Can Having A DUI Affect My Arizona Child Custody Case?

If you ever drink alcohol and have a driver’s license, you’ve probably had that age-old debate in your head at least once: “Am I good to drive?” Unfortunately, it’s easy to be overconfident during that decision-making process and underestimate your BAC, or blood alcohol content. If you are convicted of DUI in Arizona, there are several strict consequences you will face in the short term. Arizona is one of the only states that mandates jail time for defendants convicted of DUI, even if it is a first-time offense. A DUI conviction is also very expensive, after fines, legal fees, increased auto insurance rates, and other costs associated with being caught driving impaired. DUI is typically charged as a misdemeanor, but can be elevated to a felony offense if aggravating factors are present. 

The stakes are that much higher if you’ve been charged with a criminal offense as a parent. Our Arizona criminal defense lawyers are backed by a full-service firm that offers experience in family law, among other areas of practice. Schedule your free consultation with a dedicated member of our team today by calling 480-833-8000. 

Arizona’s Two Types Of Custody

Before beginning any discussion about child custody in Arizona, it’s important to understand a few basics. Arizona makes a distinction between two specific types of child custody- parenting time and legal decision-making. Parenting time can sometimes be informally referred to as physical custody. It is detailed through a schedule designating which parent has the child on which day, and who will be responsible for pick-ups and drop-offs. The second type of child custody in Arizona is legal decision-making, or more informally, legal custody. If the child gets sick or injured and their doctor needs someone to decide which course of treatment to take, the parent with legal decision-making rights has the final authority for this decision, as with decisions like where the child will go to school, which church the child will attend, etc. 

Typically, a family law judge is instructed to give parents 50/50 custody, or create orders as close to that as realistically possible given the parents’ schedules. This is called joint custody, even if it’s not a perfect 50/50 split. Here, one parent still might need to contact the other parent for emergency decisions if the child has a pressing issue occur while in their physical custody. 

DUI Conviction & Child Custody In Arizona

Being convicted of DUI doesn’t automatically make you an unfit parent, and won’t necessarily result in your family law judge penalizing you by reducing your parenting time. Many parents have been convicted of DUI and see little to no effect in their child custody cases. The judge can look at factors like how long ago the offense occurred, whether there was an accident resulting in bodily injury or property damage, if the parent complied with law enforcement after the fact, etc. Arizona typically only charges DUI as a misdemeanor, and the number of children in foster care would skyrocket if parents with misdemeanors were not allowed to have custody of their children. However, there are a few situations in which a drunk driver in Arizona could be charged with felony DUI instead of misdemeanor DUI. One of them is being arrested for driving impaired with a passenger under 15 years old in the vehicle. If one parent is arrested for driving drunk with their child in the vehicle and is convicted of a felony, the other parent can definitely leverage this against them in a child custody dispute. Even if the judge decides not to consider the DUI during custody determinations, it can become just one of the countless issues that your ex uses to attack your capabilities as a parent. 

Criminal Convictions That Can Impact Custody Determinations

In many cases, a DUI conviction will have little bearing on a family law judge’s child custody determination. But certain factors can make a DUI, as well as any other criminal offense, more relevant to custody orders. Other criminal offenses damage a parent’s chances in custody court by their very nature, like: 

• Child abuse
• Child neglect
• Domestic violence
• Kidnapping
• Child endangerment
• Aggravated assault or assault with a deadly weapon
• Human trafficking
• Sexual assault or statutory rape

Defenses In DUI Cases

• No reasonable suspicion: Unless traveling through a DUI checkpoint, the police can’t pull you over at random to investigate you for drunk driving. Most of the behavior that could give the police reasonable suspicion to investigate you for DUI overlap with behavior that could get you pulled over anyway. 
• No probable cause: Probable cause is the step after reasonable suspicion that the police must have to place a suspect under arrest for a criminal offense. This standard stems from the Fourth Amendment protection against unreasonable searches and seizures. 
• Inaccurate test results: The police will generally start with a breath test and confirm BAC results with a blood or urine test. There are certain protocol the police must uphold when conducting these tests, as well as when storing and transferring the evidence. Any errors throughout the process could create opportunities for the defendant to challenge the prosecution. 
• Failure to read Miranda Rights: These are your right to remain silent, the right to a court-appointed attorney if you can’t afford one, etc. Any statements made after you were taken into custody can be thrown out if it can be proven that you weren’t read your Miranda Rights. 
• No actual control of motor vehicle: Some defendants are arrested for DUI while not actually driving their vehicles because Arizona’s DUI law makes it illegal to exert actual control over a motor vehicle while impaired. If the defendant can prove that they didn’t have actual control of their vehicle, or that it wasn’t actually a motor vehicle, DUI charges are inappropriate. 
• Hiring A Private Defender For Arizona DUI Charges

The stakes are always high if you are facing prosecution for DUI in Arizona, a state that requires all convicted defendants to serve jail time. The stakes become higher if you are a parent, especially a parent involved in a child custody dispute. This means time away from your child, and setting an example that isn’t exactly positive. And if your ex has retained any of the legal community’s countless aggressive family law attorneys, you can rest certain that your DUI will be used against you. The first step to minimizing how much a DUI arrest or conviction impacts your child custody case is by fiercely defending yourself against criminal charges. Because jail time is mandatory for DUI convictions in Arizona, you will be assigned a court-appointed attorney for your case. But you also have the right to hire a private defense attorney of your own choosing. This means you can choose a lawyer who has experience fighting your specific charges and is familiar with prosecution procedures in the courthouse where your trial will be held. At My AZ Lawyers, our criminal defense team works hard to deliver our clients outcomes that help them live better lives. Learn more about the benefits of choosing your own defense attorney with no risk or obligation. Schedule your free phone consultation today by calling 480-833-8000.