September 27, 2008
New Metro Phoenix DUI Charging Practices?
In the past weeks it has come to my attention that DUI officers, especially in Phoenix and Scottsdale, may be charging extreme DUI in citations without evidence to back it up. Typically, a preliminary breath test result of .150 or greater is sufficient to allege extreme DUI. If the blood test result came back under .150, then the prosecutor's office would simply dismiss the charge.
On the other hand, if the preliminary breath test came back under .150, the officers would not charge extreme DUI. If the blood test result then showed a .150 or more, the prosecutor's office would file an additional count of extreme DUI to supplement the .08 and impaired charges already issued by the officer at the time of release after the arrest.
Now it seems that the officers are starting to charge extreme DUI even if they lack information to support it. If this is the case, it could signal a new practice that would simplify things for the prosecutor's office. It is much easier for the prosecutors to dismiss an wrongly charged count of extreme DUI than to add a legitimate count of extreme DUI later.
So if you are looking at your citation and it says "extreme DUI," but you don't remember the officer taking a hand-held breath test (and you took a blood test), don't despair. It may be that they overcharged you. If this is the case, the process will sort it out.
A word of warning. DO NOT plead guilty to extreme DUI without first consulting with a DUI lawyer. If you do, you will be stuck with it even if the evidence should have exonerated you.
Comments on New Metro Phoenix DUI Charging Practices? »
Mr. Jaffe;
I am not sure about at what BAC level Scottsdale PD is charging extreme DUI. Scottsdale and Phoenix use blood tests for their BAC readings for court. I recently did a statistical analysis on Scottsdale Municipal Court sentencing practices. Over two hundred cases were reviewed, all with dates of arrest after September 2007. The results show that the Scottsdale Municipal Court will convict of simple DUI with a BAC .086 or higher which is in accordance of the +/- 005 or 5% accuracy level of the blood test. However the court is not convicting of extreme dui below .180 in 95 percent of cases. (sample over 100 cases) If the courts were following the 5% accuracy rule convictions would be at the .155 blood BAC level. So defendants are receiving a .025 BAC break by the court.
Mr. Wilson,
In Scottsdale DUI cases, it is not the court that is not convicting for extreme DUI under a .180. The prosecutor's office has a policy that they will reduce most (if not all) extreme DUI cases to a regular DUI as long as the BAC does not exceed .179. The typical reduction involves either three or five days in jail, depending on the facts of the case and the BAC level.
Certainly the court could refuse to accept such plea bargains, but if they did then, I assume, too many cases would get set to trial and the system would effectively grind to a stop.
I think it is a good policy for prosecutors' offices to offer reductions in cases even when the BAC exceeds the acknowledge margin of error. The prosecutor's policy must be workable in the real world.
As always, I appreciate your comments and look forward to more in the future.
Dan