The Most Misunderstood DUI Law Changes in Recent History
Mark Weingart’s Analysis
As a practicing DUI defense attorney for over 25 years, I have lived the metamorphosis of DUI law in Arizona every step of the way. The changes that took effect on January 1, are the most complex of all in that the changes are slight and yet numerous. Not to worry, “Yes Virginia, Arizona DUI laws are still the toughest in the country!” All you heard on the news over the New Year weekend was that the jail time required was reduced from 24 hours to 1 day, and there are no more jury trials for DUI defendants. Also reported was that the ignition interlock requirement, for first offenders, was reduced to six months. This is not really true.
AZ SB 1200
Let’s start with the Bill itself. This was a 47 page Bill that had amendments flying in and out until the last possible second. The jury trial change was one of those stuck in at the last minute. To be clear, the jury trial removal was only as to a first offense regular DUI with alcohol content between .08 and .15. Jury is still permitted for extreme (.15-.199) and super extreme allegations (.20+). Trial by jury is also permitted for any second or more offenses and Aggravated DUI. Although some in the defense bar are screaming “APPEAL”, the case law from the Arizona Supreme Court does not favor such a victory. One has the right to a jury if the legislature says so. Because this change will affect such a very few of the cases, it is not the end of constitutional rights for DUI defendants in Arizona. In fact, there is rumor that the legislature may well repeal that provision soon. This is because the removal of the jury on regular DUI cases, makes a trial with multiple charges a logistical nightmare for the Court.
24 Hours vs. 1 Day
This is somewhat technical. Many agencies actually book a person arrested for DUI into jail that night. One can be held from 2-18 hours before release. Up until now, that time could not be credited against the 24 consecutive hours to served if convicted of a first offense regular (.08-.15) DUI. Now the judge has the ability to give credit for the time in custody and no further jail may be required. The semantics of this change give the judge that option.
Ignition Interlock Device and How Time is Served
The two real sweeping changes to emerge from the new changes in the law are the expanded use of Ignition Interlock Device, and the way jail time can be served. It appears that the goal of the legislature was to punish and at the same time give one convicted of DUI the ability to continue to work and support loved ones. Let me explain.
Ignition Interlock Device
Let me make it real clear here, the Ignition Interlock Device is still required for 1 year if convicted of a regular DUI, not 6 months. After 6 months, if there are no proven violations such as tampering or alcohol blows over the .08 limit, the MVD will “abate” the balance of the 1 year.
The availability of the ignition interlock device (IID) in place of absolute suspension or revocation is greatly expanded. Previously, a conviction for a second offense of any DUI within 7 years of a prior conviction resulted in a one year absolute revocation and no ability to drive. This was harsh and unrealistic. Now, if one waits until the normal DUI suspension is over (90 days) he/she can have installed the IID and drive for the balance of the time. There is a real possibility that one can even do the IID for the 90 day suspension too. IID is still available during suspension for refusing to take the breath or blood test. After 90 days, one can install IID for the balance of the year. The new law change removed the requirement of IID for 1 year after suspension for conviction of DUI drugs.
How Time is Served
Although the amount of jail time has not changed for DUI, extreme and super extreme, the way one serves it did. The law on home detention, or home arrest changed 2 things.
1. Home Arrest
First, the County justice and Superior Courts can utilize home arrest. Until now, only the cities could.
2. Time Under Home Arrest
Also, the calculation of how much home arrest time one can have changed. Now, no matter how long or short the jail time, after 20% of the sentence is served in jail (still on work/school release 12 hours/day) the balance is home arrest eligible. For example, on a first offense extreme DUI with alcohol % above .15, one would serve 6 days jail on work release, and the balance (24 days) on home arrest. Expect home arrest to cost $15- $20/day compared to jail which is $80-$120/day. The home arrest area is such a large topic, that it will be addressed in a separate blog in the near future.
The Best Kept Secret About AZ SB 1200
The best kept secret until now, in this 40+ page law changing bill that became effective 1/1/12, is that there is an alternative for those convicted of a first time extreme or super extreme DUI. I have already spent hours of time researching the availability of this for my clients.
The change is that the jail time can be reduced to 9 days on an extreme (.15-.199) and 14 days on a super extreme (.20+)! It is very complicated, but doable. In theory on a 9 day sentence one would serve only 2 days in jail, and 7 days home arrest. It also requires the IID for a little over a year. There is much more to it and a good lawyer should be able to make it work.
