Aggravated DUI with Child in Car:
If you are cited for any DUI while a child under the age of fifteen (15) was a passenger, you can also be charged with an Aggravated DUI (class six (6) felony). Although this type of DUI is not as serious as the standard class four (4) Aggravated DUI, it still is a felony. The State would need to prove not only that the child in the car was under fifteen (15) years of age, but that you were also either impaired by alcohol while driving, or you had a blood alcohol concentration of .08% or higher within two (2) hours of being stopped by the Officers.
For a first offense class six (6) felony, you can be sentenced anywhere from probation with one (1) to ninety (90) days in jail minimum (depending if you have a prior DUI or DWI conviction, and whether your blood alcohol content is above or below the Extreme DUI mark of .15%, or the Super Extreme mark of .20%) up to one (1) year in jail; and prison of four (4) months to two (2) years of incarceration. If the person has one (1) allegeable historical felony prior conviction, then the “prison only” range is nine (9) months to two and three quarters (2.75) years in prison. If the person has two (2) allegeable historical felony prior convictions, then the “prison only” range is two and one quarter (2.25) to five and three quarters (5.75) years of incarceration.
Additional Punishment for Aggravated DUI / DWI
In addition, to the above penalties, your license will be revoked for a minimum of three (3) years. When you do get your license back, then you will be required for at least one (1) year to place an interlock device (i.e., a breath testing device) on your steering wheel that you will have to blow into every time you start your car, and every fifteen (15) minutes after your car is running in order to keep the ignition from shutting off and the head lights from flashing. This will cost a minimum of $1500.00.
Possible Defenses for Aggravated DUI / DWI
There are many defenses to the Aggravated DUI and the Aggravated DWI charges. Don’t believe the Prosecutor – there are very few hopeless cases. The Aggravated DUI or the Aggravated DWI conviction has lifelong consequences, and-depending on the facts surrounding the individual case-Dismissal or Acquittal is Possible.
Below is a partial list of Possible Defenses for Aggravated DUI / DWI:
“No Reasonable Suspicion to Stop” Officers are not permitted to stop or detain someone based on pretexts regarding race, religion, gender, age, sexual preference nor on a host of other possible unjustifiable reasons.
Watch the following Video to hear how David M Cantor and his legal team handle the Arizona Aggravated DUI Defense for No Reasonable Suspicion to Stop:
“No Actual Physical Control” If a person has had too much to drink, pulls off the roadway, leaves the engine running with the A/C or heater on, and attempts to “sleep it off”, then they are not in “actual physical control” of their vehicle and are not guilty of DUI or DWI.
Watch the following Video to hear how David M Cantor and his legal team handle the Defense of Aggravated DUI for No Actual Physical Control:
“No Probable Cause for Arrest”If an officer did not have probable cause that a person was actually under the influence of alcohol, then the arrest will be invalidated (i.e. if the Field Sobriety Tests (FSTs) were improperly administered). The National Highway Traffic Safety Administration (NHTSA) has set forth guidelines regarding FSTs. The tests should not be given if the suspect:
is 50 pounds or more overweight
is 65 years of age or older
has any back, hip, leg, knee, or ankle injuries
has any disability effecting balance
is wearing shoes with heels two (2) inches or higher
Remember, you always have the right to refuse Field Sobriety Tests (i.e., the “physical” tests). Do not believe the Officer if he tells you otherwise!
If the Horizontal Gaze Nystagmus (HGN) or “eye test” was given by an officer not yet certified to give that test, it will be inadmissible in court.
Note: if the only basis for arrest is refusing to perform FSTs, then the arrest will be invalidated.
“Denial of Right to Counsel” When arrested for DUI or DWI, upon requesting a DUI/DWI Lawyer in Arizona, the police must get you to a phone as soon as it is reasonably possible. If they ignore your request, or wait too long, this could be grounds for dismissal. (See also THE RIGHT TO REMAIN SILENT-USE IT! Section).
Watch the following video the hear how David M Cantor and his legal team handle the Arizona Aggravated DUI Defense for Denial of Right to Counsel:
“Inaccuracy of the Breath or Blood Testing Device” The AZ Department of Health Services (DHS) has set forth rules for the proper maintenance of breath testing devices. They must be calibrated to within a 10% accuracy range every thirty-one (31) days. In addition, the machine goes through a seven (7) test Standard Quality Assurance Procedure (SQAP) every ninety (90) days. If any of the maintenance checks are “out of tolerance”, then all breath tests given during the time interval between the two maintenance checks will be inadmissible. The prosecutor will not point this out for you.
Watch the following video to hear how David M Cantor and his legal team handle the Arizona Aggravated DUI Defense for Inaccuracy of the Breath or Blood Testing Device:
“Retrograde Extrapolation below .08% BAC at Time of Driving.” It can be shown through a math calculation that any alcohol drank in the last hour prior to being stopped would still be in your stomach and not in your blood system “at the time of driving”. For example, a one hundred and fifty (150) pound man who had a breath test of .15% an hour after he was stopped, yet he drank three beers in the last hour before leaving the bar, it can be shown that his BAC “at the time of driving” was as low as .075%. This number can go even lower due to other factors such as a ten percent variance and inaccurate blood to breath conversion ratios (i.e., “2100-1″) which are inherent to all breath testing devices. As of 7/17/00 the Legislature passed a law stating that this is only a defense to the DUI charge, not the DWI or the Extreme DWI charges. However, we will be challenging this change in the law as unconstitutional. This has already been successfully reversed in Delaware and Pennsylvania. We are continually challenging this law in the Appellate Courts. See us immediately to discuss the ongoing status of the “BAC at the time of driving” defense.
The “Common Defenses” for Aggravated DUI/DWI Felonies, which an Aggravated DUI/DWI Felony Lawyer may apply in any criminal case are numerous and diverse. One of most common defenses we encounter is a “Miranda rights Violation”. In Arizona, the standard of whether any inculpatory statement (i.e., a statement which tends to admit guilt) is admissible into evidence is based upon a “Voluntariness” standard. If we can demonstrate that the police coerced you (i.e., intimidated or tricked you) into making a confession or inculpatory statement, or that they did not properly read you your Miranda Rights, then we can suppress those statements and any evidence gathered as a direct result of those statements. In addition, “Denial of right to Counsel” is another common defense which is often raised. This occurs when a suspect is in custody and requests to speak to their Attorney, but is denied and questioning continues. Other defenses may include challenging the validity of any search warrant, or whether there were any “forensic flaws” during the investigation of your case. Depending on what you have been charged with, this could include exposing flawed procedures regarding blood, breath, and urine testing; fingerprints analysis; DNA testing; ballistics; gunshot residue testing; computer analysis/”cloning hard drive” procedures; forensic financial accounting reviews; etc. Lastly, one of the most common defenses is exposing sloppy or misleading police reports which include everything from misstatements, false statements, flawed photo line-ups and inaccurate crime scene reconstruction. It is important to hire a skilled Aggravated DUI/DWI Felony Lawyer to defend you who has knowledge of both the specific defenses and the common defenses involved in an Aggravated DUI/DWI Felony case.
