ARS 28-1381 – Arizona DUI statute

Q: How does Arizona define DUI?

Under Arizona Revised Statute 28-1381, a person commits DUI by: Being in actual physical control of a motor vehicle while under the influence of alcohol or drugs, even if the impairment is to the slightest degree; or having a blood alcohol concentration (BAC) of 0.08% or higher while driving or within two hours after driving; or driving with any drug listed in ARS 13-3401 in the person's body, even if the person is not under the influence of drugs. Meanwhile, drivers of commercial vehicles are held to a higher standard. They can be convicted of DUI for having a blood alcohol level of only 0.04% or higher.

Q: What are DUI penalties under ARS 28-1381?

Driving under the influence is typically a class 1 misdemeanor in Arizona. The penalties depend on whether it is the defendant's first offense DUI or second offense DUI in a seven-year period. Note that the prior DUIs can have occurred anywhere in the United States, not just in Arizona. A first offense in 7 years carries 10 days in jail (though 9 days can be suspended if the defendant completes alcohol and drug screening, education, or treatment); At least $1,250 in fines; 90-day driver's license suspension (though it may be possible to drive on a restricted basis after 30 days); An ignition interlock device (IID) for 1 year; Alcohol and drug screening, education, or treatment; Traffic survival school course; and Possibly community service.

Q: What if my BAC was below 0.08%?

Arizona courts presume that DUI defendants with a BAC of 0.05% or below were not impaired by alcohol. But should the case go to trial, prosecutors can try to rebut this presumption by introducing evidence of impairment. If the defendant's BAC was above 0.05% but less than 0.08%, Arizona counts will not presume one way or another whether the defendant was impaired. Instead, it is up to the prosecutors at trial to prove beyond a reasonable doubt that the defendant was impaired. In short, it is an uphill battle for prosecutors to prove that DUI defendants with a BAC below the legal limit were impaired and therefore guilty. But it is possible.

Q: What happens to my license?

A first-time DUI triggers a 90-day license suspension, but defendants may be able to get a restricted license after 30 days to drive to school and work. And a second-time DUI triggers a 1-year suspension, but defendants may be able to resume driving after 45 days with an IID in their vehicle. In order to avoid any license suspension, defendants would need to win both the criminal case as well as the administrative MVD hearing with the Motor Vehicles Department. The MVD hearing is actually tougher to win than the criminal case because it requires a lower standard of proof to find that the defendant committed DUI. Typically the only witness that the MVD calls during the hearing is the arresting police officer. So the MVD hearing is a good opportunity for the defense attorney to grill the officer in attempt to show instances of law enforcement misconduct in the case.

Updated March 12, 2021

ARS 28-1381 is the primary DUI statute in Arizona. It defines driving under the influence as operating a motor vehicle while impaired by drugs or alcohol or with a blood alcohol content (BAC) of 0.08% or higher. And the statute spells out the jail time, fines, and other penalties for a first time DUI and second time DUI in Arizona.

In this article, our Arizona criminal defense lawyers discuss:

Driver holding beer bottle while hand is on the wheel

ARS 28-1381 is Arizona’s DUI statute.

1. How does Arizona define DUI?

Under Arizona Revised Statute 28-1381, a person commits DUI by:

Being in actual physical control of a motor vehicle while under the influence of alcohol or drugs, even if the impairment is to the slightest degree; or
Having a blood alcohol concentration (BAC) of 0.08% or higher while driving or within two hours after driving; or
Driving with any drug listed in ARS 13-3401 in the person’s body, even if the person is not under the influence of drugs.

Meanwhile, drivers of commercial vehicles are held to a higher standard. They can be convicted of DUI for having a blood alcohol level of only 0.04% or higher.¹

2. What are DUI penalties under ARS 28-1381?

Driving under the influence is typically a class 1 misdemeanor in Arizona. The penalties depend on whether it is the defendant’s first offense DUI or second offense DUI in a seven-year period. Note that the prior DUIs can have occurred anywhere in the United States, not just in Arizona.

DUI offense	Arizona penalties for DUI conviction
First offense in 7 years	10 days in jail (though 9 days can be suspended if the defendant completes alcohol and drug screening, education, or treatment); At least $1,250 in fines; 90-day driver’s license suspension (though it may be possible to drive on a restricted basis after 30 days); An ignition interlock device (IID) for 1 year; Alcohol and drug screening, education, or treatment; Traffic survival school course; and Possibly community service
Second offense in 7 years	90 days in jail (though 60 days can be suspended if the defendant completes alcohol and drug screening, education, and treatment); At least $3,000 in fines; 1-year driver’s license suspension (though it may be possible to drive with an IID after 45 days); An ignition interlock device (IID) for 1 year; Alcohol and drug screening, education, or treatment; Traffic survival school course; and 30 hours of community service²

Note that penalties are harsher for Extreme DUI – driving with a BAC of 0.15% to 0.199% – and for Super Extreme DUI – driving with a BAC of 0.20% or higher.³

Also note a first- or second-time drunk driving offense becomes an aggravated DUI – which is a felony – if the DUI happened while:

the driver’s license was suspended,
the defendant was under an order to drive with an IID,
there was a child under 15 years of age in the car, or
the defendant was driving on the wrong side of the road⁴

3. What if my BAC was below 0.08%?

Arizona courts presume that DUI defendants with a BAC of 0.05% or below were not impaired by alcohol. But should the case go to trial, prosecutors can try to rebut this presumption by introducing evidence of impairment.

If the defendant’s BAC was above 0.05% but less than 0.08%, Arizona counts will not presume one way or another whether the defendant was impaired. Instead, it is up to the prosecutors at trial to prove beyond a reasonable doubt that the defendant was impaired.⁵

In short, it is an uphill battle for prosecutors to prove that DUI defendants with a BAC below the legal limit were impaired and therefore guilty. But it is possible.

4. What happens to my license?

A first-time DUI triggers a 90-day license suspension, but defendants may be able to get a restricted license after 30 days to drive to school and work.⁶ And a second-time DUI triggers a 1-year suspension, but defendants may be able to resume driving after 45 days with an IID in their vehicle.⁷

In order to avoid any license suspension, defendants would need to win both the criminal case as well as the administrative MVD hearing with the Motor Vehicles Department. The MVD hearing is actually tougher to win than the criminal case because it requires a lower standard of proof to find that the defendant committed DUI.⁸

Typically the only witness that the MVD calls during the hearing is the arresting police officer. So the MVD hearing is a good opportunity for the defense attorney to grill the officer in attempt to show instances of law enforcement misconduct in the case.

5. Am I entitled to a jury trial?

Yes, DUI defendants prosecuted under ARS 28-1381 may choose to have either a bench trial or a jury trial.⁹ However, the vast majority of cases resolve through negotiations.

DUI suspect taking roadside breathalyzer

A first- and second-time DUI are typically misdemeanors in Arizona.

6. What is the Arizona DUI statute?

28-1381. Driving or actual physical control while under the influence; trial by jury; presumptions; admissible evidence; sentencing; classification

A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:

1. 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 releasing substances if the person is impaired to the slightest degree.

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.

3. While there is any drug defined in section 13-3401 or its metabolite in the person’s body.

4. If the vehicle is a commercial motor vehicle that requires a person to obtain a commercial driver license as defined in section 28-3001 and the person has an alcohol concentration of 0.04 or more.

B. It is not a defense to a charge of a violation of subsection A, paragraph 1 of this section that the person is or has been entitled to use the drug under the laws of this state.

C. A person who is convicted of a violation of this section is guilty of a class 1 misdemeanor.

D. A person using a drug as prescribed by a medical practitioner who is licensed pursuant to title 32 and who is authorized to prescribe the drug is not guilty of violating subsection A, paragraph 3 of this section.

E. In any prosecution for a violation of this section, the state shall allege, for the purpose of classification and sentencing pursuant to this section, all prior convictions of violating this section, section 28-1382 or section 28-1383 occurring within the past thirty-six months, unless there is an insufficient legal or factual basis to do so.

F. At the arraignment, the court shall inform the defendant that the defendant may request a trial by jury and that the request, if made, shall be granted.

G. In a trial, action or proceeding for a violation of this section or section 28-1383 other than a trial, action or proceeding involving driving or being in actual physical control of a commercial vehicle, the defendant’s alcohol concentration within two hours of the time of driving or being in actual physical control as shown by analysis of the defendant’s blood, breath or other bodily substance gives rise to the following presumptions:

1. If there was at that time 0.05 or less alcohol concentration in the defendant’s blood, breath or other bodily substance, it may be presumed that the defendant was not under the influence of intoxicating liquor.

2. If there was at that time in excess of 0.05 but less than 0.08 alcohol concentration in the defendant’s blood, breath or other bodily substance, that fact shall not give rise to a presumption that the defendant was or was not under the influence of intoxicating liquor, but that fact may be considered with other competent evidence in determining the guilt or innocence of the defendant.

3. If there was at that time 0.08 or more alcohol concentration in the defendant’s blood, breath or other bodily substance, it may be presumed that the defendant was under the influence of intoxicating liquor.

H. Subsection G of this section does not limit the introduction of any other competent evidence bearing on the question of whether or not the defendant was under the influence of intoxicating liquor.

I. A person who is convicted of a violation of this section:

1. Shall be sentenced to serve not less than ten consecutive days in jail and is not eligible for probation or suspension of execution of sentence unless the entire sentence is served.

2. Shall pay a fine of not less than $250.

3. May be ordered by a court to perform community restitution.

4. Shall pay an additional assessment of $500 to be deposited by the state treasurer in the prison construction and operations fund established by section 41-1651. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.

5. Shall pay an additional assessment of $500 to be deposited by the state treasurer in the public safety equipment fund established by section 41-1723. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.

6. If the violation involved intoxicating liquor, shall be required by the department, on report of the conviction, to equip any motor vehicle the person operates with a certified ignition interlock device pursuant to section 28-3319. In addition, the court may order the person to equip any motor vehicle the person operates with a certified ignition interlock device for more than twelve months beginning on the date the person successfully completes the alcohol or other drug screening, education or treatment program requirements of this title and the person is otherwise eligible to reinstate the person’s driver license or driving privilege. The person who operates a motor vehicle with a certified ignition interlock device under this paragraph shall comply with article 5 of this chapter.

7. Shall be required by the department to attend and successfully complete an approved traffic survival school course.

J. Notwithstanding subsection I, paragraph 1 of this section, at the time of sentencing the judge may suspend all but one day of the sentence if the person completes a court ordered alcohol or other drug screening, education or treatment program. If the person fails to complete the court ordered alcohol or other drug screening, education or treatment program and has not been placed on probation, the court shall issue an order to show cause to the defendant as to why the remaining jail sentence should not be served.

K. If within a period of eighty-four months a person is convicted of a second violation of this section or is convicted of a violation of this section and has previously been convicted of a violation of section 28-1382 or 28-1383 or an act in another jurisdiction that if committed in this state would be a violation of this section or section 28-1382 or 28-1383, the person:

1. Shall be sentenced to serve not less than ninety days in jail, thirty days of which shall be served consecutively, and is not eligible for probation or suspension of execution of sentence unless the entire sentence has been served.

2. Shall pay a fine of not less than $500.

3. Shall be ordered by a court to perform at least thirty hours of community restitution.

4. Shall have the person’s driving privilege revoked for one year. The court shall report the conviction to the department. On receipt of the report, the department shall revoke the person’s driving privilege and, if the violation involved intoxicating liquor, shall require the person to equip any motor vehicle the person operates with a certified ignition interlock device pursuant to section 28-3319. In addition, the court may order the person to equip any motor vehicle the person operates with a certified ignition interlock device for more than twelve months beginning on the date the person successfully completes the alcohol or other drug screening, education or treatment program requirements of this title and the person is otherwise eligible to reinstate the person’s driver license or driving privilege. The person who operates a motor vehicle with a certified ignition interlock device under this paragraph shall comply with article 5 of this chapter.

5. Shall pay an additional assessment of $1,250 to be deposited by the state treasurer in the prison construction and operations fund established by section 41-1651. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.

6. Shall pay an additional assessment of $1,250 to be deposited by the state treasurer in the public safety equipment fund established by section 41-1723. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.

7. Shall be required by the department to attend and successfully complete an approved traffic survival school course.

L. Notwithstanding subsection K, paragraph 1 of this section, at the time of sentencing, the judge may suspend all but thirty days of the sentence if the person completes a court ordered alcohol or other drug screening, education or treatment program. If the person fails to complete the court ordered alcohol or other drug screening, education or treatment program and has not been placed on probation, the court shall issue an order to show cause as to why the remaining jail sentence should not be served.

M. In applying the eighty-four month provision of subsection K of this section, the dates of the commission of the offense shall be the determining factor, irrespective of the sequence in which the offenses were committed.

N. A second violation for which a conviction occurs as provided in this section shall not include a conviction for an offense arising out of the same series of acts.

O. After completing forty-five days of the revocation period prescribed by subsection K of this section, a person whose driving privilege is revoked for a violation of this section and who is sentenced pursuant to subsection K of this section is eligible for a special ignition interlock restricted driver license pursuant to section 28-1401.

P. The court may order a person who is convicted of a violation of this section that does not involve intoxicating liquor to equip any motor vehicle the person operates with a certified ignition interlock device pursuant to section 28-3319. On receipt of the report of conviction and certified ignition interlock device requirement, the department shall require the person to equip any motor vehicle the person operates with a certified ignition interlock device pursuant to section 28-3319. In addition, the court may order the person to equip any motor vehicle the person operates with a certified ignition interlock device for more than twelve months beginning on the date the person successfully completes the alcohol or other drug screening, education or treatment program requirements of this title and the person is otherwise eligible to reinstate the person’s driver license or driving privilege. The person who operates a motor vehicle with a certified ignition interlock device under this subsection shall comply with article 5 of this chapter.

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Legal References

ARS 28-1381. See also State v. Clark, (Ariz. Ct. App. 2020) 472 P.3d 544. Also note that is unlawful for underage drivers (under 21) to drive with any BAC above 0.% (ARS 4-244(34)).
ARS 28-1381. Note that prosecutors have a one-year statute of limitations to press misdemeanor DUI charges (ARS 13-107).
ARS 28-1382.
ARS 28-1383.
ARS 28-1381.
ARS 28-1385.
ARS 28-1381.
See Wieseler v. Prins, (Ariz. Ct. App. 1990) 167 Ariz. 223, 805 P.2d 1044, 66 Ariz. Adv. Rep. 40.
ARS 28-1381.

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