Don't miss the 15-day deadline to file a hearing request!
When we talk about a first offense DUI in Arizona, there are two possible license suspensions that flow directly from the DUI (presuming that the DUI is charged as a misdemeanor and not a felony). The suspension will be for either 90 days, or for one year, depending upon whether the suspect successfully completed a chemical test without the officer obtaining a search warrant.
One of the most confusing parts of being charged with a first offense DUI in Arizona is the fact that there will actually be two separate and distinct cases against you. How can they do this? Isn't it double jeopardy? The answer is no.
Why is the answer no? The State has two shots at taking your driver's license after a DUI arrest because one suspension flows from a criminal conviction while the other is in regards to your "privilege" to drive. Since one case in civil in nature, and double jeopardy only applies to criminal cases, the State has two chances to remove you from Arizona's highways.
As part of exercising the "privilege" to drive in Arizona, the law says that any person who drives a motor vehicle in Arizona gives consent to a test or tests of their blood, breath, urine or other bodily substances. This is so law enforcement officers can determine alcohol concentration or drug content if the person is arrested for DUI. In&essence, by driving in Arizona, you have already consented to the test.
Can I choose the type of test? No. Under Arizona Law, the Police Officer chooses the type of test, and administers it at his/her direction, so long as the officer has reasonable grounds to believe that the person was DUI.
HOW IT HAPPENS:
Following an arrest, the officer should request the subject to submit to and successfully complete any test mentioned above that the officer designates. If the subject refuses to submit to the test, or does not successfully complete the test, his/her license will be suspended for 12 months for a first refusal, or for 2 years for a second or subsequent refusal within a period of 60 months.
Any failure by the person arrested for DUI to expressly agree to the test, or to successfully complete the test is deemed a refusal. Sometimes the Intoxilyzer machine is not working, and the officers, being too poorly trained or too narrow-minded, decide that it is your fault, that you are playing games with the breath test machine.
Prior to the test, the suspect must be informed that if the test shows a blood or breath alcohol concentration (BAC) of 0.08 or more if the arrest involved a personal vehicle, or 0.04 or more if a commercial vehicle was involved, the person's license will be suspended for at least 90 consecutive days.
Any person who is dead, unconscious or otherwise incapable of refusing to submit to a test is deemed not to have withdrawn consent for the test, and a test can be administered (usually a blood test).
IF YOU REFUSE THE TEST:
If you refuse, under Arizona's implied consent law, the following will happen:
A. The test will not be given (unless the officer obtains a search warrant, in which case he/she can immobilize you and forcibly draw your blood.. this is standard practice in many jurisdictions);
B. The officer will file a certified report with the department of motor vehicles;
C. The officer will serve you with an order of suspension that is effective 15 days after the date the order is served;
D. You will be required to immediately surrender your license or permit if it is in your control;
E. If your license is surrendered, the officer will issue a temporary permit that is good for 15 days;
When the department receives the certified report from the officer, the department will enter the suspension into its records on the effective date unless a written request for a hearing is made by you.
The MVD hearing is a civil proceeding, which is different from the criminal case. It is common knowledge that in order to find a defendant guilty of a crime, it must be proven beyond a reasonable doubt. In civil proceedings the standard of proof is much less difficult for the State. In the criminal DUI case in Arizona, you have a right to a jury trial. In the civil case you do not. An Administrative Law Judge decides both the law and the facts when it comes to your MVD hearing.
You must request your hearing within 15 days. If you don't, your license will automatically go into suspension, and you will not be able to fight it. If you have retained our office to represent you and we have signed the retainer agreement and received your retainer deposit before the expiration of the 15 day period, we will be happy to make the hearing request on your behalf. Please note that we will not make the request for you unless we officially represent you.
THE BOTTOM LINE:
In Arizona, when you are arrested for DUI, the civil license suspension case can, and usually does, precede the criminal case.
Forget all you've heard about double jeopardy. You can be tried twice for the same crime! If you have been arrested for DUI, you must face prosecution in court, as well as license suspension proceedings with the Arizona Department of Motor Vehicles.
Think of the two cases as separate... except for one critical factor. They both arise out of the same action on your part. You were pulled over for drunk driving.