Tuesday, April 16, 2024

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Will I lose my license if I am arrested for DUI in Arizona?

By simply driving in the State of Arizona, you impliedly agree that if you are stopped and arrested for DUI, you will submit to chemical testing. This is why it is called the “Implied Consent Law” and the requirements vary from state-to-state, so what may be good advice in Arizona regarding the Implied Consent Law, may be bad advice in any other state.

In Arizona, if you are arrested for DUI, the police will choose either a breath, blood or urine test as a means of checking for alcohol concentration or for the presence of illegal drugs. The police may require you to submit to one or more of the tests. For example, if they choose a breath test and the result is under the prohibited limit of .080, they may choose to draw blood or collect urine to check for drugs.

If you are involved in a serious accident or a fatality, they may choose to draw several vials of blood over a long time-period in order to establish an alcohol-curve to determine if your alcohol concentration was higher or lower at the time of the accident.

If you are placed under arrest for DUI, the police will read the following three-part “admonitions” to you prior to asking for a chemical test:

“Arizona law requires you to submit to and successfully complete tests of breath, blood or other bodily substance as chosen by the law enforcement officer to determine alcohol concentration or drug content. The law enforcement officer may require you to submit to two or more tests. You are required to successfully complete each of the tests.”

“If the test results are not available or indicate your alcohol concentration is 0.08 or above (0.04 or above in a commercial vehicle) or indicate any drug defined in ARS 13-3401 or its metabolite, without a valid prescription, your Arizona driving privilege will be suspended for not less than 90 consecutive days.”

“If you refuse to submit or do not successfully complete the specified tests, your Arizona driving privilege will be suspended for 12 months, or for two years if there is a prior implied consent refusal, within the last 84 months, on your record. You are, therefore, required to submit to the specified test.”

If you refuse to take the test, or if you take the test and the result is over the prohibited level, or if you have a prohibited drug in your system, or even if the results are not available, the officer will take your Arizona license away and issues a temporary 15-day permit. If you want a hearing on that suspension, you must request one before the permit expires. If you do request a hearing, you can continue to drive until your hearing, which may be months away. (Note that if you refuse to submit to a chemical test, the police in Arizona will also seek a search warrant from a judge and forcibly draw blood from you).

At the hearing, there will be an Administrative Law Judge who will act as both judge and prosecutor. The Administrative Law Judge will present evidence against you, just like a prosecutor. The Administrative Law Judge will rule on your objections to his or her evidence (which makes it difficult to win those objections) and the Rules of Evidence don’t apply, which makes it difficult to find grounds to make the objections in the first place. It is set up to take away your license, but what are your options?

Your first option is to let them suspend your license.

The second option is to fight it–even if you stand a substantial chance of losing.

The Administrative Law Judge cannot alter the order of suspension (i.e. make it longer or shorter), he or she can only enforce it or void the order. The Administrative Law Judge cannot take into account hardship. The Administrative Law Judge cannot even consider whether your vehicle was stopped legally or illegally. The scope of the hearing is limited to whether the police had reasonable grounds to believe that you were driving under the influence. Whether you were arrested for it. Whether the implied consent admonitions were read to you. Whether you successfully completed a test or not and whether you had a prohibited drug or a prohibited amount of alcohol in your system.

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James Nesci

James Nesci

James Nesci often defends cases well into the .30 blood-alcohol range. He has caught more than one police officer lying during cross-examination and some police officers have even refused to grant pretrial interviews to him without a prosecutor or their own counsel present. He was one of the lead attorneys on the Intoximeters® RBT-IV breath-testing issue in Southern Arizona which resulted in the suppression of breath tests in over 7,000 cases and the removal of the RBT-IV from the streets of Arizona. He also spear-headed the effort to obtain the manufacturer’s source code and software for the CMI Intoxilyzer 8000. Although the source code was never obtained, he almost single-handedly ground 90% of all DUI prosecutions within the City of Tucson to a halt for nearly three years and obtained breath test suppressions and dismissals in hundreds of DUI cases. In addition to “traditional” DUI cases which involve alcohol, Mr. Nesci is a recognized expert on the defense of DUI/Drugs cases. Whether they be legal-over-the-counter-medications, prescription medications or illicit drugs, such DUI cases are far more complex and present cutting-edge issues for the courts. He is qualified to administer Standardized Field Sobriety Tests under National Highway Traffic Safety Administration & International Association of Chiefs of Police Guidelines. In 2006, he was appointed Regent of the National College for DUI Defense, Inc. He was formerly the chair of the Curriculum Committee for the NCDD. Currently, he is the State Delegate Coordinator, a member of the Amicus Committee, Treasurer of the NCDD, Member of the Executive Committee and served as an oral argument judge for the Board Certification Committee. Mr. Nesci is the author of Arizona DUI Defense: The Law & Practice, a legal treatise written for DUI defense attorneys and published by Lawyers and Judges Publishing Company (now in its third edition) [www.lawyersandjudges.com]. In 1999 Mr. Nesci became a Sustaining Member of the National College for DUI Defense [www.NCDD.com]. In 2001, he was Board Certified by the National College for DUI Defense, Inc., which is a is recognized by the American Bar Association. He is one of only three Board Certified attorneys in the State of Arizona, and one of less than fifty Board Certified attorneys in the nation (as of January, 2012). Mr. Nesci has lectured from coast-to-coast for such organizations as The University of Arizona James E. Rogers College of Law, Arizona State University College of Law Alumni Association, University of Mississippi CLE Department, South Texas College of Law CLE Department, Arkansas Association of Criminal Defense Lawyers, Arizona Attorneys for Criminal Justice, Arizona Public Defenders Association, California Attorneys for Criminal Justice, City of Phoenix Public Defender's Office, Colorado Criminal Defense Bar, Florida Association of Criminal Defense Lawyers, Indiana Public Defender’s Council, Kansas Association of Criminal Defense Lawyers, Louisiana Association of Criminal Defense Lawyers, Maricopa County Bar Association, Maricopa County Public Defender's Office, Maryland Criminal Defense Attorneys Association, the Mexican-American Bar Association at Loyola, the National Association of Criminal Defense Lawyers, the National College for DUI Defense, the Nebraska Criminal Defense Attorney’s Association, the Nevada State Bar Association, the New York State Bar Association, the Ohio Association of Criminal Defense Lawyers, the Pima County Bar Association, the Pima County Bar Association Young Lawyer’s Division, the Texas Criminal Defense Lawyers Association, the Tucson City Public Defender’s Office, the Tulare County (California) Public Defender’s Association, the Utah Criminal Defense Lawyers Association, and the Washington Foundation for Criminal Justice. He has taught seminars on the subjects of Ethics, 4th Amendment Law, Drug Recognition Evaluations (DUI-Drugs/DRE), Cross-Examination, Trial Tactics, Jury Selection, Field Sobriety Testing, Driving Behavior, Blood Alcohol Calculations, Opening & Closing Arguments, Source Code Litigation, Frye & Daubert Challenges, Intoxilyzer 8000 Operator’s Course, Headspace Gas Chromatography, Blood and Breath Testing. He has represented former Supremes lead singer Diana Ross and Tampa Bay Buccaneers' Tight-End Jerramy Stevens on Extreme DUI charges and fitness guru Richard Simmons on an assault charge. Mr. Nesci lives in Tucson with his wife and twin daughters. He is an honorably discharged veteran of the U.S. Navy where he spent much of his time working as an electrician in the Philadelphia Naval Shipyards. His interests are traveling, fine wines, vintage port and fast cars. He is an amateur race car driver, an accomplished mechanic, and a Corvette fanatic.

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