DUI defenses - 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.

Additional Resources:

Other Articles of Interest from our Award Winning Blog:

What You Need to Know about the Medical Blood Draw Exception

The Law Office of James Novak Team — Thu, 30 Mar 2017 21:33:03 GMT

Under the Fourth Amendment of the U.S. Constitution, a person has the right to be protected from unlawful searches and seizures.

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:

Other Articles of Interest from our Award Winning Blog:

Mistake of Law: How to Challenge Your Unlawful Stop

The Law Office of James Novak Team — Fri, 09 Sep 2016 21:48:01 GMT

Can an Arizona Police Officer’s misreading of a clear and unambiguous law give rise to reasonable suspicion, thereby making a stop lawful?

This was a question for a recent Arizona Appeals Court to decide. In the case, the court considered whether a deputy had reasonable suspicion to stop a driver because the officer thought the rear display light on his vehicle was unlawful.

This article takes a closer look at how defense successfully challenged an unlawful police stop due to the police officer’s mistake of law with these topics:

Overview of the case and ruling;
Impact of Appeals Court ruling in Arizona;
Questions and answers;
11 rights you have at an unlawful stop;
10 good reasons to file a motion to suppress evidence;
DUI & Criminal Defense in Phoenix and East Valley AZ

Overview

The case arose when two deputies were in a convenience store, and smelled the odor of burnt marijuana near two men.

The police did not stop the men to question them at that point.

The two men left the store without incident and drove away.

The deputies followed the SUV and stopped them several blocks away.

The officers had noticed that a white light was being emitting from the lamp that was shining light on the license plate. At that time, the driver was not given any citations for the lamp.

The officers testified during the suppression hearing, that they thought that the white light seen from a vehicle driving forward violated A.R.S. § 28-931(C) which applies to vehicle lamp colors.

This provision requires that all lighting and reflectors mounted on the rear of any vehicle be red color, except that the light displaying the license plate shall be white.

While the stop was underway, the deputies smelled alcohol and saw that the defendant was flushed and that his eyes were bloodshot.

Officers administered a horizontal gaze nystagmus test, a roadside Standard Field Sobriety Test (SFST).

The results of the SFST suggested that the suspect had been drinking alcohol.

The breathalyzer test measured his blood alcohol content (BAC) at .165, and he was arrested for DUI.

The defendant filed a motion to suppress the DUI test evidence that was obtained during the stop.

The defendant argued that no statute supported the deputies’ claim that white light from a license plate light could contribute to reasonable suspicion to stop a driver.

The prosecution alleged that reasonable suspicion existed because the lamp in question was working properly, but it didn’t have opaque casing and sent out some white light at the back of the SUV.

The trial court did not accept the prosecution’s allegation, and granted the motion to suppress the evidence at the suppression hearing.

Meanwhile the U.S. Supreme Court, ruled on a separate case, involving similar issues.

In Helen v. North Carolina the U.S. Supreme Courtdecided that a traffic stop did not violate the suspect’s rights because the police officer’s mistake of law was reasonable.

In light of that U.S. Supreme Court Decision, the State decided to file an appeal to the trial court to reconsider suppressing the evidence on the grounds that the deputies had made a reasonable mistake in the way they interpreted A.R.S. § 28-931(C).

At the reconsideration hearing, the defendant argued that the statute clearly compelled the court to find his lamp wasn’t in violation; the deputies’ interpretation wasn’t objectively reasonable; and that the 4^th Amendment of the Constitution provides protection against unreasonable searches and seizure.

At this reconsideration hearing the patrol commander in the same department as the deputies testified, explaining the department’s policy with regard to the rear lighting.

The patrol commander testified that officers were trained to treat rear-facing white lights on vehicles, other than backup lamps, as a violation of § 28-931(C).

Since the officer acted upon his training, the trial court decided to vacate their earlier decision. They then determined that the officer was reasonable in applying the laws as he understood them.

The defendant moved to request that the trial court reconsider their new ruling, but it was denied.

Upon admittance of the evidence at a bench trial, the defendant was convicted and sentenced for DUI.

The Defendant appealed his conviction to the Arizona Court of Appeals.

The Arizona Court of Appeals reviewed the question of whether an Arizona statute prohibited license plate lamps from emitting white light at the back of a car. If the answer was yes, the deputy had reasonable suspicion to investigate in the defendant’s case.

The Court of Appeals reviewed the Arizona law, which requires lamps to be placed on the vehicle in a manner that illuminates the rear license plate with a white light, making it clearly legible from 50 feet away to the rear.

Another statute provides that lighting devices and reflectors need to glow red, with certain exceptions. One exception is for the light illuminating the license plate, which needs to be white.

The Court determined that the SUV lit up the license plate with a white light as provided under law A.R.S. 28-931 (C) and that the statute was not violated.

The court then looked at whether or not it violated any other Arizona laws.

The court noted that the license plate was working properly; that it made the plate visible from the back of the vehicle; and that it did not create a problem for community welfare or public safety. Therefore, no other laws were broken, and therefore the stop was unlawful.

The court found that the deputy didn’t articulate a legally sound basis for investigating.

But the prosecution argued that the deputy had a reasonable belief that the lamp violated the law.

The court explained that the Fourth Amendment permits only reasonable errors that are objectively reasonable.

One factor the court considered to determine if the mistake of law made by the officer was reasonable, was that the language of the law. The way the statute was written would have needed to be unclear, or susceptible to multiple interpretations.

The Court of Appeals found that in this case the statute was clear, and unambiguous. Therefore, it was not objectively reasonable for the deputy to misinterpret it.

Further, the Appeals Court ruled that the fact that the department had trained its officers to misread the law did not render the misreading reasonable.

The Appeals Court vacated the defendant’s conviction and reversed the granting of the prosecution’s motion for reconsideration.

*Note: The officers did not stop the suspects in this case while at the convenience store when they smelled the burnt marijuana. But since this incident took place, the Arizona Supreme Court ruled in another case that marijuana is sufficient for probable cause to search.

Impact of Ruling on Arizona

This case could potentially serve as precedent in cases involving similar questions surrounding Arizona criminal charges.

As of this date, it is not known if the case will be appealed to the U.S. Supreme Court.

It would apply in situations where the police make an unlawful stop if due their incorrect interpretation of law.

If an officer stops a driver believing they are breaking the law, and evidence is obtained which leads to arrest, that evidence may be suppressed if the mistake of law is not objectively reasonable.

It will not be enough for the police to claim they believed the law was violated. There must be an objectively reasonable basis for it. One of the grounds for determining if their interpretation of the law was objectively reasonable will be if the law is ambiguous, unclear, or subject to more than one interpretation.

Also, even if the police were trained incorrectly about a non-ambiguous law, that does not justification for concluding that the mistake was objectively reasonable.

In order for police to make a lawful investigative stop, they must still have reasonable suspicion that a violation of Arizona laws has occurred.

11 Rights You Have at an Unlawful Police Stop

No one is immune from an unlawful stop by police.

If the police believe their stop is lawful, they will likely not change their mind at that time.

Trying to convince them otherwise will only aggravate the situation, which could lead to harm or additional criminal charges.

If you have been stopped by an officer for reasons that you know make the stop unlawful, here are your rights. Becoming familiar with these rights will help you avoid escalating the situation, or getting additional criminal charges:

Remain calm and respectful, and address them as “officer.”
You can respectfully disagree for the record, but do so politely; refrain from debating or being argumentative about the reason for the stop.
Cooperate with the officer. Provide routine documentation requested such as ID and registration.
If you need to reach into your glovebox or elsewhere to retrieve the documents, tell the officer where they can be found and inform them that you will be retrieving from there.
Do not volunteer or agree to answer personal questions such as where you’ve been, where you’re going, or what you’ve had to eat or drink that day or evening.
Keep your hands on the wheel unless you’ve been instructed otherwise by the officer. Make sure the officer can see them, if moved elsewhere. Avoid sudden movements that might be perceived as threatening to the officer.
Decline to participate in DUI Field Sobriety Testing. SFSTs are not mandatory. Respectfully let the officer know that it is your understanding that court have held that they can be invalid, and you would not want the results to suggest otherwise.
You are within your right to decline a search of your vehicle or belongings unless you’ve been arrested.
If the police officer requests a breath or blood test, it is your right to refuse. However understand there will be consequences. By law you will lose your driver’s license for one year. If the officer has probable cause to believe you are impaired and driving under the influence of alcohol or drugs, they will obtain a warrant to get a DUI blood test anyway.
If you are arrested be cooperative. At that point the officer has made up his or her mind, and further objection will only make matters worse.
Contact an attorney as soon as reasonably possible following your arrest. If retained, your attorney will file a motion to have any evidence suppressed obtained after the unlawful stop.

Q & A

Q. Do police need have reasonable suspicion to stop me at a DUI Checkpoint?

A. No. Police do not need reasonable suspicion of a crime to make a DUI safety checkpoint stop. Arizona has adopted the NHTSA guidelines which requires only that stops be made in a mathematical order or formula decided in advance by the city and agency.

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Q. If police pull me over for a violating a law that I did not realize was a violation, is the stop still legal in Arizona?

A. Yes. The stop is still lawful. It doesn’t matter if you were unaware for the lawfulness of the conduct, as long as you are aware that the circumstances surrounding the conduct for which you were engaging.

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Q. When is an officer’s mistake of law due to misinterpretation considered objectively reasonable?

A. If the officer misinterpreted a law that is genuinely ambiguous, and subject to more than one interpretation.

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Q. What if the officer was trained to believe a law applied incorrectly?

A. In this case, the Arizona Court of Appeals determined that an officer’s training, misreading or misapplication of the law due to police procedure, did not make the mistake objectively reasonable.

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Q. What happens if police stop me unlawfully, and arrest me based on evidence they gather to use against me.

A. In that case your attorney can file a motion to suppress the evidence obtained as a result of the unlawful stop. If the court agrees, the evidence can be suppressed and will not be used against you by prosecution.

10 Good Reasons for Defense to file a Motion to Suppress Evidence

When evidence is obtained unlawfully, one remedy for the court is to have the evidence suppressed. Some reasons to challenge evidence include but are not limited to the following:

Evidence obtained in violation of your 4^th Amendment rights or other relevant Constitutional Rights;
Evidence that is weak;
Tampering of evidence by the police or other third party;
A showing that evidence was planted to prosecute the defendant;
Lab evidence that is not reliable due to inconsistent results obtained by an independent lab results;
Breath evidence that is unreliable due to improper instruction or administration;
Field Sobriety Test Evidence that is questionable and invalid based on prior court decisions;
Inconsistent or unbiased testimony;
Violation of police procedures or protocols in handling, transport or storage;
Breath or blood test results that have been contaminated, or have been labeled improperly.

Generally when material evidence is suppressed, it leads to dismissal or acquittal of the charges.The most effective way to challenge the evidence is by retaining an experienced and knowledgeable criminal defense attorney who serves the jurisdiction where you were charged.

DUI & Criminal Defense in Phoenix, and East Valley AZ

Suppression of evidence is only one challenge that can apply when defending criminal charges.

Each case holds a different set of circumstances. A defense case must be evaluated by an experienced criminal defense attorney who can uniquely tailor your defense strategy.

If you are accused of any type of DUI or drug, or marijuana offenses, in Mesa, Tempe, Chandler, Gilbert, or Scottsdale, consult DUI defense attorney James E. Novak.

James Novak is a DUI & Criminal Defense attorney. He is also a former Maricopa County Prosecutor.

If retained he will gather all evidence available; determine if any of your rights were violated; if there is favorable evidence on your behalf; and what weaknesses may exist in the evidence or testimony the prosecution plans to use against you.

He will make sure you are treated fairly, and work hard to get the most favorable outcome for your charges.

James Novak provides a free initial consultation for those facing active charges in his service areas.

If you have been charged with a crime call the Law Office of James Novak at (480) 413-1499 and speak directly with Mr. Novak.

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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:

Right to Counsel before DUI Breath Test

The Law Office of James Novak Team — Thu, 11 Feb 2016 07:22:36 GMT

If you are arrested for a DUI, you have a right to request an attorney’s assistance right away. But how much time are you given to find an attorney before you are given a Breathalyzer?

In a recent Arizona Court of Appeals case, the defendant was convicted of aggravated DUI, for driving while impaired with a license that was suspended or revoked.

The Defendant appealed the convictions with several challenges. The central argument was that the trial court had erred in denying his motion to suppress the results of a breathalyzer test due to being deprived of his right to counsel.

The defendant’s appeal also included a challenge that the trial court had erred in its instructions to the jury.

Case Facts

The case arose when a police officer stopped the defendant after seeing him utilize a private parking lot to avoid a traffic signal.

The officer noticed that the defendant appeared to be drunk and saw an open container of alcohol beneath his seat.

The defendant admitted he was drinking.

A field sobriety test was conducted, and the officer reported that the defendant exhibited impairment ques on the roadside test.

The officer read his Miranda warning, and arrested the suspect.

While in custody at that station, before the breath test, the suspect invoked his right to legal counsel.

His breathalyzer tests showed he had a Blood Alcohol Content (BAC) of .153 and .152.

At trial, a jury found him guilty of Aggravated DUI, and he was sentenced to presumptive, concurrent terms of 4.5 years in prison.

Denial of Right to Counsel Challenge

On appeal, the defendant argued that the police officer deprived him of assistance from an attorney, by not allowing enough time for an attorney to return his call. Therefore, his motion to suppress the breathalyzer results should have been granted.

From the police stop the defendant to the point the DUI breath test was taken was central to the case:

5:00 a.m. – Police stopped suspect;

5:45 a.m. – Suspect arrested and taken into custody.

6: 31 a.m. – While at the station suspect requests to speak with an attorney, and police give him a phone book. The officer gave the suspect 10 minutes to reach an attorney.

6:52 a.m. The suspect called a law firm twice and left messages. He waited for an attorney to call him back at the station. Officer waits until 6:52 a.m. for an attorney to return his calls.

6:56 a.m. Officer proceeds and conducts the 1^st breathalyzer test.

7:02 a.m. Officer conducts the 2^nd breathalyzer test.

The officer testified that he conducted the two blood alcohol content tests before the defendant reached an attorney because under A.R.S. Section 28-1381(A)(2), there are only two hours before the statutory window to collect the BAC evidence before it expires.

The Court noted that when breath tests are conducted more than two hours after driving, the state would need to hire an expert to use “retroactive extrapolation” to figure out the blood alcohol content. (Retrograde extrapolation is a method where certain assumptions are made to calculate back to what the BAC would have been during the two-hour window.)

The court explained that in spite of this brief window, the defendant is entitled to get help from counsel when in custody before taking the breathalyzer. However, that right must yield when exercising would determine an ongoing investigation citing Arizona v. Kunzler, particularly in the case of a DUI.

The court noted that the defendant does not have the right to hinder or delay an investigation by demanding to speak with counsel. Further, if the suspect cannot reach the attorney, the state may proceed with the investigative procedures.

There is no deprivation of the right to an attorney unless the police actively prevent the defendant from talking to an attorney of his choice. The court found that in this case, the defendant’s right to counsel was respected because the officer had delayed the tests as long as possible.

The Appeals court noted that courts have found deprivation of counsel either because police clearly prevented the suspect from speaking to one, or somehow obstructed their access to an attorney, citing multiple cases including State v. Juarez (1989); and McNutt v. Arizona (1982).

The court determined that the defendant’s right to counsel was honored. And that the officer reasonably waited as long as possible until the two-hour window had nearly expired waiting for an attorney to return the suspect’s calls.

Jury Instruction Challenges

The defendant also argued that the trial court erred in jury instructions.

The defendant challenged the jury instructions given on the refusal to submit to a sobriety test, because there was no evidence to support he had refused.

The instruction given was that when a person drives a vehicle in Arizona, there is an implied consent for testing of bodily substances to determine alcohol or drug concentration. If someone fails to complete this test or won’t agree, it is considered a refusal.

The appellate court acknowledged since there was no evidence of refusal then there was no evidence to support the instruction.

The Court cited State v. Bolton 1995 noting that a party is entitled to an instruction on any theory that is reasonably supported by the evidence.

Further the court cited State v. Smith 1976, in holding that it is improper to give the jury an instruction which is not supported by evidence.

The Court noted that since the defendant consented to the breath tests, and there was no evidence to support a refusal then the the trial court erred in providing it to the jury.

Once it is determined if the trial court erred in jury instructions given, they must decide if that instruction was harmless.

If the State can prove beyond a reasonable doubt that an error didn’t affect the verdict, then the error is considered harmless, citing Arizona v. Nottingham.

The Court held that since the jury was not given any information about consequences for test refusal, and it was undisputed that the defendant did not refuse, a reasonable jury would have disregarded the instruction.

Further the court concluded that even if the instruction had been omitted, the jury would have reached the same verdict, based on the strength of the evidence.

The defendant also argued that the trial court erred in its instructions to the jury about the maintenance records requirement for the breath test machine.

The defendant contended that instruction created a presumption of evidence which burdened the defense to prove that the machine was not working properly.

The Appeals Court held that the jury was properly instructed to the fact that the defendant was not required to produce any evidence.

The Court added that even if an instruction is found to be an “evidentiary presumption”, it does not have an impact on whether or not the results of the breath test were accurate. And it does not relieve the state of its burden to prove beyond a reasonable doubt that the breath tests results were in violation of Arizona’s Aggravated DUI laws.

The Appeals Court noted that the instruction did not require the jury to reach any conclusions.

Further, the Court concluded that the instruction did not shift the burden of proof to the defendant, which is held by the state citing Arizona v. Norton.

The Court also noted that the jury was not presented with any reason to believe the breath machine was not working properly.

The Appeals Court also concluded that the defendant failed to show that his case was harmed by the instruction.

The Appeals Court affirmed the conviction and the sentence.

Impact of Ruling on Arizona Drivers

The Appeals Court recognized the Defendant’s right to Legal Counsel during detention.

At the same time, however, the Court held that the defendant was not deprived of this right since the officer acted reasonably to accommodate the suspect’s rights.

In Arizona it is a violation of A.R.S. § 28-1381 for a person to be found to driving impaired to the slightest degree with an Alcohol BAC of .08 percent or greater within 2 hours of being in actual physical control of a vehicle.

The Appeals court held that a suspect cannot be permitted to jeopardize a DUI investigation, by demanding to speak with an attorney, when the officer reasonably honored the request, within that two hour window.

In sum, yes the suspect has the right to request an attorney prior to conducting a breath test while in custody. But they do not have the right to demand to speak with with an attorney who cannot be reached, and continuing to wait, would jeopardize gathering the DUI test evidence.

Aggravated DUI Laws and Penalties Arizona

An Aggravated DUI is a Felony offense. All felonies in Arizona call for prison terms.

A Misdemeanor DUI is elevated to a felony when the impaired driving offense involves aggravated factors including:

3^rd or subsequent DUI within 7 years; (Class 4)
Driving on a revoked, suspended, or invalid license; (Class 4)
Driving with a passenger under the age of 15 in the vehicle; (Class 6)

A person can also be charged with Aggravated DUI and/or vehicular crimes if they caused a serious bodily injury or fatal accident while driving impaired due to alcohol or drugs. The Classification will depend on the conviction, and circumstances.

Class 6 Felony DUI charges expose a person prison terms of 4 to 8 months.

Class 4 Felony DUI charges expose a person prison terms of 4 to 8 months.

Aggravated DUI convictions call for $4,000 in fines, fees, and assessments; driver’s license revocation for one year; use of Ignition Interlock Device for up to 2 years; possible forfeiture of vehicle; possible restitution or community service; alcohol or drug screening and treatment program; loss of right to bear arms and vote; and other penalties the court deems appropriate.

Defending Charges for Aggravated DUI Phoenix-Metro and East Valley

“Prepared to Defend”

James Novak, DUI & Criminal Defense Attorney, Law Office of James Novak, PLLC

DUI charges are multifaceted in nature. Therefore, a strong defense is required and all facets should be considered.

Your case should be evaluated to determine the best approach to defending the case and presenting it in a effort to obtain the best possible outcome in your case.

No matter how serious the charges may be, you have the right to be treated fairly, make sure your rights are

protected, provide evidence in your defense, and due process.

While there are a number of defenses that may apply, some of the most common defenses used to challenge DUI charges are Constitutional Rights violations, and evidentiary issues.

If police violated your rights in order to obtain evidence against you, the charges may be dismissed.

If evidence is challenged that is weak, inaccurate or inadmissible, it often leads to dismissal or acquittal of the charges.

It is important to select an attorney who understands the gravity of a DUI charge and knows multiple ways to fight it. If you are charged with a DUI, consult James E. Novak, a DUI defense attorney in Tempe, Arizona.

Mr. Novak is a former prosecutor and experienced trial lawyer, and is prepared to defend you and your rights.

If retained, he will provide you with a strong defense for your charges. We offer a free consultation for active criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona. Call today at (480) 413-1499.

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.

Additional Resources:

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

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.

Additional Resources:

Other Articles of Interest

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 Confessions, Self-Incrimination in Arizona – Pleading the Fifth on Social Media

The Law Office of James Novak Team — Tue, 02 Sep 2014 11:00:00 GMT

A Tragic Video Confession

You might remember the viral video of an Arizona man, 22 year old Matthew Cordle, who caused a fatal drunk driving accident. He provided a confession in a four-minute online video that went viral with 2.3 million views last September.

Cordle began his chilling confession with “My name is Matthew Cordle and on June 22, 2013, I hit and killed Vincent Canzani. This video will act as my confession.”

Vincent Canzani 61, was the father of two daughters, and a former USA Naval Submarine Veteran. He was pronounced dead at the scene of the accident.

Immediately following the crash, Cordle was taken to the hospital for his injuries. But at that time he denied being intoxicated, driving impaired, or causing the fatal accident.

Cordle confessed in the video, that he was driving the wrong way on an interstate, and crashed into Vincent Canzani vehicle.

In the video was the blurred face of man, Cordle, admitting to barhopping, blacking out and driving home drunk. Cordle explained that he had been drinking heavily before getting behind the wheel, and blacked out just before losing control of his vehicle.

Cordle had not yet been charged at the time the video was made, but was expecting the charges to be brought based on the DUI blood test results.

Interestingly, Cordle had retained an attorney, but his attorney claimed he was not aware that his client had planned to post a video confession on the internet.

The DUI test results revealed that Cordle had been driving with a Blood Alcohol Content (BAC) of 0.191 percent. In Arizona, BAC of .015 to .019 DUI would be in violation of the Extreme DUI laws.

Cordle faced the State’s maximum sentence in the charges of 8 1/2 years in prison for aggravated vehicular homicide and an operating under the influence (OUI).

Cordle said the reason he made the video was to encourage people not to drink and drive. In it he claimed that he understood that the video was a confession that would provide prosecutors with necessary ammunition against him to get a conviction.

Following the video confession, Cordle was formally charged. But at the arraignment, the suspect pled “not-guilty”. Entering a plea of “not-guilty” invokes a suspects right to defend their charges and retain legal representation.

However, the initial “not guilty plea” did not sit well with the presiding judge. She expected Cordle to plead guilty since he already confessed to the crime. The judge claimed she was “incensed” that Cordle did not plead guilty – claiming that a not-guilty plea at this point, in her opinion was a display that the defendant was not “forthright”.

Apparently, Cordle’s defense attorney pled guilty on his client’s behalf, largely due to the fact that under Ohio law, entering a guilty plea locks in the judge. Cordle’s defense attorney was concerned as to how this particular judge would sentence the defendant. He wanted to make sure his client received fair treatment and rather than a sentence influenced by the media or public outcry, as a result of the unfavorable response from the public, social media, and news media coverage. The judge then set Cordle’s bond at $225,000.

In October 2013, Cordle reversed his plea to guilty for charges of aggravated vehicular homicide and operating a vehicle while impaired. He was convicted and sentenced to 6 1/2 years in prison; lifetime driver’s license suspension; and a fine of $1075.00, according to reports.

Cordle claimed his confession was intended with good cause to help others. At the end of the video, he extended a heartfelt and remorseful plea, warning motorists not to drink and drive.

At sentencing, Cordle was met with unexpected mercy by the family of the victim. The victim’s former wife read a letter at Cordle’s sentencing hearing. She requested on behalf of the family that the judge extend leniency in punishment to be imposed. She believed that because of the type of man the victim was, he would not have wanted the defendant to get the maximum punishment. This plea by family likely served to impact the judge’s decision not to impose maximum sentencing, considering the sentence was two years short of the maximum allowable for the charges.

The survivor’s unexpected plea to the judge for leniency in sentencing following the loss of their loved one caused by a drunk driver was compelling to say the least. It was a rare and and exceptional response from a family who lost a loved one whose life was ended by a drunk driver. One few defendants would be afforded under similar circumstances.

A wrongful death of a loved one in and of itself is enough to harden the hearts of their families. But for many, there is no worse aggravation of pain and suffering than to learn that the wrongdoer has posted public social media messages, videos, or photos, about the wrongful death or serious injury, or to boast about their involvement in the crime.

Law Enforcement’s Use of Social Media in Criminal Investigations

The Federal Bureau of Investigations (FBI) and Police Agencies have long recognized the benefits of using social media and the internet to derive evidence in criminal investigations.

In the “2013 Social Media Survey” conducted by the International Police Chief’s Association it was revealed that 96 percent of law enforcement agencies surveyed were using social media to investigate crimes. Below are some additional findings from that study:

• 500 police agencies representing 48 states reported using social media as an integral tool for criminal investigations.

• 81 percent of agencies said the most common use of social media was for criminal investigations;

• 80 percent of agencies reported that social media helped solve the crimes in their investigations;

• 69 percent of agencies surveyed had social media policies and 14 percent were in the process of crafting policies;

• 92 percent of the investigations were conducted using Facebook;

• At the time of this survey the top three Social Media outlets used to investigate crimes were Facebook, Twitter, and Youtube. The internet as become a staple in criminal investigations. Police and prosecutors often scour social media accounts and the internet as part of a criminal investigation. There is potential for not only law enforcement officials to learn about criminal involvement, but also for other users to report it to them.

Freely commenting or sharing information about about your drinking and driving behaviors, or involvement in a crime, will usually result in a swift arrest and prosecution of the offense; just what the state and prosecution needs to convict a suspect.

The 5th Amendment of the US Constitution affords persons protection against self-incrimination. States also provide such protections under their own laws and constitution.

To freely post comments or media about a criminal incident for which a person has been involved, outside of, or against the advice from their criminal defense attorney, will jeopardize their case, and their rights in this regard.

Why Do People Post about their Crimes on Social Media?

Dr. Pamela Rutledge, Director of the Media Psychology Research Center (MPRC) , a non-profit organization that examines all aspects of human experience on social media, and it’s impacts on society. She recently commented in a CNN article on this very subject. She explained there are number of reasons people post about their criminal involvement on Social Media. But in most cases the person posting is looking for a way to feel important. She explained that sadly this need for “bravado” often over powers the concern of being caught.

The Federal Bureau of Investigation reported on similar findings in a recent article entitled “Social Media and Law Enforcement”. They wrote “The structure of social media encourages self-promotion. It offers easy access to an unlimited pool of potential “friends.” Individuals who crave validation can achieve a feeling of connection not available in their offline lives. People who have a desire for attention, notoriety, or fame are attracted to it. To get noticed, they often post entertaining or provocative information…Constraints do not exist for social media”.

Facebook, Twitter, Google Plus and other social media outlets, have become an inherent part of people’s lives and work. Its natural for them to speak their mind. Its second nature to post about anything and everything. But once content or media is posted onto an internet website, or social media forum, it becomes “fair game” to use as evidence against the suspects. User’s comments, videos and photos posted or shared that relate to their involvement in a crime is one of the strongest forms of evidence the police and prosecution can use against a suspect. In essence, a person completes the investigation for the prosecution, in what is considered to be one of the strongest forms of evidence that can be used against them.

Electronic communications on the internet, social media, texting or E-mail are just a few of many ways people implicate themselves in DUI charges and other crimes. Another common place where self-incrimination occurs is at a DUI stop.

If you are stopped for suspected drunk driving in Arizona it is important to resist any temptation you might feel about talking to police, and sharing your side of the story. This generally backfires on a suspect. Unfortunately, your openness, and forthright will not generally defuse your problems. But they will often result in arrest and prosecution.

A confession or admission like the public, like the tragic one described above, can severely jeopardize your criminal defense case in court. The statements you give to the police at the DUI stop, and while being detained can be used as evidence against you.

You may also think because you’re drunk, what you say doesn’t matter or that your attorney can later make an argument that your confession was involuntary. In Arizona, a confession is involuntary if a defendant’s will was overcome under the totality of the circumstances. If the State wants to show the confession was made voluntarily and get it admitted into evidence, the State will put an officer on the stand to testify that the confession was made without threat or coercion or promises of immunity.

Even extreme intoxication does not by itself render a confession involuntary in Arizona, as discussed in the case State v. Londo. In that case, a defendant appealed his conviction for narcotics drug sales or transfers claiming that his admission or confession about swallowing crack cocaine was obtained involuntarily and in violation of his right to remain silent. The court ruled that extreme intoxication could be a relevant circumstance but was not enough on its own to get a confession or admission suppressed altogether.

The Fifth Amendment protects your right to remain silent–this silence cannot be held against you. You should not pick and choose which questions you answer, or a negative inference may be raised with respect to the questions you choose not to answer. A blanket refusal to answer questions will work better. Since you also have right to an attorney and the right to a defense, if you are stopped for drunk driving, you can refuse to answer questions and request access to your attorney.

10 Ways to Protect Yourself from Self-Incrimination

Invoke your right to remain silent, even if your “Miranda warning” has not been read to you;
Refrain from posting comments, videos, or any other communications on any social accounts or platforms;
Refrain from texting, or discussing the matter with family and friends;
If the police contact you for questioning about your alleged involvement in a crime, politely and respectfully decline to comment;
Refrain from casual comments with police or authorities, and respectfully ask if you are “free to leave” if you are not being arrested;
Refrain from answering questions at a DUI stop about where you’re going, where you’ve been, what you’ve have had to drink or eat, or any medications you’ve taken;
Refrain from testifying, or providing any testimony verbal, or written, in absence proper criminal defense representation;
Know your rights in order to protect yourself from unlawful search and seizures;
If you are a bystander, or witness, of someone else’s arrest, remain quiet, and do not intervene;
Consult a criminal defense attorney who serves the city where the alleged crime occurred as soon as possible to discuss your concerns, and defense options.

How to invoke your Right to Remain Silent

Keep in mind that the right to remain silent exists even if you are not under arrest. However, it is not enough to remain silent without invoking your right. To invoke this right, you must either state verbally or in writing that you wish to remain silent. If you fail invoke your right, and simply remain silent, you will be seen as being uncooperative.

Criminal Defense for DUI and Crimes in Phoenix AZ

The relationship you have with your DUI attorney makes it possible to be open and forthright about anything related to the alleged crime, but you should not talk about the case to any other people or make any admissions to them.

If you are arrested, have receive criminal or DUI charges, or there is an outstanding warrant for your arrest, you should consult an experienced criminal defense attorney as soon as possible to discuss your matter and defense options If retained, they will protect your rights and provide an effective defense on your behalf. This will increase your chances of being treated fairly, and obtaining more favorable outcome in your case.

If you are under formal investigation for a serious crime, you also have the option of retaining criminal defense protection. This is known as pre-charge or pre-indictment representation.

Pre-charge representation can sometimes lead to charges not being brought, alternative resolutions to the matter, an additional wall of protection to prevent the suspect from self-incrimination; assures your rights are protected, provide self-surrendering assistance to avoid arrest; enables your attorney to be present in the event you are required to undergo questioning or interrogation; and a host of other criminal defense pretrial benefits.

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 and Scottsdale, AZ.

Additional Resources:

More Blogs

Felony DUI Laws and Penalties in Arizona, Phoenix DUI Lawyer Blog, July 1, 2013
Arizona Supreme Court: DUI Partition Ratios Evidence Admissible, Phoenix DUI Lawyer Blog, August 27, 2012

Prescription Drug DUI – Laws, and Defenses

The Law Office of James Novak Team — Wed, 26 Jun 2013 20:10:02 GMT

Driving under the influence of a legal drug in Arizona is not solely a defense for DUI.

Last year, the Arizona Department of Public Safety revealed that prescription drugs were increasingly being found in the blood and urine tests of individuals who have been pulled over or arrested in Arizona and suspected of DUI. Prescription drug abuse is a common problem all over the United States, but Arizona had the sixth highest prescription drug abuse rate for 2010-2011 of all the states.

Because they are prescribed by a doctor, people often do not realize that misused or abused prescription drugs can be as dangerous as illegal recreational drugs like heroin or cocaine. It is important to be aware, however, that you can be charged in Arizona with driving or being in physical control of a vehicle while on certain prescription drugs, or while a “metabolite” of the drug is in your body. Recent Arizona case holds that it does not matter whether you are actually impaired by the drug.

Even if you appear to be driving safely, the State can prove your guilt simply by proving that any drug that is listed on the schedule of “dangerous drugs”, “narcotic drugs”, or “prescription-only drugs” were in your system. Under Arizona Revised Statute 28-1381, there is a narrow safe harbor defense to a “driving on prescription-only drug charge” under A.R.S.28-1381 D: This is the case, if you were using a drug as prescribed by a licensed medical practitioner, including doctors, dentists, podiatrists and osteopaths. That means you can use this defense if you took the amount that was prescribed by a physician, but you may not be able to use it if you took more.

In a prescription drug case last year, the appellate court was asked to explain just what was entailed by this defense. Several issues were in question: Does the burden of proof to show beyond a reasonable doubt that the prescription drug use was not justified–also called a justification defense? Or is it the responsibility of the person accused to mount an affirmative defense in which he must prove that he did not abuse prescription drugs, but used them according to a doctor’s directions? Or is the lack of a prescription or use of the drug against what a prescription says a key element of the crime? If it is a key element of the crime, it is something the State must prove in order to secure a guilty verdict.

The defendant was initially charged in municipal court for driving with Methadone, Klonopin and Ritalin (prescription-only drugs) in his body. The latter of these two are drugs that are commonly taken daily in order to treat psychiatric conditions like ADD and anxiety. Like illegal recreational drugs, however, these common prescription drugs can have powerful effects on one’s attention span, motor skills and focus. Klonopin is sometimes even taken to treat insomnia.

Fannin challenges the superior court’s holding that A.R.S. § 28-1381(D) creates an affirmative defense requiring him to prove by a preponderance of the evidence that he was using the drug as prescribed by a medical practitioner.

The municipal court ruled that the defendant had to make an initial showing that provided by a preponderance of the evidence that he was taking the drugs as prescrbed by a medical practitioner under the law. If successful, only then would the burden of proof shift to the State to show “beyond a reasonable doubt” that he was not. The State filed a special action petition with the superior court challenging the municipal court’s ruling. The superior court agreed with the State that the defendant was raising an affirmative defense, which attempts to excuse a defendant of the criminal action, for which they would otherwise be held accountable. By doing this, it places the burden of proof on the defendant.

The defendant appealed, asking the appellate court to answer the question of what kind of defense the safe harbor for prescription drugs was. The appellate court reasoned that the defense here was an exception to the general rule that it is a crime to drive with prescription-only drugs in one’s system. But the court established that A.R.S. 28 – 1381 (D) was in fact an Affirmative Defense. But the defendant failed to mount an Affirmative Defense. Relief was not granted on that basis.

Criminal law and defense can be a complex area in which fine distinctions are made. If you are arrested for driving with prescription drugs in your system, the entire burden of proof lies with you and your attorney. A knowledgeable criminal defense attorney may be able to poke holes in the State’s case against you. Contact the Law Offices of James Novak at (480) 413-1499 for help.

Additional resources

MORE BLOGS

Arizona’s Medical Marijuana Law Stands Ground, Arizona Criminal Defense Attorney Blog, June 4, 2013
Marijuana DUI: The Impact of Montgomery V. Harris in Arizona, Arizona Criminal Defense Attorney Blog, March 13, 2013

DUI Charges: The effects of the Supreme Court’s decision in “Arizona v. Zaragoza” made it easier for persons to be found guilty of DUI even if they were not driving.

The Law Office of James Novak Team — Wed, 09 May 2012 20:16:51 GMT

“Actual Physical Control of a Vehicle” Tempe AZ

In Arizona, under A.R.S. § 28-1381 and A.R.S. § 28-1382 a person a person may be charged with a DUI if they are impaired due to alcohol or drugs, and in “Actual Physical Control of a Vehicle (APC)”. A Supreme Court decision Arizona v. Zaragoza actually made it easier to charged persons who are not actually driving with a DUI. It held that in determining if a person is in APC, a totality of circumstance supported by evidence of whether a person is currently or imminently in control of a vehicle; and whether or not that control presented a real danger to themselves or others. The Supreme Court stated that although the State of Arizona did not define APC, it could be considered on a case’s own merits based on the totality of certain factors.

AZ DUI Laws: Determining Factors for Actual Physical Control of a Vehicle

Under A.R.S. § 28-1381 and A.R.S. § 28-1382: It is a violation of the law for a person to drive or be in actual physical control of a vehicle while impaired, due intoxicating alcohol or drugs. Since AZ DUI Laws do not define this standard, alternative jury instructions were provided by the court in Arizona v. Zaragoza. The jury used these guidelines to conclude their verdict. These guidelines are currently being used. (List not all inclusive):

Whether or not the vehicle was running;
Whether or not the key was in the ignition;
Whether or not the ignition was turned on;
Where the key to the ignition was located;
Where the driver was found in the vehicle by police;
What position the driver was found in;
Conscious state of the person, awake or sleeping;
Whether or not the vehicle’s headlights were on;
Where the vehicle was found or stopped;
Location of the vehicle;
Whether it appeared that the driver pulled over voluntarily or not;
Day or night, and time the person was found;
Climate and Weather conditions;
Whether the vehicle’s heat or air conditioner was running; Windows down or up;
Any other reasonable explanation that can be supported by the evidence for a reason the driver was found under the circumstances.

DUI Lawyer Tempe AZ

The penalties in Arizona are a harsh as the DUI laws are strict. All DUI convictions currently result in jail terms, ignition interlock devices on vehicles, alcohol/drug counseling and treatment. If you or someone you know were arrested for DUI charges, you should consult an experienced criminal defense attorney to discuss your case, and options for defense. There may be defenses you are not aware of that if used, may help you get a favorable outcome in your case; avoid jail time; and help you get your driving privileges reinstated.

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 Serving Tempe, Phoenix,Mesa, Chandler, Gilbert, Mesa, Scottsdale, AZ Free Consultation! Call (480) 413-1499