ARS 28-1381 (A)(2) Standard DUI

Under Arizona law, a person can be convicted of a Standard DUI, as defined by ARS 28-1381 (A)(2), if they operate or control a vehicle with a Blood Alcohol Concentration (BAC) of 0.08% or higher.



This page will explore everything you must understand if facing an ARS 28-1381 (A)(2) Standard DUI charge in Arizona, from potential penalties and associated costs to effective DUI defense strategies that could help lessen your charges or lead to a dismissal.


Continue reading below. If you have any questions, contact DUI defense attorney Arja Shah today.


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Arizona DUI Defense From The Shah Law Firm

Being charged with a Driving Under the Influence (DUI) offense in Arizona is serious.

It’s tied to a specific law known as ARS 28-1381 (A)(2). We’ve created this easy-to-follow guide to help you better understand this law and its meaning.

In this comprehensive guide, we’ll delve into the following topics:




Understanding ARS 28-1381 (A)(2): The Definition of a Standard DUI in Arizona

According to the Arizona Revised Statutes, a person may violate this law if they are in actual physical control of a vehicle and are under the influence of drugs, alcohol, a vapor-releasing substance containing a toxic substance, or any combination of liquor, drugs, or vapor releasing substances if the person is impaired to the slightest degree.

This gives Arizona some of the strictest DUI laws in the nation, recognizing that even slight impairment can be dangerous when operating a vehicle.

The Intricacies of “Actual Physical Control” in Arizona DUI Law

While it’s fairly straightforward that driving a vehicle while under the influence of alcohol or drugs is a violation of Arizona law under A.R.S. § 28-1381(A), the statute goes further to encompass those who are in “actual physical control” of a vehicle while intoxicated.

But what exactly does this term mean, and how does it differ from simply “driving” a vehicle?

Arizona courts have clarified the distinction between actively driving a vehicle and being in “actual physical control” of one.

In fact, under specific conditions, a person could be considered to have “actual physical control” of a vehicle while under the influence – thereby violating the law – even if they aren’t actively driving or if the car isn’t in motion.

In a 2009 court case, State of Arizona v. Zaragoza, the Arizona Supreme Court provided further guidance on interpreting “actual physical control.” They determined that when a jury is tasked with deciding whether a defendant was in “actual physical control” of a vehicle while under the influence, they should consider the entire context, as presented by the evidence.

They should evaluate whether the defendant’s existing or impending control of the vehicle posed a real risk to themselves or others at the time.

Factors to Consider in Determining “Actual Physical Control”

To establish whether a person was in “actual physical control” of a vehicle, the jury can consider several factors, including but not limited to:

  • Was the vehicle running, or was the ignition on?
  • Where was the ignition key found?
  • Where was the driver located in the vehicle, and in what position?
  • Was the person awake or asleep?
  • Were the vehicle’s headlights on?
  • Where was the vehicle parked or stopped?
  • Had the driver voluntarily pulled off the road?
  • What was the time of day and the weather conditions?
  • Were the vehicle’s heater or air conditioner running?
  • Were the vehicle’s windows up or down?
  • What does the evidence suggest about the circumstances?

This list demonstrates that in Arizona, a person could be convicted of a DUI even if they weren’t actively driving the vehicle while intoxicated.

If the “totality of the circumstances,” as demonstrated by the evidence, implies that their control of the vehicle posed a substantial danger to themselves or others, they could be found guilty under A.R.S. § 28-1381(A).

Penalties for a Standard DUI under ARS 28-1381 (A)(2)

Arizona’s tough stance on drinking while driving reflects its penalties for a standard DUI under ARS 28-1381 (A)(2).

A first offense carries a minimum jail term of 10 consecutive days, but eligibility for probation, suspension, or other relief can reduce this to 24 hours. 

Beyond jail time, a first-offense misdemeanor DUI can have considerable financial implications.

Below is an overview of the potential costs you could face:

  • Court Imposed Fines and Surcharges: These may add up to approximately $2,500, although this figure can fluctuate depending on the specific local jurisdiction fees.
  • Incarceration Costs: The expenses related to jail time can reach up to around $400.
  • Alcohol Screening Expenses: Expect to spend roughly $100 for mandatory alcohol screening.
  • Alcohol Education Programs: The cost of mandatory alcohol classes often reaches approximately $1,000.
  • Ignition Interlock Device: Installation and maintenance of this device can cost you about $1,500.
  • Insurance Policy Increase: Your insurance policy could increase by about $1,500 due to the DUI.
  • Additional Auto Insurance Premiums: You could pay around $9,000 in additional car insurance premiums over the following years.

When you add these expenses, the financial impact of a first-offense misdemeanor DUI in Arizona can amount to an estimated $16,000.

It’s a significant sum highlighting a DUI conviction’s severe consequences.

The Process of a DUI Arrest in Arizona: A Step-By-Step Overview

Every citizen should know the protocol police officers should follow when making a DUI arrest in Arizona. Each step is essential, and understanding them can be crucial in defending your rights:


Reasonable Suspicion

An officer can’t pull you over on a whim. They need a reasonable suspicion of wrongdoing, like swerving between lanes or speeding, to initiate a traffic stop.



Observation and Inquiry

Once the vehicle is stopped, the officer observes the driver for signs of intoxication like slurred speech or bloodshot eyes and may ask questions about the driver’s recent activities.



Field Sobriety Tests

If the officer suspects the driver is under the influence, they may conduct field sobriety tests such as the one-leg stand, walk-and-turn, or horizontal gaze nystagmus test. Remember, drivers have the right to refuse these tests.



Preliminary Breath Test

The officer may then use a preliminary breath test (PBT) device to estimate the driver’s blood alcohol concentration (BAC) at the scene. However, this test isn’t mandatory; you can refuse it without penalty.


Formal BAC Testing

Suppose the officer has probable cause to arrest the driver for a DUI based on the field sobriety tests or the PBT. In that case, they will take the driver to the station for formal BAC testing via breath, blood, or urine tests under Arizona’s implied consent law.


Arrest and Booking

If the formal BAC testing shows a BAC of 0.08% or more, or if there are other substantial indications of impairment due to alcohol or drugs, the officer will arrest the driver for DUI and complete the booking process.


Your Rights During a DUI Arrest in Arizona

It’s essential to know your rights during a DUI arrest in Arizona:

  • The Right to Remain Silent: You can avoid self-incrimination by choosing not to answer any questions that might imply guilt. It’s essential to respectfully communicate to the officer that you’re exercising your right to remain silent. 
  • The Right to Refuse Field Sobriety Tests: You can decline to participate in field sobriety tests without facing legal penalties.
  • The Right to an Attorney: You must consult with an attorney as soon as possible following your arrest. Remember to state this request to law enforcement clearly.

Remember, understanding the DUI arrest procedure and your rights during this process can be instrumental in building a successful defense strategy.

It’s always advisable to consult with a DUI lawyer, like those at The Shah Law Firm, to navigate the complex legal proceedings that follow a DUI arrest.

Top 5 FAQs About ARS 28-1381 (A)(2)

Below are the most common questions we are asked when a person has been arrested and charged with a standard DUI.

What are the administrative consequences of a Standard DUI under ARS 28-1381 (A)(2)?

Beyond criminal penalties, a Standard DUI can lead to administrative consequences such as suspension of your driving privileges by the Arizona Department of Transportation Motor Vehicle Division (MVD).

Are there any mitigating circumstances or aggravating factors in Arizona DUI cases?

Yes, both mitigating circumstances and aggravating factors can affect your case. Factors like your level of cooperation during the arrest, the presence of a minor in the vehicle, or causing an accident could influence the severity of the penalties.

How can prior DUI convictions impact my ARS 28-1381 (A)(2) case?

Previous DUI convictions can significantly increase the penalties for a Standard DUI. If you have a prior DUI conviction within the last seven years, you may face increased jail time, higher fines, and a longer period of mandatory ignition interlock device use.

Why do I need legal representation in ARS 28-1381 (A)(2) DUI cases?

A qualified DUI defense attorney can guide you through the complex legal process, help protect your rights, and advocate for the best possible outcome in your case. The DUI laws in Arizona are strict and complex, and having an expert by your side can make a significant difference.

What is considered a vehicle under ARS 28-1381 (A)(2) Standard DUI?

In the context of DUI laws, a “vehicle” extends beyond just cars or trucks. It can include any device in, on, or by which any person or property is or may be transported or drawn on a highway, excluding devices moved by human power or used exclusively on stationary rails or tracks.

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