exculpatory evidence, and the State may not unreasonably interfere with a defendant's reasonable efforts to gain such evidence. Smith v. Cady, 114 Ariz. 510, 562 P.2d 390 (1977); Smith v. Ganske, 114 Ariz. 515, 562 P.2d 390 (1977).


The Gillespie Law Firm, P.C. is a leading Phoenix, Arizona DUI and criminal defense law firm dedicated to the aggressive representation of clients involving all aspects of vehicular crimes and criminal litigation. We handle cases in Federal, State, Municipal, Juvenile, and Appellate Courts throughout the greater Phoenix Metropolitan Area and all of Arizona.

 
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