So you’re starting to get the picture- a first offense DUI can be pretty bad. In fact, you can be charged with up to five different statutes. In the last blog post, we covered the ‘catch all’ charge under A.R.S. Section 28-1381(A)(1). Now that I’ve got your attention, the second is the one you’ve probably heard of…

‘BAC Greater than .08 Within Two Hours of Driving’

Section 28-1381 (A)(2): Blood Alcohol Content BAC .08 or above is what everyone thinks about when they hear “DUI”.

A person is guilty of A.R.S. Section 28-1381(A)(2) if:

“The person has an alcohol concentration of 0.08 or more within two hours of driving or being in actual physical control of the vehicle and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle”.

This law is the one that draws a distinct line- anyone driving with a BAC at or above .08 is guilty of violating this statute.

Due to the language used within this statute, the time of driving is VERY important.

Time Is Not On Your Side

What that means to you is that whatever your BAC was at the time of the chemical test (whether it was a blood, breath, or urine test), that BAC is deemed to be your BAC at the time of driving.

Since I get so many questions about this one, let me paint the picture for you:

What if you had one last drink at the bar, started driving and immediately got pulled over, but by the time your blood was drawn an hour or so later, your BAC was higher than when you first started driving (due to various absorption rate factors)?

You would say: because my BAC was higher at the time of the test, I was not driving with that BAC.

Well, the prosecutors say, “too bad”. (I’ll discuss the Rising BAC defense in a later blog.)

What does a conviction mean?

The punishment for a violation of Section 28-1381(A)(2), as long as the BAC was less than .15 is up to 6 months in jail and a fine of $2500.00. In reality, though, there are guidelines that are followed.

The minimum that any court can impose upon conviction (or offer in a plea agreement) is: (1) ten days in jail, nine of which can be suspended, (2) $1,250.00 in fines, (3) additional fees, (4) and even more in surcharges, (5) mandatory attendance at an alcohol screening, and (6) having an ignition interlock installed in your car for twelve (12) months.

Remember, this is just for a class 1 misdemeanor, your first offense– after that, the penalties become harsher.