ARS 28-1381(A)(2) Interpretation
In State v. Martin, 174 Ariz. 118, 122, 847 P.2d 619, 623 (App. 1992) in evaluating the defendant's allegation that the proscription against having a BAC of .10 or greater within two hours of driving was unconstitutionally vague, Division One noted that, "if one consumes alcoholic beverages within two hours after driving, with a BAC of 0.10 or more within the two-hour period but not at the time of driving, that fact may establish an affirmative defense." 174 Ariz. at 122, 847 P.2d at 623.
A fair reading of that language, however, indicates that the court was simply responding to the defendant's contention that the statute could theoretically encompass an individual who consumed alcohol after driving. But 28-1381(A)(2) proscribes having a BAC of .08 or more within two hours of driving when that BAC "results from alcohol consumed either before or while driving."
Indeed, that provision was added to 28-1381 contemporaneously with the removal of the affirmative defense. 2000 Ariz. Sess. Laws, ch. 4, 2.
Although the affirmative defense served a purpose in the context of the previous version of the statute, which more broadly proscribed having a BAC of .10 or greater "within two hours of driving," see 2000 Ariz. Sess. Laws, ch. 153, 1, that function is no longer necessary given the statutory changes that exclude alcohol consumed after driving from the ambit of the current version of the DUI statutes.
In Arizona, the offense of having "an alcohol concentration of 0.08 or more within two hours of driving or being in actual physical control of the vehicle" requires the state to prove "the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle." A.R.S. 28-1381(A)(2).
The relative time of consumption is an element of the offense.
Nevada, by contrast, only requires that a person be "found by measurement within 2 hours after driving or being in actual physical control of a vehicle to have a concentration of alcohol of 0.08 or more in his blood or breath." N.R.S. 484.379(1)(c).
The law provides:
If consumption is proven by a preponderance of the evidence, it is an affirmative defense . . . that the defendant consumed a sufficient quantity of alcohol after driving or being in actual physical control of the vehicle, and before his blood or breath was tested, to cause him to have a concentration of alcohol of 0.08 or more in his blood or breath. N.R.S. 484.379(4).
Arizona abolished a similar affirmative defense by statutory changes made in the year 2000. See State v. Poshka, 210 Ariz. 218,11, 109 P.3d 113, 116-17 (App. 2005).
Given this difference in the elements of the offenses, a conviction under the Nevada statute would not entail a finding, beyond a reasonable doubt, of all the elements necessary to prove a violation of A.R.S. 28-1381(A)(2).