CITY OF PHOENIX CHARGING AND PLEA BARGAIN GUIDELINES
§ 28-1382 DRIVING OR BEING IN ACTUAL PHYSICAL CONTROL WHILE UNDER THE EXTREME INFLUENCE OF 0F INTOXICATING LIQUOR
I. Having an alcohol concentration of .18 or more within two (2) hours of driving or being in actual physical control is a class 1 misdemeanor.
II. Elements Constituting the Offense.
1. A person
2. Who has an alcohol concentration of .18 or more
3. Within two hours of driving or being in actual physical control of a vehicle
III. Charging Considerations for §§ 28-1381(A)(1) and (A)(2).
1. Since many of the issues for violations of ARS § 28-1382 will be the same as for violations of ARS § 28-1381(A)(1) and (A)(2), the charging considerations for those sections should be reviewed.
2. ARS §§ 28-1381(A)(1) and (A)(2) Charges
If the defendant's alcohol concentration is .18 or above within two hours of driving, complaints should be filed for violations of §28-1381 (A)(1), § 28-1381 (A)(2) and § 28-1382.
3. Blood Tests
If the case involves a blood test, do not file an ARS § 28-1382 charge unless the time of the blood draw can be established. If the time is not in the AIR or DR, the reviewing prosecutor must call the Phoenix Police Department crime lab. The time of the blood draw should be noted on the specimen tube. This information must be documented in the COE with the name of the criminalist who provided the information.
When reviewing a blood case AIR, check to see that a betadine swab was used rather than an alcohol swab. It is also important to determine who took the blood for chain of custody issues that may arise. The qualifications of the person who drew the blood is not a foundational prerequisite. ARS § 28-1388(A).
4. Alcohol Concentrations of .20 or Below
In any case where the alcohol concentration is .20 or below and sufficient facts are known, the reviewing prosecutor must call the Phoenix Police Department crime lab for a retrograde extrapolation. The criminalist will need to know when the driving ended, when the test was given, the test result, the time of the last drink and the defendant's weight. The information provided to the criminalist should be noted in the COE with the name of the criminalist and the results of his/her calculations. This information should be considered in evaluating the factual sufficiency of the case.
If the defendant refused to answer questions or did not provide a time for the last drink, the crime lab will not be able to do a retrograde extrapolation. In such cases, it will be presumed that the .18 AC within the two hours of driving is sufficient to proceed with the ARS § 28-1382 charge.
IV. Offer Considerations
1. Offer Considerations for §§ 28-1381(A)(1) and (A)(2)
Since many of the issues for violations of ARS § 28-1382 will be the same as for violations of ARS §§ 28-1381 (A)(1) and (A)(2), the offer considerations for those sections should be reviewed.
2. Allegable Priors
Convictions of ARS §§ 28-1381, 28-1382 and 28-1383 within 60 months are allegable prior convictions for ARS § 28-1382. Convictions of violations in another state, a federal court or a tribal court if committed in Arizona would be a violation of §§28-1381, 28-1382 or 28-1383 are also allegable priors for ARS § 281382.
3. Mandatory Minimum Sentence
Defendant's convicted of ARS § 28-1382 as a first DUI offense at a minimum must be sentenced to the following:
Fine: $250
Jail: 30 *
Other: Substance Abuse Screening and Treatment; * All but 10 Consecutive Days in Jail Suspended on Successful Completion of SASS + Treatment; $250 Assessment for DUI Abatement Fund
4. Plea to Lesser Included Charge
Arizona Revised Statutes § 28-1381 (A)(2) is a lesser included offense of ARS § 28-1382. Arizona Revised Statutes § 28-1387(H) allows for dismissals of any of the DUI charges in exchange for a plea to another DUI charge. The "anti-plea bargaining provision" still prohibits a dismissal for a plea to any other charge or for any reason other than legal or factual insufficiency.
Based on this provision, a plea to § 28-1381(A)(1) will be considered for first offenses where the defendant's alcohol concentration is .18 to .25. See Section V -Recommended Offers [AC .18 - .25]. Mitigating and aggravating factors should be considered in determining the appropriateness of such a plea offer and the appropriate plea terms. Factors such as the defendant's alcohol concentration level and any retrograde extrapolation information, whether an accident occurred, and the number and nature of accompanying citations are among the factors to consider. Conversely, the lower the reading or the existence of factual issues that would result in a retrograde extrapolation at or below the .18 AC threshold should be considered in mitigating the offer.
In cases where the defendant's alcohol concentration is greater than .25, the plea offer will require a plea to the § 28-1382 charge. The recommended offer for second offenses lists the minimum sentence provided by statute. A prosecutor should adjust penalties upward if aggravating factors exist. See Section VI -Recommended Offers [AC .25 or More]. Factors such as the defendant's alcohol concentration level, whether an accident occurred, and the number and nature of accompanying citations are among the factors to consider.
The recommended offer for second offenses lists the minimum sentence provided by statute. A prosecutor should adjust penalties upward if aggravating factors exist. Factors such as the defendant's alcohol concentration level, whether an accident occurred, and the number and nature of accompanying citations are among the factors to consider.
V. RECOMMENDED OFFERS - § 28-1382 - DRIVING OR BEING IN ACTUAL PHYSICAL CONTROL WHILE UNDER THE EXTREME INFLUENCE OF INTOXICATING LIQUOR [AC .18 - .25]
1ST OFFENSE [AC .18 TO .25] PLEAD TO § 28-1381 (A)(1)
FINE: $250
JAIL: 15 *
OTHER: SUBSTANCE ABUSE SCREENING AND TREATMENT; * ALL BUT 5 CONSECUTIVE DAYS IN JAIL
SUSPENDED ON SUCCESSFUL COMPLETION OF SASS + TREATMENT; $250 ASSESSMENT FOR DUI ABATEMENT
FUND
2ND OFFENSE WITHIN 60 MONTHS MANDATORY MINIMUM SENTENCE -- PLEAD TO CHARGE
FINE: $500
JAIL: 120
OTHER: SUBSTANCE ABUSE SCREENING AND TREATMENT; *ALL BUT 60 CONSECUTIVE DAYS IN JAIL
SUSPENDED ON SUCCESSFUL COMPLETION OF SASS + TREATMENT; SURRENDER LICENSE TO COURT; $250
ASSESSMENT FOR DUI ABATEMENT FUND
3RD OFFENSE WITHIN 60 MONTHS -- CONSULT SUPERVISOR -- CLASS 4 FELONY
VI. RECOMMENDED OFFERS - § 28-1382 - DRIVING OR BEING IN ACTUAL PHYSICAL CONTROL WHILE UNDER THE EXTREME INFLUENCE OF INTOXICATING LIQUOR [AC GREATER THAN .25]
1ST OFFENSE
[AC GREATER THAN .25]
MANDATORY MINIMUM SENTENCE -- PLEAD TO CHARGE
FINE: $250
JAIL: 30 *
OTHER: SUBSTANCE ABUSE SCREENING AND TREATMENT; ALL BUT 10 CONSECUTIVE DAYS IN JAIL
SUSPENDED ON SUCCESSFUL COMPLETION OF SASS + TREATMENT; $250 ASSESSMENT FOR DUI ABATEMENT
FUND
2ND OFFENSE WITHIN 60 MONTHS MANDATORY MINIMUM SENTENCE -- PLEAD TO CHARGE
FINE: $500
JAIL: 120 *
OTHER: SUBSTANCE ABUSE SCREENING AND TREATMENT; *ALL BUT 60 CONSECUTIVE DAYS IN JAIL
SUSPENDED ON SUCCESSFUL COMPLETION OF SASS + TREATMENT; SURRENDER LICENSE TO COURT; $250
ASSESSMENT FOR DUI ABATEMENT FUND
3RD OFFENSE WITHIN 60 MONTHS -- CONSULT SUPERVISOR -- CLASS 4 FELONY