1. Breath machines are responsive to temperature and will provide inaccurate readings if not calibrated to adjust to a change in ambient temperature.
2. The pattern of breathing may affect the validity of a test. Holding your breath for 30 seconds could result in an increase of a BAC of .07% to .081% or more.
3. Research has shown breath alcohol tests are higher than blood alcohol tests by approximately 15%.
4. If a breath test taker is on a diet or if they are a diabetic or undiagnosed diabetic, The National Highway Traffic Safety Administration has found these people are at risk of elevated acetone levels, with some people experiencing acetone levels hundreds or even thousands of times higher than in the average person. Acetone tests as ethanol in a breath test machine.
5. Many everyday substances that are common in some professions are capable of triggering a false positive breathalyzer result for test takers. Examples include paint, lacquer, cleaning solvents, ethers, and non-drinking alcohols.
6. Alcohol lingering within an individual’s mouth can contaminate an otherwise valid breathalyzer test. Mouth alcohol is presumed to be gone from the mouth after 15 minutes, and California law requires that an officer observes an individual for 15 minutes before performing a breathalyzer test to ensure the results are not contaminated.
7. Certain bread products have also been reported to trigger false positive tests on breathalyzer machines due to various ingredients skewing the results of the test.
8. Acid reflux is caused when stomach material comes into the mouth because of a defective or herniated valve between the stomach and the trachea. This common health reaction is capable of creating an invalid test by leaving alcohol residue within your mouth, compromising the breathalyzer result.
9. Some breathalyzer tests are susceptible to Radio Frequency Interference. Significant radio traffic coming from the police cruiser could potentially impact test validity by disrupting the radio frequency used by the testing machine.
10. Long-term smokers have an inherently higher breath alcohol content because of the presence of acetaldehyde, potentially skewing their breathalyzer results.

Arizona has three levels of DUI.

DUI – An individual can be found guilty of a DUI offense if they are operating a vehicle with a blood alcohol content between .08 and .14. This is the most basic drunk driving offense in Arizona.

Extreme DUI – An individual can be found guilty of an Extreme DUI If they operating a motor vehicle with a blood alcohol content of .15 or more.

Aggravated DUI – An individua can be found guilty of an aggravated DUI offense if they are operating a motor vehicle and have a blood alcohol content of .08 paired with one of the following circumstances:

• Driving on a suspended or revoked license;
• Having committed two prior DUIs in the past seven years;
• Driving with a passenger under the age of 15 years old; or
• Refusing to submit to a breath sample (for those ordered to have an ignition interlock on their vehicle).

Have You Been Arrested for an Arizona DUI?

If arrested for DUI, you have the right to an attorney to defend you against your charges. If you are facing criminal charges for DUI in Arizona, call us at The Law Office of James E. Novak. We are committed to advocating for your rights and exploring every aspect of your case to find the holes in the prosecution’s charges against you. For a free and confidential consultation, call us at 480-413-1499.

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.

Additional Resources:

• A.R.S. § 28-1321
• A.R.S. § 28-1381
• A.R.S. § 28-1382
• A.R.S. § 28- 1383
• Arizona Constitution Article 2.Section 8 | Privacy Rights
• U.S. Constitution 4 Amendment | Search and Seizures
• Arizona Superior Court Rule 4.10| Electronically Transmitted Warrants
• Arizona Revised Statutes 13- 3886 | Telephonic Warrants
• Arizona Supreme Court | Criminal Code Sentencing Charts
• Arizona Department of Public Safety | DUI Prevention
• Maricopa County Sheriff’s Office | Jail Information for Families
• National Institute of Alcohol Abuse and Alcoholism
• MADD | Recent Media Advisories
• Maricopa County Community Substance Abuse Treatment Program

Other Articles of Interest from our Award Winning Blog:

• What You Need to Know about the Medical Blood Draw Exception
• DUI Blood Test with Medical Treatment Admissible unless Care Expressly Refused
• Arizona Supreme Court Rules on Voluntariness of Consent in DUI Testing Case

This protection extends to a DUI blood test. Consequently, police need a suspect’s consent or a search warrant to obtain a blood sample for a DUI investigation.

Without the person’s consent or a search warrant, it is unlawful for the police to collect a DUI blood sample.

However, there are a few exceptions, including one known as the medical blood draw exception.

Under this exception, police can request a DUI blood sample, when taken incidental to a medical blood draw.

In order to for tests results to be admitted into court, the incident must have involved exigent circumstances, and police must have had probable cause to believe the defendant was driving impaired due to drugs or alcohol.

The Arizona Supreme Court recently considered the question of whether or not the DUI test was constitutional because the suspect asserted that the medical treatment was administered against his will.

The Arizona Supreme Court agreed it was not constitutional under the circumstances of the case, and that the good faith exception did not apply.

The Court outlined 4 things that must be established by the state to show that the suspect’s rights were not violated by invoking the medical blood draw exception.

Case Overview

The incident began after police and paramedics were called to the scene of a serious automobile crash in which a pedestrian was killed, and four other individuals hurt.

Emergency personnel found the driver screaming, delirious, and incoherent. Paramedics reported that the suspect suffered a head wound, and was not cooperating with the emergency crew.

The defendant insisted that he wanted the paramedics to leave him alone. The paramedics disregarded the defendant’s requests to be left alone. They decided that the suspect was confused and unable to rationally make decisions, as a result of his injuries.

Paramedics restrained the suspect and transported him to the hospital by ambulance. At the hospital, the defendant was sedated, and a blood sample was drawn so that treatment could be administered.

A police officer went to the hospital and requested a sample for the DUI investigation, in absence of a search warrant.

The test results indicated that the driver was under the influence of methamphetamine, and an active metabolite of heroin.

The defendant was later indicted for second-degree murder, narcotic possession or use, and four counts of endangerment.

A motion to suppress the blood test was filed by defense, on the basis that the DUI blood test was unconstitutional.

The suspect’s defense argued that invoking the medical treatment exception was unlawful, because the defendant did not consent to the treatment, and the officers did not have a search warrant.

The trial court denied suppression of the blood test evidence on the ground that the defendant didn’t expressly reject treatment.

The defendant was found guilty of reckless manslaughter, as well as other charges by the trial court.

An Arizona appellate court affirmed the defendant’s conviction, and the defendant appealed to the Arizona Supreme Court.

The Arizona Supreme Court agreed to review whether the medical blood draw exception, as codified in Section 28-1388(E), was applicable.

Under A.R.S.28 – 1388 police can request and obtain a blood sample for their DUI investigation with probable cause, if the suspect’s blood is drawn for any reason.

If medical or authorized persons do not comply with law enforcement’s request, they may be found guilty of criminal charges in violation of a Class 1 misdemeanor.

Consequently, medical personnel at the hospital collected a blood sample for police after they requested it for their DUI investigation.

The Arizona Supreme Court cited a U.S. Supreme Court ruling which held that that the medical treatment exception applied when three elements existed. These included probable cause, exigent conditions, and a blood draw for medical reasons (Missouri v. McNeely 2013).

The state has the burden of proving exigent circumstances in cases where they have probable cause, but there is no time to obtain a warrant. Further, the state needs to show that it was impractical to wait for a formal warrant under the urgent circumstances.

In reviewing whether or not exigent conditions existed, the court reviewed prior case law which held that exigency must be determined by considering totality of the circumstances.

Since all circumstances must be considered, and not just one, ordinary dissipation of blood alcohol content from the body is not in itself adequate to prove exigent conditions existed.

The Court noted however, that since the defendant had not raised an argument against exigency at trial, he waived his right to do so on appeal.

With regard to medical treatment, the Court noted that a person’s right to fairly make decisions about their own medical treatment is protected under both the Arizona and United States constitution.

The Justices cited an earlier case in which the court concluded the medical blood draw exception would only be applicable when a patient voluntarily accepted treatment. Further, the exception would not apply when someone was being medically treated against their will (Arizona v. Estrada 2004).

In another case precedent, it ruled that the burden of proof was on the state to show that the consent by the suspect was given voluntarily (Arizona v. Spencer 2014).

In this case, the court noted that despite the earlier cases, it was still not clear as to what is needed by law enforcement to show that a suspect either consented or refused medical care.

The Court sought to provide clarity, by reviewing the Arizona and U.S. Constitutions, and judicial precedents. Their goal was to outline individual rights that applied to search and seizures, and due process for persons to make their own medical care decisions.

It noted that the U.S. Constitution governs a person’s right to refuse medical care, while the State Constitution governs a person’s right to due process in making medical care decisions.

After their evaluation, the Court determined that a fourth factor must be considered when deciding on constitutionality of invoking the medical treatment exception.

The 4th standard that they required was for the state is to show that the blood collection was drawn in accordance with the suspect’s right to due process to make their own medical treatment decisions.

In sum, the Arizona Supreme Court outlined four things that the state must show n order for the medical blood draw exception evidence to be admitted: (1) exigency; (2) probable cause; (3) that the blood was drawn for medical purposes; and (4) The the blood sample was drawn in compliance with the defendant’s rights to direct his medical care.

The Court decided that unless a patient could not provide consent, the state would need to prove free and voluntary implied or express consent to treatment by the defendant.

When a defendant is unconscious or delirious, the police or medical professionals may not be able to obtain consent. However, there is also an unconscious exception that applies under A.R.S. § 28-1321(C), if both probable cause and exigent circumstances exist. The totality of the circumstances must be considered.

The Court remanded and vacated the decision by the Arizona Court of Appeals. It sent the case back to the trial court to apply the four-part test for the medical blood draw exception, to decide whether the sample in question was properly obtained by the police.

Impact of Ruling on Arizona Drivers

Arizona laws and earlier case opinions did not clearly identify what is needed by police to assure that a suspect’s rights are not violated by the medical blood draw exception to a warrant.

Therefore, the Arizona Supreme Court sought to provide much needed clarity to protect an individual’s rights to due process when the medical blood draw exception is invoked.

Prior cases established that if police requested a DUI blood test under the medical treatment exception, the State needed to show there was probable cause, exigent circumstances, and that a blood test was being done for medical reasons.

In this case the Arizona Supreme Court required that the State needs to prove a fourth element. That is, that they must show that the driver’s rights to due process in directing their own medical treatment, were not violated.

While this is not a new constitutional or legislative announcement, it does provide an Arizona case precedent that serves to reinforce protections already in place and afforded by State and U.S. Constitution.

DUI Defense Attorney Mesa AZ

For most drivers a DUI arrest is overwhelming, even in absence of a tragic accident.

Many drivers charged with DUI lose hope, especially if they failed impaired driver testing given by police.

Any type of DUI conviction is adversely life altering. Arizona carries harsh penalties for those guilty of DUI including jail terms, license suspension, probation, alcohol and substance abuse counseling, fines, and fees.

But hope should not be lost. An arrest does not mean you are guilty, and a DUI charge is not a conviction.

It is important to remember that no matter how serious the charges, you are still entitled to a competent defense.

In order to avoid a swift and harsh conviction, you should always consult and retain an experienced criminal defense attorney to represent you.

If you are facing a DUI charge in Tempe, Chandler, Gilbert, or Scottsdale, consult DUI attorney James E. Novak.

As a former Maricopa County Prosecutor, James Novak utilizes his experience and insights obtained as a prosecutor in evaluating criminal cases.

The case discussed above involved defenses of violation of rights due to unlawful search and seizure.

This is just one of many defenses that can apply to charges of driving impaired or under the influence of drug or alcohol.

James Novak will review your case to determine if your rights were violated, consider all viable defenses, and develop an approach for a strong defense.

Often retaining an experienced attorney can lead to a far more favorable outcome than if you did not have a private practice defense attorney.

Examples of favorable outcomes include dismissal of charges, reduction of charges from a felony down to a misdemeanor, reduction of charges from a criminal to a civil citation, reduction of sentencing, avoidance of jail or prison terms, lowering of bail, fines, or fees.

James Novak of the Law Office of James Novak provides 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. You will speak directly with Attorney, James Novak, regarding your matter. If you have not yet retained an attorney, and your matter is in his service and practice area, he will provide you with options for defending your charges.

Additional Resources:

• A.R.S. § 28-1321
• A.R.S. § 28-1381
• A.R.S. § 28- 1382
• A.R.S. § 28- 1383
• A.R.S. § 28- 1388
• Arizona Constitution Article 2 § 8
• Arizona Governor’s Office of Highway Safety | Media Advisory
• National Highway Traffic Safety Administration | SFSTs
• Arizona Department of Public Safety | DUI Prevention
• Maricopa County Sheriff’s Office | Jail Information for Families
• Mothers Against Drunk Driving | Latest from MADD
• National Institute of Alcohol Abuse and Alcoholism
• WalletHub | Strictest and Most Lenient States on DUI
• National Centers for Disease Control | Alcohol and DUI Facts

Other Articles of Interest from our Award Winning Blog:

• DUI Blood Test with Medical Treatment Admissible unless Care Expressly Refused
• Arizona Supreme Court Rules on Voluntariness of Consent in DUI Testing 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^th Amendment, 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:

• A.R.S. § 28-1321
• A.R.S. § 28-1381
• A.R.S. 28- 1382
• A.R.S.§ 28- 1383
• Requirements and Exceptions to Lawful Search Warrants in Arizona
• National Highway Traffic Safety Administration | SFSTs
• Arizona Department of Public Safety | DUI Prevention
• Maricopa County Sheriff’s Office | Jail Information for Families
• Mothers Against Drunk Driving | Latest from MADD
• Consequences of Refusing a DUI Breath, Blood, or Urine Test in Arizona
• Arizona Breathalyzer, Blood, and Field Sobriety Tests – Criminal Defense Challenges

Other Articles of Interest from our Award Winning Blog:

• Consent to Search includes K-9 Search of Vehicle
• Your Right to Request Change of Judge in Criminal Court
• Warrantless Searches for Probationers
• Violations of “Search and Seizure” Laws: How they Impact Prosecution
• U.S. Supreme Court Rules No Warrant Needed To Collect DNA If Arrested

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.

Additional Resources:

• Medical Blood Draw Exception to Warrant
• Arizona DUI Laws
• Requirements and Exceptions to Lawful Search Warrants in Arizona
• Arizona Department of Health and Safety – EMT Field Directives

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

• Violations of “Search and Seizure” Laws: How they Impact Prosecution
• U.S. Supreme Court Rules No Warrant Needed To Collect DNA If Arrested,
• Yes, You Have Constitutional Rights At An Arizona Checkpoint
• New Technology enables Police to obtain a Search Warrant within Minutes

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.

Additional Resources:

• Drug DUI and Super Extreme DUI laws
• Arizona 2012 Statewide DUI Enforcement Statistics
• Alcohol/Substance Abuse Counseling and Treatment Providers
• Mothers Against Drunk Driving

More Blogs

• 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

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

• Arizona DUI Laws
• Arizona Governor’s Office of Highway Safety
• National Highway Traffic and Safety Administration

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

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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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

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!

Arizona DUI & Criminal Defense Serving Tempe, Phoenix,Mesa, Chandler, Gilbert, Mesa, Scottsdale, AZ