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

What went wrong that made this DUI stop potentially deadly?

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

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

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

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

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

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

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

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

Additional Resources:

• Arizona Gun Laws
• Arizona sentencing for serious, violent or aggravated offenses
• Phoenix Superior Court

MORE BLOGS

• Aggravated Assault: The High Cost of Harming a Police Officer, Arizona Criminal Defense Attorney Blog, August 3, 2012
• Assault Convictions Require “Intent” and “Knowledge” or “Recklessness”, Arizona Criminal Defense Attorney Blog, June 1, 2012

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

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

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

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

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

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

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

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

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

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

Additional Resources

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

More Blogs

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

At the center of a two year legal batter, is the provision in the law known as “Show me your papers”, and was the most controversial of Arizona’s SB1070. Under this provision a police stop must still be a lawful one. In other words, the “reasonable suspicion” that a violation of the law occurred in order to make a legal stop.

During the stop, the officer determines that there is reasonable suspicion that a person is unlawfully in the United States. If reasonable suspicion exists that the person may be in the country illegally, the officer must make a reasonable attempt to contact the USB Immigration and Customs Enforcement (ICE) Agency to confirm the immigration status of the detainee.

The law also requires police to verify immigration status of arrested or imprisoned persons prior to their release.

Lawful Documentation of US Residency

Under SB 1070 A.R.S. 11-1051 (B) a person is presumed to be in the United States legally if they can provide the following documentation:

• Valid Arizona Driver’s License;
• Valid Arizona Nonoperation ID License;
• Valid Tribal Enrollment cared or alternative Tribal ID;
• Valid US Federal, State, or Local Government issued ID, if the entity requires proof of legal presence to issue any of the above documents.

U.S. Presidential Executive Order Amnesty Exceptions

There are exceptions to the rules, including those afforded under the U.S. President’s Executive Order Decree on June15, 2012, which was also effective immediately. Eligible applicants will receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for a work or school permit to reside in the United States.

This applies to otherwise illegal immigrants. The US Department of Homeland Security (DHS) began accepting applications for “Deferred Actions” for the following persons:

• Those brought to the US before the age of 16; and
• Those who are under the age of 31; and
• Who have lived in the USA continuously from June 15, 2007 to June 15, 2012;
• Currently enrolled and attending school; or
• Graduated or obtained a certificate of completion from high school; or
• Earned a General Education Development (GED) Certificate; or
• An honorably discharged veteran of the US Coast Guard or US armed forces; or
• Have not been convicted of a felony; serious misdemeanor; three or more other misdemeanors; and
• They do not pose a threat to national security or public safety.

The immigration laws in Arizona and on a Federal level continue to change and face legal challenges. Police spokespersons extended their intent to “Treat all individuals with dignity and respect, which is the ethical foundation of policing”. We will continue to follow up on changing legislation.

• US Citizenship and Immigration Services

• SB 1070 Arizona Legislature

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