Arizona Criminal Defense Attorney Blog

Arizona Court of Appeals considers reasonableness in accommodating suspect’s request for counsel before breathalyzer test.

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 1st breathalyzer test.

 7:02 a.m.  Officer conducts the 2nd 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.  checkbox 31245057-639x587 (1)

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

  • 3rd 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:

 

Arizona Court of Appeals Upholds K-9 Search of Vehicle; Police not required to advise that Drug K-9 will be used with Voluntary Consent; Your Rights in Vehicle Searches Q & A

In a recent case ruling the Arizona Court of Appeals upheld a woman’s conviction for possession for sale of methamphetamine and drug paraphernalia.

The central issue in the Appeal was whether or not a K-9 drug search of her vehicle was within the scope of a voluntary consent to search she agreed upon.

Case Facts and Court Opinion

The case arose when an officer stopped the defendant for a cracked windshield and speeding. The officer issued a written warning and a repair warning.

Following the issuance of citations, the officer asked the driver if he could search the vehicle.

The driver answered yes.  The officer then gave her a consent-to-search form that was written in both English and Spanish. The officer and the driver conversed in English.

The form the officer gave her was written in both English and Spanish.

The suspect read and signed the Spanish portion of the consent form.  The officer asked her if she understood what she had signed. She acknowledged that she understood.

The consent-to-search form which the driver signed was central to this ruling.  With it, she consented to the following terms:

  • She could refuse to have her vehicle searched;
  • She could withdraw her consent to search at any time;
  • Evidence found during the search could be used against her in court;
  • The consent did not include property of other passengers in the vehicle.

Following the signing and affirmation of consent, the officer instructed the suspect and the passengers to leave the car and stand 20 feet away.

The officer then went to retrieve his drug K-9 from the patrol car to conduct a search of the suspect’s vehicle.

The officer would later testify that the defendant was standing where she could see him remove the K-9 from the car.

The suspect did not say anything to the officer at that time. She did not object to the K-9 search, or withdraw her consent at any point during the K-9’s search.

The vehicle’s exterior with the K-9, did not elicit an alert.  However, upon investigation of the interior, the dog directed a positive response at a purse on the driver’s seat.

The dog went back to the patrol car, and the officer searched the purse.  The officer found methamphetamine (meth) inside the purse.  The suspect confirmed that the purse with the meth inside belonged to her.

The defendant filed a motion to suppress the evidence. She argued that seizing the methamphetamine was a Fourth Amendment violation because the K-9 search was outside the scope of her consent.

The trial court found that  Continue reading

Arizona Court of Appeals: No "conspiracy" without evidence of electronic communication with anyone else besides buyer and seller

In a recent Arizona Supreme Court drug case, a man convicted of 11 drug-related crimes was sentenced to concurrent, consecutive presumptive terms of imprisonment.

The defendant appealed, challenging five convictions related to violations of A.R.S. § 13-3417(A) to facilitate or conspire to commit felony drug crimes.

In this article we provide an overview of the case and the Appeals Court Ruling; how it impacts Arizona; and privacy rights v. the public safety debate of cell phone searches.

This article also includes a special featured segment by Scott Greene, Senior Technology Forensics Expert, who will provide additional insight into cell phone and mobile device forensics.

Case Overview

The case arose when Arizona narcotics agents were told that the defendant was selling drugs.

An undercover agent began talking to the defendant by cell phone and arranged to buy methamphetamine from him.  Below is the outcome of the efforts initiated by the undercover agent:

  • The first transaction took place as planned.
  • The agent again contacted the defendant and arranged another purchase. However, the woman who was supposed to deliver the drugs never showed up to complete the sale.
  • Another purchase was set up, and as a result, the defendant’s co-defendant (another person charged in the crime) sold the meth to the agent.
  • The next transaction did not go through because only the undercover agent arrived and no one met him to complete the sale.
  • The next transaction resulted in another codefendant meeting the agent and selling him rock salt rather than meth.
  • Two weeks later, the police arrested the defendant. Upon searching him, they found a bag of marijuana in his possession, as well as the cell phone with the same phone number used by the undercover agent to initiate the sale.

The defendant and his two codefendants were indicted on multiple counts, found guilty, and sentenced. The defendant appealed.

The appellate court was faced with the issue of whether the defendant, who was the seller in the drug transaction, was properly convicted of an A.R.S. § 13-3417(A) violation.

The primary question was whether or not there was sufficient evidence to prove that the defendant used a wire or electronic communication to “facilitate” or “conspire” to commit the felonies.

This question evolved around the fact that there was no other evidence presented involving wire or electronic communications by the defendant except for that of the buyer, the undercover agent.

The defendant also argued that the offenses that were charged in connection with the wire communications statute involved the sale of rock salt, an imitation substance that falls under A.R.S. chapter 34.1 for Imitation Drugs; not chapter 34 for Drug Offenses, or chapter 23, for Organized Crimes, Fraud or Terrorism, as stated in the language of the statute pertaining to the wire communications statute.

The state responded that the cell phone was used to communicate with the undercover agent about the sale of an unlawful  drug.

Therefore, it was irrelevant that the drug was an illegal imitation substance provided after the communication.

The appellate court explained that they found no published precedent case that interprets the statute.

Therefore, in these situations the court looks to the plain language and the meanings of “facilitation” and “conspiracy” in its effort to interpret the statute.

An Arizona statute provides that “facilitation” is committed if someone who knowingly provides another with the means or opportunity to commit a crime.  They do so, knowing that the other person is committing or intends to commit the crime.

An Arizona statute provides that a “conspiracy” is committed when three elements exist:

  1. At least one of them or someone else will act in ways that constitute that crime; and
  2. Someone agrees with one or more people, intending to promote or help in the committing of a crime; and
  3. One of the people commits an overt act to further that crime.

The court used these statutory definitions of facilitation and conspiracy to interpret the wire communications statute.

It held that prohibited use of a wire or electronic communication is to knowing or with intent:

  • Provide someone else with the means and opportunity to commit a crime; or
  • To agree with someone else, that one of them, or another will act in ways that constitute a crime and commit an overt act to further the crime.

In several of the sales, the defendant was the seller and the agent was the buyer, and both were necessary to the transaction.

The defendant didn’t use the phone to facilitate or promote anyone else’s efforts to complete the sale, nor was their evidence that the defendant was conspiring with anyone else about the sale.

The defendant’s communications with the other people who delivered the drugs in certain transactions were in person.

In other transactions, the undercover agent came to buy drugs, but the defendant didn’t show up to sell them.   Continue reading

Arizona Court of Appeals: A search subject to probation terms significantly diminishes privacy rights

If you are placed on probation for a drug crime in Arizona, you have a reduced expectation of privacy than you had before.

This means that, depending on the probation conditions, the privacy protections you thought you had under the Fourth Amendment of the United States Constitution related to search and seizure may not apply.

In a recent Court of Appeals case  the state of Arizona appealed after the lower court granted a defendant’s motion to suppress the evidence of a warrantless search.

In this article we will examine a recent Court of Appeals case which centered around the challenge of a warrantless search at the residence of a probationers.

We will also take a closer look at some key legal concepts that the court examined in the process establishing a ruling in this case.  The legal concepts we will discuss following the overview and court ruling summary include:

  • Privacy rights for warrantless searches under the U.S. Constitution 4th Amendment;
  • Privacy rights for warrantless searches of a person’s residence under the Arizona Constitution Article 2, Section 8;
  • A comparison of the two, and discussion as to why the more liberal privacy rights afforded under Arizona law did not apply;
  • Assessing “Totality of the Circumstances” for reasonableness of a warrantless search on a probationer’s residence.

Continue reading

Arizona Supreme Court Ruling: AMMA Users have an Affirmative defense for DUI. They can show they did not have a high enough concentration of THC to cause impairment.

marijuana smoke 3 LargeThe Arizona Supreme Court provided a unanimous decision in a recent Marijuana DUI ruling.  The court took a closer look at how the AMMA impacts prosecution.

The Supreme Court ruled that Medical Marijuana card holders are not immune from prosecution under the state’s DUI law, which prohibits drivers from having in their blood marijuana or another chemical compound that causes impairment.

At the same time, the court also ruled cardholders, do in fact, have a limited affirmative defense under the AMMA. But it is a limited DUI Defense. The AMMA does not, and does not provide general immunity from prosecution.

If a qualified user is facing marijuana DUI charges, they can provide a evidence or testimony showing they didn’t have a high enough concentration of the active ingredient THC, in Marijuana, to cause driving impairment.

If they are successful in their challenge of impairment, they may avoid a conviction.

Overview  

This article will cover the following topics:

  • Arizona Supreme Court Ruling on Marijuana DUI;
  • Impacts of Ruling on Arizona Drivers;
  • Affirmative Defenses in Arizona;
  • When the Safe Harbor defense for Medical Practitioner Prescribed Drugs applies;
  • 5 types of evidence that can be used to provide a showing of non-impairment;
  • How many puffs does it take to cause Driver Impairment? 
  • Criminal Defense for Marijuana DUI Charges Mesa AZ

   Arizona Supreme Court Case Overview

Petitioners made no effort to show that the marijuana was in an insufficient concentration to cause impairment.” –  Arizona Supreme Court 

The case involved two defendants, both charged with two counts of driving under the influence:  a violation of A.R.S. § 28-1381(A)(1) and a violation of A.R.S. § 28-1381(A)(3).

The former, (A)(1), prohibits someone from driving while under the influence of any drug if he or she is impaired to the slightest degree.

The latter, (A) (2), prohibits driving while there is any of certain enumerated drugs or their metabolites in the person’s body. Both defendants had taken blood tests that showed they had marijuana and its metabolites in their bodies.

One of the defendants wanted to present evidence of her medical marijuana card in another state, but the municipal court denied her motion. The other held an Arizona medical marijuana card, but the municipal court granted the state’s motion to preclude this evidence from being introduced.

The State dismissed the (A)(1) charge, for driver impairment.

But the defendants were convicted of the (A)(3) charge which states that a person is in violation of a violation of the DUI law if they are driving with any drug found in their system which falls within the state’s drug definitions A.R.S. 13-3401 that includes “Cannabis”. 

The defendants appealed to the Maricopa County Superior Court, which affirmed the convictions. They then appealed to the Arizona court of appeals, which ruled that there was no immunity for defendants holding marijuana cards when charged with (A)(3).

The defendants asked the Arizona Supreme Court to review the case.

The Court explained that with an (A)(3) charge, unlike an (A)(1) charge, the state isn’t required to prove actual impairment.

The defenses for these charges are also different.  With an (A)(1) charge where a person is in violation of the law if they are driving impaired due to drugs or alcohol.  With that, it is not a valid defense against impairment to challenge the violations on the ground that the user has a medical marijuana card.

With the (A)(3) charge involving driving under the influence of the state’s defined drugs, there is an Affirmative Defense available.  This defense makes it lawful to drive under the influence of the state’s defined drugs, if they the drugs are prescribed by a licensed doctor.

The Court explained that the Arizona Medical Marijuana Act (AMMA) immunizes registered qualifying patients for their medical use of marijuana, but the immunity is limited.

AMMA’s § 36-2802 provides immunity to qualified patients who use marijuana to the extent that a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.

The Court also held that possessing a registry card can create a rebuttable presumption that a particular person is using marijuana as permitted by AMMA, as long as he or she isn’t in possession of more than the permitted amount.   This means that the police, prosecution, and court will assume it is true, unless the facts are challenged and proven otherwise.

Generally a defendant may be convicted of an (A)(3) violation if the state is able to prove beyond a reasonable doubt that the driver had marijuana or an impairing metabolite in her body while driving a vehicle.

As a defense, the defendant may show by a preponderance of the evidence that use was authorized by AMMA, and that the amount of marijuana was not enough to cause impairment. Simply presenting a registry card is not enough to establish this defense.

The defendants argued that it was unfair to place the burden of proof on them because there is no threshold that is commonly accepted as Continue reading

Impact of Appeals Court Ruling on Arizona Drivers

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 4th 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. He made a motion to suppress the results of the blood test on the grounds that it was secured without probable cause or 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. Read More > Continue reading

1st Place - The Expert Institute 2015 Best Legal Blog Contest

“Feeling gratitude and not expressing it is like 

wrapping a present and not giving it.”

-William Arthur Ward  

The Expert Institute recently announced the results of their 2015 Best Legal Blog Contest.

“Thank-you”.     

Though heard often, these two words carry the utmost sincerity, gratitude and appreciation.  

Thanks to all friends, friends of friends; family, extended families, and neighbors.

Thanks to peers, peer networks; social media friends, connections, communities, and groups who voted and shared to their own friend networks and campaigned on my behalf.

Thanks to all loyal readers of our blog.

Thanks to all of you for whom I have not had the fortune of meeting, but still you voted, shared, and showed your support in the The Expert Institute 2015 Legal Blog Contest.

Thanks to all the guest authors who have contributed to the Blog articles.  You have added value, authority, and enriched the content and benefit for the readers.

Thank-you to all contestants for your unique and interesting Blogs. They were of the highest quality and benefit to readers.   It was an honor to be competing with your Blogs.  I knew that winning would no easy task for any contestant.

Congratulations to all the winners in all categories.  Your victories were well deserved.

Thanks to the Sponsor of the campaign, The Expert Institute hosting this well run contest.

Thanks to Joe O’neill, Senior Associate, Marketing, at The Expert Institute, who kept us informed and well instructed throughout the contest.  He worked very hard to make it a huge success.

“Depth of friendship does not depend on length of acquaintance.”  – Rabindranath Tagore

                         Lessons Learned                                 

I learned that participation in an industry contest is a lot harder than it looks.

I learned that while you might have the best blog entry in the contest, it will not be recognized as such, unless you promote it.

I learned that to be a competitive, you must set aside your pride, and ask for help.  There is no indignity in teamwork.

I learned that creative, enthusiastic, and committed volunteers are the key to success.

I learned that people  genuinely are willing to help if asked, and want to see you succeed.  In the least, if they took the time to vote, they want to make sure it counts.

I learned that others will take the contest only as seriously as you do.

I learned contests can be a lot of fun.  I enjoyed engaging with old friends on social media, and making many new friends at the ones.

I learned that if you look for the goodness in others, and expect the best in them, you will find it.

I learned that there are no strangers on Social Media.

There are no strangers here; Only friends you haven’t yet met.

– William Butler Yeats

                                                                 Memorable Moments 

There were a lot of memorable moments  behind the scenes during the contest. This was especially the case, in the way of comments and interactions on social media.

Interacting helped me to identify three key elements which I think will help anyone succeed:

  1. Strategy, teamwork, and utilization of every your resource in your arsenal;
  2. Work hard until the last minute of the race; reach high for 1st place; and never give up;
  3. Have fun; Let people give what they wish to give. Accept graciously. Acknowledge every act of support.

I.  Strategy, teamwork, and utilization of every resource in your arsenal

Google Plus Community Post  – These are just a few of 36 comments on this Post 

(Throughout the post are comments in red to illustrate my reality checks at the time).    

Me Post: What do you all think about this integration of “We Dig” movement, “Collections” and  our “Campaigns” all in one?   Also, I would really would appreciate your “We Dig” Vote for my Blog!  

Monika: Sorry it won’t let me vote…

(Wait, wait, this can’t be happening…OK, Just breathe).

Me:  Thank-you for trying, and thank-you for the heads up so I an check it out. Anyone should be able to vote. :-(  I need to check this out. 

George:  I can dig it. If I were you I would add some blog posts into your collection.

(I didn’t expect to get help with campaign strategy. And I need all the help I can get. Go George!) 

Fran:  I think you’re right on. How could I not vote for fellow Arizonian.

 (This might just work. The Arizona home team approves). 

Melinda: Great idea. I voted and it went through even though it said “already voted”.

 (I wonder how many people tried to vote and couldn’t?  Oh no, it’s Saturday, and we won’t be able to contact The Expert Institute for guidance.  How many votes will I lose this weekend?  We’re doomed.) 

Patti:  We Dig Voting for James Novak! Done. Good luck.  

(OK, calming down now. Patti’s vote counted.) Outsourcing Strategy, Teamwork, Al.lTust 3   

George: You need to include a CTA in each post.

(Wow, George is sharing more ideas for strategy. I’m not leaving this thread for anything. George, you rock!) 

Me: George what’s a CTA? 

George:  “Call to Action”. 

(Oh, right…I knew that:-) 

Sue: I have voted for you James Novak. And I love the We Dig image. 

(OK Litmus test for “We Dig” passed.)

Jim:  After clicking the link, I saw an orange button on your website that said “Already Voted 54+” At first I was baffled thinking it implied the button was incorrectly reflecting that somehow I had already voted. I searched around to see if there was some other button I could push. Finding none, I said “What the heck” and clicked on the orange button to see what would happen. Darned if it didn’t refresh and say “Voted 59+”. What?!… 

(Jim wanted to make sure his vote counted as much as I did! How cool is that? He was on a mission to find out, so that we could share instructions in posts for people. Right on Jim!) 

Monica:   I tried it again! And now, in this minute, the voting seems to run in the correct way:
Click on: “vote” (=thumbs up) on the left side. Immediately the number will count one up   etc.

(Monica then provides step by step instructions on the correct way to cast your vote. Go Monica!)            



II. Work hard until the last minute of the race; reach high for 1st place

“Donny” Campaigning on Facebook

Helping Hand 3 _FullDonny: James, where are we?                                           

Me: We’re in 5th place.   

Donny:  That’s not good enough….

Me: We’re in 4th place…

Donny: Where are we now?

Me: Oh my gosh, we just moved to 3rd place! 

Donny: That won’t do. We’re not done here… 

I was excited to be in 3rd or 4th place, up from 9th. But Donny wouldn’t settle for that.  He reminded me that we were in to win.  No slowing down or settling with less.   Rock on Donny! 



III. Acknowledge every act of support; Let people give what they wish to give, and accept graciously.

“T.L.”  Campaigning Everywhere!

T.L:  James, How many now?                            

Me:  1800  and something.                                

T.L:  That’s not enough. I told my family, and called on more of them in Vietnam.  I told them that everybody loves James’ blog.  I told them that you help a lot of people when they make a mistake like getting a DUI, and get arrested. So they need to vote for your blog.     

Me:  Thank-you so much!  

T.L:  My daughter also teaches Taekwondo Class and has lot’s of students.  She is going to spread the word there and ask them to share with their friends too.      

Me.  Wow. that’s awesome. Please extend my thanks to her for that. 

T.L:  And I told my friend that if she spreads the word I will make her some egg noodles. She loves my egg noodles!   rice-1329209-639x493

Me: T.L.  Great! Let’s have a voting – egg noodle party. What can I bring?  

T.L. was a loyal and generous volunteer. She never stopped giving and campaigning. She was creative and tapped into everything in her arsenal. Thank-you T.L. I will be forever grateful. Now about that egg noodle party… 



The Law Office of James Novak is committed to the goal of providing high quality law educational resources and articles you can use.

We have great articles and topics in store for the end of the year 2015 and 2016. We hope you stay connected for more interesting and resourceful articles.

Thank-you again everyone!

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Aggravated Assault - Justification - Crime Prevention Defense: Arizona Court of Appeals Overturns Conviction

  ♦ Featuring Tips from Authorities: How to Safely Respond (or not) to Road Rage ♦

Our Federal and State Constitutions afford us the right to bear arms, to protect ourselves, our families, and others from immediate harm due to serious crimes in progress.

So why then, must we be concerned with facing criminal charges if we exercise those rights?

The answer to this question is two-fold:

First there’s a fine line between what we may feel is justified and what the language of the law dictates.

Second,  the police, prosecution, court and jury may not feel the actions were as justified as we did under the same circumstances.

So while it is true we have these rights, we must be prepared to defend our actions.

In this article we outline a recent Arizona Court of Appeals case that began as a road rage incident.

The defendant was convicted of Aggravated Assault with a deadly weapon.  He appealed his conviction, challenging the jury instructions provided in the trial.

At the heart of the case were two important legal concepts, that proved to be central to the verdicts:

  1. Arizona’s “Justification – Crime Prevention” Defense;
  2. The importance of accurate and complete Jury Instructions

The discussion topics in this article are broken down into the following 8 segments:

  • Incident – Circumstances that led up to the incident;
  • Why the Jury got it Wrong/ Why the jury ruled the way they did;                                 
  • Appeals Court Extended Summary;
  • Arizona’s 15 Justification Defenses;
  • Justification Use of Force – Crime Prevention;
  • Arizona Aggravated Assault with Deadly Weapon Laws;
  • What to do if you find yourself the target of Road Rage;
  • Criminal Defense for Aggravated Assault Charges in Arizona

                                                           Part I –  The Incident  

The defendant was driving with his fiancé and her 4 year old daughter in the vehicle.

Following a minor traffic mishap, another driver began honking and tailgating them.

The angry driver (victim) pulled up alongside the defendant’s vehicle in road rage.

The angry driver waved a gun while pulled up next to their vehicle, frightening the passengers.

At the next stop light, the defendant got out of his vehicle, and brandished his own gun.

The defendant stood there, with his gun. But he did not move to harm the victim;

The light turned green.  The defendant got back in his vehicle, and drove away.

The victim continued to chase him, and ran two red lights in the process.

The victim then called #9-1-1 reported the defendant.

The Police dispatcher repeatedly urged the victim to stop chasing the defendant, and to return to a nearby shopping center to meet an awaiting police officer.

The victim did not immediately obey the dispatcher, but did finally retreat and return to the shopping center.

The victim then took a detour to another area of the shopping center before meeting the officer.

Once stopped, the officer searches the victim’s vehicle but did not find any weapons. The victim denies having a gun.

The defendant was subsequently charged with aggravated assault with a deadly weapon.

The defendant chose to go to trial to prove his innocence.

The jury found the defendant guilty. He was sentenced to 5 years in prison for Aggravated Assault with a deadly weapon.  Read More… Continue reading

Your Vote Counted - We made it to The Expert Institute’s Best Blog Contest Finals.

Thanks to each of you who nominated our blog for the Expert Institute’s Best Legal Blog Contest.

♦You can cast your vote right from this page for the finals.♦

We would sincerely appreciate your help in sharing this with our call to action as well.

We are grateful to announce that our Arizona DUI & Criminal Defense Lawyer Blog, has been selected for the competition finals as one of 250 law blogs from a field of more than 2,000 potential nominees.

Now that the blogs have been nominated and placed into their respective categories, it is up to you, the readers to select the very best to win one of the largest competitions for law article writing online today of its kind.

The next stage of the competition will run from August 27, 2015 to until the close of voting at 12:00 AM on October 9, 2015; the votes will be tallied and the winners announced.                                       

Can We Get Your Vote?

Vote Here

To vote, simply visit this The Expert Institute’s Blog Contest Voting Page. 

Then vote for James Novak, Law Office of James Novak’s Arizona Criminal Defense Blog.

Just check the “Vote” box.

Thank-you for Voting!

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What to do if you are being assaulted by police: Your rights, defenses, & remedies in Phoenix, AZ

Part I of II

Introduction

This collaborative two part series was inspired by my friend and colleague, Eyitayo Ogunyemi, LL.B, B.L, Attorney and Human Rights Advocate in Lagos, Nigeria.

Nigeria USA Flag

This is part I of II which applies to Phoenix, AZ laws, in the USA.

Eyitayo Ogunyemi has written Part II, which applies to Lagos, Nigerian laws.

To symbolize human rights, we have chosen the number “15”, to represent 15 Universal Declaration of Human Rights, that often involve police brutality if violated. They include:

Freedom from slavery; Freedom of opinion or expression; Right to peacefully assemble; Freedom from non-discrimination;  Freedom from brutality and torture; Freedom inhumane or degrading treatment;  Freedom from arbitrary arrest, detention or exile; Freedom of thought, conscience and religion; Right to equality;  Right to life, liberty and security;  Right to remedies for violations of human rights under the law; Right to trial; Right to presumption of innocence until proven guilty; Right to adequate shelter, food, clothing, medical care and other fundamental needs; Right to protection against interference or attacks against privacy, family, home, honor, reputation,  or correspondence.

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