Felony DUI - David M. Roer Arizona Attorney

Arizona Driving Under the Influence or Driving While Intoxicated Defense Lawyer

* MR. ROER IS A FORMER SUPERIOR COURT JUDGE FOR THE STATE OF ARIZONA.

* MR. ROER IS AN "AV" RATED ATTORNEY WHICH IS THE HIGHEST PEER RATING FOR LAWYERS

Arizona's DUI laws have changed. Make sure you have an attorney that knows the current law and the new law.

Mr. Roer attends conferences across Arizona and the country to stay current on all DUI defense law and the science behind defending people accused of DUI.

When you are facing charges of DUI, you need an experienced attorney to make sure your rights are protected. On this page, you will find information about Arizona DUI defense. For information about how the Mr. Roer can help you, contact us today.

Mr. Roer has aggressively defended DUI accused persons since 1981 for driving under the influence (DUI) in Arizona and throughout the greater Phoenix Metro area, Mesa, Maricopa County, Pinal County and throughout the state. Contact us today. We can help.

PUT A FORMER JUDGE TO WORK FOR YOU.

David M. Roer, Attorney at Law, P.C.
505 West Ray Road, Suite 2
Chandler, Arizona 85225
dmr@roerlaw.com
480-821-5088/fax 480-821-5088
Toll free number 877-676-1417
Weekend and Evening Appointments Available
Affordable payment plans available upon qualification
MAJOR CREDIT CARDS ACCEPTED

Overview of the Crime of DUI

Arizona has some of the toughest laws and severest penalties for driving under the influence. As we all know, it is illegal for a person to operate a motor vehicle after consuming too much alcohol and/or drugs to a degree that it impairs his or her ability to operate a motor vehicle. Both criminal and civil penalties for DUI are harsh and often include:

Jail or prison time
Loss, suspension, or revocation of license
Large fines
Substance-abuse treatment
Community service
Restitution
Criminal record
Ignition interlock devices
SR22 Insurance
Impounding the vehicle

In addition, the insurance costs and effect on your career may have lifelong negative consequences.

Terminology and Elements of the Crime of DUI

The criminal offense of DUI goes by a variety of names, including:

Driving under the influence (DUI)
Driving while intoxicated (DWI)
Operating under the influence (OUI)
Operating while intoxicated (OWI)
Driving while under the influence (DWUI)
Driving with illegal Drugs in your system (DUI)
Actual Physical Control while under the influence (APC)

In the language of the various state statutes, a DUI conviction requires driving or operating a vehicle or motor vehicle. While that sounds straightforward, a review of DUI cases shows otherwise.

Driving Requirement

The requirement of driving or operating implies that the driver must have some sort of control or command of the vehicle. Guilt or innocence may hang on whether the defendant was actually "driving" in a particular circumstance. What if he or she was just sitting behind the wheel of a car but it was off? What if the defendant was sleeping there? What if the keys were in the defendant's pocket and not in the ignition? What if that car was out of gas and could not be started? What if it was idling? What if it was being towed? Courts nationwide have considered various scenarios to determine whether the necessary control over the vehicle was present. In Arizona a person can be charged with and possibly convicted of DUI even if they had not driven and did not plan on driving after they consumed alcohol. Theoretically, in Arizona, a person can be charged with and even convicted of DUI if they were washing their car in their driveway and had the keys in the ignition to listen to music. This is an extreme example, but the laws in Arizona are extreme.

Vehicle Requirement

Cars, trucks and vans are obviously considered to be vehicles for DUI law purposes. However, people have been convicted of DUI while operating motorboats, mopeds, dirt bikes, snowmobiles, electric wheelchairs, golf carts, bicycles and ATVs.

Intoxication

One way prosecutors prove driver intoxication is through scientific testing of the amount of alcohol in the body, usually by analyzing the breath or blood of the driver. These tests are usually administered by machines, such as the Intoxolyzer. In Arizona, a person with a blood-alcohol concentration (BAC) over .08 is considered legally intoxicated. Most cities in the Phoenix area now draw blood from a driver rather than test their breath. Once blood is drawn, the crime lab will test the blood using a gas-chromatograph machine.

The cities in Arizona now drawing blood rather than testing breath are:

Phoenix (in most cases)
Mesa
Gilbert
Chandler
Scottsdale
Peoria
Surprise
Tucson

The cities in Arizona that continue to test breath rather than blood are:

Tempe
El Mirage
Glendale
Maricopa County Sheriff (MCSO)
Tolleson
Fountain Hills

It is obvious that all city court jurisdictions are moving toward blood draws and away from breath testing. Cities like Pinetop-Lakeside even use blood rather than breath testing.

The City of Phoenix and the Department of Public Safety (DPS) do both; they draw blood and test breath.
Implied-consent laws create the legal presumption that if a person takes advantage of the privilege of driving, he or she automatically consents to chemical testing to determine his or her BAC, but only if the police officer has probable cause to believe the person is driving under the influence. If a driver refuses to take a chemical-alcohol test, his or her drivers' license may be suspended for an entire year.

Blood & Breath Testing

BAC test results over the legal limit are usually presumed to be proof of intoxication. However, defendants may challenge the conclusiveness of the results by showing irregularities in the test administration procedure or problems with the test equipment. For example, your lawyer may advise retesting of your breath or blood sample. He or she may be able to obtain exclusion of the original breath or blood test results from the case or even dismissal of the case entirely. Additionally, like all scientific testing there is a +/- margin of error. In DUI cases, the margin of error is +/-10%. Therefore, if a person's blood or breath was tested to be a .087; our expert will testify that it could be as low as a .079 (which means, "NOT GUILTY").

Field Sobriety Tests - Coordination Testing

Other types of evidence used by prosecuting attorneys to show intoxication include drivers' statements, witness and police observations of behavior and driving patterns and circumstantial evidence. Police also gather evidence by administering standard field sobriety tests (FSTs) at the scenes of traffic stops or at a DUI van, or at the police station. Common field sobriety tests include:

Horizontal-gaze-nystagmus test (HGN)
Finger-to-nose test
One-legged stand
Walk-and-turn test
Rhomberg Modified
Counting backwards
Reciting the alphabet

Driving is the basis of the American lifestyle, permeating every activity we do. We rely on driving to get to work, to socialize, to run errands and to vacation. Licensed drivers transport children, people with disabilities and senior citizens to important appointments and activities. A DUI conviction can bring a screeching halt to your life. If you face DUI charges, a criminal defense lawyer can fight for you and help protect your interests and those of your family and loved ones.

Mr. Roer is rated by Martindale-Hubbard as an AV attorney. This is the highest rating a lawyer may obtain in the profession. Mr. Roer is a highly skilled and experienced attorney. He is a well respected attorney in the profession with superior skill and knowledge. For a DUI in Maricopa or Pinal County Contact us today. We can help.

PUT A FORMER JUDGE TO WORK FOR YOU.

The Prosecutor's Role in a DUI Case

Prosecution refers to the government's role in the criminal-justice system. When criminal activity is suspected, it is up to the government to investigate, arrest, charge and bring the alleged offender to trial. A prosecutor is a lawyer who works for the government. Prosecutors do not care that you need your driver's license; prosecutors do not care that you will lose your job if you go to jail. Prosecutors want a conviction and they will ask a judge to limit your constitutional rights in order to secure the conviction. The attorneys at Shell & Nermyr PLLC have never been prosecutors. The attorneys at SNK have never been on the same side as the police and have never asked a judge to limit your constitutional rights in order to secure the conviction. Prosecutors may be called county attorneys, city attorneys, district attorneys or states' attorneys. Some defense lawyers even brag that they are former prosecutors. There is absolutely no advantage to hiring a former prosecutor. Some jurisdictions may even have experienced police officers act as prosecutors in DUI cases. The prosecutor is the opponent or "adversary" of the criminal defendant and his or her attorney; the two sides go head-to-head against each other in court.

Reliability of Breath-Test Results in a DUI Case

In every state in the US, a driver with a blood-alcohol concentration (BAC) of .08 or higher is presumed to be legally intoxicated for DUI purposes. Each state has also enacted an implied-consent law. Implied-consent laws provide that every licensed driver within the state is considered to have given his or her consent to chemical testing to determine his or her BAC whenever a law enforcement officer has reasonable suspicion of intoxication. In Arizona, refusal to submit to such a test results in license suspension for an entire year.

The Impact of a DUI Conviction on Your Auto Insurance

An alcohol-related charge and subsequent DUI conviction can bring many negative consequences into your life, possibly including jail or prison time, a criminal record, car repair or replacement, restitution, guilt and grief over harm to others, higher insurance premiums, a civil lawsuit, fines, court and administrative fees, community service, alcohol education, substance-abuse treatment, social stigma, restrictions on or revocation of your drivers license, restrictive probation, Ignition Interlock Device, and others. If you are arrested for or charged with DUI, a criminal-defense lawyer can advise you about your legal rights and help you fight the charges.

Frequently Asked Questions about DUI

Q: What is "blood-alcohol concentration" or "blood-alcohol level"?
A: Blood-alcohol concentration (BAC) is the level of alcohol in the bloodstream from drinking alcoholic beverages. BAC readings are used in court as evidence in DUI cases. The most common method of measure in Arizona is a blood test, although breath and/or urine testing is sometimes done. A result of .08 or higher may establish a presumption of intoxication. The details of the .08 BAC presumption laws vary among the states, but all 50 states have adopted .08 as their official intoxication level, in large part because of a federal threat of otherwise withholding highway funds.

Q: Can I refuse a Breathalyzer test?
A: Arizona has an implied consent law providing that a driver impliedly consents to alcohol testing just by the act of driving. A refusal to take a breath test is itself a violation subject to stiff penalties. For example, refusing a breath test can result in automatic drivers-license suspension. If you are ultimately found guilty of a DUI offense, there may be additional penalties because of the test refusal, such as a stiffer sentence. Your test refusal may also be used as evidence against you in a DUI case. For example, when the arresting police officer is testifying, he can state that when he asked for a breath sample, the driver refused to give one.

Q: Are breath-test results always accurate?
A: Arizona courts allow the defendant in a DUI case to challenge the scientific accuracy of breath tests and blood tests in general. Some of the more common challenges are: improperly calibrated equipment; the equipment was repaired recently; there are outside forces that affected the test results; or inadequately trained officers. If the test results are inadmissible or can be challenged, the case becomes much stronger for a driver. The state will probably be left with having to prove their case using other evidence, such as eyewitness testimony and field-sobriety test results, which is less reliable than evidence.

Q: What if I lose my license but continue to drive?
A: If a person whose license has been revoked or suspended due to DUI chooses to drive without a valid license and is pulled over, he or she stands to suffer more serious consequences, including possible fines, jail, forfeiture of his or her vehicle and extension of the license revocation/suspension. The public transportation system in Arizona is very poor, it is next to impossible to be a productive member of society in Arizona without driving.

Q: How can I get to work if I cannot drive?
A: Many people are forced to rely on the city bus, or rides from friends, family members, or co-workers for transportation to and from work during periods of license suspension or revocation. In Arizona, a person may be granted a restricted license, allowing him or her to drive just to and from work, school, medical appointments, court, and alcohol counseling only. On a second DUI, Arizona requires an alcohol evaluation as part of the restricted license application. If a person with a school and work permit is caught driving outside of its limitations, further penalties may be imposed.

Q: How can I get automobile insurance after a DUI conviction?
A: Although your rates will likely be higher, your insurer may continue to insure you even after a conviction. A prior or subsequent clean driving record may result in lower rates in the future. If your insurer drops you as a result of the conviction, another insurance company may be willing to accept the risk. In fact, some companies specialize in offering nonstandard insurance to drivers who have been convicted of DUI, but the rates are much higher. Another possible source of insurance for high-risk drivers may be state insurance programs created for just these types of drivers; this is known as SR22 Insurance.

Q: What is the punishment for DUI or DWI?
A: The following are the mandatory minimum punishments in Arizona. Whether a judge hands down more than the minimum depends on which city the DUI occurred.

ARS 28-1381(A)(1) or (A)(2) First Offense .08:

10 days in jail / 9 of which may be suspended upon counseling
Alcohol and or drug counseling
12 Months of Ignition Interlock Device
Driver License Suspension
Fines & Assessments

ARS 28-1382 First Offense .15:

30 days in jail / 0 of which may be suspended upon counseling
Alcohol and or drug counseling
12 Months of Ignition Interlock Device
Driver License Suspension
Fines & Assessments

ARS 28-1382 First Offense .20:

45 days in jail / 0 of which may be suspended upon counseling
Alcohol and or drug counseling
18 Months of Ignition Interlock Device
Driver License Suspension
Fines & Assessments

ARS 28-1381(A)(1) or (A)(2) Second Offense .08:

90 days in jail / 0 of which may be suspended upon counseling
Alcohol and or drug counseling
12 Months of Ignition Interlock Device
Driver License Revocation (one year)
Fines & Assessments
Community Service

ARS 28-1382 Second Offense .15:

120 days in jail / 0 of which may be suspended upon counseling
Alcohol and or drug counseling
12 Months of Ignition Interlock Device
Diver License Revocation (one year)
Fines & Assessments
Community Service

ARS 28-1382 Second Offense .20:

180 days in jail / 0 of which may be suspended upon counseling
Alcohol and or drug counseling
24 Months of Ignition Interlock Device
Diver License Revocation (one year)
Community Service
Fines & Assessments

Q: What is the best way to beat a DUI charge?
A: Retain the services of ROERLAW, it is the best way to avoid being convicted of DUI. For some people, even one drink can impair their driving abilities so it is important to know how much alcohol is too much alcohol. However, if you have been charged with driving under the influence, an experienced DUI defense lawyer can work to improve the outcome of your case.

The attorneys at DAVID M. ROER, P.C. are the best trial attorneys in the state of Arizona. DAVID M. ROER, P.C. represents individuals arrested for driving under the influence (DUI) in Arizona and throughout the greater Phoenix Metro area, Maricopa County and Pinal County. Contact us today. We can help.

Q: If I simply intend to plead guilty, why do I need a lawyer?
A: At DAVID M. ROER P.C. we offer a unique payment plan for people that want to plead guilty but want the assistance of some of the best lawyers in Arizona. Nobody should plead guilty without having a DUI lawyer look at the case first. It is surprising how often police officers make mistakes or the blood or breath testing machine is malfunctioning. It takes a trained legal eye to spot those legal DUI loopholes. The prosecutor and judge are not going to spot them and point them out to a defendant, you need an experienced DUI attorney to look for the loopholes.

Even if you did drink and drive, an experienced legal counsel may be able to help minimize your legal problems and maximize your opportunities to move ahead. A criminal defense attorney helps to equalize the balance of power between the defendant and the prosecution and works to preserve the constitutional rights that are guaranteed to all defendants in the United States.

The Role of Probation in DUI Sentencing

Sometimes courts want to place a person on probation if they have been convicted of DUI. Probation is a common sentence for people convicted of DUI or DWI, but generally only for second-time offenders. Arizona has some of the longest probation terms for DUI in the United States. For a misdemeanor DUI the court can impose up to 5 years of probation. For a felony DUI the court can impose up to 10 years of probation. If you are facing a DUI charge, an experienced lawyer can assist you with your defense and, if necessary, advocate for a fair sentence. Contact ROERLAW for your best chance at beating a DUI.

Why Probation?

Probation is intended both to rehabilitate and to monitor less serious offenders in a normal and less expensive environment than jail, in an effort to keep them a contributing member of society. As the American Probation and Parole Association points out, probation allows the person to keep working to provide for his or her family, to pay taxes and sometimes to provide restitution to his or her victim. Success on probation depends on the probationer's motivation, how well he or she is assessed and supervised and the resources of the state
.
The Statistical Picture
In 1999, the US Department of Justice's Bureau of Justice Statistics issued a Special Report that provides interesting details about probation in DUI cases.

Eighty-nine percent of DUI offenders in the system were on probation, rather than incarcerated.
DUI offenders made up almost 14 percent of all people on probation.
Two-thirds of those on probation for DUI were first-time DUI offenders.
It was much more common for a person to seek alcohol treatment while on probation than while in jail.

Conditions of Probation
Usually, a person who is on probation must report regularly to a probation officer, called an APO (Adult Probation Officer) for monitoring of his or her behavior. As part of a probationary sentence, the judge imposes conditions of probation which usually include:

Remain law-abiding;
Pay a probation fee;
Pay fines;
Attend substance abuse counseling
Submit to random urinalysis;
Do not consume alcohol or take drugs without a valid prescription
Serve incarceration time in jail or prison;
Community service;
Do not drive without a valid drivers license;
Mothers Against Drug Drivers (M.A.D.D.) class.

The judge's discretion about which conditions to impose will depend on the facts of the case and the history of the probationer. Of course, a judge may not abuse his or her discretion and the conditions of probation are limited by other laws and by constitutional protections, such as the prohibition against cruel and unusual punishment. ROERLAW knows the law and the constitution and will not let any judge violate our clients' rights.

If a person who is on probation fails to meet the conditions of his or her probation, the court after a hearing can modify or revoke the probation, require incarceration, impose additional penalties or any combination thereof. Sometimes the period of incarceration imposed after a failed probation can be longer than would have been originally imposed when probation was ordered instead.

Prosecutors Decide Whether to Pursue DUI Cases in Court

A prosecutor usually becomes involved in a DUI criminal case through a referral from the police who have investigated, arrested, searched and processed an alleged offender. In making the decision whether to go forward with a case, the prosecutor usually considers three things: whether the case is legally sound, whether it can be proved and the relevant policy considerations. If the prosecutor exercises his or her prosecutorial discretion by deciding not to go forward with a case, it will usually be over.

The prosecutor must be assured that there is enough reliable evidence to prove the DUI charge before he or she will bring the case to trial. For example, if the Breathalyzer® machine malfunctioned or the test results were lost, the prosecutor may decide to dismiss the case because crucial evidence would be missing or substantially weakened.

Policy considerations are always part of the decision to prosecute a particular defendant, because the prosecutor's job is to serve justice in the public interest, not only to win every possible case. The defendant might have mental or physical problems that make a pretrial diversion program, like alcohol or drug treatment or a suspended prosecution, a better option than trial. Finally, a prosecutor must consider the limited resources of his or her office when choosing which crimes to pursue.

Prosecutors Represent the Government-the City, County or State-in DUI Cases

The filing of a complaint or other official document by the prosecutor officially starts the DUI court case. The prosecutor appears at the defendant's initial hearing before a judge to represent the government with regard to pretrial release issues like bail. At trial, the prosecutor is allowed to go first and presents the government's case against the defendant. The government must prove each element of the DUI charge beyond a reasonable doubt, based on relevant, credible evidence elicited through the testimony of competent witnesses. In DUI cases, the arresting officer is generally one of the key witnesses for the prosecution.

Prosecutors have a lot of power and influence in DUI cases. They take the case from the police and decide whether to pursue it in court; they represent the government in court and pursue a conviction; and they may recommend a particular sentence, if the defendant is found guilty. Prosecuting criminal cases is what these government lawyers do day-in and day-out. Accordingly, if you have been charged with DUI, it is very important that your lawyer is experienced, aggressive and has a reputation of winning trials. Call a knowledgeable DUI and criminal-defense attorney now.

PUT A FORMER JUDGE TO WORK FOR YOU.

Unreliability of Breath-Test Results in a DUI Case

In every state in the US, a driver with a blood-alcohol concentration (BAC) of .08 or higher is presumed to be legally intoxicated for DUI purposes. Each state has also enacted an implied-consent law. Implied-consent laws provide that every licensed driver within the state is considered to have given his or her consent to chemical testing to determine his or her BAC whenever a law enforcement officer has reasonable suspicion of intoxication. In most states, refusal to submit to such a test results in license suspension or revocation.

While a blood test is arguably more reliable, the breath test for BAC is more commonly used in the field because the testing equipment is convenient to transport and because the test is easier to administer, can be used by nonmedical personnel, is less physically intrusive to the person taking the test and produces results faster. However, under certain circumstances, breath tests can be less than reliable as an accurate measure of BAC.
It is in the best interest of a DUI defendant to retain a criminal-defense attorney who is thoroughly familiar with possible breath-test weaknesses.

History and Science of the Breath Test

The Breathalyzer® was invented in 1954 to collect evidence of intoxication by measuring BAC through breath analysis. Since that time, several manufacturers have entered into the breath-analyzer market and the science behind the machine has evolved. The word "breathalyzer" is now widely used to refer to these apparatus regardless of manufacturer. Other terms used to refer to these devices include evidential breath tester (EBT), breath analyzer, breath-analysis product, breath-alcohol analyzer and breath-testing device or machine. In addition to Breathalyzer, common brands include Intoxilyzer® and Intoximeter®.

In very basic terms, the breath-test machine is designed to measure the amount of alcohol in a deep-lung breath sample and to use that amount to determine BAC. The four main scientific methods used in the various machines are chemical analysis, infrared spectrophotometry, gas chromatography and fuel-cell detection.

Breath-Test Vulnerabilities
A DUI defendant, usually through an experienced attorney and often with the help of a scientific expert, may be able to challenge the breath-test results in his or her case. Several different factors may call into question the reliability of the results. Depending on the law of the state in which the DUI charges were filed, evidence of a problem with the test result could make the BAC reading inadmissible in court or, if the BAC is still admissible, could cast serious doubt on whether the reading is reliable.

Arguments DAVID M. ROER P.C. may make to undermine the breath-test results:

The breath tests' assumption of a 2100-to-1 blood-to-breath ratio may not be scientifically reliable.
The test was not administered correctly; for example, the administrator did not warm up the machine to the correct operating temperature or ensure an adequately deep lung sample.
The test administrator was not properly trained or qualified.
The equipment was not maintained properly, calibrated correctly or cleaned adequately.
The result was affected by some characteristic of the driver, such as age; lung function; overall strength and size; a disease or condition such as asthma, diabetes, eardrum rupture, ketosis, emphysema, bronchitis, dental issues, fever or harelip; shock or trauma; certain types of special diets; or hiccoughing, burping, vomiting or hyperventilating. Even severe heartburn could have made the breath results unreliable.
The test administrator did not continuously observe the driver for an adequate period before the test to prevent him or her from putting anything into his or her mouth that could affect the result. For example, a product used in the driver's mouth, such as mouthwash or adhesive, or lip ointment could have affected the test result.
Police radio operation generated electromagnetic waves, causing radio frequency interference (RFI) with the testing equipment.
The driver was exposed to a gas or vapor before the test that made it unreliable, such as during painting, floor sanding, varnishing or other activity with chemical exposure. Similarly, an outside environmental cause in the surrounding air could have caused a high breath test result.

This long list of potential problems with breath test results is not close to complete. If a person charged with DUI is able to show that something affected the reliability of his or her test results, the state will need to rely more on other types of evidence to prove intoxication. Other types of evidence on which the state may need to rely include witness, officer and driver statements; witness and police observations; or field-sobriety test results.

Other Issues

Other significant issues include:

A DUI record can also impact your premiums for or coverage by other types of insurance policies, such as life or medical insurance.
After a DUI conviction, you will be considered a high-risk driver. Most states require such drivers to obtain from their insurance companies for filing with the state SR-22 forms, which certify that high-risk drivers are insured.
These insurance issues are highly regulated by each state and can vary in how they are handled, so it is important to know the law in your state and what variations to these issues that law may bring.
If because of a DUI conviction a person is paying expensive premiums, there may be other ways to lessen the price, such as driving an older car and/or a non-sports car, moving to a safer neighborhood, maintaining a clean driving record, taking a safe-driving class, adding safety equipment to your car, paying all bills on time to boost your credit rating, staying current on your insurance premiums or moving closer to your workplace to shorten the commute.

A DUI conviction can wreak havoc on your automobile insurance coverage. If you are feeling the negative effects of a DUI conviction, an attorney from DAVID M. ROER P.C. can help you to sort out the issues and investigate solutions.

PUT A FORMER JUDGE TO WORK FOR YOU.

David M. Roer, Attorney at Law, P.C.
505 West Ray Road, Suite 2
Chandler, Arizona 85225
dmr@roerlaw.com
480-821-5088/fax 480-821-5535
Toll free number 877-676-1417
Weekend and Evening Appointments Available
Affordable payment plans available upon qualification
MAJOR CREDIT CARDS ACCEPTED