ARIZONA DUI TOPICS - James Novak

How to Protect Your Rights Under the Unconscious Clause

The Law Office of James Novak Team — Sat, 08 Apr 2017 02:35:20 GMT

In Arizona police are permitted to request a warrantless, non-consensual blood draw, from a DUI suspect who is unconscious under A.R.S. §28- 1321.

The blood draw may be unconstitutional if an individual’s rights are violated in the process.

Recently, the Arizona Supreme Court ruled that the unconscious clause is permissible only when invoked non-routinely, under exigent circumstances that are case-specific.

The Court decided that the blood draw was unconstitutional because circumstances were not exigent, and the test was requested under a routine procedure, rather than consideration of the facts of the case.

Under the good faith exception, evidence collected in violation of a person’s Fourth Amendment rights can still be admitted at trial, only if the police acted in good faith.

But the court also determined that the good-faith exception to the exclusionary rule did not apply.

In this article we will discuss the decision, what means for Arizona drivers, how to protect your rights, and what happens if your rights are violated.

Case Overview

The case arose when the defendant, a driver with four passengers, drove his SUV into an oncoming car. A witness traveling behind the SUV would later testify that the man was driving erratically and had crossed the centerline several times.

After the crash, a witness saw someone crawl over the hood and lie down in front of the SUV, while the defendant got out of the driver’s side and lay down behind the SUV.

An officer responding to the scene approached the defendant who was being treated by medics. The suspect confirmed he’d been driving the SUV, but did not answer any questions about what happened.

The officer smelled alcohol coming from all of the occupants of the SUV, and saw beer cans as well as an opened bottle of liquor in the vehicle.

Meanwhile, the suspect was airlifted to a Nevada hospital for treatment. Without obtaining a warrant, the officer told the dispatch to ask the Las Vegas police to get a DUI blood sample.

The defendant was unconscious at the time the DUI blood sample was taken, and results indicated that his Blood Alcohol Content (BAC) was 0.212, in violation of AZ Super Extreme DUI law.

The suspect was charged with driving under the influence on a suspended license, aggravated DUI with a BAC of more than .20, aggravated DUI with BAC of more than .20 with a suspended license, aggravated assault with a deadly weapon, recklessly endangerment with a substantial risk of imminent death, and four counts of aggravated assault on his passengers with a deadly weapon.

Before trial, the defense filed a motion to suppress the blood test results on the grounds that the test was taken without a search warrant.

The trial court deemed the search permissible because the police had probable cause to believe the suspect had been driving under the influence in violation of both Arizona and Nevada laws.

Further both Nevada and Arizona possessed laws which allowed police to draw blood for a DUI investigation, from unconscious drivers suspected of driving impaired.

The trial ruled in favor of the state. It decided that even if police should have obtained a warrant, they relied on statutes that were in effect at the time of the blood draw, and therefore the good faith exception applied.

The defendant was found guilty of four crimes and lesser-included offenses, and was sentenced to 17.5 years in prison in concurrent sentences.

He appealed arguing that his blood was draw in violation of his Fourth Amendment rights against unlawful search and seizures.

The appellate court affirmed the trial court’s decision and reasoned that even if the blood draw was unconstitutional, the evidence should be admitted because law enforcement’s actions were protected by the good faith exception.

An appeal was then made to the Arizona Supreme Court, and it agreed to consider the denial of the motion to suppress the DUI blood test evidence.

Meanwhile, the state conceded that the unconscious clause was unconstitutional as applied to the facts of this case, because exigent circumstances didn’t exist.

The Arizona high court agreed. It noted that under prior Fourth Amendment case-law, a compelled physical intrusion into the veins to get blood as evidence implicated a deep-seated expectation of privacy.

The Arizona implied consent law didn’t allow the State to avoid establishing voluntary consent or another exception to the requirement of getting a warrant, to justify a warrantless blood draw from a DUI suspect.

Unless an exception applies, a warrantless blood draw to which the DUI suspect doesn’t consent is unconstitutional.

The Court reasoned that with probable cause the police could conduct a warrantless, non-consensual blood draw from an unconscious suspect.

That is, if they reasonably believed a warrant could not be obtained without significant delay that would result in undermining the testing.

The State argued that case precedent which existed at the time of the incident, allowed for the unconscious clause the blood draw because of the possibility of loss of evidence due to the body’s dissipation of alcohol.

The Court discussed Missouri v. McNeely, 2013, which was decided after the defendant’s arrest. In it, the U.S. Supreme Court held that exigent conditions must exist and be determined by considering totality of the circumstances specific to the case.

It held that natural dissipation of alcohol from the body was not enough in and of itself to establish exigent circumstances alone, because it was only one factor.

The Court noted that considering the totality of the circumstances on the merits of facts specific to the case was not a new legal standard.

The Arizona Supreme Court explained that McNeely was a Court opinion, and not a constitutional law, and the Court’s opinion was based on decades of existing case-law.

The state argued that in the least, the good faith exception to the exclusionary rule should apply, because the officer followed agency procedures.

Further, the Arizona Department of Public Safety (DPS) officer testified that he relied on his training and agency’s procedures when he decided to go ahead and get the blood test without a warrant.

The officer explained this it was Arizona DPS protocol to request a blood draw from unconscious DUI suspects if they are transported out of state.

But the Arizona Supreme Court disagreed. It reasoned that the DPS Agency should have known that such procedure was unlawful.

It explained that routinely allowing blood draws from suspects sent out of the state for an emergency treatment without specifically deciding whether a warrant could be gotten in a timely fashion was in the least constitutionally suspect.

The Court acknowledged that there was sufficient evidence at the scene to establish probable cause so that the officer could have requested a search warrant.

Further, the warrant could have been obtained expeditiously either by telephone or electronically.

Systematically bypassing a warrant based on a routine procedure, without consent or considering case-specific circumstances, was in violation of 4th Amendment protections from unlawful search and seizures.

The Court noted that the purpose of the Exclusionary Rule was to deter law enforcement from engaging in practices that violate an individual’s constitutional rights.

With regard to the good faith exception, the Court explained that if police officers act in good faith on a binding case-law precedent that clearly authorizes a specific procedure, it would apply.

However, they advised that was not the case here. The DPS Agency protocol to routinely request a blood draw on unconscious suspects transported out-of-state for medical treatment, was not authorized by any state law, or binding case precedent.

Therefore, the good faith exception to the requirement that a warrant be obtained didn’t apply.

In conclusion, the Court noted that the decision as to whether or not Arizona or Nevada law applied still needed to be resolved.

If it is determined that Arizona law applies, the appellate court’s decision will be vacated, and the trial court’s decision on the motion to suppress will be reversed. This means the DUI blood draw results will not be admissible.

Also of interest is the case, the dissent filed a critical opinion suggesting that rulings of this nature pose a risk that those who commit crimes go free without being held accountable.

The majority opinion recognized that such consequences are inevitable when unlawful police strategies being used, that are in conflict with constitutional protections.

Impact on Arizona Drivers

It is necessary for law enforcement to look at the specific facts particular to each case in order to invoke a warrantless blood draw on an unconscious suspect, when it is not feasible to get a timely warrant.

Police must have probable cause based on exigent circumstances in order to request an non-consensual warrantless blood draw under A.R.S. 28 – 1321 (c).

Exigent circumstances must be established by considering the unique circumstances in each case to ensure that the warrantless blood draw does not violate the suspect’s rights.

The Arizona Supreme Court determined that it is unconstitutional to routinely request a blood test be taken on DUI suspects who are unconscious and being transported out-of-state.

While this is not new legislation, it serves to assure protections of suspects rights as an Arizona case precedent. Case law can influence the outcome of future decisions involving issues of this nature in the state.

How to Protect Your Rights Under the Unconscious Clause

If you are being investigated at a stop for suspicion of DUI it is important that you preserve your rights and avoid self-incrimination.

The best way to protect your rights is to be familiar with them, and how they apply under specific circumstances.

Below are some things to keep in mind if you are being investigated for DUI, your rights under the Arizona’s Unconscious Clause, or if you have been arrested for impaired driving due to alcohol or drugs:

Under Arizona’s Implied Consent Law, persons who drive in the state give their consent to breath or chemical testing. If a person is unconscious, they are not exempt from compliance with this law. However, the blood draw must still be constitutional to be permissible. Drawing a person’s blood for a DUI investigation is privacy right protected by the 4^th Amendment of the U.S. Constitution.
If you have been involved in an accident, or a medical issue arises, you have the right to direct decisions about your medical treatment. This includes the refusal of unwanted medical treatment. This right is protected under the 14^th Amendment of the U.S. Constitution. It is also protected under the Arizona Constitution, Article 2, Section 8, your right to privacy.
If you wish to accept or refuse medical treatment, try to make your wishes known to police and/or emergency technicians expressly and as clear as possible.
You do not have to consent to a DUI breath or lab test, if police do not have a search warrant with probable cause. There are however, consequences for refusal including a one year loss of driver’s license under Arizona law. Also, if the police have probable cause, despite a refusal, they may arrest you anyway. Note that you do not have to submit to Field Sobriety Tests because these are optional. Courts have historically found them unreliable in many cases.
If police decide to arrest you, do not argue with them, and cooperate with routine procedures. This may result in additional charges. Never reach for an officer’s weapon, or do anything that would cause them to feel threatened. This may result in more charges as well as bodily harm. As soon as reasonably possible consult an experienced criminal defense attorney who defends charges in the jurisdiction where you were arrested.

What Happens When Your Rights are Violated

Aggravated DUI Defense Lawyer – Phoenix Metro and East Valley, Arizona

No matter how serious your charges, you have the right to defend them.

There may be defenses that can be used to challenge your charges and evidence.

Different types of defenses may apply based on the circumstances surrounding the incident.

In the case discussed above, constitutional challenges were made.

If your rights were violated, your attorney can file a pretrial motion to suppress evidence if was obtained unlawfully by police.

When material evidence is suppressed, it often leads to a dismissal or an acquittal of the charges.

DUI offenses in Arizona are criminal charges. All impaired driving charges are serious, especially in the case of Aggravated DUI offenses which are felonies.

Sentencing for felony impaired driving convictions expose a person to prison sentences that range from 10 or 30 consecutive days to 8 months or more in prison.

Other penalties include average fines of $4,000.00, one year license revocation; installation and use of an ignition interlock device on the driver’s vehicle for 2 years; possible forfeiture of vehicle; alcohol, or substance abuse treatment, and other criminal penalties.

Felony impaired driving convictions result in loss of privileges to carry or possess firearms and voting rights.

Other inherent consequences can result from felony convictions. These may include loss of job, or inability to get a job; loss of occupational licenses; credit problems; loss of scholarships; inability to get admitted into certain schools, sports or activities; and many other adverse consequences.

For these reasons, it is important that if you face any Aggravated DUI charges that you retain an experienced criminal defense attorney before appearing in court.

If you were arrested or charged with a DUI charge in Tempe, Chandler, Gilbert, or Scottsdale, consult DUI attorney James E. Novak. As a former Maricopa County Prosecutor.

James Novak uses his insights and experience obtained as a prosecutor to evaluate whether any of your constitutional rights were violated and develop the strongest possible strategy to defend you. He offers a free initial consultation for people facing active criminal charges in his area.

If you have been charged with a crime, contact or call The Law Office of James Novak at (480) 413-1499, and speak directly with DUI defense attorney, James Novak.

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How to Avoid, Challenge and Actually Overcome Your DUI Mistake

The Law Office of James Novak Team — Sun, 27 Nov 2016 22:09:19 GMT

No one who drinks expects to get a DUI or be the victim of an alcohol related disaster.

It is important to remember that others on the road may be driving dangerously due to drug or alcohol impairment.

Often people who have been drinking, lose track of how much they are drinking, and have not planned for an alternative ride home or arranged for a designated driver.

Other drinking mistakes include drinking spirituous liquor on an empty stomach, or drinking too fast, also known as binge drinking.

Binge drinking is one of the main causes of impaired driving. But engaging in this practice can also lead to alcohol poisoning, blackouts, unconsciousness, coma and even death.

However, The National Highway Traffic and Safety Administration (NHTSA) reminds drivers that even one drink of can impair judgement and slow down a reaction time.

The National Institute on Alcohol Abuse and Alcoholism (NIAAA) defines binge drinking as drinking 4 or 5 drinks within a short period of time, such as an hour.

An impaired driver’s passengers, other drivers and their passengers, bicyclists, pedestrians, and their loved ones are also at risk.

They have something dangerously in common with the impaired driver. They too may be impacted by a drunk or drug impaired driver in an auto crash. Family members can be dramatically impacted by a loved one’s DUI arrest, or alcohol related crash.

According to the 2015 State of Arizona Highway Safety Annual Report, auto crashes involving at least one drug or alcohol impaired driver, was the leading cause of fatal accidents.

The Arizona Governor’s Office of Highway Safety (GOHS) reported that DUI arrests increased sharply and steadily by 456% percent over the last 5 years.

Arizona law enforcement officials emphasize that impaired driving increases the likelihood of vehicle crashes resulting in serious injuries and fatalities.

The most recent annual safety report from the Arizona GOHS indicated that DUI arrests from the Thanksgiving to the New Year holidays were 4,271.

The good news is that this number was slightly lower than the preceding 5 year average of 4,512.

Better yet, during the preceding 3 year reporting period for year-end holidays, the number of DUIs decreased by nearly 32 percent.

The Governor’s Office credits the decrease in DUI arrests, on intense, high visibility DUI enforcement and prevention efforts, which some view as the most rigorous in the country.

Consistent with this, the Arizona Governor’s Office announced it’s plans to organize a comprehensive statewide DUI enforcement and prevention campaign for the 2016 year-end holidays, and New Year’s holiday 2017.

If you plan to drive, ride, walk or bike on Arizona roadways or highways, here are five things you should know:

1) Arizona DUI Laws are the Most Stringent in the Nation

If you plan to drive anywhere in the state, it is important to be aware that Arizona has harsh alcohol and drug DUI laws.

In Arizona, you do not need to have a blood alcohol level over .08% to be charged with a DUI, under A.R.S. 28-1381.

If you are driving impaired due to drugs or alcohol, while in physical control of your vehicle, you can still be arrested for DUI.

The state includes boats, ATVs, and other motorized vehicles designed to transport people, as meeting the statutory definition of vehicle.

The phrase, “actual physical control” means you don’t have to be driving. In some cases, you do not even have to be behind the steering wheel of the car, to get a DUI.

Here are just a few examples:

You have your keys in hand, and your are walking toward your vehicle to leave a nightclub; or
You pulled over to the side of the road, and fell asleep in your vehicle.

The courts will look at the totality of the circumstances to determine if a person was in actual physical control of their vehicle.

Arizona has Extreme DUI laws and Super Extreme DUI laws.

Under A.R.S. 28-1381 (A), (1), a driver may be in violation of Extreme DUI if their Blood Alcohol Content (BAC) is 0.15 percent or greater.

Under A.R.S. 28-1381 (A), (1), a driver may be found guilty of a Super Extreme DUI, if their BAC is 0.20 percent or greater.

The penalties for DUI are more severe for higher BAC levels surrounding a DUI conviction.

If a person is found to be driving impaired due to drugs, with or without alcohol, they may still be found guilty of a DUI, in violation of A.R.S. 28-1381 (A), (3).

This is the case even if they possess qualified medical marijuana cards issued in Arizona or any other state.

Some states that have legalized Marijuana in some fashion, allow driving with a minimum amount of Marijuana, which is determined by that state. For example one state that has legalized recreational Marijuana allows persons to drive with a maximum of 5 nanograms (ng/ml). Another state allows for 2 ng/ml.

But Arizona does not have any statutory allowable limit for drivers with medical marijuana cards. Instead, any violation depends on whether or not the driver was impaired due to marijuana or its active ingredient Tetrahydrocannabinol (THC).

In Arizona any amount of Marijuana or other substances that is determined to have caused driver impairment may result in an impaired driving conviction.

2. Arizona Impaired Driving Penalties are the Toughest in the Nation

Any misdemeanor drug or alcohol DUI conviction calls for jail terms that range from 10 days to 180 days depending on the BAC level and whether or not it is a first or repeat offense.

Other penalties for misdemeanor DUI convictions include suspension or revocation of driver’s license; use of Ignition Interlock Devices (IIDs) with time frames from 6 months to two years; alcohol or substance counseling or treatment; fines fees and assessments that range from $1,250.00 to $3,750.00; and probation.

Arizona is even tougher on repeat offenses. This is reflected in the penalties, which are more severe than first time convictions.

Drivers found guilty of a third DUI within 7 years may be found guilty of Arizona’s Aggravated DUI laws. These charges are brought as felonies, which expose a person to prison sentencing of 4 to 8 months in prison; fines, assessments and fees of $4,000.00; revocation of driving privileges for a year; use of an IID for two years; mandatory alcohol or substance abuse counseling, and a felony criminal record.

A misdemeanor DUI is also elevated to a felony if they are in violation of DUI laws while driving on a suspended, invalid driver’s license. A conviction calls for prison terms of 4 months along with other felony sentencing.

Further it is a felony if a person found guilty of impaired driving while a person under the age of 15 is a passenger in the vehicle. If convicted, they will be exposed to prison terms that range from 10 to 30 days in addition to other felony penalties.

Arizona has an implied consent law, A.R.S. 28-1381. Under this law, it is implied that by obtaining an Arizona driver’s license, you’ve agreed to submit to chemical tests and field sobriety tests if you’re pulled over for a suspected DUI.

Drivers who refuse a law enforcement officer’s request for chemical testing can have their licenses administratively suspended. The administrative license suspension will be separate from any criminal charges that are brought.

3. Ten Tips to Help You Avoid an Impaired Driving or Drinking Disaster

You’ve heard it before, and it’s true–There is no better way to avoid an impaired driving mistake, than to plan ahead.

This applies whether you will be drinking or not. It is prudent to keep in mind that even if you don’t plan on drinking and driving, you are not immune from an alcohol related disaster, especially if you engage in dangerous drinking behaviors such as binge drinking.

If you plan to be on the road as a pedestrian, cyclist, or other vehicle, there is still a risk that you will encounter a driver who is impaired due to alcohol or drugs.

Below are eight tips provided in combination by NHTSA and the National Centers for Disease Control and Prevention (CDC), to help people avoid impaired driving mistakes or becoming the victim of a DUI motor vehicle crash:

Plan ahead for an alternative ride home if you plan to drink;
Drink in moderation, and refrain from binge drinking;
Eat before or while you are drinking;
Give up your keys to a friend and arrange for an alternative ride home;
Never get in a vehicle as a passenger with an alcohol or drug impaired driver;
Offer to drive someone home, or arrange for them to have a safe ride home if it appears they are drinking too much;
Never leave a person alone unconscious or assume they will “sleep it off”, seek medical help immediately;
If you decide to walk home, ask a friend who has not been drinking to walk home with you to avoid dangers of walking out in front of a vehicle;
If you plan to host a gathering where alcohol will served, make sure you offer non-alcoholic alternatives;
Make sure your guests have a safe ride home if they have been drinking;
If you see a person on the road driving dangerously, and suspect they are driving impaired, contact law enforcement officials.

4. Seven Things You Should do after a DUI Mistake

As a defendant, the first 24 hours after your arrest for an impaired driving offense is crucial for purposes of building and preserving your defense case.

Time has a way of clouding our memory of details that you may not realize will later be important to your case.

In addition, you want take every precaution to avoid self-incrimination, or jeopardizing your defense case.

There are things you can do that will dramatically help you in the defense process, and thereby increase your chances of overcoming your charges:

Call or contact a private practice criminal defense attorney to discuss your matter and defense options confidentially.
If police contact you asking you to discuss the details of your case, let them know you have retained legal representation, and you have been instructed not to speak with anyone, including law enforcement about the details of your matter without your attorney present.
Get plenty of rest, and refrain from discussing your case with friends.
Refrain from posting or discussion anything about the incident on social media to avoid self-incrimination.
If you have been involved in a vehicle accident, call your auto insurance company about the claim.
Take photos of the location where you were stopped to include the landscaping and road where any roadside field sobriety tests may have been administered.
If you can remember anything you can regarding the incident, including instructions you were given; questions you were asked by law enforcement officers; your responses to officers; administration of breath or blood testing; witnesses or passengers you had in your vehicle; any consent or refusals you gave to officers, written or verbally; what you had to eat, drink, or ingest, within 12-24 hours prior to the stop; or anything else you can remember. Then make note of these details.

5. Criminal Defenses for Alcohol or Drug DUI in Mesa AZ

Everyone makes mistakes. Many people arrested for impaired driving charge feel that they ruined their lives.

The ordeal is often a dramatic and overwhelming experience. Some drivers feel that it is hopeless to mount a vigorous defense, since they failed the DUI tests. But an arrest is not a conviction. It is simply the beginning of the legal process.

It is never wise to go to court and plead guilty without first consulting a private practice criminal defense attorney who serves the city where you were arrested.

Pleading guilty to a first DUI can result in harsher penalties for a second, third, or fourth DUI. Penalties you may face for a DUI conviction involving either drugs or alcohol include mandatory jail, fines, assessments, vehicle impoundments, alcohol or drug screening, license suspension, and a criminal record.

The criminal record alone can lead to harsh social consequences such as difficulties finding a job or housing or obtaining a professional license.

It is important to consult an experienced DUI defense attorney who understands all the possible ways to challenge the prosecution’s case.

All DUI charges hold their own unique set of evidence and circumstances. The defense strategy will vary based on the strength and weakness of the evidence and the facts surrounding the incident.

For example, one defense may be to challenge the reason for the stop, and the way the evidence was obtained by the police. This may be the case when the officer who pulled you over lacked reasonable suspicion to stop you.

A police officer must have a reasonable suspicion that a violation of the law has occurred or is in progress, when they pull you over. Otherwise the stop is unconstitutional.

The only exception to this is when the stop is at a pre-organized DUI sobriety or safety checkpoint.

Reasonable suspicion needs to be something more than a hunch. It may be due to the driver’s failure to use a turn signal, a broken taillight, or any other type of traffic violation.

Generally, the court will look at the totality of circumstances when determining whether an officer had a reasonable suspicion to pull over someone for suspected drunk driving or impaired driving. The officer’s training and experience will be considered, among other things.

In cases where a violation of rights has occurred, defense may file a motion to have the evidence suppressed, or thrown out, that was obtained unconstitutionally.

In other cases, the evidence that the prosecution plans to use against a defendant may be weak or invalid, and can be challenged by the defense.

For example, when police administer a blood test, they should provide a sample for the suspect for purposes of their defense. Later, the sample can be retested by an independent lab. If the results are different than the criminal lab, or have been compromised due to mishandling or procedural error, then the defense ask the court to have it suppressed.

Other defenses may apply including, but not limited to other violations of constitutional, procedural, or trial rights.

If you are facing a criminal charge in Tempe, Chandler, Gilbert, or Scottsdale, consult DUI attorney James E. Novak. He is a former Maricopa County Prosecutor who will use insights obtained as a prosecutor to determine whether any of your constitutional rights were violated or whether other defenses apply to your case. He offers a free initial consultation for those facing active criminal charges in his service areas. If you have been charged with a crime, call or contact The Law Office of James Novak at (480) 413-1499 and speak directly with Mr. Novak.

Additional Resources:

Other Articles of Interest from our Award Winning Blog:

How to Avoid Dangers of High BAC and Extreme DUI in Summer Months

The Law Office of James Novak Team — Mon, 04 Jul 2016 22:41:20 GMT

Summer holds inherent risks of danger for outdoor drinking because the sun increases the effects of alcohol.

Heavy drinking combined with excessive sun exposure causes fluid loss, fatigue, dehydration, exhaustion, severe sunburn, alcohol poisoning, and impaired driving charges.

Other potential injuries and criminal charges occur as a result of excessive drinking including auto, boating, ATV, or motorcycle crashes; burns, drownings, assaults and violent crimes and DUI charges.

In Arizona high BAC levels call for harsh penalties in the event of a conviction. This article will provide insight into Arizona laws and penalties for Extreme DUI and Super Extreme DUI charges.

7 Facts about Excessive Drinking During Summer Months
20 Alcohol Consumption and DUI Safety Tips
Arizona Extreme & Super Extreme DUI Laws and Penalties
Criminal Defense for Extreme and Super Extreme DUI in Mesa AZ

7 Facts about Excessive Drinking During in the Summer Heat

According to National Institute on Alcohol Abuse and Alcoholism (NIAAA), excessive drinking is the leading cause of premature deaths, and the fourth leading cause of preventable deaths in the USA.
The NIAAA reports that 70 percent of all deaths surrounding water recreation involved the use of alcohol.
NIAAA sponsored research studies that concluded alcohol impairment may have been contributed to 60 percent of boating accidents where injuries or fatalities occurred. In these situations, at least one, boating or watercraft operators or passengers was impaired due to alcohol.
Excessive use of alcohol results in impaired judgement and increased risk-taking by swimmers who may swim farther out then they should. Alcohol causes fatigue and increases the risks of hypothermia. This results in an inability of even experienced swimmers to return to shore, resulting in drownings.
The National Highway Traffic and Safety Administration (NHTSA) reported that in nearly 70 motor vehicle crashes involving alcohol, one of the drivers had a BAC of 0.15 percent or greater. The heat and sun which cause thirst may compel individuals to drink a greater amount at a faster pace. This can result in binge drinking. The NIAAA has defined binge drinking as having four, five, or more spirituous liquor beverages within several hours. Binge drinkers reportedly consume an average of 8 drinks per binge.
The National Centers for Disease Control (CDC) reported that 9 out of 10 adults who binge drink are not dependent upon alcohol. Underage males were more likely to binge drink during the summer months, particularly in the month of July. Binge drinking leads to violence and assault injuries, motor vehicle crashes, chronic and serious medical conditions sexually transmitted diseases, and other injuries or illnesses.
According to the CDC binge drinking, particularly prevalent in underage drinkers in summer months. Binge drinking is the number one cause of fatal alcohol poisoning, high Blood Alcohol Content and impaired driving charges violation of Arizona’s Extreme DUI, and Super Extreme DUI laws.

20 Alcohol & DUI Safety tips

These 20 alcohol and DUI safety tips are separated into 4 categories:

♦ How to stay safe even if you don’t drink or don’t plan to drink.

♦ How to prevent DUI or an alcohol related accident if you plan to drink.

♦ How to avoid alcohol poisoning or other alcohol related injury.

♦ How to keep you, your family and guests safe if you are the host of a party where alcohol will be served.

If you don’t drink or don’t plan to drink:

Be aware that others on the road around you may be driving impaired.
Don’t ride with a driver who has been drinking.
Be a designated driver.
If someone has lost consciousness, call #911, or seek medical attention for them.
Let a friend know if you think they’ve had too much to drink. Offer them a ride home or offer to help them obtain an alternative ride home.

How to prevent DUI or an alcohol related accident if you plan to drink:

Don’t drive any type of motor vehicle, including boats, or ATVs.
Say “no” to liquor shots.
Plan not to get a DUI, by planning ahead for an alternative ride home.
Make arrangements to stay overnight at the location, hotel or other nearby location.
If you did not plan to drink, or if you drank an impairing amount, and find yourself behind the while of a vehicle, pull over to a safe, well- lit area or parking lot. Get out of the vehicle and try to call for a ride home. If you are not in a position to call for a ride and must sleep in your vehicle, make sure your automobile keys are no-where near the vehicle’s ignition.

How to avoid alcohol poisoning or other alcohol related injury:

Don’t Binge Drink.
Drink plenty of water.
Protect yourself from the dehydrating effects of the sun which is enhanced while drinking.
Don’t combine alcohol with drugs whether the substances are legal or illegal.
Don’t try to “keep up” with others while drinking since each individual metabolizes alcohol at different rates.

If you are the host of a party or gathering where alcohol will be served:

Offer non-alcoholic beverage choice and plenty of healthy snacks.
Don’t allow underage persons to drink.
Refrain from offering a person who has had too much to drink, any further liquor.
Make sure your guests have a safe ride home. If a guest has had too much to drink, let them know and offer to take them home or help them obtain a sober ride.
For pool parties, cook-outs, and other outdoor activities, make sure guests have access to a cool and shaded location.

Arizona Extreme & Super Extreme DUI Laws and Penalties

Extreme DUI Law – A person may be in violation of A.R.S. 28 -1382 – (A) (1) if they are found to be driving or in actual physical control of a vehicle with a BAC of 0.15 or greater, but less than 0.20 percent.

Super Extreme DUI Law – A person may be in violation of A.R.S. 28- 1382 – (A) (2) if they are found to be driving or in actual physical control of a vehicle with a BAC of 0.20 or greater.

In absence of aggravating factors both Extreme and Super Extreme DUI charges are classified as a Class 1 misdemeanor. These are the most severe charges in the misdemeanor classification.

High BAC levels in drunk drivers call for more harsh penalties in Arizona. Penalties for first time DUI Extreme DUI convictions under A.R.S. 28-1382 (A) (1) include:

Jail terms of 30 days;
Fines, fees, costs and assessments of $2500.00;
Installation of a certified ignition interlock device (IID) in vehicle for 1 year;
Alcohol and substance abuse screening, counseling or treatment;
Probation;
Driver’s license suspension;
Other penalties the court deems necessary

Penalties for first time Super Extreme DUI convictions under A.R.S. 28-1382 (A) (2) include:

Jail terms of 45 days;
Fines, fees, costs and assessments of $2700.00;
Installation of a certified ignition interlock device (IID) in vehicle for 1.5 years;
Alcohol and substance abuse screening, counseling or treatment;
Probation;
Driving privileges suspended;
Other penalties the court deems necessary

A second violation of Extreme DUI charges within 7 years calls for revocation of driving privileges for one year; and jail terms of 120 days for Extreme DUI, and 180 days for Super Extreme DUI convictions; Fines, fees and assessments of $3250.00 for Extreme DUI and $3750.00 for Super Extreme DUI; and 30 days Community restitution; IID for 1 year for Extreme DUI, and IID for 18 months for Super Extreme DUI, and alcohol abuse counseling, or treatment. .

A third DUI or more raises the charges to an Aggravated DUI (Felony) which exposes a person to 4 to 8 months in prison; Fines, fees and assessments of $4,000; revocation of driver’s license for one year; IID for two years; alcohol abuse counseling or treatment; and possible forfeiture of the driver’s vehicle.

Criminal Defense for Extreme and Super Extreme DUI in Mesa AZ

If you have been arrested for any DUI it is important that you consult an experienced criminal defense attorney as soon as possible following your arrest.

No matter how severe the charges are that have been brought, you have the right to defend your charges and hire an effective attorney to represent you for them.

James Novak, of the Law Office of James Novak, PLLC is a former prosecutor in Maricopa County and exclusively defends impaired driving and criminal charges for defendants through the Phoenix Metro areas and East Valley cities of Mesa, Chandler, Gilbert, Tempe, and Scottsdale AZ.

If retained, James Novak, will protect your rights, defend your charges, and work to get the most favorable outcome in your case.

He will evaluate your case to determine what defenses are the most likely to lead to a best resolution of your charges.

James Novak offers a free consultation for defendants with active charges in in Maricopa County within his service areas. Contact or call The Law Office of James Novak, PLLC at (480) 413-1499 and speak with James Novak directly about your matter, and obtain options for your defense. today.

Additional Resources:

Related Articles:

Ignition Interlock Device No Longer Required Drug DUI Penalty in Arizona

The Law Office of James Novak Team — Tue, 07 Jun 2016 23:22:12 GMT

Arizona drivers currently found guilty of DUI charges are required to install and use an ignition interlock device (IID).

It doesn’t matter that their DUI did not involve alcohol. It doesn’t’ matter that they never used alcohol a day in their lives.

Requiring a person convicted of a drug DUI to install and submit to an IID screening before they can start their vehicle, never made a lot of sense.

This was particularly true if the driver didn’t drink alcohol, considering that current IID technology does not allow for detection of drugs in a person’s body.

Current IID technology is limited to detection of spirituous liquor on a person’s breath during exhalation.

It may have served a punitive purpose; but it did nothing to prevent a driver from driving impaired due to drugs.

This however, is about to change.

Arizona’s SB 1228 has passed. It will allow for judges to have some discretion as to whether or not to impose installation and use of an IID for Drug DUI convictions.

This article provides a comprehensive look at Arizona’s Ignition Interlock Device Program and other related topics included:

Overview of Arizona SB 1228
Ignition Interlock Devices used in DUI Sentencing
Arizona Removes Ignition Interlock Device Requirement for Drug DUI
How the new law will Impact Arizona Drivers
Driver Obligations for Use and Reporting of Ignition Interlock Device
10 Frequently Asked Questions about Arizona DUI IID Program
DUI Classifications, Penalties & Criminal Defense Mesa AZ

Trends in Ignition Interlock Device Program for DUI Sentencing

An ignition interlock device (IID) is a device that is attached to a car, which uses a breathalyzer to analyze a driver’s blood alcohol content before allowing the driver to start the car.

If the device detects an amount of alcohol above a certain limit, the car will not be able to be started.

About 23 states have laws requiring the installation and use of a certified IID for a driver convicted of DUI, including Arizona.

In those states, there has been a 15% reduction in drunken driving deaths compared to the states that don’t require an IID after conviction.

Generally, a convicted driver is required to pay for and install the device, and this adds to the costs of a DUI conviction.

As of 2006, Arizona started requiring all IID systems to be based on a particular alcohol-specific electrochemical fuel sensor technology.

Those who are required to install Ignition Interlock Devices have had to submit to periodic inspections every 90 days to show they are complying with the order and have installed a functional, certified IID in every motor vehicle they operate.

The department can suspend the driver’s driving privileges if the inspection and compliance requirements are not met.

Arizona SB 1228

Elimination of Mandatory Use of Ignition Interlock Device in Drug DUI Sentencing

Arizona’s SB 1228 bill amends Sections of the Drug DUI law A.R.S. 28-1381 and other code sections related to driving under the influence.

The existing code section makes it unlawful for someone to drive or control a car while (1) under the influence of alcohol or any drug or vapor, if he or she is impaired even a little bit, (2) with a blood alcohol level of .08 or more within two hours of driving, if it results from consuming alcohol either before or while controlling a car, (3) there are certain drugs or their metabolites in the driver’s body, or (4) driving a commercial vehicle with an alcohol concentration of .04 or greater.

Arizona DUI laws still require a person convicted of impaired driving with alcohol, be required to install an IID in any car the defendant operates under A.R.S. 28-3319.

What the new bill does is remove the IID requirement for DUI offenders who are charged with driving under the influence of drugs.

It does allow a judge the discretion to order someone convicted of a drunk driving violation that doesn’t involve intoxicating liquor (someone convicted for driving under the influence of drugs) to install a certified IID in his or her car.

If the court requires installation as part of the sentence, the department will still require the defendant to install the person’s car with an IID under Section 28-3319.

In other words the court now has discretion to impose the penalty or not, where before they did not.

This allows the decision as to whether or not to require installation of an IID to be based on the unique factors and circumstances surrounding the Drug DUI incident.

The court can also order someone to install an IID on any vehicle the person operates for more than 12 months starting on the latest of these dates: (1) the date the person’s driving privilege is reinstated after a revocation or suspension, or (2) the date the department receives a conviction report. Someone who operates a vehicle that has an IID installed under the impaired driving statute has to comply with certain rules specified in Article 5.

Initially, the bill failed, but it passed after a motion to reconsider. The new law will become effective after December 31, 2016.

How Arizona’s New Drug DUI IID Law will Impact Arizona Drivers

DUI penalties may be mandatory or discretionary by the presiding judge.

The impact of the Arizona SB 1228 is that sentencing for Drug DUI charges makes IIDs discretionary by the judge in sentencing, and no longer mandatory.

After December 31, 2016, it will no longer be mandatory for a person convicted of a Drug DUI to use an ignition interlock device on the vehicle they drive.

Though it will no longer be required, the court has been given the authority to decide of the IID penalty should be ordered in drug DUI sentencing.

Driver Obligations for Use and Reporting of a DUI Ignition Interlock Device

Under A.R.S. 28-1461 a person convicted of a DUI will be required to install and use a certified IID.

The driver bears has certain responsibilities under the program in which they must comply.

Some of the driver’s obligations include:

Install a certified ignition interlock device in any vehicle they drive;
Submit to alcohol screening with use of the device in their vehicle each time before starting the vehicle, as well as at random intervals during operation of the vehicle;
Incur expenses for installing and maintaining the certified IID;
Provide proof of installation and proper functioning of the IID in the vehicle they drive;
Show proof that they are complying; and that the device has been inspected and is operating properly at least every 3 months during the time they’ve been ordered to use the device.

The ignition interlock device service provider works closely with person and the MVD to help the driver comply with these obligations.

10 Frequently Asked Questions about Arizona’s DUI Ignition Interlock Device Laws

Q. How does the ignition interlock device prevent someone from driving impaired due to alcohol?

A. The ignition interlock device sits on top of the vehicle dashboard and is wired to the vehicle’s engine. The driver must exhale into the device before starting the vehicle. If it detects liquor on the driver’s breath, the engine will not start.

Q. How is the IID and use of it monitored?

A. The IID provider monitors usage. They are required to send maintenance and activity reports to throughout the term imposed, to the Arizona Motor Vehicle Division.

Q. When a driver gets stopped by police will the officer know whether or not that driver is required they know if a driver is required to have a certified IID installed in their vehicle?

A. Yes. Once the person’s driver’s license is reinstated, a new license is issued by the Arizona Motor Vehicle Department. It will include a label with the words “Ignition Interlock” on it.

Q. What happens if the driver tampers with the device, or violates the usage rules?

A. If it is discovered that the driver failed to comply, attempts to drive other vehicles without Certified IID, or if there is evidence of device tampering, they will be in violation of Arizona Law A.R.S. § 28-1464. Consequences of these violations may result an extension of the time period for which the IID must be used, for up to 12 more months. Specified violations under this law will also result in Class 1 misdemeanor criminal charges. In addition, any person who knowingly rents, leases, or lends a driver their vehicle knowing that driver is required to use a certified device, will also be exposed to Class 1 misdemeanor Charges.

Q. Who pays for installation of the IID?

A. The person convicted of the DUI is responsible for expenses associated with installation and monitor charges of the IID.

Q. What is the average cost of installation and use of an IID in Arizona?

A. The costs of IID vary among providers. In general there is usually an installation fee that ranges from $100.00 to $200.00. Monthly rental fees range from $75.00 to $100.00 per month.

Q. How long will a person be required to use the IID?

A. The judge will order the time length for the IID to be imposed at the time of sentencing. Ranges include 6months, 12 months, 18 months, or 24 months depending on the circumstances surrounding the conviction.

Q. Is it possible to get a restricted driver’s license with the required IID for use during the suspension or revocation period?

A. Yes. If a person meets all of the qualifications, they may be eligible to drive on a limited basis, with a restricted license. They will need to provide proof that the vehicle they will be driving is equipped with a certified ignition interlock device.

Q. Does a person convicted of a drunk driving charge need to have their vehicle equipped with an Ignition Interlock Device before their driver’s license can be reinstated?

A. Yes. After a person has satisfied the court ordered driver’s license suspension or revocation period, and all requirements ordered by the court, they will be able to apply for reinstatement of their driver’s license. Under A.R.S. § 28 – 1461 A (2) in order for a person’s driver’s license to be reinstated, or a special restricted driver’s license issued, they must provide the Arizona MVD with proof that they have installed a certified IID in the vehicle (s) they operate before their driver’s license will be reinstated.

Q. Does the IID only need to be installed in the primary vehicle driven by the person required to use the IID?

A. No. It is necessary for any and all vehicles the person will drive to be equipped with certified ignition interlock devices, not just their primary vehicle. This includes vehicles the person rents, borrows or leases.

Arizona DUI Classifications and Penalties

All DUI charges in Arizona are criminal offenses. Penalties are severe, and expose a person to jail or prison terms.

Impaired Driving charges may be brought as Misdemeanors or Felonies.

Drunk Driving charges in violation of Arizona’s Extreme DUI laws, are still misdemeanors. But in general, the higher the Blood Alcohol Content (BAC), the longer the terms of incarceration.

Misdemeanor DUI charges carry jail terms that range from 10 days to 6 months.

Aggravated DUI charges (Felony) carry prison sentences that range from 10 days to 8 months or more depending on the circumstances.

A Misdemeanor DUI will be raised to a (Felony) DUI when aggravated factors exist.

Aggravated factors include DUI while driving on a suspended, revoked, or invalid driver’s license; DUI with a passenger below 15 years of age in the vehicle; third DUI within 7 years; or DUI that causes a serious injury or fatality.

Other penalties for misdemeanor impaired driving charges include installation and use of an ignition interlock device; driver’s license suspension, probation terms, alcohol or substance abuse screening or counseling, fines, and costs.

Felony DUI penalties include those that apply to misdemeanors but are more severe, and subject a person to a felony criminal record, loss of civil rights such as the right to possess or carry a firearm, and to vote.

When a person is charged with a DUI in Arizona their freedom and future is in jeopardy. They will need a strong impaired driving defense attorney to defend their charges and make sure their rights are protected.

It is important to choose a DUI defense attorney who understands how serious a DUI charge is and can develop a strategy to challenge weak evidence, and work to get the best possible outcome.

Criminal Defense Attorney for DUI in Mesa, AZ

“Prepared to Defend”

If you are charged with any type of DUI, consult James E. Novak, DUI defense attorney in Tempe, Arizona. James Novak is former Maricopa County Prosecutor and experienced litigator. If retained, he will protect your rights, make sure you are treated fairly and provide you with a strong defense for your charges.

James Novak of the Law Office of James Novak, PLLC offers a free consultation for those charged with a DUI or other criminal offenses in Maricopa County, including the cities of Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona.

James Novak will speak with you directly to discuss your matter, and provide you with options for defense. Call or Contact us today at (480) 413-1499.

Additional Resources:

Other Articles of Interest from The Law Office of James Novak’s Award Winning Blog:

Arizona Supreme Court Rules on Voluntariness of Consent in DUI Testing Case

The Law Office of James Novak Team — Sat, 21 May 2016 23:45:54 GMT

In the recent ruling the Arizona Supreme Court considered a Fourth Amendment issue and Arizona’s implied consent law in DUI case.

The cases centered around two primary issues. The first was whether or not consent to a warrantless search to conduct DUI breath and blood tests were voluntary, after suspect agreed to submit to them only after the officer instructed him repeatedly about the law.

The next question for the court was whether or not the advisement by the police officer was given in good faith when the officer believed that his conduct was lawful and not in violation of the suspect’s 4^th Amendment rights.

This article provides a case overview, legal principles that applied, and the additional related resource information:

Impact of Ruling on Arizona Drivers;
Good Faith Exception to the Exclusionary Rule;
Arizona Courts on what Constitutes Voluntary Consent to Search;
Answers to the question surrounding “Should I consent to a DUI Test in Arizona?”;
10 Common Defenses for DUI Charges in Arizona

Case Overview

The case began when a Department of Public Safety (DPS) officer found the defendant sleeping in the driver’s seat of a truck that was stopped with the engine running.

In Arizona a person may be found guilty of DUI even if they were not driving the vehicle, but were considered to be in actual physical control of it.

The officer saw an open alcohol container and smelled alcohol. He also saw signs that the defendant was impaired, and the officer arrested the defendant on suspicion of DUI.

At the police station, the officer read an admin per se form that provided that Arizona law required him to submit to a breath, blood, or other bodily substance test, as chosen by a police officer, to determine his blood alcohol levels.

The officer verbally stated that the DUI tests were required by law. He repeated his advisement of this to the suspect 3 additional times.

The police officer warned the suspect that Arizona law required him to submit, and that his refusal would result in a one-year license suspension.

The defendant then cooperated, claiming he understood the admonition, and submitted to both blood and breath tests.

The tests results showed more than 0.20 percent Blood Alcohol Content (BAC) levels, in violation of Arizona’s Super Extreme Law A.R.S. 28-1382 (A) (2).

The suspect was charged with five counts of aggravated DUI.

The defense filed a motion to suppress the test results, arguing that his consent to the tests was not voluntary. He challenged the constitutionality of the warrantless search and voluntariness of his consent.

The officer testified at the suppression hearing. The trial court denied the motion to suppress the DUI test results on the grounds that the “totality of the circumstances” demonstrated the defendant’s consent.

The court then dismissed three counts and convicted the defendant on two counts, and prison sentences were imposed based on other merits of the case.

The appellate court affirmed, but the dissenting judge reasoned that there was no voluntary consent because the police had asserted they had lawful authority to search.

The defendant then asked the Arizona Supreme Court to review the decision.

The Court explained that warrantless searches are generally prohibited under the Fourth Amendment with some exceptions, including free and voluntary consent to search.

However, consent isn’t given freely or voluntarily if the defendant reluctantly gives in to an officer’s claim of lawful authority.

Under Arizona’s implied consent law, those who drive in the state implicitly give consent to DUI blood and breath tests if they are arrested for a DUI.

But A.R.S. § 28-1321(A) doesn’t authorize officers to administer a test without a warrant unless there is an express agreement or consent by the suspect to conduct it.

A compelled blood or breath test administered under § 28-1321 is considered a Fourth Amendment search.

Evidence from a compelled test obtained in violation of the Fourth Amendment is generally inadmissible in a criminal trial.

The defendant in this case argued that his consent must be considered involuntary because he agreed only after the officer repeatedly told him he was required to submit under Arizona law.

The Court noted that under case law, citing multiple cases including Byars v. State, that if the totality of circumstances showed that consent was coerced by threats or force or granted only in submission to an officer’s claim of lawful authority, the consent is invalid.

The Court held that consent given in response to a warning about the law, as in this case, was not freely and voluntarily given.

Once it was concluded, that the consent was not voluntary, the Arizona Supreme Court’s next task was to review whether or not the officer’s conduct fell within the good-faith exception to the exclusionary rule.

In effect, this means if the record shows that the officer reasonably believed in that they were acting in good faith and that their conduct was lawful, the evidence obtained following the invalid consent may still be admitted.

The court determined the good faith exception applied to the DPS officer’s conduct in this case.

Since the admonition in this case was given by an officer relying in good faith on case precedent, the Court ruled it would not be appropriate to exclude the test results.

Accordingly, the DUI conviction was affirmed.

Impact of Ruling on Arizona Drivers

The Court’s ruling in this case didn’t change the outcome for this particular defendant due to the good faith exception to the exclusionary rule.

However, it is important going forward, because it holds that officers must inform arrestees of the rules without implying that officers have lawful authority to compel a defendant to give samples of bodily substances, without a warrant.

An officer can inform an arrestee of the consequences for refusing to permit DUI testing and ask if the arrestee will consent.

Alternatively, the Court explained that the admin per se form should be revised so that it provides an arrestee with a clear choice about whether to submit to the tests.

Consent given solely based on advisement of a law, is not lawful, unless the officer is acting in good faith.

Good Faith Exception to the Exclusionary Rule

Before we consider the exceptions to the exclusionary rule, we must look at the meaning of the “exclusionary rule”.

The exclusionary rule refers to a doctrine established in criminal cases, recognized in the United States, which allows for evidence to be excluded from trial if it was obtained in violation of a suspect’s constitutional rights.

The remedy in Arizona criminal courts reflects this principle. Thereby, if police obtain evidence unconstitutionally, the defense may file a motion to suppress that evidence so that it may not be used against a defendant. Thus the evidence is “excluded” from trial giving rise to the Exclusionary Rule.

The exception that applied in this case was the fact that the court found the officer acted in good faith. If the police officer believes the conduct in searching or seizure of the evidence was lawful, then the evidence may be admitted as an exception to the exclusionary rule.

Another illustration of what the courts considered to be a good faith exception to the exclusionary rule, by law enforcement was in the ruling of Arizona v. Evans 1995.

In that case, the U.S. Supreme Court held that evidence obtained after an officer acted on an outstanding warrant, had been obtained in good faith.

However, it was later discovered that the warrant was actually resolved several weeks before the stop. The warrant was still showing active as a result of a clerical error.

The US Supreme Court noted that the exclusionary rule was designed to discourage law enforcement from intentionally gaining evidence unlawfully. In Evans, the officer acted on the information available to him on record, that he later learned was incorrect due to an administrative error. Thus the US Supreme Court felt the good faith exception to the exclusionary rule applied.

Arizona Courts on what Constitutes Voluntary Consent to Search

In this case, the Arizona Supreme Court found that court found that if consent is given by the suspect solely on the basis of the Police Officer’s warning about the implied consent the consent is not considered voluntary.

Below are some additional cases in which Arizona courts ruled on voluntariness of the suspect’s consent for DUI testing was considered:

A driver’s consent to testing must be freely and voluntarily given (State v. Butler 2016);
A driver’s consent must not be compelled by an ultimatum (State v. Spencer 2014);
For DUI blood tests drawn incidental to medical treatment, the blood draw is not given freely and voluntarily if the suspect expressly refused (State v. Estrada 2004);
When an officer asserts lawful authority to search, the consent is not voluntary, (State v. Valenzuela 4/16, citing Bumper)
A DUI Test is not voluntary if consent was the result of coercion or duress (State v. Alder 1985).

The courts have recognized that all decisions on cases involving consent, should be based upon consideration of totality of the circumstances.

“Should I consent to a DUI Test in Arizona?”

One of the most frequently asked questions by drivers at a DUI stop is suspects in Arizona is “Should I consent to a DUI Test?” There are three factors to consider before making your decision to consent or refuse a DUI breath, blood or urine test:

The laws in the state where the DUI stop occurs;
Whether or not you can do without your driver’s license for a year;
Your individual circumstances

Under Arizona’s Implied Consent law A.R.S. 28-1321, any person driving in Arizona gives their consent to have alcohol or drug testing if they are arrested for DUI, or for being under the influence of alcohol if they are under 21 years of age.

The type of test to be done such as DUI breathalyzer, blood tests, or other chemical testing, will be done at the officer’s discretion.

A person has the right to refuse breath, blood, urine or other chemical tests, but not without consequences.

If a person refuses, a one year loss of driving privileges will be suspended or denied for one year.

If a person fails to complete the test or expressly consent to it, will be considered to have refused the DUI testing resulting in a one year loss of their driver’s license.

If a person refuses, in many cases the police will usually be able to obtain a search warrant to administer the DUI breath, blood, or chemical test anyway.

Before the age of technology, obtaining a warrant was a more time consuming task for police. Now most police agencies have are equipped with electronic means for officers to obtain a DUI search warrant. A can be achieved within a fraction of the time it formerly took.

10 Common Defenses for DUI Charges in Maricopa County, AZ

An experienced DUI defense attorney will be aware of what defenses may apply, or other challenges that can be made, that may lead to a favorable resolution of your charges.

DUI charges may be challenged on different fronts. Your defense case should be tailored to the circumstances unique to your case. This may include moving to suppress evidence that was obtained in violation of your constitutional rights. In this case, the courts ruled that the good faith exception to the exclusionary rule applied. But not all evidence obtained in violation of a person’s rights, is done in good faith.

Below are 10 common defenses that may be used to defend DUI charges (This list is not inclusive):

Evidentiary Challenges to blood test, urine, or other chemical tests including inconsistent independent lab results;
Challenging the reason for the stop (no reasonable suspicion);
Challenging probable cause for arrest;
Violation of 4^th amendment search and seizure rights;
Field Sobriety Test results invalid;
Evidentiary Challenges of breath test instructions, procedures, or results;
Failure to prove driver impairment;
Violations in police procedures;
Trial defenses;
Miranda warning, 5^thAmendment, and other Constitutional violations.

If you are charged with any type of impaired driving offense, you have the right to defend your charges.

Though you were arrested and charged, that does not necessarily mean you will be convicted of impaired or drunk driving.

It is important that you consult a criminal defense attorney as soon as possible if you were arrested, or for a criminal or DUI offense.

If you are not aware of your rights, you could inadvertently jeopardize them for your defense.

For effective legal representation you should choose an attorney who understands the gravity of a DUI charge, and the nuances of the case law in this area. Your attorney should also be familiar with the court in which your case will be heard.

DUI Defense Attorney Mesa Arizona

“Prepared to Defend”

If you are charged with a DUI, consult James E. Novak, a DUI defense attorney, in Tempe, Arizona.

James Novak is a former prosecutor and experienced trial lawyer.

He provides a strong defense, make sure your rights are protected, and work hard to obtain the best possible resolution to your charges.

James Novak offers a free consultation Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona. Contact or call The Law Office of James Novak at (480) 413-1499. Speak directly with James E. Novak, experienced DUI and criminal defense attorney regarding your charges and defense options.

Additional Resources:

Other Articles of Interest from our Award Winning Blog:

DUI Blood Test with Medical Treatment Admissible unless Care Expressly Refused

The Law Office of James Novak Team — Thu, 12 Nov 2015 06:03:07 GMT

Your Guide to understanding the DUI blood test with medical treatment warrant exception.

A DUI blood test taken by Police for investigating impairment is considered a search and seizure, protected by our 4^th Amendment rights.

This means that to obtain DUI blood or chemical evidence police would need either consent; or a warrant to order a DUI blood or chemical test.

There are exceptions to the requirement of a warrant. One of these exceptions under Arizona Law is DUI blood test or testing incidental to medical treatment.

Police can request a blood or chemical test be taken for criminal investigation reasons incidental to Medical Treatment.

This exception is often used following an accident, when the police suspect the driver may have been impaired due to alcohol or drugs.

If the police have probable cause, they can bypass a warrant, and request a DUI blood or chemical test from the medical provider treating the driver.

Under A.R.S. section 28-1388(E), if an Arizona police officer has probable cause to believe someone has violated the statute that prohibits driving under the influence (A.R.S. S 28-1381), and blood or another bodily substance is taken from that person, and enough of the sample that is sufficient for analysis will be provided to a police officer if requested for law enforcement objectives.

However, a DUI blood test cannot be requested by police if the suspect has expressly rejected medical care.

Precedent case rulings on this issue have held that if the treatment is not obtained voluntarily, than neither was the DUI blood test.

The scope of this exception was the subject of a recent Arizona appellate decision which we will discuss in this article.

DUI Testing with Medical Treatment in absence of a Warrant

[Arizona Court of Appeals Division 1 – No. 1 CA-CR 12-0780 10-20-15]

In this case, the defendant appealed from convictions for reckless manslaughter, endangerment, and possession of narcotic drugs. The defendant argued that the court shouldn’t have denied his motion to suppress his blood test results, which were secured for law enforcement objectives under A.R.S. section 28-1388(E).

The case arose when the defendant hurt four people and killed a pedestrian in a head-on collision while speeding in a residential area early one evening. Hospital personnel took blood from him, and the blood test results showed he was high on meth and heroin at the time of the crash. Witnesses later gave testimony about his erratic driving and related conduct.

The defendant was charged with second-degree murder, possession, or use of narcotics, and four counts of endangerment. All of these are felony counts. A motion to suppress the blood test evidence was filed by his defense, on the grounds that it was obtained without a warrant, and that he had expressly refused medical care at the time.

At the hearing on the motion to suppress, the defendant did not testify, but the court heard testimony from six witnesses. The witnesses, who were police officers and paramedics, testified that a nurse was tending to the defendant when they arrived. He was flailing and screaming and wouldn’t answer questions. One officer had been an EMT before becoming a police officer and testified that the defendant’s speech was slurred and that she couldn’t understand him in his delirium. Another officer saw syringes and an uncapped needle inside the car.

The defendant aggressively pushed away the paramedics and tried to hit them with a closed fist. However, the paramedics testified that due to the severity of his injuries, they needed a doctor’s clearance to not take him to the hospital, and they couldn’t get that. They effectively transported him against his will. He continued to be aggressive in the ambulance. Another officer said his behavior was consistent with someone drunk or high.

At the hearing for the motion to suppress, the lower court found that while it was possible to view the defendant’s conduct as a rejection of medical care, it wasn’t enough to count as a clear, unambiguous rejection of medical treatment. Accordingly, the lower court denied the motion to suppress the blood test.

The jury found the defendant guilty, and he was sentenced to 15 years for the manslaughter, as well as three years of imprisonment on each of the other convictions. He appealed.

The appellate court explained that a blood draw is considered a search under the Fourth Amendment. There are three constitutionally permissible ways in which police can get a blood sample: (1) by showing probable cause and getting a warrant, (2) express or implied consent, and (3) the exception provided by A.R.S. section 28-1388(E) that allows a police officer with probable cause to take part of a blood sample taken for another reason. However, the third way cannot be used if someone unambiguously, clearly, and expressly exercises their constitutional right to refuse medical treatment.

The issues before the appellate court were (1) whether the State had probable cause to believe there was a violation of A.R.S. S 28-1381, and (2) whether there was an express refusal of medical treatment. The appellate court found that the testimony of the officers showed there was probable cause. It found that there was no evidence to show the police asked that the defendant be taken to the hospital. There were also no oral statements made by the defendant specifically asking not to get medical assistance. The conviction was affirmed.

Updated March 13, 2017

On February 1, 2017 the Arizona Supreme Court remanded the Maricopa County Superior court decision, and vacated the Appeals Court decision.

The Arizona Supreme Court held that the prosecution is required to prove that the defendant provided an express or implied consent to medical treatment. If the defendant was unable to verbalize or otherwise express their consent, the state must prove that paramedics did not act against the suspect’s right to direct their own medical treatment.

The Court held that the evidence of record did not clearly or conclusively show that the suspect was capable or in a state of mind to direct his own medical treatment. Further the the record did not show that the EMTs acted within the or against the rights of the suspect to make a decision about his medical care.

As a result the Court remanded for continuance of proceedings to the trial court to make the determination of whether or not police obtained the blood sample legally, based on specified standards. These standards included 1) probable cause of DUI; 2) exigent circumstances; 3) blood draw was for a medical purpose; and 4) the paramedics did not violate the right of the suspect to make the decision regarding whether or not to consent to the medical treatment.

Impact of Ruling on Arizona Drivers

While this case had a unique set of circumstances it can potentially impact similar cases where the medical treatment warrant exception for DUI testing applies.

Under this precedent if the driver intends to refuse treatment, their communication must rise to the level of an express, clear, and unambiguous rejection.

To assure that a driver’s rejection is validated by police, paramedics and the courts, the driver must be of sound mind, and have the competence to make that decision under the circumstances.

Though it is a person’s right to reject treatment, they are required to communicate their wishes, in order for their right to refuse care to be invoked.

Further, they must be able to clearly respond to direct questions by paramedics on scene, and do so without any ambiguity.

If they are unable to clearly communicate their refusal of treatment, in absence of express consent, emergency medical technicians can act with implied consent on their behalf to have the treatment if it is reasonable and indicated according to field directives.

In that case, the suspect will be perceived as not having rejected treatment, and the DUI blood test may be admitted in trial as evidence against the defendant

As to what rises to the level of a clear and expressed rejection, this may prove to be another question for the courts to decide.

It is unknown if the case will be appealed to the Arizona Supreme Court.

10 Things You Should Know about the Medical Treatment DUI Blood Test Warrant Exception

[A.R.S. S 28-1388 E]

Police can request DUI blood test with medical treatment:

1. If police have probable cause to believe that a person may be driving impaired under the influence of alcohol or drugs, they can request a sample of lab or other chemical testing for law enforcement purposes incidental to the medical treatment which was not rejected;

2. If the suspect voluntarily consents to seeking medical treatment;

3. If the emergency medical technicians decide it is necessary to transport the patient for medical care, without influence from the police officer.

It is unconstitutional for police to request to draw blood from medical treatment:

4. If the suspect is subjected to medical treatment that is clearly and expressly rejected;

5. If the suspect is compelled to seek medical treatment under threat of arrest;

6. If medical treatment is not completely voluntary, then neither is the DUI blood test.

A suspect’s rejection of medical treatment may be invalidated:

7. If the suspect does not expressly or implicitly reject the treatment;

8. If the suspect’s rejection is ambiguous or unclear;

9. If the suspect’s injuries or medical condition is such that they are unable to respond to oriented questions.

10. If the driver is unable to clearly and expressly reject the treatment, the EMT may proceed under the implied consent.

Doctrine of Implied Consent for Medical Treatment

Under the common law doctrine of Implied Consent, the emergency medical technician (EMT) considers the seriousness of the injuries, and other factors to determine if immediate medical care is needed.

Then, in absence of an injured person’s clear and express consent, the EMT may act on behalf of the patient. They may act under this doctrine if they conclude that the patient is incoherent, or unable to make a competent decision about their care in light of their injuries or circumstances.

Express Consent

Express consent may be verbal, in writing, or other forms of communication such as sign language or other unambiguous body language, documents, parental authority, or other circumstances that make it clear that they do not want to seek medical treatment.

DUI Defense for Chandler AZ

Whether or the police are permitted to test your blood after suspecting you of driving under the influence can involve a complicated analysis. It is crucial to retain an experienced criminal defense attorney who understands the Fourth Amendment and proper police procedure.

If your constitutional rights were violated by law enforcement during the process of obtaining the evidence, or other phase of your criminal investigation, it can lead to suppression of the evidence, and dismissal or acquittal of charges. Other defenses may also apply.

James E. Novak, a DUI and Criminal Defense Arizona attorney in Tempe AZ, is a former prosecutor, experienced trial lawyer, and dedicated drug crimes defense attorney. If retained, he will provide you with a strong defense for your charges. We offer a free consultation for active criminal charges. James Novak of the Law Office of James Novak provides a free initial consultation and defends active charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, AZ. Call today (480) 413-1499.

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AZ Appeals Court Rules: “When Out-of-state DUI Convictions Count as Priors”

The Law Office of James Novak Team — Mon, 17 Nov 2014 23:29:12 GMT

Approximately 37 million people visit Arizona each year, and 16 million of those visit the Phoenix Metro area. Whether they are here to vacation, attend school or sporting events, or to see the attractions our State has to offer, many will be driving.

Unfortunately, some will be arrested for impaired driving. Suddenly, what was supposed to be a fun and enjoyable trip turns into a nightmare.

One of the most common questions a person asks after being arrested for a repeat offense, if they are visiting or a new resident to Arizona is “How will my prior DUI received in another state, impact my current DUI charges?”

Recently, an Arizona Appeals court addressed prior DUI charges involving out-of-state DUI convictions. The Appellate court considered whether a prior out-of-state DUI conviction would be used to reclassify charges to a felony for a third DUI conviction.

In this case the defendant had been charged with two counts of aggravated DUI, two counts of aggravated driving with a BAC of .08 or more and aggravated assault on a peace officer.

The aggravated (felony) driving charges were based on the fact that the defendant had two or more prior DUI convictions within 84 months under A.R.S. § 28-1383.

The lower court dismissed the Felony DUI and BAC charges. The State Prosecution appealed the dismissal of the Aggravated DUI charges. The Appeals court agreed with the State Prosecution, and reversed the dismissal of the Felony DUI charges.

Analysis of the Decision: Out-of State DUI Counts as a Prior

The lower trial court concluded the defendant’s prior DUI convictions were in California and therefore couldn’t support aggravated DUI charges in Arizona. This is because the DUI statutes were not identical in California and Arizona.

The Court noted that that in order for an offense that occurred out of state to be counted as a “prior” the laws of the two states must be identical. Or alternatively, the offense must be such that if it had been committed in Arizona, instead of California in this case, it would have been in violation of Arizona’s impaired driving laws.

The court ruled that an examination and comparison of the two State DUI laws was required in order to answer the question of whether or not the California DUI offense constituted a “prior”.

The court acknowledged that Arizona required proof of impairment, whereas California did not.

The state argued that California’s Supreme Court had interpreted the statute to require impairment, but the trial court didn’t find this persuasive.

The defendant had argued that California permitted convictions under circumstances that wouldn’t establish a DUI in Arizona.

The state appealed, arguing that the California convictions were for violations that if committed in Arizona would have also led to convictions. Specifically, the State challenged the dismissal by the lower court, based on the contention that the defendant’s California convictions constituted “acts in another jurisdiction that if committed in this state” would have been in violation of Arizona’s DUI laws, as required under A.R.S. § 28-1383 (A),(2).

Subsequently, the appellate court compared the DUI laws of California and Arizona to determine whether the dismissals by the lower court were proper. It acknowledged that the defendant was correct in pointing out that in California, the driver did not actually need to be impaired whereas in Arizona the driver did need to be impaired to be convicted.

However, the appellate court stated that the question was actually whether there was any scenario under which the defendant could have been convicted in California, but not in Arizona.

The rule for using an out-of-state conviction for sentencing in the current case is that the court must find that the foreign conviction includes each and every element required to prove the Arizona offense. In comparing the law, they noted that California courts have said that to be regarded as driving under the influence a person must be appreciably impaired. When a person has been convicted of a DUI in California, it means that the person had been impaired to an appreciable degree. Similarly, for the BAC conviction, California prohibited having a BAC of .08 at the time of driving while Arizona prohibits a BAC of .08 within 2 hours of driving.

If a person has a BAC of .08 while driving as required under California law to be convicted, he would definitely have a BAC of .08 within two hours of driving as Arizona requires. Accordingly, he would be able to be convicted in Arizona for the same offenses for which he was convicted in California. The appellate court reversed the trial court’s order to dismissal of the Aggravated (Felony) DUI charge, and sent the matter back to the lower court, for continued prosecution of the charges.

“Not every out-of-state DUI conviction constitutes a “prior” against a current Arizona DUI.

But unless it’s elements are challenged,

the risk is great that it will be used against you.”

5 Ways in Which Arizona is Combating Repeat Offenses The Arizona Department of Public Safety (DPS) reported that strict impaired driving laws do not deter repeat offenses. They outline the alternative penalties that are in place which have proven to be the most effective in reducing repeat impaired driving offenses. They include:

Mandatory Alcohol and/or Substance Abuse education and treatment participation;
Intense Supervised Probation with alcohol and substance abuse monitoring;
Mandatory Installation and Monitoring of Ignition Interlock devices (IID) in Vehicles;
Vehicle Impoundment;
House Arrests with Electronic Monitoring

The National Highway Traffic and Safety Administration (NHTSA) has continually evaluated the effectiveness of alternative sentencing that included participation in mandatory DUI counseling and treatment programs, as compared to incarceration alone. One study in recent years measured the effectiveness of Maricopa County’s DUI Court program which includes alcohol/substance abuse counseling and treatment program participation. They found that DUI court programs like those that exist in Maricopa County were effective in reducing repeat offenses. Further it concluded that this program was more effective than standard incarceration, or standard probation sentencing.

Repeat Offense Statistics

In 2012 the National Highway Safety Administration compiled repeat DWI convictions data in 40 states and the rate of recidivism over the prior 7 year period. The report indicated that Arizona recidivism rate for DUI offenses was 21 percent of all DUI convictions during that year, which was under the national average of 29.5 percent recidivism.

NHTSA reported that the number of arrests over the last 20 years may have decreased by as much as 19 percent for arrests and 6 percent for convictions on a national level. Their conclusions were that alternative sentencing such as DUI alcohol and substance abuse counseling and treatment, DUI courts, use of Ignition Interlock devices, close supervision and monitoring, license plate sanctions, and other interventions may have contributed to the decreased trend.

Criminal Defense for DUI in Mesa AZ

Not every out-of-state DUI conviction constitutes a “prior” against your current Arizona DUI. But unless the elements of it are challenged, the risk is great that it will be used against you.

In each case, the court will likely conduct an analysis like the one in this case study. But it illustrates the importance of consulting an experienced Arizona criminal defense attorney for DUI charges. An effective defense attorney will make sure your rights are protected, and conduct a similar analysis to determine a probable outcome for your case and best strategies to defend you. A defense should be tailored as it applies to a given case, in order to obtain the best possible resolution. Favorable outcomes can include suppression of evidence, reduction of charges or sentencing, avoidance of prison, reduced jail terms, or even case dismissal or acquittal.

If you or someone you know has been arrested or charged with a DUI, you should contact an attorney with DUI-specific defense experience to represent you. Contact The Law Office of James Novak at 480-413-1499 for a free consultation, if you face DUI charges in Phoenix, Tempe, Mesa, Chandler, Gilbert or other surrounding East Valley Cities.

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Arizona’s Medical Marijuana Law Stands Ground, Phoenix DUI Lawyer Blog, June 4, 2013
Felony DUI Laws and Penalties in Arizona, Phoenix DUI Lawyer Blog, July 1, 2013

DUI Arrest without Breath, Blood, or Chemical Testing

The Law Office of James Novak Team — Mon, 16 Dec 2013 21:09:27 GMT

“DUI arrests for “probable cause” doesn’t mandate that the police officer show a driver was actually under the influence, only that it is probable that he was”.A police officer need only have a reasonable suspicion that you have violated a traffic law (like the speed limit) or engaged in criminal activity to stop you. “Reasonable suspicion” means that there is a “particularized and objective basis” for believing somebody had violated the law. Once you are stopped, there must be probable cause to arrest you.

In a recent case, the Arizona Court of Appeals considered whether there was probable cause where the defendant was convicted of four counts of aggravated driving under the influence (aggravated DUI). The defendant had been stopped in his vehicle after a police officer visually estimated he was going fifteen miles over the speed limit. According to the police offer, he’d been trained to accurately estimate vehicle speed within five miles per hour.

Once the officer stopped the defendant, he saw the defendant had watery bloodshot eyes, spoke with slurred speech, and smelled like alcohol. The defendant couldn’t find his driver’s license and gave the officer his social security number. It turned out that he provided his wife’s social security number. When the officer learned this, he asked the defendant for his wife’s social security number. This time, the defendant gave him his own number. The officer administered a test for alcohol impairment. When the defendant refused a breathalyzer test, he was arrested.

After being sentenced to four months incarceration for concurrent terms, the defendant appealed, arguing that his traffic stop was illegal for lack of reasonable suspicion and his arrest was illegal for lack of probable cause. He had tried to suppress evidence (keep it from being used at trial) from his stop and arrest.

The judge denied the suppression motion, deferring to the police officer’s claim that he could accurately estimate the speed and this was the reason for the stop. The judge also found that while probable cause was close, the totality of the circumstances supported the officer’s arrest of the defendant.

On appeal, the appellate court explained that for this type of motion, it defers to the trial court’s factual findings, including the issue of credibility. If a trial court, as in this case, finds a police officer credible, the appellate court assumes the trial court is in a superior position to make that determination and its judgment will not be disturbed.

The defendant argued that the dashboard police officer’s car was equipped with a video camera. He argued that the video was an objective piece of evidence contradicting the police officer’s estimation. However, there was no read-out of the speed of the defendant’s car on the video. Accordingly, the trial court found it did not contradict the officer’s estimate. The appellate court agreed with the trial court. The defendant also argued that the officer did not have probable cause to arrest him because he only collected evidence regarding alcohol consumption, not his impairment.

“Probable cause” carries a higher standard than reasonable suspicion. The police can arrest you if he or she has probable cause to believe you have committed a felony or crime in his presence. With DUI arrests, probable cause doesn’t mandate that the police officer show a driver was actually under the influence, only that it is probable that he was.

The appellate court held that probable cause does not require law enforcement `to show that the operator was in fact under the influence’; Arizona v. Aleman ( 2005). The Arizona Court of appeals held that when evaluating and justification of probable cause, they are not considering technical factors. But, instead, probabilities that are factual and practical with circumstances that would lead to conclusions made by a reasonable and prudent person Arizona v. Dixon (1987),.

The Appeals Court also explained that an officer may draw inferences that someone is impaired by alcohol by relying on his own experience and training. In light of the defendant’s odor of alcohol, confusion about his social security number and performance on the test, it was very probable he’d been driving under the influence.

National Highway Traffic and Safety Administration’s Post-DUI Stop Cues

Studies by the National Highway Safety Administration (NHTSA) revealed 10 post-stop DUI Cues that have been found to be consistent with impaired driving. They are considered in addition to to a list of driving cues in evaluating whether or not a driver should be investigated for DUI, or considered in totality as “probable cause” for arrest if a DUI breath test or blood test is refused. The items below are considered cues when the Driver has difficulty performing the following skills: • Operating vehicle’s controls; • Getting out of the vehicle; • Finding and retrieving their driver’s license and registration; • Answering questions and communicating (excluding language barriers); • Maintaining body balance; • Standing without leaning on the motor vehicle or other stationary object; • Talking without slurring words due to alcohol or drug influence; • Responding to officer timely or without asking the officer to repeat the question; • Providing accurate information or answers to routine questions; Other post-stop cues to the police officer include a strong odor of spirituous beverages on the driver’s breath or clothing, and opened alcoholic beverage containers in plain sight within the vehicle.

As you can see, driving with any degree of impairment can be a very bad idea because Arizona police officers are entitled to rely not just on breathalyzer results, but on a variety of empirical information.

If you have been pulled over on suspicion of drunk driving or arrested for drunk driving in Arizona, you should be aware that the penalties are very harsh. A criminal defense attorney with a strong background in DUI Law can make a huge difference to your case. Contact The Law Office of James Novak at 480-413-1499 for a free consultation, if you face DUI charges in Phoenix, Tempe, Mesa, Chandler, Gilbert or other surrounding East Valley Cities.

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Arizona DUI Stops: Weapons in Your Vehicle

The Law Office of James Novak Team — Thu, 28 Nov 2013 23:51:46 GMT

How to avoid additional charges, and make sure your DUI stop does not turn deadly

Recently a Mesa AZ police officer approached a vehicle and asked the driver if he had any weapons. The driver responded, affirmatively that he did in fact, have weapons in the vehicle. At that point he reached to the other side of the car and pulled a gun out of a holster from inside the vehicle. The officer apparently felt threatened, and reacted by drawing out his own sidearm. The police officer gave verbal commands for the driver to drop his weapon. The driver immediately dropped his weapon. The driver agreed to take a field sobriety test, which evidently did not go well for driver, since he was then taken to a command center to be booked for a DUI.

What went wrong that made this DUI stop potentially deadly?

Let’s take a closer look at reported events; application of the law; and tips on how to avoid criminal charges that are unrelated to driving impairment. First, there is no legal duty to voluntarily tell an officer you are carrying a gun if you are pulled over while driving in Arizona. However, you should respond affirmatively to an officer who asks. You should never pull a firearm out or at the officer or cause those to feel threatened in anyway. The driver was fortunate that the officer responded apparently with levelheadedness.

Although most attorneys discourage suspects from volunteering any information to the officer in a stop, there are others who feel there are safety benefits for the driver to volunteer to an officer that they are carrying a weapon so long as they are prohibited possessor and it is a prohibited weapon. This will avoid the police officer being taken by surprise, it in the event a search is conducted of your vehicle. Some feel too, that volunteering this information will alert a law enforcement officer that you are not doing anything wrong.

With every widely observed holiday, you’re likely you will see heightened police presence, enforcement and DUI Sobriety Checkpoints. DUI Roadblocks are set up with the intent to seek drivers for signs of intoxication or impairment, and make DUI arrests. The goal is to prevent motorists from driving impaired under the influenced of alcohol or drugs. DUI checkpoints can be considered “double edged sword” of sorts. Everyone wants impaired drivers off of the road. But if you’ve ever found yourself in a line-up waiting your turn through the checkpoint, you know it’s no fun. Whether you are driving impaired or not, it’s completely normal to feel a little nervous or anxious.

Most people sort of look around to make sure there is nothing in their vehicle that would give rise to the suspicion that they are under the influence of alcohol or drugs. In Arizona, you should know that when the officer stops you at a DUI checkpoint, arrests can be made for violations of other crimes too, not just impaired driving. In absence of a formal DUI safety checkpoint, a police officer needs a “reasonable suspicion” that a violation of the law or crime has occurred or is in progress to stop a driver and conduct a DUI investigation. However, DUI checkpoints bypass this usual step. Not all states have laws authorizing use of DUI checkpoints, but in Arizona their use is becoming more prevalent.

Always, (one more time) “always”, keep both hands on the wheel while you are talking to the officer. The exception to this, is if he instructs you to show him your license which requires you to take your hands on the wheel; or otherwise. Talk to the officer as calmly as possible, and when you must take your hands off the wheel to reach for your driver’s license and registration, do so calmly as well.

Like the situation in Mesa described above, an officer who sees you reach into an area of the car he can’t see may think that you are about to shoot. You do not have to reach for anything to extend a verbal affirmative or negative response. If an officer who pulls you over for suspected DUI asks for your driver’s license, you need to show your driver’s license to him. Otherwise you may give the officer probable cause to conduct a further search and seizure. If the officer asks to search your car, you should say that you do not consent to a search. However, if the officer searches anyway, you must cooperate and you cannot put up any sort of resistance.

Field Sobriety Tests are not mandatory in Arizona. They are simply tools for Police to conduct roadside DUI screening and due to their unreliability may result in false conclusions. You can politely and lawfully refuse to participate in a field sobriety test. You should let the officer know that your reason for refusal is that you understand it is not mandatory by law, and it is your understanding that field sobriety tests are often unreliable and could give false impressions that a person is impaired when in fact they are not. You should be aware that refusing to submit to a field sobriety test may be cause for arrest or further detainment. You can and should refuse to answer questions based on your rights under the Constitution and request to speak with an attorney.

Arizona is an implied consent state. What does this mean to drivers? It means that there are civil penalties through the Motor Vehicle Division (MVD) for refusal. If a driver refuses to take a breath or blood test to determine your BAC, your license may be revoked or suspended, whether they are were driving impaired or not; or convicted of the charges or not. All a refusal of a DUI breath or blood test costs you is a suspension of your driver’s license for one year. But the choice of course is ultimately yours. If you have been arrested or cited for any kind of DUI, Contact the Law Office of James Novak to receive a free consultation. He provides a strong and experienced defense for DUI and criminal charges. a href=”http://www.arizonacriminaldefenselawyer.com/lawyer-attorney-1580468.html”>criminal defense attorney.

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Aggravated DUI for Driving on Suspended License Defenses

The Law Office of James Novak Team — Tue, 05 Nov 2013 01:08:02 GMT

Appeals Court overturns conviction holding that the State must prove beyond a reasonable doubt that a defendant knew or should have known of the suspension.

There are several ways to get an aggravated DUI conviction in Arizona. Among the ways is driving while impaired by alcohol, drugs, medication, or illegal substances while having a suspended, cancelled, revoked, refused or restricted license. This is a class 4 felony.

However, you can also be charged with driving on a suspended license, which is a class 1 misdemeanor. Although the latter may not seem particularly important because it is a misdemeanor, it does give you a criminal record and can impact you in the future.

In a recent case, the defendant was charged with aggravated DUI while driving on a suspended license. The defendant did not appear for his trial and was tried without being present.

In this case, the State asked for a jury instruction for the DUI stating that the man’s license was suspended and that he either knew of the suspension or should have known of it. However, the State did not require any proof regarding the defendant’s mens rea for the suspended license count. In criminal law “mens rea” refers to a guilty mind or criminal intent. It is a crucial element in many crimes.

The State proposed that all that needed to be shown in this case was that the defendant had driven on a suspended license and his license was in fact suspended. It didn’t matter what he thought. The defense attorney asked for the same mens rea that was applied to the aggravated DUI charge to be applied to the suspended license count. A jury found the defendant guilty of driving on a suspended license, but acquitted him of the DUI. He was sentenced to 10 days in jail and fined. He appealed.

On appeal he argued that the court should have given a jury instruction that to convict of driving on a suspended license, it must be proved that the defendant knew or should have known that the license was suspended or revoked.

On appeal, the appellate court reviewed the issue of whether the jury instructions for the suspended license count were adequate. It explained that the pertinent statutory section (28-3473(A)) did not specify a mens rea at all. The statutory section regarding mens rea noted that if there was no mens rea expressly stated for culpability, none was required and the offense should be treated as one of strict liability unless the prohibited action intrinsically included a culpable mindset.

However, in Arizona, the courts have tended to disfavor strict liability offenses. A mens rea is preferred.

In the aggravated DUI cases cited by the defendant, there was absolutely the requirement that a defendant knew or should have known of a suspended license. However, one of the cases explained that a suspended license was difference because public policy supported the proposition that a driver must know of his lack of license in order to be punished for driving without one. There could be problems of mistaken identity or voiding of auto insurance at the Department of Transportation. The danger of unknown or mistaken suspensions was too serious to permit prosecution and conviction without a reasonable knowledge or reason to know.

The State had countered this excerpt of case law, claiming that a suspended license should be handled differently because it carried a small penalty, not the harsh consequences of a felony conviction. The court disagreed with the State, holding that the State had to prove beyond a reasonable doubt that a defendant knew or should have known of the suspension or other reasons for driving without a license.

The court vacated the conviction and sent it back to the lower court for a new trial. If you are charged or convicted with any type of DUI, you should consult with an experienced attorney to improve the outcome. Contact The Law Office of James Novak at 480-413-1499 for a free consultation, if you face DUI charges in Phoenix, Tempe, Mesa, Chandler, Gilbert or other surrounding East Valley Cities.

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Arizona Supreme Court: DUI Partition Ratios Evidence Admissible

The Law Office of James Novak Team — Tue, 27 Aug 2013 23:13:51 GMT

Arizona V. Cooperman: DUI Partition Ratio relevant, competent evidence to show lack of DUI Impairment. Blood Alcohol Content (BAC) refers to the concentration of alcohol in the blood that can currently be measured either by a DUI blood test or a breath test. Interestingly, however, the results of a breathalyzer test for DUI may not always be the same as the results from a blood test. This may be the case even if the blood and breath are tested at the same time.

Partition Ratio in DUI Breathalyzer Tests

Breathalyzer tests produce a numerical score, only by mathematically converting the breath sample to a Blood Alcohol Concentration level. This conversion process is known as the “partition ratio” when the conversion factor is used. The conversion is considered problematic by some because it is not necessarily reflective of the actual partition ratio for an individual; actual partition ratios for individuals can vary. Factors that may cause the ratios to vary include but are not limited to body temperature, medical conditions and gender. This means a breathalyzer test for an individual may not accurately translate to a blood alcohol concentration level indicative of impairment.

Case Background: State of Arizona v. Cooperman In a recent case, the Arizona Supreme Court addressed whether partition ratio evidence could be admitted in a DUI case where (1) the state chose to bring in breath test results to prove a defendant had a .08 percent or more BAC within two hours of driving, and (2) evidence related to how much partition ratios varied in the population was relevant to the defendant’s level of impairment. The defendant here wanted to show how the partition ratio varies in the general population in order to introduce doubt as to whether the results of the breath test showed impairment. In this case, a motorist charged with one count of driving while “impaired to the slightest degree” in violation of A.R.S. 28-1381 (A) 1; and the other was for having an alcohol concentration of .08 percent or more within two hours of driving in violation of A.R.S. 28-1381 (A) 2.

The Prosecution generally attempts to prove beyond a reasonable doubt that the latter charge (.08 percent BAC) by presenting a jury with evidence of a defendant’s blood alcohol content and establishing a DUI test sample was taken within two hours of the defendant driving. When a person’s BAC is .08 percent or higher, the presumption is that a person is under the influence, in violation of Arizona’s legal limit. However, to have a level below the .08 percent BAC does not however, create a presumption. If the officer had probable cause to believe that a motorist’s was still impaired, even though their BAC was below .08 percent, they may bring charges in violation of “impaired to the slightest degree”. The impairment, however, cannot be presumed, and must be decided in connection with other probable cause evidence.

The prosecution in this case attempted to prevent the defendant from submitting evidence that showed the partition ratio used to convert the breath reading to a blood reading was variable, meaning inconsistent, or liable to change. The prosecution argued that it planned only to introduce the breath test results for proof that the defendant’s BAC exceeded .08 percent; but not to prove the first charge of “impairment to the slightest degree”. Since the prosecution was not going to introduce the breath test for the impairment to the slightest degree charge, they argued the defendant could not present the partition ratios related to that breath test to cast doubt on whether or not the defendant was impaired at all.

Experts for both parties testified regarding the partition ratio. The defendant again tried to introduce exculpatory evidence of the partition ratio to that would cast doubt on whether or not he was impaired to the slightest degree. The State argued the defendant’s evidence was irrelevant and had the potential create unfair prejudice. The court ruled that partition ratio evidence was in fact relevant whenever breath test results are brought forward by the State. The court of appeals affirmed this ruling. The State then appealed to the Arizona Supreme Court.

Arizona Supreme Court Analysis

The Arizona Supreme Court held that evidence is relevant where it can make a material fact in a case more or less probable. If evidence is relevant, it is permitted at trial, unless there is specific rule or provision in the law that prohibits it. In this case, the State was required to prove that the defendant was impaired because he drank alcohol. Therefore evidence of his impairment was relevant.

The AZ Supreme Court recognized the strong correlation between Blood Alcohol Content levels and intoxication. The prosecutors had argued that they had the unilateral ability to invoke the presumption that the defendant was under the influence and the partition evidence was irrelevant because they chose not to invoke the presumption of impairment to the slightest degree.

The Arizona Supreme Court disagreed with this approach by the prosecution. They held that there is nothing that precludes a DUI defendant from presenting partition ratio evidence to show he was not impaired in an impairment case. In fact, they cited specific Arizona Law, A.R.S. 28-1381(H) which specifically provides that any “competent evidence” on the issue of the question of the defendant’s impairment in DUI charges brought against them.

Conclusions

In conclusion the Arizona Supreme Court cited Sandstrom v. Montana, 442 U.S. 510, 524 (1979). Which holds the need to satisfy constitutional requirement presumptions in criminal cases must be rebuttable, enabling either side to provide evidence or argument that challenges or opposes the presumption. Thereby The Arizona Supreme Court affirmed decisions made by all previous courts, Municipal, Superior, and Appeals Court of Arizona, which was to allow the exculpatory evidence regarding partition ratio variability to be admitted to show the defendant’s lack of impairment.

There are many facets and complexities to defending DUI charges. There is no one size fits all defense. For this reason it is important to have an experienced criminal defense attorney defend the charges, and tailor such defense to the facts of the case. If you have been arrested or charged with a DUI, an experienced DUI defense attorney can figure out the best defense strategy for the specific charge. Contact The Law Office of James Novak at 480-413-1499 for a free consultation, if you face DUI charges in Phoenix, Tempe, Mesa, Chandler, Gilbert or other surrounding East Valley Cities.

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Aggravated DUI Laws and Penalties in Arizona

The Law Office of James Novak Team — Sat, 10 Aug 2013 01:21:41 GMT

DUI with passengers under age 15 in vehicle raises a DUI to Felony Charges, where penalties are steep.

Drunk driving can subject you to harsh penalties in Arizona. However, driving drunk with children in the car can lead to even harsher penalties.

Recently, a middle-aged man was stopped

in Arizona driving 89 miles per hour in a 65 mph zone. His ten-year-old and twelve-year-old daughters were in the car with him and the sheriff noticed his breath smelled like alcohol. His Blood Alcohol Content (BAC) was .253 percent over 3 times the legal limit for alcohol in Arizona. The man admitted to deputies that he drank a six-pack of beer before driving. He was then charged with aggravated felony DUI, Super Extreme DUI and excessive speed.

An Aggravated DUI charge means that Misdemeanor DUI charges were raised to a felony in violation of Arizona’s A.R.S. 28-1383 Aggravated DUI Laws. An impaired driving charge without aggravated circumstances is generally charged as a Misdemeanor. The aggravated factor of having passengers under the age of 15 in the vehicle raise the charges to a felony violation.

Aggravated DUI charges alone are categorized as Class 6 felonies and expose a person to up to 20 days of incarceration; $4,000.00 fines; Driver’s License Revocation for 3 years; 2 years Ignition Interlock Device (IID) after driving privileges are reinstated; substance abuse education and counseling; and possible forfeiture of vehicle. These penalties will be more severe if coupled with other DUI or criminal charges, or if they are repeat offenses.

An Extreme DUI is charged when someone has a BAC above 0.150 percent but below 0.199 percent. First-time violations of Extreme DUI convictions expose a person to driver’s license suspension for 18 months; fines fees and assessments of $1500.00; 30 days in jail; installation of an Ignition Interlock Device (IID) for 1 year; and substance abuse screening and treatment.

The Super Extreme DUI charge was because his BAC level exceeded 0.20 percent under Arizona Super Extreme DUI Laws A.R.S. 28-1382. A first time DUI conviction with a BAC 0.20 percent or higher, calls for maximum jail terms of 45 days: fines, fees, and assessments of $1750.00; IID for 18 months; driver’s license suspension; and substance abuse screening, counseling or treatment.

In Arizona, the higher the BAC, the more severe the sentencing related to most all the penalties. Repeat violations can also result in aggravated DUI charges, and exposes a person to prison sentencing.

The Aggravated DUI in this case may present even harsher penalties if the man is convicted than the extreme DUI charge. When children under the age of 15 are in the car of a drunk driver, a misdemeanor DUI or DWI is automatically charged as a more serious Class 6 felony, even if it is a first drunk driving offense and the driver has no criminal history. This is because of the significant risk to a child’s life from being in the car with a drunk driver. Someone convicted of felony aggravated driving while under the influence, may be sentenced to prison for 2 ½ years. Not only that but he or she must also attend and complete an alcohol education/treatment program, pay a fine of $750 and additional fees of $1750. His or her driver’s license will be revoked for 3 years. He or she will also be required to install an ignition interlock device on any car he operates for more than a year. Installation of the device typically costs money, too.

DUI and child endangerment convictions will usually have an adverse impact on civil and parental rights as well as criminal penalties. Convictions may result in a court order reducing of parenting you have with a child, for example if you have joint custody. It can also impact your civil rights such as causing you to be classified as a “prohibited user” due to the felony charge; and other consequential losses.

DUI charges involve multi-facet circumstances, evidence, laws, penalties and consequences. And the punishments can impact your life, and that of your family, adversely for many years into the future. There is a lot at stake in the way of your future and freedoms that you currently enjoy.

For these reasons if you are accused or charged with aggravated driving under the influence or any other drunk driving offense, you will need the help of an experienced DUI attorney. You have the right to retain a qualified DUI lawyer to defend you, and it is important that you invoke that right, before your first scheduled court date. If retained, they will defend your rights, and DUI charges. A good criminal defense attorney will tailor and mount a strong defense on your behalf and work to get the best outcome in your case. Contact The Law Office of James Novak at 480-413-1499 for a free consultation, if you face DUI charges in Phoenix, Tempe, Mesa, Chandler, Gilbert or other surrounding East Valley Cities.

Additional Resources:

More Blogs

Arizona’s Medical Marijuana Law Stands Ground, Phoenix DUI Lawyer Blog, June 4, 2013
DUI Laws and Penalties in Arizona, Phoenix DUI Lawyer Blog, July 1, 2013

New Technology Enables Police to Obtain Search Warrant within 10 Minutes

The Law Office of James Novak Team — Wed, 29 May 2013 17:15:47 GMT

Why Missouri v. McNeely won’t have much impact in Maricopa CountyA recent U.S. Supreme Court decision may not change Arizona DUI law, but it may bring the rest of the nation more in line with Arizona’s policies.

Phoenix AZ court’s Search Warrant Center is available 24 hours a day, 7 days a week for police to obtain a warrant via “eSearch”. According to Phoenix Police, an officer can now obtain a search warrant within minutes. So the fact that the body’s Blood Alcohol Content (BAC) levels naturally decrease over time should not compel police, to bypass a search warrant. This is because the BAC levels take hours to decline, and will not be reduced drastically within 10 minutes.

Recently, the Supreme Court ruled 8-1 that police must obtain a warrant before forcing someone suspected of drunk driving to take a blood test. The US Supreme Court’s decision was that the mere fact that the body reduces BAC levels over time, is in and of itself not an “exigent” circumstance, and that each case should be decided based on it’s own set of facts.

Generally, a warrantless search of a person (including invasive searches of the body like a blood test) is considered reasonable if it falls into a recognized exception to the Fourth Amendment right to be free from unreasonable searches and seizures. In Arizona, the police are required to obtain a warrant in order to proceed with a blood test.

One such exception exists when the “exigencies of the situation” present such a compelling law enforcement need that it is objectively reasonable for an officer to bypass getting a warrant. The Supreme Court found no such exception here.

The case arose when a state trooper saw the defendant driving erratically. When the state trooper pulled him over, the defendant refused to take a Breathalyzer test, so the officer drove him to a nearby hospital and ordered him to take a blood test to measure his alcohol levels.

The officer did not seek a warrant to test the defendant’s blood and it turned out he had very high blood alcohol levels. When the defendant was put on trial, he moved to suppress the results of the blood test on the grounds that it had violated his Fourth Amendment rights.

The State of Missouri argued that the officer’s failure to obtain a warrant was due to exigent circumstances that demanded he depart from the usual rule requiring a warrant. According to the State, because alcohol in the bloodstream slowly and predictably reduces with time, the evidence of the defendant’s DUI would be lost or destroyed during the time it would have taken to get a warrant. Missouri’s guidelines apparently allowed police officers broad discretion about whether to order a blood test under such circumstances.

The Supreme Court disagreed with the State’s argument, stating that under most conditions, there is enough time to get a warrant to test blood by using email or cellphones to contact the magistrate. Justice Sotomayor wrote that whether an emergency made it necessary to forgo the warrant would have to be decided on a case-by-case basis with justification being offered in court later.

Around the same time that the Supreme Court heard this case, Phoenix police sped up the search warrant process by installing a program in all police patrol car computers called eSearch Warrant Application. This allows an officer to send a warrant from the car directly to a judge, who can approve or reject the document on a laptop from the bench. The application was first installed in seven police DUI vans last fall.

The expediency of the warrant process using this software application makes it more critical than ever that if you are pulled over for drunk driving, you call an experienced Phoenix DUI lawyer to handle your case. Contact the experienced Phoenix DUI attorneys of The Law Offices of James Novak at (480) 413-1499 to build a solid defense.

Additional Resources

More Blogs

Prescription Drug DUI Charges, Phoenix DUI Lawyer Blog, January 28, 2013
Marijuana DUI: The Impact of Montgomery v. Harris in Arizona, Phoenix DUI Lawyer Blog, March 13, 2013

Statewide Arizona DUI Enforcement Increased over Memorial Day Weekend

The Law Office of James Novak Team — Sat, 25 May 2013 16:49:16 GMT

DUI one of four main causes of fatal and serious auto accidents on Arizona roadways.

Enforcement of Arizona’s tough DUI laws tend to ramp up in May, especially over Memorial Day weekend and around graduation festivities. Last year, police arrested 3,129 people for DUIs between May 1 and May 31st, 556 of those arrests were made over Memorial Day weekend.

Police agencies statewide have joined together over the past month to patrol for people who are drinking and driving. These efforts are funded by grants from the Governor’s Office of Highway Safety, which also funds training for field sobriety tests, blood draws, drug recognition and equipment.

Tempe Police is at least one law enforcement agency that announced heightening enforcement from May 24th through May 27th. They have committed increased patrols and mobile units throughout the city and will be saturated in downtown Tempe AZ. Minor Consumption violations and prevention are a main focus.

Arizona Department of Public Safety (DPS) reported that last year at this time 5 fatalities resulted from 4 separate collisions, and 85 people were injured. Arizona DPS indicated that impaired driving due to alcohol or drugs was one of 4 main causes of fatalities and serious injuries. Other causes included speeding, seat belt violations, and fatigue or drowsy driving. And while it was not mentioned in the AZ DPS press release, some recent studies and reports show that “texting while driving” is also one of the main causes of motor vehicle fatalities and serious injuries.

It announced late last week that it will be “especially vigilant” on the state’s highways for this weekend to reduce the number of fatalities, injuries, traffic, and impaired driving violations. The AZ DPS is reminding everyone to be patient on the roadway while driving, get enough rest before trips, and obey traffic and seat belt laws, and refrain from drinking and driving; and “texting and driving”.

Tips from the police for the weekend include using public transportation or a completely sober designated driver. All drivers should be aware that in Arizona, adults can be arrested for drunk driving even if their Blood Alcohol Content (BAC) is below .08, if they are impaired to the slightest degree by the amount they drank.

Over Memorial Day weekend, particularly at family outings, some parents may let their older teenagers drink. While some states allow those under 21 to have a BAC of .01 or .02, Arizona has a zero tolerance policy for drunk drivers under the age of 21. Those under 21 may not even have even a BAC of .01%. A relatively recent case looked at the issue of blood tests for BAC for juvenile drivers, and the facts of the case are worth considering if you are a teenager or a parent.

In that case, a monitor at a seventeen-year-old defendant’s school smelled marijuana on his clothing in 2012. The monitor searched the vehicle the defendant and his friends had driven to school and found drug paraphernalia. School officials reported this to the police and the sheriff arrived and advised the defendant of his Miranda rights. Nonetheless the defendant admitted that he and his friends had smoked marijuana away from campus and driven back.

The defendant was arrested and charged with drunk driving. The sheriff read him admonitions related to the implied consent law for blood tests and the defendant agreed to submit to testing. His parents were called and came to the school. Meanwhile, the defendant’s blood was tested without his parent’s consent. His parents were told he was caught smoking marijuana and arrested, but weren’t asked for permission to test the blood that had been drawn.

Before a delinquency hearing, the defendant moved to suppress the blood test results. He argued that, as a minor, he lacked the legal ability to consent to testing. The juvenile court granted his motion, reasoning that the Arizona Parents’ Bill of Rights includes the right to consent before a minor’s blood is tested, notwithstanding Arizona’s implied consent law. It also found that the defendant’s consent hadn’t been voluntary.

The State appealed the juvenile court’s decision. The State argued that the Parents’ Bill of Rights was inapplicable because the parental right to consent did not prevent law enforcement officers from acting in their official capacities within the scope of their authority.

The appellate court reasoned that anybody who operates a motor vehicle in Arizona, including minors, gives consent to alcohol testing of blood, breath and urine in the context of a DUI allegation. Although someone cannot be blood tested in a DUI stop without a warrant, drivers are already assumed to have given consent. They can withdraw the consent that has been given, but they face penalties for doing so.

During gatherings, and festivities where adults are drinking, it can be tempting to let your teenager drink just one beer as well. However, the consequences in Arizona are quite severe and you should talk to your teen about Arizona’s zero tolerance policy for underage drinking. If you or someone you love has been accused of or charged with a DUI, contact the experienced Phoenix DUI attorneys at The Law Offices of James Novak at (480) 413-1499 to build a solid defense.

More Blogs

AGOHS Announces Holiday DUI Task Force Conference, Phoenix DUI Lawyer Blog, November 5, 2012

Additional Resources

Prescription Drug DUI charges

The Law Office of James Novak Team — Mon, 28 Jan 2013 17:18:57 GMT

If you plan to move or travel to Arizona; you should become familiar with Arizona’s strict prescription drug DUI laws.

A person may be arrested in Arizona for a DUI, if they are not driving drunk, and even if they have had no alcohol at all. Last year Drug impairments accounted for 15% of all DUI arrests in Arizona. Police attribute many of these to Prescription DUI violations. If a motorist is driving impaired due to Prescription-only medications solely or in combination with alcohol, they may be exposed to a DUI Arrest. Convictions for drug related driving impairments are generally as severe as those for alcohol related impaired driving charges.

Arizona Prescription Drug DUI Laws
A.R.S. 28-1381 – In Arizona it is unlawful for a person to drive or be in actual physical control of a vehicle, if the person is “impaired to the slightest degree” 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; • 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; • Due to any drug defined under A.R.S. 13-3401 or its metabolite in a person’s bodily systems.

Prescription Drug DUI Penalties

A person found guilty of driving impaired due to prescription drugs will be convicted of a Class 1 Misdemeanor. Penalties first offense Drug DUI convictions include 10 days in jail; substance abuse education and screening; fines, fees, costs of $1250.00; 90 day driver’s license suspension; and probation; and Ignition Interlock Device (IID) one year. A second violation, within 7 years is a Class 1Misdemeanor. Penalties include 90 days jail; $3,000.00 fines, fees, costs; license revocation for one year; probation; Ignition Interlock Device (IID); and probation. A third DUI violation of any kind within 7 years, with two prior DUI convictions elevates a DUI to a Class 4 Felony, or Aggravated DUI to a Class 4 Felony. Penalties call for 4 months in prison for the third DUI; and 8 months for subsequent impaired driving convictions; fines, fees, costs of at least $4,000.00; driver’s license revocation for 3 years; ignition interlock device (IID) 2 years; probation or community service; and a felon criminal record.

These penalties may vary slightly, and additional penalties may apply.

Prescription Drugs Defined

A.R.S. 13-3401 (28) includes the definition of “Prescription only drug” and means; • Any toxic or potentially harmful drug as recognized in the general medical community; and • Is considered safe to use only under the supervision of a licensed and qualified medical practitioner; • Limited or approved for use as new drug under Federal Rules and medical supervision; of a medical practitioner. • Potentially harmful drugs with labeling that includes proper directions for use; • Drugs required by the Federal Rules to include labeling with the test “Federal law prohibits dispensing without prescription” or “Rx only”.

Criminal Attorney for Prescription Drug DUI defense Gilbert AZ
Arizona has some of the toughest laws and penalties for conviction in the county. If you are arrested for any type of impaired driving in Arizona due to alcohol or drugs, your future and freedom are in jeopardy. But you have the right to defend their charges, and by law are innocent until proven guilty. You should consult a criminal defense attorney, regarding your matter before deciding to plead “guilty”. If retained, a qualified legal advocate will protect your rights and defend your charges. There may be defenses you are not aware of that could lead to a case dismissal, reduction of charges, or mitigation in sentencing.

Additional Resources:

• Arizona Prescription Drug Definition

• Arizona DUI Laws

• Gilbert AZ Police DUI Enforcement Units

• Criminal Court Gilbert AZ

• Arizona MADD.org

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Law Office of James Novak 4500 S. Lakeshore Drive Tempe AZ 85282 (480) 413-1499 www.Arizonacriminaldefenselawyer.com www.novakazlaw.com Arizona DUI & Criminal Defense Firm Serving Maricopa County Phoenix-metro, and surrounding East Valley Cities

Super DUI Task Force Created: East & West Valley Join Phoenix for Greater DUI Enforcement

The Law Office of James Novak Team — Tue, 18 Dec 2012 17:32:16 GMT

Combined Resources Creates Larger Valley-wide DUI Task Force December 2012

This year Phoenix AZ, East Valley, and West Valley are combining DUI Task Force Efforts to create one large task force, for better efficiency and safety.

The Special DUI Task Force will be in place for the rest of month of December 2012. A central Command Post will be set up at Devonshire Community Center. It is located at the intersections of E. Devonshire Ave and 28th Street, in Phoenix AZ. Police will also set up DUI Field Vans, with Preliminary Breath Test Units, throughout the valley.

DUI Charges

DUI charges represented the largest number of crimes in Arizona in 2011. A total of 35,505 arrests were made or 14% of all crimes committed in Arizona last year. In an effort to decrease incidents of drunk driving or Drug DUI, Maricopa County police have actively sought out DUI motorists with DUI Sobriety Checkpoints set throughout 2012. This year, they increased their presence and safety checkpoints around holidays, events, and times where high volumes of traffic were expected.

DUI Laws

Arizona has some of the toughest DUI laws and penalties in the country. A first-time DUI is a Class 1 Misdemeanor. Under A.R.S. 28-2831 it is unlawful for a person to drive or be in actual physical control of a vehicle while:

Driving “impaired to the slightest degree” due to any alcohol or drugs;
If the person has an alcohol concentration of 0.08 or greater within two hours of driving or being in actual physical control of a vehicle.

In Arizona the legal limit for alcohol or Blood Alcohol Content (BAC) is 0.08%. However, a person may be guilty of DUI even if their BAC was below 0.08%, if due to alcohol or drugs they were driving “impaired to the slightest degree”.

Before making an arrest, the police will conduct an investigation to determine if they have probable cause for a DUI arrest. This may include Field testing, breath testing, and or blood testing.

DUI Penalties

First-time non-extreme DUI conviction will result in the following penalties:

10 jail sentence;
Suspension of driver’s license for 90 days;
Ignition Interlock Device (IID) on vehicle following reinstatement of driving privileges;
Fines, fees, costs and assessments of at least $1,200.00;
Probation;
Alcohol/drug abuse education and counseling which will reduce jail time to 24 hours if successfully completed;

The higher the Blood Alcohol Content (BAC) level found in a person’s system, the higher the penalties.

Laws and sentencing are more severe for repeat offenses. If a person is found guilty of a third DUI within 7 years, even if the prior DUI charges occurred in another state, they will be convicted of an Aggravated DUI which is a Class 4 Felony. Penalties for Felony DUI call for:

4 months in prison;
Fines, fees, and assessments of S4,000.00;
Driving privileges revoked for 3 years;
24 months of IID after reinstatement of license;
Parole;
Drug and Alcohol counseling and treatment;
Community Service
Felony criminal record

Criminal Defense Attorney for DUI Charges in Phoenix AZ

If you face DUI charges of any kind you should always consult a DUI Attorney before pleading guilty or appearing in court. Even though you were arrested, you have the right to retain an attorney and defend your charges. Your legal advocate will protect your rights; provide a defense; and work to resolve your matter as favorably as possible.

Additional Resources:

• Arizona DUI Laws

• Arizona Department of Public Services (DPS) – 2011 Crime Statistics

• Phoenix Police Department

• City of Phoenix – Municipal Court

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Law Office of James Novak 4500 S. Lakeshore Drive Tempe AZ 85282 (480) 413-1499 Free Consultation Maricopa County DUI & Criminal Defense Firm Serving Tempe, Phoenix, Mesa, Chandler, Gilbert, & Scottsdale AZ www.novakazlaw.com

Felony DUI Judge arrested for Super Extreme DUI

The Law Office of James Novak Team — Tue, 11 Dec 2012 18:48:45 GMT

Super Extreme and Drug DUI laws and penalties apply to all motorists driving in Arizona A criminal superior court judge in Northern Arizona was arrested on Super Extreme DUI charges, Sunday morning, December 9, 2012. He was stopped by police after swerving into oncoming traffic.

It was reported in the media that his Blood Alcohol Content (BAC) level exceeded the Super Extreme limit which is 0.20%. The suspect allegedly admitted to being under the influence of prescription drugs. The Judge was not at his bench on Monday, and the court reported that was allegedly assigned to non-judicial duties due to a personal matter.

In Arizona it is illegal to drive “Impaired to the Slightest Degree” due to alcohol or drugs. Prescription drugs, especially for pain, often have adverse impacts on driving. When drugs and alcohol are combined, they can prove to be particularly impairing on a motorist’s ability to drive.

A mistake in judgment can easily result in a criminal offense. A DUI conviction can result in harsh criminal penalties including jail, driver’s license suspension, and other civil penalties, as well as other consequences. If you will be driving in Arizona, you should understand the side effects of any drugs you take; and be familiar with Arizona DUI laws and consequences of a conviction.

Arizona Drug DUI Laws

A.R.S. 28-1381. (A). Under Arizona law it is illegal to drive or be in actual physical control of a vehicle, “impaired to the slightest degree”, while under the influence of:

Alcohol;
Drug, or toxic substance (including over-the-counter, prescription, other legal or illegal drugs; or
Any combination of liquor, and drugs First offense drug DUI charges are treated are very similar to those of an alcohol DUI with a BAC of 0.08%, and categorized as a Class 1 Misdemeanor. Penalties for conviction include:
- 10 days jail;
- Fines, fees, costs of $1,200.00
- Installation of Court ordered Ignition Interlock Device on vehicle for at least 6 months;
- Drug/Substance abuse screening, counseling or treatment which if completed, will reduce jail term;
- Suspension of Driver’s License for 90 days;
- Probation and/or
- Community Service

Super Extreme DUI laws in Arizona

A.R.S. 28-1381. (A)(2)(B). A motorist driving with an Alcohol BAC of 0.20 or more will be found guilty of Super Extreme DUI. A super Extreme DUI is a Class 1 Misdemeanor; If a person is found to be driving with a BAC of 0.20 they will also be cited with “Impaired to the Slightest Degree”; 0.08% BAC DUI; 015% or more Extreme DUI and 0.20% Super Extreme DUI for up to 4 citations in one stop.

Penalties for a first offense Super Extreme DUI include

45 days in jail; • Fines, fees, costs of $2,500.00
Drug/Substance abuse screening, counseling or treatment which if completed, will reduce jail term;
Installation of Court ordered Ignition Interlock Device on vehicle for at least 18 months;
Suspension of Driver’s License for at least 90 days;
Probation and/or
Community Service

Criminal Defense Attorney for Super Extreme DUI charges Gilbert AZ

Penalties for DUI if convicted will usually result in other life altering consequences such as termination or suspension of job. It is important to consult an experienced criminal defense attorney before going to court to discuss your matter, and options for defense. The penalties for any DUI in Arizona are some of the toughest in the country. You should never plead “Guilty” without being represented by an effective criminal defense lawyer. There may be defenses you are not aware of, that can lead to a dismissal, reduction or charges, or a reduction of harsh penalties. They will guide you through all phases of the criminal justice process; protect your rights; defend your charges; and work to get the most favorable resolution to your case.

Additional Resources:

• Drug DUI and Super Extreme DUI laws

• Gilbert AZ Police Department

• Alcohol/Substance Abuse Counseling and Treatment Providers

• Arizona Department of Health Services – Behavior Health Resource Links

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AGOHS Announces Holiday DUI Task Force Conference

The Law Office of James Novak Team — Mon, 05 Nov 2012 21:07:38 GMT

Tips for keeping your holidays safe and free from DUI arrests and hazards

Last week, the Arizona Governor’s Office of Highway Safety (AGOHS) announced it will be holding a Holiday 2012 DUI Enforcement “Kick-off” Conference at the Arizona State Capitol, Tuesday November 27, 2012. They will be discussing details for safety checkpoints, saturation patrols, and increased presence throughout the state to enforce DUI laws.

The AGOHS works with local city, and county officials to organize DUI Safety Checks that generally beginning around Thanksgiving and run through the New Year. During this time frame last year, DUI roadblocks resulted in over 4,170 Arizona DUI arrests for Drug DUI and Alcohol related DUI offenses.

7 Basic DUI Safety Tips

Here are some tips for planning Thanksgiving, Christmas and New Year holiday celebrations, to help avoid hazards and arrests resulting from impaired driving:

Refrain from driving while under the influence of alcohol or drugs;
Appoint a trustworthy designated driver;
Make arrangements in advance for a safe ride home including taxi, public transportation, or trustworthy family or friend;
Know the Arizona DUI laws related to drug and alcohol DUI;
Avoid binge drinking, and know your impairment threshold for drinking;
Don’t allow yourself to be a passenger in a vehicle driven by a person under the influence of alcohol or drugs;
Talk to your teens about the dangers of drinking and driving and encourage them to follow these tips

Arizona DUI Laws and Facts

The National Highway Traffic Safety Administration works with Arizona to provide support for their Holiday DUI Enforcement “Drive Sober or Get Pulled Over” campaigns. Here are some Arizona laws, and NHTSA facts to keep in mind:

Of the 32,885 people who lost their lives in 2010 to motor vehicle accidents, 31% or 10,228 fatalities resulted from alcohol impaired driving;
The age group subject to the greatest risk of impaired driving and fatal crashes were 21 to 34 years old, who were under the influence of alcohol or drugs;
Nighttime driving 6:00 pm to 6:00 am was the most deadly time frame for fatal crashes, and 78% of fatal crashes within the study in December 2010 alone;
Of those, 45% had a Blood Alcohol Content of .15 BAC or higher;
Police have zero tolerance for DUI charges, and do not provide warnings. DUI arrests will be made; • All DUI convictions call for jail time and suspension of driver’s license;
In Arizona Refusal to take alcohol breath tests will result in a suspension of a motorists driver’s license, whether the motorist was found to be driving impaired or not;
In Arizona the legal limit for alcohol is 0.08% BAC;
A person may be arrested for DUI, if their BAC is below the 0.08% if they are driving “impaired to the slightest degree” under the influence of alcohol or drugs;
The legal drinking age in Arizona is 21 years old. Zero tolerance applies to any one driving or found to have any amount of alcohol in their system.
Criminal Defense for DUI Charges Tempe AZ

If you were arrested for DUI charges in Arizona, you should always consult an experienced DUI defense lawyer regarding your charges. Arizona has some of the toughest DUI laws and penalties in the country, and prosecutors egregiously pursue convictions for all types of DUI – DWI charges. If retained, your attorney will make sure your rights are protected; that you are treated fairly; defend your charges; and attempt to get the most favorable resolution possible for your charges.

Additional Resources:

• Arizona Governor’s Office of Highway Safety – News Announcement

• National Highway Traffic and Safety Administration

• Arizona State Legislature – DUI laws

• Arizona Mothers Against Drunk Driving – (MADD)

• Arizona Department of Motor Vehicles

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Law Office of James Novak
4500 S. Lakeshore Drive
Tempe AZ 85282
(480) 413-1499
www.Arizonacriminaldefenselawyer.com
www.novakazlaw.com
Arizona DUI & Criminal Defense Firm
Serving Maricopa County
Phoenix-metro, and surrounding East Valley Cities

Portable Breath Test (PBT) Laws

The Law Office of James Novak Team — Mon, 08 Oct 2012 23:44:03 GMT

5 reasons police conduct Preliminary Breath Tests

Arizona is one of a majority of states with Preliminary Breath Test (PBT) Laws.

The PBT is a small mobile device used to establish the presence of alcohol in a person’s system. The PBT is intended to be used as an early detection or screening tool by police. Arizona does not allow a PBT to be admitted as evidence in court against a person accused of DUI, because the machines historically are not considered accurate in measuring exact Blood Alcohol Content (BAC) Levels. In addition, PBT units are not calibrated or routinely maintained like the official Breath Tests Machines.

Arizona Portable Breath Test (PBT) Law

Under A.R.S. 28 § 1322 Preliminary Breath Test law a police officer who has reasonable suspicion to believe a person is driving under the influence of drugs or alcohol has authority to request that a person submit to a preliminary breath test.

Under this law, the officer may also require the person to submit to further testing pursuant to the Implied Consent Law A.R.S. 28 § 1321. This includes DUI blood, breath, urine testing.

5 reasons PBTs are commonly used in Arizona

The National Highway Safety Administration recognizes that although the PBT is useful, it is not admissible as sole evidence to determine BAC; but is generally reliable in determining if any alcohol at all is present in a person’s system. Arizona courts do consider PBT evidence to be admissible in court as evidence against a defendant facing DUI charges. Below the police may likely choose a PBT in a DUI field investigation:

To determine or rule out DUI influence of alcohol v. drugs;
Drivers who may have a high alcohol tolerance level, and can perform field sobriety tests or other tasks to a greater degree than those with lower tolerance levels;
To detect if an underage 21 person is under the influence of any alcohol in violation of the state’s Zero Tolerance law;
As a preliminary DUI screening test only; and if positive, will be followed up with an Official Breath Test Machine.
At the scene of a DUI collision where the driver is suspected of DUI, but has been injured and is unable to perform Standard Field Sobriety Tests (FSTs).

Criminal Defense for DUI Chandler AZ

Arizona laws and penalties are some of the toughest in the country. If you have been arrested for any type of DUI you should always consult a qualified criminal attorney to discuss your charges. You should do this before you appear in court or plead guilty to the charges. You have the constitutional right to defend your charges, and this is done by pleading not guilty and retaining proper legal representation. There may be defenses that you are not aware of that if used, may lead to a dismissal of charges, sentencing, or other favorable outcome in your case.

Additional Resources:

• Arizona State Legislature – Portable Breath Test Laws A.R.S. 28 § 1322

• Arizona State Legislature – Implied Consent Laws A.R.S. 28 § 1321

• Arizona Department of State – Public Safety – Determining Alcohol Concentration

• Arizona Governor’s Office of Highway Safety – DUI laws

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DUI Blood Test Laws: DUI chemical tests taken without consent not admissible in Court

The Law Office of James Novak Team — Tue, 18 Sep 2012 20:15:35 GMT

In Carillo v. Houser Maricopa County, the Arizona Supreme Court held that the Implied Consent Law, A.R.S. § 28-1321 did not authorize police to conduct DUI blood testing without a warrant. The exception is if the suspect expressly gives their consent for officers to administer the chemical test. It is not enough for a suspect to object to the blood or urine test. They must expressly refuse, or consent to it. Failure of a person to expressly agree, or to consent to completing the chemical test is considered a refusal.

If a driver refuses a DUI breath test the police may obtain a warrant to collect a blood or urine sample. In order to obtain a warrant the police must have “probable cause” to believe that a motorist was driving impaired under the influence of drugs or alcohol. If a driver refuses to participate in the chemical testing, there are civil and criminal consequences. A refusal of a DUI chemical testing with a valid warrant will result in a 12 month suspension of the motorist’s driver’s license. The police may proceed with a DUI arrest with probable cause for DUI charges.

Arizona Implied Consent Law

Under the Implied Consent Law A.R.S. § 28-1321 a motorist driving in Arizona inherently gives their consent to DUI breath, blood or urine test if requested by police to determine if they are driving under the influence of alcohol or drugs. The Police Officer who makes the DUI stop decides what type of test should be administered. The officer must have cause to believe that the person was driving or in actual physical control of a motor vehicle either alcohol or drugs.

Implied Consent Law – Underage 21 Drinking

Arizona is a “Zero Tolerance” state with regard to underage 21 drinking. This means an underage drinker may be arrested for being under the influence of any alcohol in their blood stream. The Implied Consent Law A.R.S. § 28-1321 also gives authority to police in Arizona to administer chemical testing to a person under the age of 21 years of age. They police may administer the test to determine if the person under age 21 has in their body, whether or not they were driving or in actual physical control of a vehicle.

DUI Lawyer Tempe AZ – Defense

If you were arrested for DUI based on breath or blood testing, there may defenses you are not aware of that can lead to suppression of evidence or even a dismissal of charges. An arrest is not a conviction. Anyone arrested has a constitutional right to defend their charges. In order to make sure your rights are protected, and to defend your charges, you should always retain the services of a qualified criminal defense attorney.

Additional Resources:

• Arizona Legislature Implied Consent Law

• Arizona Legislature DUI law

• Arizona Supreme Court JOSE CARRILLO v. HON. ROBERT HOUSER Ref: CV-09-0285-PR • Arizona Department of Transportation

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Law Office of James Novak 4500 S. Lakeshore Drive Tempe AZ 85282 (480) 413-1499 www.Arizonacriminaldefenselawyer.com www.novakazlaw.com Free Consultation!

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