If you’ve recently been accused of a DUI in Arizona and are combing the internet for answers, you’ll likely, at some point, end up the ADOT Driver Improvement website.  (www.azdot.gov/motor-vehicles/driver-services/driver-improvement/dui)

Even though this is the Arizona Department of Transportation’s official website, be wary of the information you find there.

For instance, ADOT states:

“If you are stopped for driving under the influence and a test shows that you have an alcohol concentration of 0.08 percent or more (0.04 in a commercial vehicle requiring a commercial driver license), or if a blood alcohol or drug test result is not available, you will lose your driving privilege on the spot. In addition you will be required to complete alcohol or drug screening before you can obtain a restricted permit or reinstate your driving privilege.”

Seems like reliable information, right?

Be careful, it’s only partly correct.

You see, if you are stopped for driving under the influence (DUI), you will NOT lose your driving privilege “on the spot.”

It’s true that the law enforcement officer will likely take possession of your physical license, but your privilege to drive is not immediately affected.  Indeed, so long as a Hearing Request is made with the ADOT Executive Hearing Office within 15 days of your contact with law enforcement, you’ll likely retain your privilege to drive for at least the following 4 to 6 weeks.

So where do you turn when the even information that your government is putting out there is incorrect?  You need to immediately contact an attorney experienced in dealing with the Arizona Department of Transportation.

If you’re in need of help, call the experienced attorneys at Gallagher & Kennedy to assist you.  A Gallagher & Kennedy criminal law attorney can be reached 24 hours a day, 7 days a week at (602) 510-9999.

A traffic stop is a scary moment few are prepared for.   Consult with a criminal law attorney at Gallagher & Kennedy (602) 510-9999.

The short answer is “yes,” but there are a number things you need to do to fully protect yourself in this situation.

We are seeing more and more DUIs in Arizona prosecuted where an individual simply pulls off to the side of the road and falls asleep in their vehicle or never even drives their vehicle and simply goes to sleep in their car.

The bad news is, even though you’ve tried to do the right thing by pulling off the roadway, there is still a high likelihood that you will be contacted by law enforcement – if for nothing more than for a “welfare check” on an individual sleeping (or having a medical emergency) in a vehicle.

The good news is that there is a legal theory in Arizona that protects people from convictions in these situations, but it is oftentimes a difficult path to travel down without an experienced lawyer.

As you likely know, in Arizona, you don’t actually have to be driving your vehicle to be prosecuted for (or convicted of) a DUI.  Indeed, in Arizona, if you have consumed alcohol and get behind the wheel, just being in “Actual Physical Control” of a motor vehicle can be enough to be convicted of DUI.

But, “Actual Physical Control” is a nebulous term that has spawned a number of legal decisions that have tried to define it for our trial courts.  Even the most recent case lists more than 13 different variables for determining what actually constitutes “Actual Physical Control” for the purposes of our DUI laws.

I have often made the practical argument that a person who voluntarily takes themselves off the roadway and out of a dangerous situation should not be treated the same as someone who knows that they’ve had too much to drink, but just tries to “make it home.”  The ability to raise and effectively negotiate this position, however, is one that certainly should be handled by an experienced criminal defense attorney.

Back to the good news: It is currently the law in Arizona that “[t]he law does not forbid an individual from using a vehicle as stationary shelter when there is no actual threat posed to the public by the exercise of present or imminent control over it while impaired.”  State v. Tarr, 331 P.3d 423 (2014).  “Actual Physical Control” cannot be based on speculative potential use, but rather requires proof that the individual presented a real danger to herself or others.

So, if you find yourself in this unfortunate situation, I have a few words of advice:

• (1) Don’t get into this position;
• (2) If you do get into this position, get your vehicle off the roadway as safely and expeditiously as you can;
• (3) Do NOT turn on the vehicle; indeed, don’t even put the keys in the ignition; and
• (4) Sit in the BACK seat, not the driver’s seat.

These tips won’t assure that you won’t have contact with law enforcement, but it will create a more defensible case particularly in light of the fact that you were trying to do the right thing by getting yourself off the roadway when you shouldn’t have been driving in the first place.

If you or a loved one find yourself in this position, it is vital that you consult an experienced criminal defense attorney to help you through the situation.  A Gallagher & Kennedy criminal law attorney can be reached, day or night, at (602) 510-9999 for a consultation.