Whenever I talk to people about Arizona laws, I can't help but think it probably seems like I am speaking Greek. That is quite a sad state of affairs in a nation that prides itself on being "of the people, for the people, and by the people."
No where is the disconnect between what people understand the law to be and how law enforcement behaves more evident than prosecution for DUI under ARS 28-1381(A)(3). That is the infamous illegal drug or metabolite DUI charge. What that laws makes illegal is having an illegal drug or a metabolite of an illegal drug in your system while driving a car. It does not matter one iota if that drug actually affected your ability to drive at all. It only matters that it was in your body at one time, nor does it matter how that drug or metabolite got into your body. By way of example, if you go to a party and ingest marijuana smoke second hand and then drive a car without even knowing you ingested marijuana, you are guilty of a DUI.
That charge, however, does not apply to prescription drugs so long as the drive used the prescription as prescribed and the prescription drug did not impair the ability to drive at all. With all that mind, one would conclude since Arizona voters passed a medical marijuana law, a driver who consumes marijuana as prescribed and is not impaired is not guilty of a DUI, right? Wrong:
If someone has a medical marijuana card that is not a defense to the metabolite charge. That is because while having a valid prescription is a defense to the metabolite charge, the medical marijuana card is a "certification", not a prescription, and thus no defense.
That means an Arizona driver can consume marijuana legally pursuant to the medical marijuana statute, drive perfectly fine, and still convicted of a DUI even though they did not have any active ingredient in their system.
How could that be? The answer is Arizona law enforcement will take any opportunity to prosecute anyone without regard to how silly or anti-democratic law enforcement is behaving. Fortunately, it is not a settled issue whether a medical marijuana card is a valid defense to the illegal drug or metabolite DUI as any other prescription drug is. Currently, while a number of municipal and justice courts have held the marijuana card is not a defense to the ARS 28-1381(A)(3) charge, no superior or appellate court has yet ruled on the issue.
That means until the Arizona Supreme Court rules, there will be clear cut answer. Let's keep our fingers crossed they get it right.
I thought I had heard it all, and not in a million years would I think that the very conservative Arizona Supreme Court would not fall in conformity to the Thin Blue Line. Thankfully, I am wrong. In a Earth shattering decision, the Arizona Supreme Court ruled law enforcement went too far when Pima County Sheriff’s Deputies obtained the blood of a minor, without having first either having asked his parents for permission or obtained a search warrant.
Briefly, police arrested a 16 year old, Tyler, for a DUI. They read him the admin per se affidavit under ARS 28-1321, which he consented to, and drew two vials of his blood. ARS 28-1321 is a law that says everyone who applies for a driver’s license in the state of Arizona automatically gives the police the right to take a blood specimen from him if the police arrest the driver for a DUI. The importance of that law is that if a defendant consents to a blood draw, the police do not need to get a search warrant.
In this case, however, the defendant moved the court to suppress the blood test results because Tyler was a minor and his parents were not present during the arrest and blood seizure and because Tyler’s consent to the blood draw was not “voluntary”.
We hold that… the Fourth Amendment requires an arrestee’s consent to be voluntary to justify a warrantless blood draw. If the arrestee is a juvenile, the youth’s age and a parent’s presence are relevant, though not necessarily determinative, factors that courts should consider in assessing whether consent was voluntary under the totality of the circumstances.
What this means is that even if someone formally consents to a blood draw, if that consent is forced under the “totality of the circumstances”, and the police do not have a search warrant, the court will throw out the blood test result.
The National Highway Transportation Administration may recommend that states lower the legal limit for a DUI charge from the current level of .08 to almost half of that to .05. A few years ago, the legal limit for a DUI used to be .10 and then NHTSA moved it to the current limit of .08. Interestingly enough, most nations have a DUI limit that is .05, and that is why NHTSA may be moving in the same direction (see "U.S. May Advise Lower Limit for Drunken Driving" By MATTHEW L. WALD).
The board met to consider recommending that the states reduce the allowable blood-alcohol concentration by more than a third, to 0.05 percent from 0.08 percent, the national standard that was established a decade ago at the instigation of Congress.
The 0.05 percent standard is mostly focused on social and casual drinkers, but researchers hope it will reduce consumption among all drivers. Any recommendation made by the board would carry substantial influence.
While NHSTA cannot change state laws, if NHTSA does recommend the .05 limit, Congress can force state legislatures to change their laws to conform with NHSTA because if state do not follow NHTSA, states will lose hundreds of millions of dollars in congressional grants. And while other nations already follow the .05 limit, other countries do not have the same severe penalties for DUI convictions that the United States has. In particular, an Arizona DUI defendant can be convicted for a felony on the very first conviction and face over a year in prison. Prison sentences for DUI convictions is almost unheard of in other nations, but is common in the United States. For most other nations, the most severe penalty repeat offenders will face is loss of driving privileges.
Upon reading this article and reading the apparent fact lowering the BAC limit to .05 may save lives, a lesson NHTSA learned from other nations, I can't help but think why the same lesson would not apply to gun control laws. If other nations save lives by making access to guns more difficult, why shouldn't we heed that lesson as well?
For a while now, a number of states have decriminalized marijuana in the medical treatment context. For example, as most people know, in Arizona, if someone has a medical marijuana card, they can use a "medicinal amount" of marijuana and that person can purchase the marijuana from a licensed dispensary. Even more significantly, if someone has a medical marijuana card, that is a defense to an illegal drug metabolite DUI charge ARS 28-1381(A)(3), same as any other prescription drug. It is not, however, a defense to driving under the influence if the person's driving is impaired "at least to the slightest degree" ARS 28-1381(A)(1).
But what changed in last night's election is that two states, Colorado and Washington, have legalized recreational, that is not medical, use of marijuana. Essentially, now Washington and Colorado are the Amsterdam of the United States. But there is a significant hurdle that remains: even though the state may have decriminalized recreational marijuana use, it is still a federal crime to posses and use marijuana. Will the DEA enforce federal anti-marijuana laws in Colorado and Washington?
The Drug Enforcement Administration quickly tried to spoil their Rocky Mountain high, issuing a statement Wednesday morning saying the DEA's "enforcement of the Controlled Substances Act remains unchanged."
"In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance," the DEA statement said. "The Department of Justice is reviewing the ballot initiatives, and we have no additional comment at this time."
The bottom line here is that no one should assume that because the DEA has not gone after medical marijuana users in Arizona, California, and elsewhere that they will treat recreational users of marijuana the same. It could very well be that the DEA believes medical use of marijuana may be fine, but recreational use is not.
How will we find out? Although we live in a democracy and we would expect our government to simply tell us, "yes you can use medical marijuana but not recreational" or "no, you can't do either" or "yes you can do both", don't hold your breath. The reality is we will only find out when for certain once the DEA starts arresting people. Until that happens, we will not know know one way or the other.
The United State Supreme Court is about to decide whether the police need a search warrant to get a DUI suspect's blood. How should the Supreme Court rule? What impact will the ruling have on Arizona? Watch the video to find out.
I've heard stories that texting while driving and using a cell phone while driving are just as dangerous as driving under the influence of drugs or alcohol. Does that mean the punishment should be the same? Utah seems to think so as the maximum punishment for distracted driving in Utah is up to 90 days in custody, and someone who kills another driver as a result of distracted driving gets the same exact punishment as a DUI defendant: 15 years in custody.
The Arizona legislature is now considering a number of bills that would essentially ban using a cell phone while driving and texting while driving. The bill most likely to become to become law targets teenagers, but there is little reason to think adults are less distracted than teenagers. At most, the Arizona laws would lead to civil fines and no license suspensions and no jail time. But is that enough?
According to NHTSA, over 3000 people are killed every year by distracted driving and up to 500,000 are victimized. If it is true that distracted driving is as dangerous as a DUI, shouldn't the punishments be similar? Or is it a double standard in which we punish DUI defendants more severely just because some members of our society think drinking alcohol in itself is immoral? And why should driving with an inactive illegal drug metabolite in one's system, with absolutely no driving impairment, automatically lead to jail time, heavy fines, and license revocation for one year, but something much more dangerous- distracted driving- only leads to fines? Shouldn't the punishment fit the crime and danger to society, and all else being equal, shouldn't the more dangerous activity get the stiffer sanction?
One of the things that most catches my eye is how differently Arizona treats a celebrity who gets a DUI in Arizona from other states, most notably what happens to a celebrity who gets a DUI in California. Recently, Scottsdale has been giving California a run for its money as the celebrity DUI capitol of the world. A good example of the difference is what happened to Mel Gibson, Nikolai Khabibulin, and Charles Barkley.
According to media reports, when Charles Barkley was topped for a DUI in Scottsdale, his blood alcohol concentration was .149, which almost an extreme DUI. Former Phoenix Coyotes all-star golie Nikolai Khabibulin recently stopped his appeal of his Scottsdale DUI conviction, and he will serve his time, 30 days, in Scottsdale. His blood alcohol concentration was reported at .164.
Mark Grace has also been arrested for a DUI in Scottsdale, but his case is not yet complete. The point of all these examples is that police officers in the greater Phoenix area, in particular Scottsdale, do not show much mercy to DUI suspects, even famous athletes. And even a celebrity will serve time in jail.
What about California? Also according to media reports his blood alcohol concentration was .12, well above the legal limit. Considering how strict Arizona is and the fact it does not show any leniency, surely California is no different and Mel Gibson went to jail too? No, he did not. In fact, all he got was a fine, 3 years probation, and alcohol screening classes. No wonder more actors and celebrities live in California than Arizona.
The Drug Enforcement Administration announced on Sept. 7 that it would use its emergency authority to ban three chemical ingredients to protect the public from "imminent hazard." That ban takes effect the first week of October.
Users smoke, ingest or inject the drug to create a high that has been compared to cocaine or methamphetamine. Law enforcement and doctors say the drug can also cause hallucinations similar to drugs such as LSD and PCP, even triggering acts of violence...
The DEA's ban applies to three of the more commonly used compounds: mephedrone, methylone and methylenedioxypyrovalerone, also called MDPV.
The fact the DEA has banned the use and possession of bath salts means that the banned substances are not illegal under state law. Once the ban takes place, they will only be illegal under federal law. It also seems that the Arizona state legislature has plans to ban the possession, use, or distribution of these same substances (see "Epidemic reveals need to outlaw dangerous bath salts" by Senate President Russell Pearce and Glendale Republican Sen. Linda Gray, who is the chair of the Senate Public Safety & Human Services Committee).
If the Arizona legislature does not ban these compounds while it is illegal under federal law, would someone with these federally banned substances in their system be guilty of an illegal drug DUI in Arizona? The answer to that question is not clear as ARS 28-1381(A)(3) defines an illegal drug by reference to ARS 13-3401, and that statute does not specifically list these compounds nor does it have a blanket provision that compounds banned under federal law are automatically an illegal drug DUI.
In a surprising development, the jury in the Michael Jaskcht Carefree motorcycle case was deadlocked on all the felony counts against Mr. Jasckcht, and the judge declared a mistrial. I just looked at the Maricopa County Superior Court website, and the counts included multiple allegations of manslaughter, endangerment, and aggravated assault.
Clyde Nachand, 67; Stephen Punch, 52; and Daniel Butler, 35, died at the scene. Dayle Veronica Downs-Totonchi, 47, died a day later.
When I was a public defender in Pima County, I defended and tried a case almost exactly like this one. And that is why I am surprised that the Maricopa County Attorney did not charge Mr. Jaskcht for driving under the influence of an illegal drug or metabolite. If Mr. Jasckcht's license was not suspended or he had no previous DUIs, then there would be no basis for charging him with a felony or aggravated DUI, but even for a misdemeanor DUI conviction a defendant can get up to 6 months in custody.
The main point of a DUI illegal drug charge is that unlike alcohol, to be convicted of the DUI drug charge, a driver must only have the illegal drug in his system and it does not matter if the illegal drug or metabolite actually affected his ability to drive. That is, even an inactive metabolite of an illegal drug- such as carboxy THC, which can stay in a person's system 30 days after smoking marijuana- is enough for an illegal drug DUI.
According to news stories, Mr. Jaskcht passed all field sobriety tests and the only reason the police found out about the alleged illegal drug use is because he volunteered for it. Police routinely ask drivers for chemical tests- usually urine- in fatality cases even if they have no reason to suspect drugs or alcohol, and the driver has the absolute right to refuse such requests. It may be the case, because the DUI most likely would have been a misdemeanor, that it was handling in Maricopa County Justice Court or Carefree City Court separately from the felony counts.
My belief is that the jury did not convict Mr. Jaskcht because there were no signs or symptoms of impairment. Thus, even if a driver has an illegal drug metabolite in your system and he is guilty of a illegal drug DUI, if the driver is not impaired then he cannot be guilty of manslaughter, endangerment, or manslaughter.
In the parlance of legal procedure, the defense did something very smart: they presented their own alternative version of events, supported by their own evidence. That evidence was Mr. Jaskcht's testimony. Under our law, the defense is not obligated to produce any evidence or offer an alternative explanation of events, and is free simply to rebut the prosecution case. But while the defense does not have to produce evidence or an alternative explanation, when it does so, it gains a powerful advantage. That is because while the prosecution must prove its case beyond a reasonable doubt, if the defense evidence is sufficient for the defense's alternative explanation to be "reasonable", that means reasonable doubt and not guilty. That point is spelled out clearly in standard criminal jury instructions, the famous Arizona Portillo instruction on reasonable doubt.
That means if the jury believes the defense evidence and explanation is reasonable- not even likely, probable, etc..- just reasonable, that means not guilty. Here it seems the 9 out of the 12 jurors believed Mr. Jakscht's testimony was reasonable.
Because the jury deadlocked on all the counts, Mr. Jakscht is now legal purgatory, and the county has the right to retry him on all the counts. Double jeopardy does not apply to jury deadlocks and mistrials. My experience has also been that the conviction rate is much, much higher on retrials than original trials because if Mr. Jakscht, for example, were to testify in a second case, the prosecution could use his testimony from the first case to challenge him.
If Maricopa County decides to re-prosecute Mr. Jakscht, they will 60 days from the end of the the last trial do so. One thing the prosecution may need to do is work very hard during jury selection to make sure none of the potential jurors are biased against motorcycle riding victims. I don't know how careful the prosecution was in the first trial making sure none of the jurors disliked motorcycle riders (see "Should Arizonans Hate Motorcycles and Motorcycle Riders?"). I can't help but think that if this case was a car accident instead of a motorcycle accident, the result may have been different. Certainly, as someone who rides a motorcycle myself and has represented motorcycle riders in accident injury cases, I am aware that many people- especially insurance companies- consider motorcycle accidents, even when the motorcycle rider is not at all at fault, the "cost of doing business" and that motorcycle riders have essentially assumed the risk of getting hurt.
Before the Diamondbacks came in existence, I, like seemingly all of my friends, was a New York Yankees fan. And I remember quite well when Hideki Irabu came to the Yankees. He dominated the Japanese Major League, the same league that gave MLB Ichiro Suzuki. Irabu was supposed to have the fastball of Nolan Ryan and the split finger fastball of Mike Scott. In short, he was the Japanese version of Roger Clemens.
His career came and went, without the Cy Young Awards, and I soon forgot about him and the my loyalty to the Yankees switched to Arizona. I had not heard his name in a few years, until sadly yesterday, I read online that he died from a suicide. I also read that he had a DUI, not an Arizona DUI but in California.
Now I can't help but think that DUI case, even though it was a misdemeanor and even though it seems in California jail time is not automatic, may have contributed to his emotional problems. And that mere possibility is why I think it would be a great shame to eliminate the right to a jury trial for even a first-time non-extreme DUI. A DUI charge, particularly an Arizona DUI charge, is not like any other allegation. A DUI conviction is a stigma that weighs heavily. It implies that someone is a social outcast, a drunk, and is so selfish and dysfunctional that he is willing to risk the lives of friends and neighbors for no good reason.
The Arizona Supreme Court used to recognize these points and there was constitutional protection. The constitutional basis for a right to a jury trial in all DUI cases used to be an Arizona Supreme Court decision called Rothweiler v. Superior Court, 100 Ariz. 37 (1966). In that case, the Supreme Court decided on a three part test to determine which crimes warranted a jury trial.
1) Is the defendant exposed to a severe penalty in which the exposure exceeds six months imprisonment or $1000 in fines?
2) Does the act involve moral turpitude?
3) Has the crime traditionally merited a jury trial?
But that may have changed with the 2005 Arizona Supreme Court decision called Derendal v. Griffith, 209 Ariz. 416 (2005). I used the "may" because the 5000 word decision does not specifically address the right to a jury trial for misdemeanor DUIs. Despite the still seemingly unresolved issue of the constitutional right to a jury trial in all DUI cases, there was a statutory right in ARS 28-1381(F), which read:
F. At the arraignment, the court shall inform the defendant that the defendant may request a trial by jury and that the request, if made, shall be granted.
One of the session's most debated new public-safety laws was a DUI bill Gray sponsored that, among other things, decreases the amount of time a first-time DUI offender must use an ignition-interlock device to six months from a year. This law has a delayed effective date and doesn't start until the end of the year.
Another DUI law, which takes effect Wednesday, requires courts to allow first- and second-time DUI offenders to attend work or school while serving their jail sentence.
The real importance of the law changing the interlock device requirement from one year to six months is that penalty reduction was the rational for a much more drastic change in Arizona's DUI criminal procedure, the elimination for a right to a jury trial for a first time misdemeanor DUI. Arizona legislatures claimed that because the penalties for a first DUI conviction would be less severe, there is no need for a jury trial in such circumstances. As Rep. Gray stated, “The only reason you need a jury trial is if you’re going to jail", and now with the DUI law changes, according to Rep. Gray, there is no requirement for jail time.
A referendum to block a new Arizona law that would have eliminated the current right to a jury trial for defendants charged with first-time regular DUI, has fallen short of the required 86,405 signatures to suspend implementation of the law pending a public vote.
Now, the only hope for maintaining the right to a jury trial for first time misdemeanor DUI would be constitutional challenge. That constitutional challenge is based on the argument that the legislature does not have free reign to decide which crimes get a jury trial and which do not.
My own hope is that there will always be a right to a jury trial for DUI cases, even if it is a first time misdemeanor. There is no dispute, even among most pro-prosecution advocates, that the right to a jury trial is inviolate for all felonies. That is the case even if jail or prison time is unlikely in many felonies, because the stigma of any felony conviction is so great. My belief is that the stigma, and professional consequences, of a first time misdemeanor Arizona DUI conviction are just as severe as many felonies, and thus, the right to a jury trial should remain intact.
When someone is stopped for a DUI in Phoenix, or for that matter, anywhere in Arizona, the police will sometimes ask the driver to undergo what is called a preliminary breath test, or PBT. The PBT looks like a little, handheld portable breath machine that some police officers carry in their squad cars. There are two very important points about the PBT in an Arizona DUI case.
First, you have the absolute right to refuse to take the portable breath test. Of course, the police officer will not tell you that, and he will make it seem like you do not have the right to refuse the test. Second, the results of the PBT are not admissible at trial.
Considering those two facts, the PBT must not be that important to Arizona law enforcement, right? That is even more so considering how busy law enforcement in Arizona is during the summer months enforcing DUI. As a recent story by Alex Gregory of ABC 15 just noted: Officials: 353 arrested for an Arizona DUI this weekend:
July 4 celebrations aren’t over yet, but statewide DUI statistics for the weekend so far are in. As of Monday morning, 353 drivers had been arrested and charged with DUI around Arizona since July 1, Alberto Gutier, Director Governor’s Highway Safety Representative, said in an email. Officers and deputies have encountered 39 cases of aggravated DUI, 99 extreme DUIs and 20 intoxicated drivers under the age of 21, Gutier said.
But while one may believe the PBT is not important because it is inadmissible in trial and one can refuse, my opinion is that it is one the most important tools Arizona law enforcement uses. That is because while it is not admissible at trial to prove guilt or innocence, it is admissible at a probable cause hearing to prove the DUI officer had reasonable cause to arrest the drive and obtain a subsequent chemical test. And while drivers have the right to refuse the PBT, very few know that or have the gumption to refuse the PBT in the face of an insistent officer.
How tough are the laws when someone gets a DUI in Phoenix? I remember a few years ago reading in the New York Times, how New York state planned on increasing the penalties for a drunk driving conviction in New York. This was in response to an accident in which a drunk mother went in the Holland tunnel the wrong way and killed a number of children, all because she was driving drunk. The thing that caught my attention was the fact the New York Times was stating that with the new laws, New York state would have some of the most severe drunk driving laws in America. That caught my attention because the severe reforms New York was considering had already been the law for Arizona DUI cases for at least a decade.
Among other things, Arizona is one of the few states that requires at least 24 hours in jail for any drunk driving conviction. That means that even if you have a pristine driving record and have had any sort of traffic violation or criminal conviction in your life, speeding tickets, parking tickets, anything at all, and you are convicted of a DUI, you will go to prison for at least 24 hours.
Diamondbacks television announcer Mark Grace was arrested on suspicion of driving under the influence on Memorial Day.
The Scottsdale police report says Grace, 46, was stopped by an officer shortly after 1 a.m. on May 30 after he made a wide right turn from 71st Place onto Shea Boulevard and was weaving within his lane.
If the city of Scottsdale convicts Mr. Grace of a DUI, that means despite Mr. Grace's fame, clean driving record, and publicity, he will do at least 24 hours in custody. And 24 hours means exactly that: 24 hours. If you have served 23 hours before release, that would not qualify as time served 24 hours because it was not a full 24 hours. Defendants who are convicted of a misdemeanor DUI usually serve the sentence in Tent City; but some other locations include Glendale city jail for Glendale DUI defendants, Scottsdale city jail for all Maricopa County DUI defendants, and Tempe City jail for Tempe DUI defendants. Phoenix DUI defendants serve their jail time at Tent City.
The Way Out West Coalition hosted the demonstration to raise awareness about the dangers of underage drinking and promote a social-host ordinance that took effect April 1. The ordinance holds adult enablers of underage drinking legally responsible.
The ordinance the article refers to is a statute that means:
Adults who provide alcohol to minors will receive civil or criminal citations depending on the severity of the offense. The civil fines range from $250 to $1,500. A "host presumption" provision states that adults who "knew or should have known" about the alcohol but didn't take appropriate steps to prevent it will be held accountable, even if they were not home at the time.
What would be very interesting is if there was an attempt at making adults responsible for underage drinkers who are found guilty of underage or juvenile dui. That is because both the penalties and consequences for an underage Arizona DUI conviction are so harsh.
I am about to describe something that happens all the time Arizona DUI cases. Imagine the following: a police officer sees a driver late at night make a right turn, and instead of turning into the curb lane, the driver turns in the median lane. The officer pulls over the driver for not making a turn "into the first available lane." When he comes up to the driver, he can smell alcohol on him; he asks the driver to do some field sobriety tests and a portable breath test. The driver tells the officer "I had a few at the bar down the street". The officer then arrests the driver and the blood alcohol result is well above the legal limit. During the search incident to arrest, the officer finds a gram of methamphetamine on the driver, and he orders a drug screen as well of the driver's blood.
Now consider the fact possession of methamphetamine is a class 4 felony, while a first time DUI is almost always, with a couple of exceptions, a misdemeanor. With that in mind, which of the two crimes, drug possession of crystal meth or a first time misdemeanor DUI, do you think brings more jail time? The answer is the DUI. For a first time DUI, the time in custody is at least 24 hours and can be up to 180 days in jail. The state required minimum for a first time conviction for methamphetamine is no time in custody, and under most circumstances, it is illegal to be sentenced to prison for a first or second conviction.
Considering the fact one always has the right to a jury trial for felonies and the penalty for a DUI is greater than some felonies, one would assume that you would get a jury trial for a misdemeanor DUI as well. That has always been the law, but that might just change. According to Paul Davenport of the AP, Senate Bill SB 1200 would:
A bill approved by the Arizona Legislature would end misdemeanor DUI defendants' automatic right to a jury trial for a first offense... The House formally approved the bill Monday, and the Senate followed suit Tuesday afternoon. The Legislature adjourned its session early Wednesday morning, and the bill is now among 168 measures awaiting action by Gov. Jan Brewer by May 2.
According to Lester Pearce, a Maricopa County justice of the peace for north Mesa:
Eliminating a blanket right to jury trials for first-offense misdemeanor DUI cases will save millions of dollars statewide in court costs and other expenses, primarily because trials will be shorter and because direct jury expenses will be eliminated in many cases.
Even before the days of CSI and the infamous, or as prosecutors commonly refer to it, "the CSI effect", the most significant evidence in a DUI case is the blood test result.
But at least in an Phoenix DUI, or in all Arizona DUI cases, the blood test result can mean more than one thing. First, there are two different kinds of breath tests, the portable breath test, or PBT, and the intoxilyzer machine. And, of course, there is also a blood test. Which chemical test applies in any particular case depends on the agency, precinct, and prosecuting agency. For example, some Phoenix Police Precincts use breath tests while others use intoxilyzer results. Some sheriffs use breath tests and some use blood test results.
In some prosecutors offices, Guadalupe comes to mind, even though the PBT is not admissible as evidence, use the PBT to determine plea offers. Only if the case goes to trial do they actually analyze the blood evidence. They do this to save some money.
Detroit Tigers superstar Miguel Cabrera was recently arrested for a DUI in Florida. According to a story in the UPI:
Evidence released Tuesday by the State Attorney's Office on Cabrera's Feb. 16 arrest showed two Wal-Mart truck drivers told authorities a black Ranger Rover, which law enforcement later determined was Cabrera's, forced one of their trucks off the road and forced an oncoming car to take "evasive action and (go) totally onto the grass shoulder in order not to hit the sport utility vehicle head-on," TCPalm.com reported.
The reason I bring up this Mr. Cabrera's case is not to pick on him, but rather to demonstrate the concept of "probable cause." In an Arizona DUI case, probable cause means for an officer to arrest someone for a crime, they must have reasonable evidence to believe that a crime has been committed and that the suspect is the one who probably committed the crime. If the arrest is without probable cause, then the arrest is illegal and any evidence seized as a result of the evidence cannot be used at trial.
In most cases, probable cause for an arrest is not an issue or very important, but in Phoenix DUI and Arizona DUI cases, it is very, very important. That is because the most compelling evidence the prosecution uses in DUI cases is a chemical test, either blood or breath, proving blood alcohol concentration. Importantly, the portable breath test, or PBT, which officers use pre-arrest, is not admissible in trials.
I talk to people all the time about DUI's, whether it be clients, police officers, other Phoenix DUI lawyers, or prosecutors. And one of the things that comes up quite a bit is the reason for the officer stopping a DUI suspect. This question is not trivial, and is in fact very important.
An officer cannot stop random vehicles, regardless of the time of day or location, in the hopes that any random stop will lead to a DUI arrest. An officer can only stop a driver for one of three reasons: first, a equipment failure; second, a civil traffic violation; and three, reasonable suspicion that a crime has been committed.
Equipment failure means exactly that: there is something about the car that violates Arizona laws for safe vehicles. Of course, equipment failure does not necessarily mean the car is unsafe, just unsafe enough for the officer to pull over the driver. That could be something as little as a tiny crack in the windshield or one of the license plate lights is not operating and visible past 50 feet. It could also be something serious like the car is on fire.
A civil traffic violation means the driver has violated traffic laws. It could be something like speeding or expired registration. It could also be something like not making a turn into the first available lane. My experience is that not turning into the first available lane will not get you pulled over at 1 PM, but will certainly get you pulled over at 1 AM.
Finally, reasonable suspicion means the officer has reasonable cause to believe that a crime is being committed. That would mean something like weaving heavily, not moving for a green light, asleep at the wheel etc... Of course, most officers will cite multiple reasons for pulling over a driver because that way, they could justify the stop on multiple reasons.
Assuming the officer had valid reasons to pull you over, what should you do?
As you may imagine, this is about a DUI in Phoenix I tried. On that case, I was planning on giving specific details on what happened until I saw an article in the NYT about how some defense attorneys were suffering bar sanctions for doing exactly that. I don't think a Phoenix DUI lawyer would get much sympathy.
What bothered me was the judge. The judge was rude but at the very same time extremely sensitive. The judge went out of his or her way to provoke confrontation, and then acted extremely offended at simple, everyday argument. Vanity in a robe. But that was not the problem. I could and did deal with all that because dealing with vain judges is just part of the job; the real problem was the judge did not know simple, basic rules of evidence or procedure. Typically, a judge’s personality is not a severe problem unless the rulings are substantive. For example, a judge just being a grouch is not a problem, but when that grouchiness leads to a bad ruling, that is a problem.
It all started during during jury selection; the judge did not strike a career prosecutor for cause and forced me to use a peremptory strike. This was despite the fact before jury selection began the judge said that he or she did not like dragging out jury selection and would strike any juror at a hint of bias. So much for that. I won’t list all the reasons why I thought the judge should have struck the juror for cause other than to point out anytime a potential juror is a lawyer with extensive criminal law experience, whether for the state or defense, striking that juror is almost always automatic. All I could do was make my record as extensive as possible, which I did.
It then turned worse because it seems the judge did not understand the rule of completeness or hearsay. When I tried to introduce my client’s statements to the police during the cross examination of the investigating officer, after the prosecutor had already partially done so during direct examination, the judge ruled the answers to my questions were hearsay. I had done the same dozens of times before without the least bit problem, and I when I said I was entitled to “complete the story” and it was thus a hearsay exception under the rule of completeness, the judge responded (paraphrasing as best I can remember) ”the prosecutor did not ask those specific questions that you are asking; therefore, it’s hearsay.” My argument, which is perfectly consistent with the rules of evidence, case law, and hundreds of years of practice, is that if the prosecution decides to introduce part of a defendant’s statement to the police into evidence, I am entitled to introduce the rest of the defendant’s statement. If the prosecution does not open the door first, I don’t get to complete it. In this case, the prosecution opened the door. But according to this judge, the rule of completeness only applies if I ask the exact same questions the prosecutor already asked on direct, which if true, would make the rule of completeness totally unnecessary!