Arizona DUI: A Manual for Police, Lawyers, and Judges, 2016-2017 Edition by Lankford Jefferson L

Author:Lankford, Jefferson L. [Lankford, Jefferson L.]
Language: eng
Format: epub
Publisher: LexisNexis
Published: 2016-08-30T16:00:00+00:00

The Section One Case

A Section One case requires that the defendant has been “under the influence” and “impaired to the slightest degree.” No proof of a particular alcohol level is required. Nor is proof needed of a particular quantity of a drug. And the State need not prove that defendant’s driving behavior was affected, and instead need only prove that defendant was impaired (under the influence) at the time of driving. 26 However, there is a correlation between alcohol level and impairment. At some low level of alcohol concentration, it will be difficult if not impossible to prove “under the influence” and “impairment.”

Presumptions come into play in a Section One case when evidence of alcohol concentration is available. The statutory presumptions have been upheld by the courts as constitutional. 27 According to A.R.S. § 28-1381(G), the driver is presumed not to have been under the influence if his or her alcohol concentration, as tested by blood or breath within two hours was 0.05 or less. If the test result was 0.08 or more within the two-hour window, the jury can presume that the driver was under the influence. These presumptions are not conclusive: The defendant can try to prove that he or she was not intoxicated at 0.08, and the State can try to prove that the defendant was intoxicated despite a test result of only 0.05. The two-hour window means that the result can be admitted without relation-back testimony when the test was performed within two hours of driving. 28

Even though the alcohol concentration level need not be proved in a Section One case, evidence of it is obviously very helpful. Because of the correlation between alcohol content and impairment, alcohol test evidence is powerful proof that the offense occurred.

Other evidence may also be used. 29 That includes evidence of moving traffic violations, performance on field sobriety tests, and observed behavior (such as slurred speech, bloodshot eyes) that can indicate intoxication. An expert may translate the results of a BAC test to the number of drinks the defendant had consumed. 30 An expert also may opine that a .08 or greater BAC renders it dangerous for anyone to drive. 31

Testimony about the suspect’s behavior, such as the manner in which he was driving, is admissible as evidence at trial. 32 However, the Arizona Supreme Court has discouraged trial courts from permitting officers to testify that in their opinion the suspect was intoxicated. 33 The officer’s opinion that the suspect was intoxicated is too prejudicial to be admitted in a case in which the only issue is the defendant’s alcohol concentration. 34 The officer can testify to “signs” of intoxication, or observed behaviors that suggest the driver was under the influence. Because the officer’s observations of signs of intoxication are admissible even if the officer is not an expert on intoxication, the testimony of other “lay” witnesses on the subject is also admissible. 35

What is impairment “to the slightest degree”? We can take the Legislature at its word, and safely say that it means any impairment of function, no matter how slight.

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