10.1 Arizona DUI Enforcement, SFSTs & Implied Consent (ARS 28-1381, 28-1382, 28-1383, 28-1321)

10.1 Arizona DUI Enforcement, SFSTs & Implied Consent (ARS 28-1381, 28-1382, 28-1383, 28-1321)

AZPOST Comprehensive Examination Focus: Recruits must demonstrate absolute statutory mastery of Arizona Revised Statutes (A.R.S.) Title 28 impaired driving statutes, differentiating between driving under the influence to the slightest degree, per se alcohol concentrations, illicit drug metabolites, extreme DUI, super extreme DUI, and felony aggravated DUI. Furthermore, recruits must apply the procedural mandates of Arizona's Implied Consent law (A.R.S. § 28-1321), administer and evaluate the NHTSA Standardized Field Sobriety Tests (SFSTs), and recognize the systematic 12-step Drug Recognition Expert (DRE) evaluation protocol pursuant to Ariz. Admin. Code R13-4-116(E)(1)(d)(i).

Impaired driving enforcement is a core life-safety mission of Arizona law enforcement. Arizona maintains some of the nation's most stringent impaired driving statutes, pairing strict liability standards for controlled substances with severe administrative and criminal sanctions for elevated alcohol concentrations.

---

1. Statutory Framework: Arizona DUI Statutes (A.R.S. § 28-1381)

Arizona's foundational driving under the influence statute is codified in A.R.S. § 28-1381. To establish a violation of any subsection, the prosecution must first prove two threshold jurisdictional elements beyond a reasonable doubt:

1. The defendant was driving or in actual physical control (APC); AND
2. Of a vehicle (motor vehicle, golf cart, motorcycle, or other statutory conveyance under A.R.S. § 28-101).

                                  [ The Arizona DUI Spectrum ]
                                               |
       +---------------------------------------+---------------------------------------+
       |                                       |                                       |
[ A.R.S. § 28-1381(A)(1) ]             [ A.R.S. § 28-1381(A)(2) ]             [ A.R.S. § 28-1381(A)(3) ]
Impaired to Slightest Degree           Per Se Alcohol Concentration           Illicit Drug or Metabolite
Any measurable alcohol, drug,          0.080 or more within two hours         Any Schedule I or II drug or
or vapor impairing driving             of driving or actual physical control   metabolite; Strict Liability
(Class 1 Misdemeanor)                  (Class 1 Misdemeanor)                  (Class 1 Misdemeanor)

Actual Physical Control (APC) Standard

Under Arizona Supreme Court jurisprudence (State v. Zaragoza, 221 Ariz. 49, 209 P.3d 629 (2009); State v. Love, 182 Ariz. 324, 897 P.2d 626 (1995)), an individual can be convicted of DUI even if the vehicle is stationary or the engine is shut off. Whether a person is in "actual physical control" depends on the totality of the circumstances to determine whether the person placed the vehicle in a position that posed a real danger to themselves or other roadway users, rather than using the vehicle as a temporary, stationary shelter.

Substantive Misdemeanor Offenses (A.R.S. § 28-1381)

• A.R.S. § 28-1381(A)(1) (Impaired to the Slightest Degree): It is unlawful for a person to drive or be in actual physical control of a vehicle while under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance, or any combination of liquor, drugs, or vapor, if the person is impaired to the slightest degree. Chemical testing is not required to sustain a conviction; proof rests upon observable driving behavior, physical cues (slurred speech, odor of alcohol, unsteady gait), standardized field sobriety tests, and suspect admissions. (Class 1 misdemeanor).
• A.R.S. § 28-1381(A)(2) (Per Se DUI): It is unlawful to have an alcohol concentration of 0.080 or more within two hours of driving or being in actual physical control, where the alcohol concentration results from alcohol consumed before or while driving. (Class 1 misdemeanor).
• A.R.S. § 28-1381(A)(3) (Strict Liability Drug DUI): It is unlawful to drive or be in actual physical control of a vehicle while there is any drug defined in § 13-3401 or its active metabolite in the person's body. Under State v. Phillips, 178 Ariz. 368, 873 P.2d 706 (App. 1994) and State ex rel. Montgomery v. Harris, 234 Ariz. 343, 322 P.3d 160 (2014), subsection (A)(3) is a strict liability offense—the state does NOT have to prove actual impairment. However, the metabolite must be an active, psychoactive metabolite (e.g., hydroxy-THC) rather than an inert, inactive compound (e.g., carboxy-THC).
• A.R.S. § 28-1381(A)(4) (Commercial Motor Vehicle Per Se): It is unlawful to drive or be in actual physical control of a commercial motor vehicle with an alcohol concentration of 0.040 or more within two hours of driving.
• Statutory Affirmative Defense (§ 28-1381(D)): A person using a drug pursuant to a valid medical prescription written by a licensed medical practitioner is not guilty of subsection (A)(3), unless the person is also impaired to the slightest degree under subsection (A)(1). A medical prescription does not confer immunity to drive while impaired.

Mandatory Minimum Penalties for Standard DUI (A.R.S. § 28-1381(I) & (K))

• First Offense (Class 1 Misdemeanor):
  • Minimum 10 consecutive days in jail (up to 9 days may be suspended upon completion of court-ordered alcohol/drug screening and education = 24 hours minimum served).
  • Fines and statutory surcharges totaling over $1,500 (deposited into Arizona general fund, prison construction fund, and public safety equipment funds).
  • Driver license suspension for 90 consecutive days (eligible for restricted permit after 30 days).
  • Mandatory certified Ignition Interlock Device (IID) installed on any motor vehicle operated for 12 consecutive months.
  • Mandatory community restitution hours and alcohol screening/treatment.
• Second Offense Within 84 Months (Class 1 Misdemeanor):
  • Minimum 90 days in jail, 30 of which must be served consecutively (A.R.S. § 28-1381(K)(1)); at sentencing the judge may suspend all but 30 days if the person completes court-ordered alcohol or drug screening, education, evidence-based psychotherapy, or treatment. Note the wording: the statute says 90 days of which 30 are consecutive, not 90 consecutive days.
  • Fines and assessments exceeding $3,000.
  • Driver license revocation for 1 full year.
  • At least 30 hours of community restitution.
  • Mandatory certified Ignition Interlock Device for 12 months following license reinstatement.

---

2. Extreme DUI, Super Extreme DUI & Felony Aggravated DUI

Arizona statute establishes tiered penalties based on ascending blood alcohol concentration (BAC) tiers and aggravating criminal circumstances.

                         [ Aggravated DUI Triggers (A.R.S. § 28-1383) ]
                                               |
       +-------------------+-------------------+-------------------+-------------------+
       |                   |                   |                   |                   |
[ Subsection (A)(1) ] [ Subsection (A)(2) ] [ Subsection (A)(3) ] [ Subsection (A)(4) ] [ Subsection (A)(5) ]
Suspended / Revoked   3rd in 84 Months      Child Passenger Under 15  Ignition Interlock   Wrong-Way Driving
License or Privilege  (7-Year Lookback)     (Passenger < 15 Years)    Device Mandate       on Highway
Class 4 Felony        Class 4 Felony        Class 6 Felony            Class 4 Felony       Class 4 Felony

Aggravated DUI (A.R.S. § 28-1383) Trigger Elements

A person commits Aggravated DUI by committing any violation of § 28-1381 or § 28-1382 under any of the following five statutory circumstances:

1. Suspended, Revoked, or Canceled License (§ 28-1383(A)(1)): Commits DUI while the person's driver license or privilege to drive is suspended, canceled, revoked, or refused, or while a restriction is in place under § 28-144, § 28-1381, or § 28-1382. (Class 4 Felony).
2. Third Offense Within 84 Months (§ 28-1383(A)(2)): Within a period of 84 months (7 years), the person commits a third or subsequent DUI violation and is convicted of at least two prior DUI offenses. (Class 4 Felony; carries a mandatory minimum sentence of 4 months in the Arizona Department of Corrections).
3. Passenger Under 15 Years of Age (§ 28-1383(A)(3)): While committing DUI, the person has a passenger who is under 15 years of age in the vehicle. (Class 6 Felony).
4. Ignition Interlock Device (IID) Order (§ 28-1383(A)(4)): Commits DUI while ordered by the court or the Arizona Department of Transportation to operate a motor vehicle only with a certified ignition interlock device. (Class 4 Felony).
5. Wrong-Way Driving on a Controlled-Access Highway (§ 28-1383(A)(5)): Drives the wrong way on any highway or controlled-access roadway while impaired. (Class 4 Felony).

---

3. Implied Consent, Admin Per Se & Search Warrant Procedures (A.R.S. § 28-1321)

Under A.R.S. § 28-1321, any person who operates a motor vehicle within Arizona is deemed to have given consent to a test and sample of blood, breath, urine, or other bodily substance for the purpose of determining alcohol concentration or the presence of drugs.

The Implied Consent Sequence

1. Lawful Arrest on Probable Cause: The officer must arrest the person based on probable cause that the person was driving or in actual physical control of a vehicle while impaired under § 28-1381, § 28-1382, or § 28-1383.
2. Statutory Admonition: The officer reads the standardized Arizona Implied Consent affidavit (Form 40-1002 / Admin Per Se / Implied Consent Affidavit). The officer must warn the suspect that Arizona law requires them to submit to the specified chemical test, and that refusal or failure to complete the test will result in an immediate 12-month suspension of their driving privileges (or 24 months if their license has been suspended within the previous 84 months for a prior refusal).

                                  [ Suspect Chemical Test Response ]
                                                   |
       +-------------------------------------------+-------------------------------------------+
       |                                                                                       |
[ Suspect Consents to Test ]                                                        [ Suspect Refuses to Test ]
Chemical Test Administered (Breath or Blood)                                        Officer Serves 12-Month Refusal Notice
       |                                                                                       |
       +-----------------------------------+                                                   v
       |                                   |                                        [ Apply for Telephonic Warrant ]
[ BAC < 0.080 / No Drugs ]       [ BAC >= 0.080 / Drugs Detected ]                  A.R.S. §§ 13-3914 & 13-3915
Administrative Per Se does       Officer serves Admin Per Se Form:                  Sworn oral statement to magistrate;
not apply; prosecute under       - 90-Day Suspension                                execute blood draw using
§ 28-1381(A)(1) if impaired      (30 days no driving; 60 days restricted)           reasonable force if necessary

Admin Per Se Suspensions vs. Refusal Suspensions

Telephonic Search Warrant Procedure (A.R.S. §§ 13-3914 & 13-3915)

A suspect's refusal does not bar law enforcement from obtaining biological evidence. Arizona officers routinely utilize telephonic search warrants to execute non-consensual blood draws:

1. Contact Magistrate: The officer contacts an on-call magistrate or judicial officer via recorded telephone or digital audio connection.
2. Sworn Oral Testimony: The officer swears an oath and provides recorded oral testimony establishing probable cause: driving behavior, physical observations (odor of intoxicants, bloodshot/watery eyes, slurred speech), SFST clues, and the suspect's refusal.
3. Duplicate Original Warrant: The magistrate authorizes the warrant, documenting the date and time. The officer transcribes the authorization onto a "Duplicate Original Search Warrant" and signs the magistrate's name with permission.
4. Execution by Medical Personnel: Under A.R.S. § 28-1388, blood draws must be performed by a physician, registered nurse, medical technician, or certified peace officer phlebotomist in a medically approved manner. Officers may use reasonable and necessary physical restraint to overcome resistance (Missouri v. McNeely, 569 U.S. 141 (2013); Birchfield v. North Dakota, 579 U.S. 438 (2016)).

---

4. NHTSA Standardized Field Sobriety Testing (SFST) Battery

The National Highway Traffic Safety Administration (NHTSA) SFST battery is scientifically validated by the Southern California Research Institute (SCRI) to detect alcohol and drug impairment. The battery must be administered in strict compliance with standardized procedures:

                                  [ NHTSA Standardized SFST Battery ]
                                                   |
       +-------------------------------------------+-------------------------------------------+
       |                                           |                                           |
[ Horizontal Gaze Nystagmus (HGN) ]       [ Walk and Turn (WAT) ]                     [ One Leg Stand (OLS) ]
6 Total Clues (3 per eye)                 8 Total Clues                               4 Total Clues
Threshold: 4+ Clues = BAC >= 0.080        Threshold: 2+ Clues = BAC >= 0.080          Threshold: 2+ Clues = BAC >= 0.080
(88% Scientifically Validated)             (79% Scientifically Validated)              (83% Scientifically Validated)

1. Horizontal Gaze Nystagmus (HGN)

HGN is an involuntary jerking of the eyes that occurs as the eyes gaze toward the side. Alcohol and central nervous system (CNS) depressants exaggerate this jerking. HGN is the single most reliable field sobriety test (88% accuracy).

• Pre-Test Medical Clearances: Before administering HGN, the officer checks: (1) equal pupil size, (2) resting nystagmus (indicates pathological or medical condition), and (3) equal tracking (smoothly following stimulus to rule out neurological injury or head trauma).
• Administration Mechanics: Position stimulus (pen or stylus) 12 to 15 inches from suspect's nose, slightly above eye level. Move stimulus smoothly at eye level.
• The Three Standardized Clues (Evaluated in Each Eye = 6 Total Clues):
  1. Lack of Smooth Pursuit: The eye cannot follow a moving object smoothly; it jerks or stutters noticeably (moved across field of view at approximately 2 seconds out, 2 seconds back).
  2. Distinct and Sustained Nystagmus at Maximum Deviation: Held at the maximum lateral position for a minimum of 4 seconds (no white sclera showing at outer corner). The jerking must be distinct and continuous.
  3. Onset of Nystagmus Prior to 45 Degrees: The eye begins jerking before reaching a 45-degree angle from center (leaving a visible portion of white sclera).
• Decision Threshold: 4 or more clues out of 6 indicates an 88% probability of a BAC of 0.080 or greater.
• Vertical Gaze Nystagmus (VGN): Stimulus moved upward and held for 4 seconds. Indicates high doses of alcohol for that individual or the presence of CNS depressants, inhalants, or dissociative anesthetics (PCP).

2. Walk and Turn (WAT)

A psychophysical, divided-attention test combining physical balance and information processing across two distinct stages: the Instruction Stage and the Walking Stage (9 heel-to-toe steps out, turn around, 9 heel-to-toe steps back).

• The 8 Standardized Clues (Mnemonic: BS SO WA TI):
  1. Balance: Cannot keep balance while listening to instructions (breaks stance).
  2. Starts too soon (starts before instructions are completed).
  3. Stops while walking (pauses to steady self for several seconds).
  4. Off line (steps off the straight line with at least one foot).
  5. Wrong number of steps (takes more or less than 9 steps in either direction).
  6. Arms for balance (raises arms more than 6 inches from sides).
  7. Turn improper (fails to pivot on front foot as instructed; spins, stumbles, or steps off).
  8. Incorrect heel-to-toe (fails to touch heel to toe, leaving a gap greater than 0.5 inch).
• Decision Threshold: 2 or more clues out of 8 indicates a 79% probability of a BAC of 0.080 or greater.

3. One Leg Stand (OLS)

A divided-attention test requiring the suspect to stand on one foot, raise the other foot approximately 6 inches off the ground (toe pointed forward, foot parallel to ground), look down at the raised foot, and count aloud ("one thousand one, one thousand two...") until told to stop at 30 seconds.

• The 4 Standardized Clues (Mnemonic: PUSH):
  1. Puts foot down (drops foot before 30 seconds expires).
  2. Uses arms for balance (raises arms 6 inches or more from sides).
  3. Sways while balancing (side-to-side or back-and-forth movement while maintaining stance).
  4. Hopping (hops on supporting foot to maintain balance).
• Decision Threshold: 2 or more clues out of 4 indicates an 83% probability of a BAC of 0.080 or greater.

---

5. The Drug Recognition Expert (DRE) 12-Step Protocol & Drug Categories

When an officer encounters a motorist with significant psychophysical impairment but a breath alcohol concentration that does not match the observed impairment (e.g., 0.000 or 0.020 BAC), a certified Drug Recognition Expert (DRE) conducts a systematic 12-step evaluation to determine: (1) whether the suspect is impaired, (2) whether the impairment stems from drugs or a medical condition, and (3) which of the seven drug categories is responsible.

                                  [ The Seven DRE Drug Categories ]
                                                  |
      +-------------------+-------------------+---+-------------------+-------------------+
      |                   |                   |                   |                   |
[ CNS Depressants ] [ CNS Stimulants ]  [ Hallucinogens ]   [ Dissociative Anesth. ] [ Narcotic Analgesics ]
(Alcohol, Xanax)    (Meth, Cocaine)     (LSD, MDMA, Psilocybin)  (PCP, Ketamine)     (Heroin, Fentanyl)
HGN: Present        HGN: None           HGN: None           HGN: Present        HGN: None
Pupils: Normal      Pupils: Dilated     Pupils: Dilated     Pupils: Normal      Pupils: Constricted (Pinpoint)
Pulse: Down         Pulse: Up           Pulse: Up           Pulse: Up           Pulse: Down
      |                                                                               |
      +---------------------------------------+---------------------------------------+
                                              |                                       |
                                    [ Inhalants ]                       [ Cannabis ]
                                    (Solvents, Nitrous)                 (THC, Marijuana)
                                    HGN: Present                        HGN: None (LOC Present)
                                    Pupils: Normal / Dilated            Pupils: Dilated / Normal
                                    Pulse: Up                           Pulse: Up

The 12 Standardized DRE Steps

1. Breath Alcohol Test: Rule out or quantify alcohol contribution.
2. Interview of the Arresting Officer: Review driving maneuvers, initial physical observations, and SFST clues.
3. Preliminary Examination & First Pulse: Check for medical conditions (diabetes, stroke, epilepsy), speech, initial eye scan, and measure Pulse 1.
4. Eye Examinations: Evaluate Horizontal Gaze Nystagmus (HGN), Vertical Gaze Nystagmus (VGN), and Lack of Convergence (LOC) (inability of eyes to cross when tracking a stimulus toward the bridge of the nose; present in Depressants, Inhalants, Dissociative Anesthetics, and Cannabis).
5. Divided Attention Psychophysical Tests: Administer Modified Romberg Balance, Walk and Turn, One Leg Stand, and Finger-to-Nose tests.
6. Vital Signs Examination & Second Pulse: Measure blood pressure, body temperature, and measure Pulse 2.
7. Darkroom Examinations & Pupil Size: Measure pupil diameter using a pupilometer under three distinct lighting conditions: (1) room light, (2) near-total darkness, and (3) direct light; check pupil reaction to light; inspect oral and nasal cavities for ingestion evidence.
8. Examination of Muscle Tone: Assess skeletal muscle tone (rigid in Stimulants and Dissociatives; flaccid in Depressants and Narcotics).
9. Check for Injection Sites & Third Pulse: Examine arms, hands, legs, and neck for needle track marks and fresh puncture wounds; measure Pulse 3.
10. Suspect's Statements & Other Observations: Mirandized interrogation regarding drug use history.
11. Opinion of the Evaluator: Formulate a formal diagnostic conclusion regarding the category or combination of categories.
12. Toxicological Examination: Collect blood or urine specimen for laboratory chemical analysis.

The DRE Diagnostic Matrix Table

(1) Soma, Quaaludes, and certain barbiturates may cause pupil dilation. (2) Methaqualone may cause elevated pulse.

---

6. High-Yield Exam Traps & Operational Scenario

High-Yield Exam Traps for Section 10.1

1. Drug Metabolite Strict Liability: Under A.R.S. § 28-1381(A)(3), the state does NOT have to prove actual impairment. The mere presence of any Schedule I or II illicit drug or its active metabolite in blood or urine constitutes a completed Class 1 misdemeanor.
2. Extreme vs. Super Extreme BAC Tiers: Extreme DUI (§ 28-1382(A)(1)) begins at 0.150 BAC. Super Extreme DUI (§ 28-1382(A)(2)) begins at 0.200 BAC.
3. Aggravated DUI Child Age Limit: Under A.R.S. § 28-1383(A)(3), the child passenger must be under 15 years of age (not 16 or 18). This specific violation is a Class 6 Felony.
4. Implied Consent Suspension Periods: Refusal to submit to chemical testing results in a 12-month suspension (or 24 months for prior refusal within 84 months). An Admin Per Se failure (testing at 0.080+) results in a 90-day suspension.
5. HGN Decision Threshold: It requires 4 or more clues (out of 6) to indicate a BAC of 0.080 or greater. Walk and Turn requires 2 or more clues (out of 8), and One Leg Stand requires 2 or more clues (out of 4).

Operational Application Scenario

Scenario: Officer Bradley stops a pickup truck weaving across lane lines at 0130 hours. The driver's eyes are bloodshot and watery, speech is slurred, and an odor of intoxicating liquor emanates from the vehicle cabin. The driver's 11-year-old child is seated in the rear. The driver performs the SFST battery: on HGN, the officer documents lack of smooth pursuit in both eyes, distinct nystagmus at maximum deviation in both eyes, and onset prior to 45 degrees in both eyes (6 total clues). On the Walk and Turn, the driver cannot keep balance during instructions, steps off the line twice, raises arms 8 inches, and takes 11 steps forward (4 clues). On the One Leg Stand, the driver sways and puts their foot down three times (2 clues).

The driver is arrested for DUI and read the Implied Consent affidavit. The driver refuses to take a breath test. Officer Bradley prepares a telephonic search warrant affidavit, contacts the on-call justice of the peace, secures the warrant, and a certified peace officer phlebotomist draws blood. Laboratory analysis reveals a blood alcohol concentration of 0.218 BAC.

• Charging Analysis:
  • A.R.S. § 28-1381(A)(1): DUI impaired to the slightest degree (Class 1 misdemeanor).
  • A.R.S. § 28-1381(A)(2): Per se DUI with BAC 0.080 or greater (Class 1 misdemeanor).
  • A.R.S. § 28-1382(A)(2): Super Extreme DUI for BAC 0.200 or greater (Class 1 misdemeanor carrying mandatory 45 consecutive days in jail).
  • A.R.S. § 28-1383(A)(3): Aggravated DUI for driving impaired with a passenger under 15 years of age in the vehicle (Class 6 Felony).
  • A.R.S. § 28-1321: Officer serves a 12-month driver license suspension notice for the Implied Consent refusal.