Arizona DUI Cases - New Danger for Those Below the Legal Limit

In Arizona, it is legal to have a drink or drinks of alcohol and then get behind the wheel of a vehicle. This applies to everybody in Arizona except for those under 21 years of age, which is the legal drinking age. For people under 21 years old, it is not legal to drive after having any alcohol at all. Despite the fact that it is legal for legal adults to drink and then drive, there is a pervasive perception amongst the public that Arizona DUI law prohibits this. This perception seems to have gained substantial traction in the last couple of years.

Many people in the trenches of Arizona DUI cases attribute this mind set to the advertising campaigns that have come out of the governors office of highway safety. Others think that the public has a lessening tolerance for drinking drivers as the roads in Tucson and Phoenix get more crowded. Whatever the reason, enter the reality that it is very possible to get a DUI conviction without reaching the "legal limit" of .08 percent alcohol concentration. More and more, Arizona DUI prosecutors are charging and succeeding in the prosecution of people whose breath or blood analysis indicated a level below the legal limit.

Arizona DUI allows adults the presumption of sobriety when the person is below a .05 percent alcohol concentration. However, this presumption is rebuttable. In theory, a prosecutor could make a case to a jury that a person is impaired to the slightest degree (which is all the law requires) at a .02. All experts will say that it is possible to see impairment at a level that low, and all experts agree that all people are impaired to some degree at .08 percent. In the past, with a level that low, it was not an issue because the defense could always ask for a trial by a judge instead of a jury. I have never heard of or seen a judge convict at a level that low.

New case law in Arizona now says that if either the prosecution or the defense requests a jury trial in a DUI case, then a jury must be provided. Since a judge is much less likely to convict that a jury at low alcohol levels, the prosecution now has much more leverage.

In Phoenix DUI cases, the prosecutor's office will not agree to waive jury in DUI cases where the alcohol level is within 10% of the .08 limit. They prefer a jury.

For DUI attorneys practicing in Arizona, the practice of law just got a bit more challenging.