‘Chug-a-lug’ loophole closed. Hull to sign affirmative defense repeal

The DUI loophole dubbed the “chug-a-lug defense” is about to slam shut.

Gov. Jane Hull on Wednesday will sign a repeal of the DUI affirmative defense, which lets drunken driving suspects argue that the liquor they drank did not impair them until after they were pulled over. Law enforcement and prosecutors argued successfully that the loophole encouraged people to “chug-a-lug” alcohol immediately before hitting the road.

Backers of the bill, which failed late in the last session, were toasting the victory Monday.

“Some drunk drivers had claimed they weren’t really intoxicated at the time of driving, even though the arresting officers deemed they were drunk,” said Alberto Gutier, director of the Governor’s Highway Safety Office. “It’s about time we closed this loophole.”

Arizona is one of only four states in the nation with the affirmative DUI defense. It’s been on the books for nearly 10 years but has grown more popular recently as drunken driving enforcement has increased.

All but a handful of DUI cases are resolved without trial. But of those that do go to trial, around 90 percent attempt the affirmative defense. Opponents of the bill argued that only a fraction of those cases were overturned. In 1998, 17 of 61 DUI defendants in Mesa were found not guilty, and 11 of 82 in Tucson.

Defendants argue that their blood alcohol level did not reach or exceed the legal limit of 0.10 at the time of the traffic stop but rather after some time had elapsed between the stop and the Breathalyzer test.

Defense attorneys cited the low success rate for the affirmative defense as a reason to keep it, saying innocent people who fail sobriety tests would lose a defense of last resort.

Hull is anxious to sign the bill. She pushed hard for the bill last session, only to see it go down in the House on the last day of the session. It passed the House last week 43-11.

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