A.R.S. § 28-3319(J)

Posted by Craig Penrod | Sep 09, 2013 | 0 Comments

January 1, 2012, will be bringing new changes to the DUI laws currently in effect.  One change which we had hoped to be positive is contained in A.R.S. § 28-3319(J), which discusses the ignition interlock device requirements.

A.R.S. § 28-3319(J) states:

“On a showing of sufficient medical evidence or an employment requirement, the department may allow a person who is unable to operate an ignition interlock device to be placed in a continuous alcohol monitoring program instead of equipping any motor vehicle the person operates with an ignition interlock device.”

What is a continuous alcohol monitoring program? Also known as SCRAM, it is an ankle bracelet that can be worn discreetly and measures alcohol in the wearer's perspiration. The person must wear the device 24 hours per day for the same amount of time you would be required to have the ignition interlock device. Pursuant to statute, the person with the device would be tested at a minimum of once per day for the use of alcoholic beverages. If the person tests positive for alcohol two times, the MVD will discontinue the bracelet and require the installation of an ignition interlock device.

What about the ignition interlock device? An ignition interlock device (IID) is a mechanism, like a breathalyzer, installed to a motor vehicle's dashboard. Before the vehicle's motor can be started, the driver first must exhale into the device; if the resultant breath-alcohol concentration analyzed result is greater than the programmed blood alcohol concentration (usually 0.02% or 0.04%), the device prevents the engine from being started. Also, at random times after the engine has been started, the IID will require another breath sample.

Prior to January 1, 2012, section (J) did not exist and the Arizona State Legislature did not take into consideration someone with medical isssues when a DUI conviction was received and an ignition interlock device was required. They did take employment situations into consideration and, under certain circumstances, would allow a person to carry a completed “Ignition Interlock Employer Notification” form with them while driving their employer's vehicle without an ignition interlock device (those with any ownership interest in the business or vehicle are not allowed use of the “Ignition Interlock Employer Notification” form and must have an ignition interlock device installed).

With the new law, it appeared that placement in a continuous alcohol monitoring program would be an option for both health and employment purposes. For employment purposes, a discreet form of 24-hour alcohol monitoring  makes perfect sense if you drive your own vehicle in your employment as a realtor, taxi cab driver or in any other profession that requires you to transport clients from one place to another and previously didn't qualify you for the “Ignition Interlock Employer Notification” form.   The “Ignition Interlock Employer Notification” form could become obsolete and everyone convicted of DUI would either have to have the SCRAM bracelet or ignition interlock device.   It would seem like a win-win situation for everyone.

Was this the Legislature's intent?  If so, the Arizona Motor Vehicle Division has chosen to disregard the employment portion of the statute.  In recent conversations with personnel at the MVD, we have learned that while the MVD would allow the continuous alcohol monitoring program for certain health reasons, they are choosing not to permit it for employment purposes.  Why would they not want a program available that is clearly more restrictive than the ignition interlock device?  Is the “Ignition Interlock Employer Notification” form in your glove box without any IID better than a person discreetly wearing a SCRAM bracelet which monitors alcohol use 24 hours per day?

You have to ask yourself why?  There are many questions I would love to have answered, unfortunately, no one at the MVD that you can reach by phone can tell us who made this particular decision.  ”They” made the decision. Who are “they?”   We don't know and the people who answer the phones at MVD don't know. And if you don't know who “they” are, then you can't ask them, can you?

If you find yourself facing DUI or criminal charges, contact the lawyers at the Law Offices of Craig W. Penrod for a free initial legal consultation. Craig Penrod has been certified by the State Bar of Arizona as a criminal law specialist and The Law Offices of Craig W. Penrod has been involved in criminal and DUI defense for more than 20 years.

About the Author

Craig Penrod

Craig W. Penrod was born and raised in Arizona and has practiced criminal defense for over 30 years. Mr. Penrod is a member of the State Bar of Arizona, Maricopa County Bar Association, State of Nevada Bar Association, American Bar Association, American Trial Lawyers Association, Arizona Trial Lawyers Association, Nevada Trial Lawyers Association, Arizona Attorneys for Criminal Justice and the National Association of Criminal Defense Lawyers.


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