Arizona Criminal Defense Attorney Blog

Articles Posted in ARIZONA DUI TOPICS

Voluntariness VS. Submission to Lawful Assertion by Authority

In the recent ruling the Arizona Supreme Court considered a Fourth Amendment issue and Arizona’s implied consent law in DUI case.

The cases centered around two primary issues.  The first was whether or not  consent to a warrantless search 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.

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.

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.

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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.

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

Your Guide to Understanding Consequences of DUI with Accidents; and Unforeseen Parental Liability Actions

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In a tragic turn of events, Phoenix police reported that a 14-year-old boy, driving a mid-size sedan, allegedly under the influence, sped through a red light signal and crashed into an SUV.

The SUV was carrying three people, a man, his girlfriend and his girlfriend’s three-year-old daughter.

The toddler was thrown from the SUV and sustained life threatening injuries.  The man suffered head and lung injuries.

The man’s girlfriend, a passenger in the SUV is listed in stable condition but still in the hospital late last week.

The 14-year-old driver of the sedan that ran the red light signal, and his 17- year-old passenger whom the police report were under the influence of alcohol both suffered minor injuries.

It is unclear who owned the sedan driven by the 14-year-old was driving.

The driver was later taken to the Juvenile Court Center.  The 17-year-old passenger was released to his family.

The 14-year-old has reportedly since been charged as an adult, and faces 4 counts of aggravated assault with a deadly weapon.

According to Maricopa County Prosecutor and Court records, the decision to prosecute the youth as an adult was based on the severity of the accident and victim’s injuries.

A secured release bond was ordered by the judge for $100,000.00, and the next court date set.

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Overview of the Ruling; Strategies for Defense and Prevention of Repeat DUI Arrests

mountain-road-1424189-m-1 Approximately 37 million people visit Arizona each year, and 16 million of those visit the Phoenix Metro   area.   Whether they are here to vacation, attend school or sporting events, or to see the attractions our State has to offer, many will be driving.

Unfortunately, some will be arrested for impaired driving.  Suddenly, what was supposed to be a fun and enjoyable trip turns into a nightmare.

One of the most common questions a person asks after being arrested for a repeat offense, if they are visiting or a new resident to Arizona is “How will my prior DUI received in another state, impact my current DUI charges?”      

Recently, an Arizona Appeals court addressed prior DUI charges involving out-of-state DUI convictions.  The Appellate court considered whether a prior out-of-state DUI conviction would be used to reclassify charges to a felony for a third DUI conviction.

In this case  the defendant had been charged with two counts of aggravated DUI, two counts of aggravated driving with a BAC of .08 or more and aggravated assault on a peace officer.

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“DUI arrests for “probable cause” doesn’t mandate that the police officer show a driver was actually under the influence, only that it is probable that he was”.

1066864_police_cruiserA police officer need only have a reasonable suspicion that you have violated a traffic law (like the speed limit) or engaged in criminal activity to stop you. “Reasonable suspicion” means that there is a “particularized and objective basis” for believing somebody had violated the law. Once you are stopped, there must be probable cause to arrest you.

In a recent case, the Arizona Court of Appeals considered whether there was probable cause where the defendant was convicted of four counts of aggravated driving under the influence (aggravated DUI). The defendant had been stopped in his vehicle after a police officer visually estimated he was going fifteen miles over the speed limit. According to the police offer, he’d been trained to accurately estimate vehicle speed within five miles per hour.

Once the officer stopped the defendant, he saw the defendant had watery bloodshot eyes, spoke with slurred speech, and smelled like alcohol. The defendant couldn’t find his driver’s license and gave the officer his social security number. It turned out that he provided his wife’s social security number. When the officer learned this, he asked the defendant for his wife’s social security number. This time, the defendant gave him his own number. The officer administered a test for alcohol impairment. When the defendant refused a breathalyzer test, he was arrested.

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

What went wrong that made this DUI stop potentially deadly?

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

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Appeals Court overturns conviction holding that the State must prove beyond a reasonable doubt that a defendant knew or should have known of the suspension.

mountain-road-1424189-m-1.jpgThere are several ways to get an aggravated DUI conviction in Arizona. Among the ways is driving while impaired by alcohol, drugs, medication, or illegal substances while having a suspended, cancelled, revoked, refused or restricted license. This is a class 4 felony.

However, you can also be charged with driving on a suspended license, which is a class 1 misdemeanor. Although the latter may not seem particularly important because it is a misdemeanor, it does give you a criminal record and can impact you in the future.

In a recent case, the defendant was charged with aggravated DUI while driving on a suspended license. The defendant did not appear for his trial and was tried without being present.

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Arizona V. Cooperman: DUI Partition Ratio relevant, competent evidence to show lack of DUI Impairment.
breathalyzer-465392-m.jpg Blood Alcohol Content (BAC) refers to the concentration of alcohol in the blood that can currently be measured either by a DUI blood test or a breath test. Interestingly, however, the results of a breathalyzer test for DUI may not always be the same as the results from a blood test. This may be the case even if the blood and breath are tested at the same time.

Partition Ratio in DUI Breathalyzer Tests

Breathalyzer tests produce a numerical score, only by mathematically converting the breath sample to a Blood Alcohol Concentration level. This conversion process is known as the “partition ratio” when the conversion factor is used. The conversion is considered problematic by some because it is not necessarily reflective of the actual partition ratio for an individual; actual partition ratios for individuals can vary. Factors that may cause the ratios to vary include but are not limited to body temperature, medical conditions and gender. This means a breathalyzer test for an individual may not accurately translate to a blood alcohol concentration level indicative of impairment.

Case Background: State of Arizona v. Cooperman
In a recent case, the Arizona Supreme Court addressed whether partition ratio evidence could be admitted in a DUI case where (1) the state chose to bring in breath test results to prove a defendant had a .08 percent or more BAC within two hours of driving, and (2) evidence related to how much partition ratios varied in the population was relevant to the defendant’s level of impairment. The defendant here wanted to show how the partition ratio varies in the general population in order to introduce doubt as to whether the results of the breath test showed impairment.
In this case, a motorist charged with one count of driving while “impaired to the slightest degree” in violation of A.R.S. 28-1381 (A) 1; and the other was for having an alcohol concentration of .08 percent or more within two hours of driving in violation of A.R.S. 28-1381 (A) 2.

The Prosecution generally attempts to prove beyond a reasonable doubt that the latter charge (.08 percent BAC) by presenting a jury with evidence of a defendant’s blood alcohol content and establishing a DUI test sample was taken within two hours of the defendant driving. When a person’s BAC is .08 percent or higher, the presumption is that a person is under the influence, in violation of Arizona’s legal limit. However, to have a level below the .08 percent BAC does not however, create a presumption. If the officer had probable cause to believe that a motorist’s was still impaired, even though their BAC was below .08 percent, they may bring charges in violation of “impaired to the slightest degree”. The impairment, however, cannot be presumed, and must be decided in connection with other probable cause evidence.

The prosecution in this case attempted to prevent the defendant from submitting evidence that showed the partition ratio used to convert the breath reading to a blood reading was variable, meaning inconsistent, or liable to change. The prosecution argued that it planned only to introduce the breath test results for proof that the defendant’s BAC exceeded .08 percent; but not to prove the first charge of “impairment to the slightest degree”. Since the prosecution was not going to introduce the breath test for the impairment to the slightest degree charge, they argued the defendant could not present the partition ratios related to that breath test to cast doubt on whether or not the defendant was impaired at all.

Experts for both parties testified regarding the partition ratio. The defendant again tried to introduce exculpatory evidence of the partition ratio to that would cast doubt on whether or not he was impaired to the slightest degree. The State argued the defendant’s evidence was irrelevant and had the potential create unfair prejudice. The court ruled that partition ratio evidence was in fact relevant whenever breath test results are brought forward by the State. The court of appeals affirmed this ruling. The State then appealed to the Arizona Supreme Court.


Arizona Supreme Court Analysis

The Arizona Supreme Court held that evidence is relevant where it can make a material fact in a case more or less probable. If evidence is relevant, it is permitted at trial, unless there is specific rule or provision in the law that prohibits it. In this case, the State was required to prove that the defendant was impaired because he drank alcohol. Therefore evidence of his impairment was relevant.

The AZ Supreme Court recognized the strong correlation between Blood Alcohol Content levels and intoxication. The prosecutors had argued that they had the unilateral ability to invoke the presumption that the defendant was under the influence and the partition evidence was irrelevant because they chose not to invoke the presumption of impairment to the slightest degree.

The Arizona Supreme Court disagreed with this approach by the prosecution. They held that there is nothing that precludes a DUI defendant from presenting partition ratio evidence to show he was not impaired in an impairment case. In fact, they cited specific Arizona Law, A.R.S. 28-1381(H) which specifically provides that any “competent evidence” on the issue of the question of the defendant’s impairment in DUI charges brought against them.

Conclusions

In conclusion the Arizona Supreme Court cited Sandstrom v. Montana, 442 U.S. 510, 524 (1979). Which holds the need to satisfy constitutional requirement presumptions in criminal cases must be rebuttable, enabling either side to provide evidence or argument that challenges or opposes the presumption. Thereby The Arizona Supreme Court affirmed decisions made by all previous courts, Municipal, Superior, and Appeals Court of Arizona, which was to allow the exculpatory evidence regarding partition ratio variability to be admitted to show the defendant’s lack of impairment.

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