A common question is “what does my BAC mean in a DUI case?” First, it is important to understand what BAC means. People often say ‘BAC,’ which means blood alcohol concentration. However, Arizona law actually uses the broader term ‘alcohol concentration,’ which includes both blood and breath test results. Getting stopped for weaving with an alcohol concentration under 0.08 does not mean you are safe from a DUI charge in Arizona. You can still be charged with DUI. This guide explains how you can still be charged, what the prosecution uses as evidence, and what your options are.
Key takeaways
|
What Does ‘Impaired to the Slightest Degree’ Mean?
Most people assume that passing a breathalyzer means they cannot be charged with DUI. In Arizona, that is not correct.
Arizona law includes two ways to get a DUI conviction. Under ARS 28-1381(A)(2), an alcohol concentration of 0.08 or higher is a crime. Under ARS 28-1381(A)(1), driving while impaired to the slightest degree by alcohol or drugs is also a crime, regardless of your alcohol concentration. Observable signs of impairment can be used as evidence to support an arrest or prosecution, but the State must still prove the elements of the offense.
What Evidence Does the Prosecution Use When Your Alcohol Concentration is under 0.08?
Without an alcohol concentration at or above 0.08, the prosecution builds its case from other evidence.
Driving behavior. Weaving within a lane, drifting toward markers, erratic braking, or driving well under the speed limit are noted in the police report and used as evidence of impairment at trial.
Physical observations. Bloodshot or watery eyes, the odor of alcohol, slurred speech, slow responses, and difficulty locating your license are all recorded and can be used against you.
Field sobriety tests. In a DUI prosecution, prosecutors often rely on how you did on the field sobriety tests to prove their case. There are three standard field sobriety tests. You are not required to participate in field sobriety tests, but if you do the results can be used against you at trial.
- Horizontal Gaze Nystagmus — The officer checks for involuntary eye jerking as you follow a moving stimulus. Early or exaggerated nystagmus is strongly correlated with alcohol impairment.
- Walk and Turn — This involves nine heel-to-toe steps down a line, turning using small steps, and returning to where you started. Officers look for balance issues, missed steps, or failure to follow instructions.
- One-Leg Stand — This test requires you to lift one foot six inches off the ground while you count aloud. Swaying, hopping, or putting your foot down are indicators of impairment.
Legal Presumptions Based on Alcohol Concentration Levels.
Under ARS 28-1381(G), an alcohol concentration at or below 0.05 creates a presumption that you were not impaired. An alcohol concentration between 0.05 and 0.08 creates no presumption either way. The prosecution must prove impairment through other evidence. Once an alcohol concentration of 0.08 is reached, there is a presumption of impairment.
What Are the Penalties for a DUI Conviction?
The penalties for DUI are the same regardless of whether the charge is based on alcohol concentration or impairment. For a first standard DUI conviction the following penalties apply:
- 10 days in jail (nine may be suspended)
- Approximately $1,250 in fines
- 90-day license suspension
- Ignition interlock device for up to 12 months
What Defenses Are Available?
Challenging the stop
If the officer lacked reasonable suspicion to pull you over, your attorney can move to suppress all evidence from the stop. A successful suppression motion often ends the case.
Challenging field sobriety test results
Medical conditions, fatigue, anxiety, road surface, and footwear all affect field sobriety test performance. If the officer failed to properly administer the tests, the results can be challenged.
Alternative explanations for observed symptoms
Bloodshot eyes, unsteady movement, and the odor of alcohol all have explanations unrelated to impairment. Your attorney can present alternatives to counter the officer’s observations.
Challenging the alcohol concentration result
Breath and blood tests are not perfect. Your attorney can challenge the accuracy of the testing equipment, the calibration records, the way the sample was collected, or the chain of custody. If the alcohol concentration result is suppressed or shown to be unreliable, it may be difficult for the State to prove the case beyond a reasonable doubt.
Common Myths About This Charge
Myth: If I blew under 0.08, I cannot be convicted of DUI in Arizona.
Reality: Arizona has a separate DUI charge with no minimum alcohol concentration. Under ARS 28-1381(A)(1), impairment to the slightest degree by alcohol or drugs is enough for a conviction. The prosecution must prove impairment by drugs or alcohol with other evidence, but the 0.08 threshold does not protect you.
Myth: Weaving is not enough reason to pull me over for DUI.
Reality: Arizona courts have upheld DUI stops based on weaving and drifting. This driving behavior before the stop can also become direct evidence of impairment at trial.
Arizona DUI Charges at a Glance: How Impairment Is Proved at Each Level
- Impaired to the slightest degree (ARS 28-1381(A)(1)): Any alcohol concentration. Actual impairment must be proven through observations and field sobriety tests. Same first-offense penalties as a standard DUI.
- Standard DUI (ARS 28-1381(A)(2)): Alcohol concentration 0.08 to 0.149. Impairment is presumed from alcohol concentration. Minimum 1 day jail, approximately $1,250 fines, 90-day suspension.
- Extreme DUI (ARS 28-1382(A)(1)): Alcohol concentration 0.15 to 0.199. Minimum 30 days jail (21 suspendable), approximately $2,500 fines.
- Super Extreme DUI (ARS 28-1382(A)(2)): Alcohol concentration 0.20 or higher. Minimum 45 days jail (31 suspendable), approximately $2,750 fines.
- Aggravated DUI (ARS 28-1383): Impairment or alcohol concentration of 0.08 or above with aggravating factors. Class 4 felony with mandatory prison.
Only the impaired-to-the-slightest-degree tier requires the prosecution to prove actual impairment. Every other tier is established by the alcohol concentration within two hours of driving.
Frequently Asked Questions
Q: Can you get a DUI in Arizona with a BAC of 0.05?
A: Yes. A BAC of 0.05 or below creates a legal presumption that you were not impaired, but the prosecution may be able to overcome this presumption with evidence such as failed field sobriety tests or physical signs observed by the officer.
Q: What happens if I refuse the breath or blood test in Arizona?
A: Refusing to submit to blood or breath tests generally triggers an automatic one year license suspension under Arizona’s implied consent law, which means you agreed to testing as a condition of driving in Arizona. The officer may also obtain a search warrant to draw your blood.
Q: Are the penalties the same if my alcohol concentration was under 0.08?
A: Yes. A first-offense conviction for impairment under ARS 28-1381(A)(1) carries the same mandatory penalties as a DUI based on a 0.08 alcohol concentration. The consequences for both are jail time, approximately $1,250 in fines, a 90-day license suspension, and an ignition interlock device.
Q: Can you get a DUI in Arizona while parked?
A: Arizona DUI law includes ‘actual physical control,’ not just driving, which means being in a position to operate the vehicle while impaired. Sitting in the driver’s seat with keys accessible while impaired can be enough for a charge, even if the car was not moving. The prosecution must prove that you had control of the vehicle, or were about to have control of it, in a way that posed a real danger to yourself or others.
Related Arizona Criminal Defense Guides
Extreme DUI vs. regular DUI in Arizona
If your BAC was 0.15 or higher, you are not facing a standard DUI. Extreme DUI carries significantly harsher mandatory minimums, including 30 days of mandatory jail time.
A complete overview of Arizona DUI penalties from first court appearance through sentencing, license suspension, and ignition interlock requirements.
Find the Right Attorney for Your Case
If you have been charged with DUI in Arizona, whether your alcohol concentration was over the limit or not, the most important step you can take right now is finding an experienced DUI defense attorney who knows Arizona law. Lawyer Listed connects you with a curated, peer-vetted network of elite criminal defense attorneys, free of charge. Get matched now at lawyerlisted.com.