Articles Posted in ARIZONA DUI TOPICS

Arizona’s Unconscious Clause permissible only with consent, warrant, or case-specific exigent circumstances; What happens when your rights are violated

air-ambulance-helicopter-DUI-Crash-Tempe-AZ-300x225In Arizona police are permitted to request a warrantless, non-consensual blood draw, from a DUI suspect who is unconscious under A.R.S. §28- 1321.

The blood draw may be unconstitutional if an individual’s rights are violated in the process.

Recently, the Arizona Supreme Court ruled that the unconscious clause is permissible only when invoked non-routinely, under exigent circumstances that are case-specific.

4 Things Arizona Supreme Court Needs to Admit Results

DUI-lab-test--300x213Under the Fourth Amendment of the U.S. Constitution, a person has the right to be protected from unlawful searches and seizures.

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

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

5 Things you need to know about Arizona DUI laws and defense

police-stop-drunk-driver-3-300x201No one who drinks expects to get a DUI or be the victim of an alcohol related disaster.

It is important to remember that others on the road may be driving dangerously due to drug or alcohol impairment.

Often people who have been drinking, lose track of how much they are drinking, and have not planned for an alternative ride home or arranged for a designated driver.

Arizona Court of Appeals: Mistake of Law must be Objectively Reasonable to Avoid Suppression of Evidence obtained after the Stop

police-stop-unlawful-2-300x203Can an Arizona Police Officer’s misreading of a clear and unambiguous law give rise to reasonable suspicion, thereby making a stop lawful?

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

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

20 Alcohol & DUI Safety Tips; 7 Facts about high BAC; Arizona’s Extreme DUI Laws; Penalties; and Criminal Defense in Arizona

alcohol cocktail 1 jpgSummer holds inherent risks of danger for outdoor drinking because the sun increases the effects of alcohol.

Heavy drinking combined with excessive sun exposure causes fluid loss, fatigue, dehydration, exhaustion, severe sunburn, alcohol poisoning, and impaired driving charges.

Other potential injuries and criminal charges occur as a result of excessive drinking including auto, boating, ATV, or motorcycle crashes; burns, drownings, assaults and violent crimes and DUI charges.

In Arizona high BAC levels call for harsh penalties in the event of a conviction.  This article will provide insight into Arizona laws and penalties for Extreme DUI and Super Extreme DUI charges.

  • 7 Facts about Excessive Drinking During Summer Months
  • 20 Alcohol Consumption and DUI Safety Tips
  • Arizona Extreme & Super Extreme DUI Laws and Penalties
  • Criminal Defense for Extreme and Super Extreme DUI in Mesa AZ

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A Comprehensive Overview of Arizona’s Ignition Interlock Program & Legislative Changes

IID Breath testArizona drivers currently found guilty of DUI charges are required to install and use an ignition interlock device (IID).

It doesn’t matter that their DUI did not involve alcohol.  It doesn’t’ matter that they never used alcohol a day in their lives.

Requiring a person convicted of a drug DUI to install and submit to an IID screening before they can start their vehicle, never made a lot of sense.

This was particularly true if the driver didn’t drink alcohol, considering that current IID technology does not allow for detection of drugs in a person’s body.

Current IID technology is limited to detection of spirituous liquor on a person’s breath during exhalation.

It may have served a punitive purpose;  but it did nothing to prevent a driver from driving impaired due to drugs.

This however, is about to change.

Arizona’s SB 1228 has passed.  It will allow for judges to have some discretion as to whether or not to impose installation and use of an IID for Drug DUI convictions.

This article provides a comprehensive look at Arizona’s Ignition Interlock Device Program and other related topics included:

  • Overview of Arizona SB 1228
  • Ignition Interlock Devices used in DUI Sentencing
  • Arizona Removes Ignition Interlock Device Requirement for Drug DUI
  • How the new law will Impact Arizona Drivers
  • Driver Obligations for Use and Reporting of Ignition Interlock Device
  • 10 Frequently Asked Questions about Arizona DUI IID Program
  • DUI Classifications, Penalties & Criminal Defense Mesa AZ

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Voluntariness VS. Submission to Lawful Assertion by Authority

Breathalyzer-Test-1--300x232In the recent ruling the Arizona Supreme Court considered a Fourth Amendment issue and Arizona’s implied consent law in DUI case.

The cases centered around two primary issues.  The first was whether or not  consent to a warrantless search was voluntary, after suspect agreed to submit to it, only after the officer instructed him repeatedly about the law.

The next question for the court was whether or not the advisement by the police officer was given in good faith when the officer believed that his conduct was lawful and not in violation of the suspect’s 4th Amendment rights.

This article provides a case overview, legal principles that applied, and the additional related resource information:

  • Impact of Ruling on Arizona Drivers;
  • Good Faith Exception to the Exclusionary Rule;
  • Arizona Courts on what Constitutes Voluntary Consent to Search;
  • Answers to the question surrounding “Should I consent to a DUI Test in Arizona?”;
  • 10 Common Defenses for DUI Charges in Arizona

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

breathalyzer-2-1240974-1-e1454513352659-292x300If 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.

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

Highway-Sign-3-300x164

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.

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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.

dui-blood-test-110-300x300This 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, Medical-Symbol-31-264x300 endangerment, and possession of narcotic drugs. The defendant argued that the court shouldn’t have denied his motion to suppress his blood test results, which were secured for law enforcement objectives under A.R.S. section 28-1388(E).

The case arose when the defendant hurt four people and killed a pedestrian in a head-on collision while speeding in a residential area early one evening. Hospital personnel took blood from him, and the blood test results showed he was high on meth and heroin at the time of the crash. Witnesses later gave testimony about his erratic driving and related conduct.

The defendant was charged with second-degree murder, possession, or use of narcotics, and four counts of endangerment. All of these are felony counts.  A motion to suppress the blood test evidence was filed by his defense, on the grounds that it was obtained without a warrant, and that he had expressly refused medical care at the time.

At the hearing on the motion to suppress, the defendant did not testify, but the court heard testimony from six witnesses. The witnesses, who were police officers and paramedics, testified that a nurse was tending to the defendant when they arrived. He was flailing and screaming and wouldn’t answer questions. One officer had been an EMT before becoming a police officer and testified that the defendant’s speech was slurred and that she couldn’t understand him in his delirium. Another officer saw syringes and an uncapped needle inside the car.

The defendant aggressively pushed away the paramedics and tried to hit them with a closed fist. However, the paramedics testified that due to the severity of his injuries, they needed a doctor’s clearance to not take him to the hospital, and they couldn’t get that. They effectively transported him against his will. He continued to be aggressive in the ambulance. Another officer said his behavior was consistent with someone drunk or high.

At the hearing for the motion to suppress, the lower court found that while it was possible to view the defendant’s conduct as a rejection of medical care, it wasn’t enough to count as a clear, unambiguous rejection of medical treatment. Accordingly, the lower court denied the motion to suppress the blood test.

The jury found the defendant guilty, and he was sentenced to 15 years for the manslaughter, as well as three years of imprisonment on each of the other convictions. He appealed.

The appellate court explained that a blood draw is considered a search under the Fourth Amendment. There are three constitutionally permissible ways in which police can get a blood sample: (1) by showing probable cause and getting a warrant, (2) express or implied consent, and (3) the exception provided by A.R.S. section 28-1388(E) that allows a police officer with probable cause to take part of a blood sample taken for another reason. However, the third way cannot be used if someone unambiguously, clearly, and expressly exercises their constitutional right to refuse medical treatment.

The issues before the appellate court were (1) whether the State had probable cause to believe there was a violation of A.R.S. S 28-1381, and (2) whether there was an express refusal of medical treatment. The appellate court found that the testimony of the officers showed there was probable cause. It found that there was no evidence to show the police asked that the defendant be taken to the hospital. There were also no oral statements made by the defendant specifically asking not to get medical assistance. The conviction was affirmed.

Updated March 13, 2017 

On February 1, 2017 the Arizona Supreme Court remanded the Maricopa County Superior court decision, and vacated the Appeals Court decision.

The Arizona Supreme Court held that the prosecution is required to prove that the defendant provided an express or implied consent to medical treatment.   If the defendant was unable to verbalize or otherwise express their consent, the state must prove that paramedics did not act against the suspect’s right to direct their own medical treatment.

The Court held that the evidence of record did not clearly or conclusively show that the suspect was capable or in a state of mind to direct his own medical treatment.   Further the the record did not show that the EMTs acted within the or against the rights of the suspect to make a decision about his medical care.

As a result the Court remanded for continuance of proceedings to the trial court to make the determination of whether or not police obtained the blood sample legally, based on specified standards.  These standards included 1) probable cause of DUI; 2) exigent circumstances; 3) blood draw was for a medical purpose; and 4) the paramedics did not violate the right of the suspect to make the decision regarding whether or not to consent to the medical treatment.

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