Arizona Criminal Defense Attorney Blog

Phoenix DUI Lawyer.jpgHow BAC impacts DUI impairments and penalties in Arizona

According to the National Center for Disease Control (CDC) recent studies three categories of people are the most at risk of getting an alcohol or drug related DUI. Those categories include young people; motor cyclists; and repeat DUI offenders:

1) More than one of every three fatal crashes involved a driver’s with BACs of 0.08% or greater were between the age of 21 to 24 (34%); The next largest percentage of age groups were the 25 to 44 years of age (28% average);
2) Of all motorcyclist involved in a fatality 28% of them had a BAC of 0.08% or greater. Of those impaired riders killed 44% were between the ages of 40 to 44 years of age;
3) Motorist with BACs of 0.08% or greater involved in fatal accidents were four times likely to have a prior DUI – DWI conviction.

Arizona DUI Legal Limit BAC Laws and Penalties

Arizona has some of the most strict laws and harsh punishments in the country. The higher the BAC level, if the impairment is due to alcohol, the more impaired they become. The more impaired the driver. Arizona recognizes this, and consequently has laws in place that increase the severity of charges and penalties for higher BAC limits.
Under A.R.S. 28 – 1381 the legal limit for Blood Alcohol Content in a person’s system is 0.08% or greater. However, under the law, a person may be guilty of DUI even if their BAC is below the legal limit of 0.08%, or even if they had no alcohol in their system. This is called being “impaired to the slightest degree. A person convicted of these charges will be exposed to 10s jail along with other harsh penalties.

Under A.R.S. 28 – 1382 a motorist with a BAC of 0.15% or more, and less than 0.20 is considered to be under the Extreme Influence of alcohol. A person found guilty of these charges will be subject to 30 days in jail, in addition to other harsh penalties.
And under A.R.S. 28 – 1382 and a driver with a BAC of 0.20% or greater is will be guilty of Arizona Super Extreme DUI charges. Penalties for this offense will be subject to 45 days in jail in addition to the other harsh penalties.

Second DUI offenses expose a driver to heavier sentencing of 90 to 180 days in jail in addition to other harsh penalties.

Third offense within 7 years will result in Aggravated DUI (Felony), which will expose a person to prison sentencing that ranges from 4 to 8 months in imprisonment.
Convictions in all of these cases will result in adverse Driver’s License actions including suspensions, denials, or revocations; court ordered installation and use of Ignition Interlocking device on vehicle; alcohol or substance abuse screening and counseling; fines, fees, costs; probation; community service; or restitution.


DUI Lawyer Chandler AZ

If you were arrested for any type of impaired driving charges due to drugs or alcohol you should consult an experienced criminal defense attorney who defends DUI charges. They will discuss your matter and options for defense. If retained they will evaluate your case to determine if any defenses are available to challenge the charges; defend your charges; make sure your rights are protected; and work to get the best possible resolution to your case.

Additional Resources:

Arizona State Legislature – DUI laws and Impaired to the Slightest Degree

Arizona State Legislature – DUI laws – Extreme and Super Extreme DUI Laws

National Center for Disease Control (CDC)

Arizona Department of Public Safety – Driver Impairment

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Tips for keeping your holidays safe and free from DUI arrests and hazards

Last week, the Arizona Governor’s Office of Highway Safety (AGOHS) announced it will be holding a Holiday 2012 DUI Enforcement “Kick-off” Conference at the Arizona State Capitol, Tuesday November 27, 2012. They will be discussing details for safety checkpoints, saturation patrols, and increased presence throughout the state to enforce DUI laws.

The AGOHS works with local city, and county officials to organize DUI Safety Checks that generally beginning around Thanksgiving and run through the New Year. During this time frame last year, DUI roadblocks resulted in over 4,170 Arizona DUI arrests for Drug DUI and Alcohol related DUI offenses.

7 Basic DUI Safety Tips

Here are some tips for planning Thanksgiving, Christmas and New Year holiday celebrations, to help avoid hazards and arrests resulting from impaired driving:

• Refrain from driving while under the influence of alcohol or drugs;
• Appoint a trustworthy designated driver;
• Make arrangements in advance for a safe ride home including taxi, public transportation, or trustworthy family or friend;
• Know the Arizona DUI laws related to drug and alcohol DUI;
• Avoid binge drinking, and know your impairment threshold for drinking;
• Don’t allow yourself to be a passenger in a vehicle driven by a person under the influence of alcohol or drugs;
• Talk to your teens about the dangers of drinking and driving and encourage them to follow these tips
Arizona DUI Laws and Facts

The National Highway Traffic Safety Administration works with Arizona to provide support for their Holiday DUI Enforcement “Drive Sober or Get Pulled Over” campaigns. Here are some Arizona laws, and NHTSA facts to keep in mind:

• Of the 32,885 people who lost their lives in 2010 to motor vehicle accidents, 31% or 10,228 fatalities resulted from alcohol impaired driving;
• The age group subject to the greatest risk of impaired driving and fatal crashes were 21 to 34 years old, who were under the influence of alcohol or drugs;
• Nighttime driving 6:00 pm to 6:00 am was the most deadly time frame for fatal crashes, and 78% of fatal crashes within the study in December 2010 alone;
• Of those, 45% had a Blood Alcohol Content of .15 BAC or higher;
• Police have zero tolerance for DUI charges, and do not provide warnings. DUI arrests will be made;
• All DUI convictions call for jail time and suspension of driver’s license;
• In Arizona Refusal to take alcohol breath tests will result in a suspension of a motorists driver’s license, whether the motorist was found to be driving impaired or not;
• In Arizona the legal limit for alcohol is 0.08% BAC;
• A person may be arrested for DUI, if their BAC is below the 0.08% if they are driving “impaired to the slightest degree” under the influence of alcohol or drugs;
• The legal drinking age in Arizona is 21 years old. Zero tolerance applies to any one driving or found to have any amount of alcohol in their system.

Criminal Defense for DUI Charges Tempe AZ

If you were arrested for DUI charges in Arizona, you should always consult an experienced DUI defense lawyer regarding your charges. Arizona has some of the toughest DUI laws and penalties in the country, and prosecutors egregiously pursue convictions for all types of DUI – DWI charges. If retained, your attorney will make sure your rights are protected; that you are treated fairly; defend your charges; and attempt to get the most favorable resolution possible for your charges.

Additional Resources:

Arizona Governor’s Office of Highway Safety – News Announcement

National Highway Traffic and Safety Administration

Arizona State Legislature – DUI laws

Arizona Mothers Against Drunk Driving – (MADD)

Arizona Department of Motor Vehicles

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Dring & Keys.JPGThe National Highway Traffic Safety Administration (NHTSA) recently conducted an evaluation of the Maricopa County DUI Court program. The purpose was to review the effectiveness of the program aimed at reducing <a href="The National Highway Traffic Safety Administration (NHTSA) recently conducted an evaluation of the Maricopa County DUI Court program. The purpose was to review the effectiveness of the program aimed at reducing Aggravated DUI (Felony) and repeat impaired driving offenses.

The study concluded that Maricopa County’s program was effective in reducing recidivism and had successfully helped reduce repeat offenses. It also concluded that Maricopa County’s program was more effective than other County DUI Probation Programs. DUI Court Program DUI Court is a specialty court designed to improve public safety and reduce repeat and future felony DUI offenses, by promoting changes in destructive and illegal behaviors. This is accomplished through team efforts of the prosecution, judge, probational officers, criminal defense attorney, and the drug/alcohol treatment professional, and the probation department. As part of sentencing, the court includes substance abuse screening and treatment as well as probation. This treatment is a primary component of the program.

Those eligible to participate in the program must demonstrate a voluntary willingness to stop drinking or stop substance abuse behaviors in an effort to rehabilitate them. Not everyone will qualify for the program which usually involves a reduction of other harsh sentencing including jail and prison terms.

Requirements of the DUI Court Program

Participants are required to sign a contract with the court that outlines the details their obligations. These may include the following:

• Abstinence from drugs and alcohol;
• Substance abuse screening, counseling or treatment with a qualified treatment program;
• AA meetings;
• Monitoring, supervision and reporting of defendant to their probation officer;
• Attendance to DUI Victim Impact meetings;
• Random drug and alcohol testing;
• Attend court hearings and meet with the presiding judge to discuss progress and issues of concern.

A variety of incentives are used by the court to encourage successful completion of the programs. These may include deferred or reduced jail or prison time; public recognition; set aside of criminal charges; or reduced penalties.

Penalties for Non-completion of the program

The participating defendant is held accountable for completing or not completing the program. A person may be exposed to the following penalties or sanctions for non-compliance, or breach of contract in the program:

• Additional jail or prison terms;
• Community service;
• Curfews;
• Electronic monitoring;
• Probation violation hearings and consequences;
• Abolishment from the program;
• Revocation of probation;
• Reinstatement of original sentencing
Successful completion of the program

In order to graduate from the program sucessfully a participate must do the following:

• Remain sober or abstained from drugs for six months; • Attend school or be employed;
• Comply with all court orders;
• Attended all treatments and counseling and provide proof of completion;
• Fulfilled all other probation or court ordered requirements.

Criminal Defense Attorney for DUI charges Tempe AZ

You should always retain qualified legal representation if you face any type of DUI charges. Your attorney will defend your charges, and make sure your rights are protected. They will also work to help you to get qualified for a treatment program, that may reduce or mitigate sentencing, if the case can not be dismissed.”>Aggravated DUI (Felony) and repeat impaired driving offenses.

The conclusions were that the program was effective in reducing recidivism and had successfully helped reduce repeat offenses. It also concluded that Maricopa County’s program was more effective than other County DUI Probation Programs.

DUI Court Program

DUI Court is a speciality court , similar to drug court. It is designed to improve public safety and reduce repeat and future felony DUI offenses, by promoting changes in destructive and illegal behaviors. This is accomplished through team efforts of the prosection, judge, probational officers, criminal defense attorney, and the drug/alcohol treatment professional, and the probation department.

As part of sentencing, the court includes substance abuse screening and treatment as well as probation. This treatment is a primary component of the program. Those eligible to participate in the program must demonstrate a voluntary willingness to stop drinking or stop substance abuse behaviors in an effort to rehabilitate them. Not everyone will qualify for the program which usually involves a reduction of other harsh sentencing including jail and prison terms.


Requirements of the DUI Court Program

Participants are required to sign a contract with the court that outlines the details their obligations. These may include the following:
• Abstinence from drugs and alcohol;
• Substance abuse screening, counseling or treatment with a qualified treatment program;
• AA meetings;
• Monitoring, supervision and reporting of defendant to their probation officer;
• Attendance to DUI Victim Impact meetings;
• Random drug and alcohol testing;
• Attend court hearings and meet with the presiding judge to discuss progress and issues of concern.
A variety of incentives are used by the court to encourage successful completion of the programs. These may include deferred or reduced jail or prison time; public recognition; set aside of criminal charges; or reduced penalties.


Penalties or sanctions for non-completion of the program

The participating defendant is held accountable for completing or not completing the program. A person may be exposed to the following penalties for non-compliance, or breach of contract in the program:

• Additional jail or prison terms;
• Community service;
• Curfews;
• Electronic monitoring;
• Probation violation hearings and consequences;
• Abolishment from the program;
• Revocation of probation;
• Reinstatement of original sentencing
.

Successful completion of the program

In order to graduate from the program with successful completion, the person must to the following:

• Remained sober or abstained from drugs for six months;
• Attend school or be employed;
• Complied with all court orders;
• Attended all treatments and counseling and provide proof of completion;
• Fulfilled all other probation or court ordered requirement.


Criminal Defense Attorney for DUI charges Tempe AZ

You should always retain qualified legal representation if you face any type of DUI charges. Your attorney will defend your charges, and make sure your rights are protected. They will also work to help you to get qualified for a treatment program, that may reduce or mitigate sentencing, if the case can not be dismissed.

Additional Rescouces:

• National Highway Safety Administration – Evaluation of DUI Court Conclusions

Maricopa County – DUI Specialty Court Program

Arizona State Legilslture – Revised Statutes for Felony DUI
Arizona MADD website – Victim Panel

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United States Supreme Court.jpg“Request made ‘unknowingly’; defendant lacked ability to adequately mount a defense”says Judge

On October 9, 2012, the Superior Court Judge in Maricopa County denied Michael Lee Crane’s request to represent himself at trial. Crane is accused three violent robberies and homicides in the Phoenix, AZ.
The defendant claimed the reason he wanted to represent himself was because no one knew his case better than he did. But the reason for the Judge’s denial had little to do with knowledge of the case.

But rather, Crane had persistently been disruptive; refused follow or recognize governing authority and law; refused to answer questions; refused to follow substantiated law; refused to comply with the Arizona Rules of Criminal Procedure and Code; and deliberate engaged in serious and obstructionist misconduct
The Judge explained that Crane needed to be able to understand, and follow these rules and follow the Arizona and US constitution. The Judge explained that by not knowing and following these laws and procedures, the defendant did not realize the limits he would place on his defense. But more importantly, his request was denied on the basis that the request for self-representation was not “knowingly” made.

Analysis of Ruling

The Sixth Amendment of the constitution affords a person the right to counsel or the right to defend themselves. And while it is unwise, the court must respect a person’s right to refuse attorney representation, even if it to the detriment of the person’s defense. For this reason, the Judge did take the defendant’s request under advisement. However, the decision is still ultimately at the judge’s discretion.

In this Ruling the Judge recognized the right of a person to defend themselves and refuse counsel. However, he explained that this right has limits. The court cited numerous important rulings to refuse to the defendant his request for self-representation:

• A defendant who is persistently disruptive of orderly procedures may lose their right to self-representation U.S. v. Williams 2011; State v Brooks 1989; Smith v State 1998; Wilson v. state 2004; Coleman v. State, 1980;
• Repeatedly arguing with the court on issues that were already ruled on, may be cause for forfeiture of the right to self-representation State v. Hemenway, 2004;
• Self-representation must be balanced against the government’s right to a fair trial which requires it to be conducted in a judicious and orderly forum State v. Henry, 1997;
• A trial court has broad discretion in managing the conduct of a trial, and has a duty to properly exercise that discretion State v. Cornell, 1994;
• Even if found competent to waive counsel, and stand trial, the court still has discretion to deny self-representation requests if it believes that the defendant’s request was not made knowingly.


Criminal Defense Attorney Mesa, AZ

If you face criminal charges, especially if they are serious, you should always consider retaining a qualified criminal defense attorney to represent you. They will defend your charges, and make sure your rights are protected. They will represent you through all stages of a criminal case; be capable of mounting a defense on your behalf; and worked towards obtaining the best possible resolution to your charges.

Additional Resources:

State of Arizona v. Michael Crane

Arizona Judicial Branch – Rules of Criminal Procedure

Arizona Superior Court – Case Procedures

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DUI lawyer Chandler AZ.jpg5 reasons police conduct Preliminary Breath Tests

Arizona is one of a majority of states with Preliminary Breath Test (PBT) Laws.

The PBT is a small mobile device used to establish the presence of alcohol in a person’s system. The PBT is intended to be used as an early detection or screening tool by police. Arizona does not allow a PBT to be admitted as evidence in court against a person accused of DUI, because the machines historically are not considered accurate in measuring exact Blood Alcohol Content (BAC) Levels. In addition, PBT units are not calibrated or routinely maintained like the official Breath Tests Machines.

Arizona Portable Breath Test (PBT) Law

Under A.R.S. 28 § 1322 Preliminary Breath Test law a police officer who has reasonable suspicion to believe a person is driving under the influence of drugs or alcohol has authority to request that a person submit to a preliminary breath test.

Under this law, the officer may also require the person to submit to further testing
pursuant to the Implied Consent Law A.R.S. 28 § 1321. This includes DUI blood, breath, urine testing.

5 reasons PBTs are commonly used in Arizona

The National Highway Safety Administration recognizes that although the PBT is useful, it is not admissible as sole evidence to determine BAC; but is generally reliable in determining if any alcohol at all is present in a person’s system. Arizona courts do consider PBT evidence to be admissible in court as evidence against a defendant facing DUI charges. Below the police may likely choose a PBT in a DUI field investigation:

• To determine or rule out DUI influence of alcohol v. drugs;
• Drivers who may have a high alcohol tolerance level, and can perform field sobriety tests or other tasks to a greater degree than those with lower tolerance levels;
• To detect if an underage 21 person is under the influence of any alcohol in violation of the state’s Zero Tolerance law;
• As a preliminary DUI screening test only; and if positive, will be followed up with an Official Breath Test Machine.
• At the scene of a DUI collision where the driver is suspected of DUI, but has been injured and is unable to perform Standard Field Sobriety Tests (FSTs).

Criminal Defense for DUI Chandler AZ

Arizona laws and penalties are some of the toughest in the country. If you have been arrested for any type of DUI you should always consult a qualified criminal attorney to discuss your charges. You should do this before you appear in court or plead guilty to the charges. You have the constitutional right to defend your charges, and this is done by pleading not guilty and retaining proper legal representation. There may be defenses that you are not aware of that if used, may lead to a dismissal of charges, sentencing, or other favorable outcome in your case.

Additional Resources:

Arizona State Legislature – Portable Breath Test Laws A.R.S. 28 § 1322

Arizona State Legislature – Implied Consent Laws A.R.S. 28 § 1321

Arizona Department of State – Public Safety – Determining Alcohol Concentration

Arizona Governor’s Office of Highway Safety – DUI laws

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Domestic Violence Charges.jpgOctober 2012 marks the 25th anniversary of the observance of National Domestic Violence Awareness Month. Every nine seconds a woman in the United States is beaten. Three women a day in the USA lose their lives. But victims are not limited to women. Victims can be men, children, brothers, sisters, grandparents, or other familial relationship.
The observance was founded by the National Coalition against Domestic Violence. Its goal is to reach out to victims throughout the nation to protect victims, raise awareness, and help end domestic violence.

A wide range of services and activities focused on education, support, and prevention at local, state and national levels. It includes the mourning of those who died as a result of domestic violence, and provides services and support efforts to their surviving children
Identifying Abusive Behaviors

• Controlling behavior;
• Physical abuse;
• Threat or intimidation;
• Isolation;
• Mental or physical neglect;
• Economic abuse or neglect;
• Sexual abuse
Planning for Safety

• Don’t allow yourself to be cornered in a room especially a small enclosed area;
• Educate yourself and your children to identify signs and indicators from your abuser that abuse is imminent;
• Discuss safety with your children before any incidents occur including safe places to go, what numbers to call, and safety signals to alert them to act if anything happens;
• Set up emergency signals with a trusted family member or neighbor who lives outside your home;
• Collect important documents, and records that you can access immediately from a safe location on short notice;
• Pack and keep a bag in a safe place that includes clothing, nonperishables, medicines, water, and any needed supplies for you and your children for at least 24 hours;
• Be familiar with local domestic violence shelters in your area, and keep their contact information readily available in the event of emergency.

Local and national supporters are wearing purple ribbons, and conducing “going purple activities”. For activities in your area, you can visit your state’s Domestic Violence Coalition, official city police website or other national resources.

Domestic Violence Charges

Domestic abuse or violence is a criminal offense, punishable by jail, fines, and counseling. You should know that even victims sometimes are charged or arrested for domestic violence. There are a numerous reasons for this. It can occur if a parent is a witness to domestic abuse or neglect to a child, but does not take any action to report it to authorities or respond appropriately to keep the child safe. It can also occur, if the police arrive, and are uncertain of which person is the aggressor and which is the victim; or if both persons contributed to the incident of aggression, violence, abuse, or neglect.

If you received charges or were arrested, you always consult a criminal defense attorney regarding your matter, before pleading guilty to charges, or appearing in court.

Additional Domestic Violence Support Resources:

• National Coalition Against Domestic Violence

• Other US Organizations for Domestic Violence Support

Arizona Coalition Against Domestic Violence

• State Coalition Contact List

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Criminal Arrest Phoenix AZ.jpgDomestic Violence Charges

The police and prosecution take domestic violence very serious. They egregiously pursue convictions in these cases because they are considered to be a crime against a victim.
Domestic violence refers to a familial relationship. The victim may be a spouse, partner, brother, sister, grandparent, child, or other persons residing together.

Police have the burden on the scene to distinguish the aggressor from the victim. Often the victim is cited or arrested when the police are unable to identify which party was the aggressor at the scene. It can also occur when false accusations are made against a victim by the aggressor.

Police Departments keep logs of incidents where the police have been called to a residence before. In many of these cases, an arrest will be made, or both parties will be cited, or arrested and forced to defend their charge in court.

Arizona Domestic Violence Laws

Domestic Violence (DV) crimes are described under Arizona Law ARS § 13-3601. This law applies to specified domestic persons who become victims of assault, homicide, threat, intimidation, neglect, abuse or other act of violence.

Offenses may be classified as felonies or misdemeanors, and penalties vary depend on circumstances involved. They include: aggravated or mitigated factors; age of the victim; nature and severity of injuries; if a weapon was used; and whether or not the crime was dangerous or non-dangerous; and if the crime was a first time or repeat offense.

Penalties for Non-Dangerous Domestic Violence Offenses
Non-dangerous Misdemeanor DV charges call for minimums of 30 days to 6 months in jail; and fines from $500.00 to $2500.00.

Non-dangerous Felony DV charges call for 6 months to 18 months in prison, minimums; and 4 to 10 years maximum ranges.

Persons convicted of non-dangerous domestic violence offenses may be ordered to participate in domestic violence offender or anger management counseling programs.

Penalties for Dangerous Domestic Violence Offenses

Dangerous Felony first time offenses expose a person to a minimum of 18 months to 3 years in prison; and maximum penalties of 7 years to 21 years on prison.
Felony domestic violence offenders will be exposed to court ordered fines that can reach a maximum of $150,000, plus restitution.

Persons convicted of domestic violence offenses will be ordered to participate in domestic violence offender or anger management counseling programs. Additional Court ordered penalties may apply such as community service, or probation.

Criminal Defense Attorney for Domestic Violence Crimes Mesa, AZ

If you have been charged with any domestic violence offenses you should consult a criminal defense attorney before pleading guilty. There may be defenses that can be used to challenge the charges, lead to suppression of evidence, or even a dismissal of charges. It is never a good idea to go to court without qualified legal representation for any criminal offense. If retained, an attorney will protect your rights, defend your charges. If the case can’t be dismissed, they will work to mitigate sentencing to help you avoid or reduce harsh jail or prison sentencing.

Additional Resources:

Arizona Coalition Against Domestic Violence .

City of Mesa Police – Family Violence Unit can also provide assistance

Arizona Court – Domestic Violence Information and Resources

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United States Supreme Court.jpgThe 4thAmendment right put to the test: Unlawful search and seizure

On September 25, 2012, the US Supreme Court agreed to hear Missouri, Petitioner v. Tyler G. McNeely. The decision could affect DUI blood test consent cases throughout the nation.

The high court will rule on the issue of when the police need a warrant to draw blood from a suspect stopped on DUI, if they refuse a blood test. The law requires consent by the suspect to for the blood test to be administered, or in the alternative, with a warrant by police. The warrant could be waived, however, under the following circumstances:

• A delay could threaten a life; or
• A delay would destroy potential evidence.

In this case, the suspect refused both the breath test, and was also unwilling to take a blood test. The police proceeded with the chemical blood test which reportedly was 0.154% and exceeded the legal limit in Missouri of .08%.

The defendant moved to suppress the blood test on the challenge that since he did not consent to the test; the officer did not seek a warrant; and the officer was not concerned about any delay jeopardizing the evidence. As a result, the defendant’s challenge was that it violation of his 4th Amendment Rights against unreasonable search and seizures.

The lower court suppressed the DUI blood test evidence, and the Missouri Supreme Court sided affirmed the lower trial court’s ruling. The US Supreme Court is expected to hear the case in January 2013.

Arizona DUI Blood Test Consent Laws

The Arizona Supreme Court also held that under A.R.S. § 28-1321 the suspect must either expressly consent. In the case of a refusal the e police must have a warrant to administer a blood test. A warrant will be granted, if the police have just cause to believe a motorist was driving impaired due to alcohol or drugs. If the driver refuses the breath test, or does not consent to the blood test, civil penalties will be imposed including a one year loss of driver’s license. The refusal will also be held against them in court. Refusals are perceived as an act of non-cooperation, or that the driver refused because they knew they would test positive for drugs or alcohol.

DUI Defense Attorney Mesa AZ

If you were arrested for any DUI you will need to address both the Civil Court penalties and the Criminal Court charges. You should always consult a qualified Criminal attorney before pleading guilty to a drunk driving or DUI charges. In addition to civil penalties, sentencing for convictions also include jail; fines, fees, assessment costs, drug or alcohol screening, and use of Ignition Interlock Device (IID) on your vehicle. If retained, your attorney will represent you, defend your charges, make sure your rights are not violated, and work to get the best resolution in your case.

Additional Resources:

US Supreme Court Docket – Missouri, Petitioner v. Tyler G. McNeely

Arizona State Legislature – Implied Consent Laws

Arizona Governor’s Office of Highway Safety Programs

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Gilbert DUI Lawyer.jpgEstablishing driver impairment is the most challenging element of a DUI
Elements of a DUI

There are three elements of a DUI charge in Arizona. Establishing impairment is the third, and most difficult to confirm. First, the facts need to establish that the motorist must be driving or in actual physical control of a vehicle. Second, the police must determine if a motorist is under the influence of alcohol or drugs. Third, the police must establish that a person’s ability to drive was “Impaired to the slightest degree” or more as a result of drugs, alcohol or any combination of drugs and alcohol.

Driving “Impairment” Defined

The Arizona Department of Public Safety defines a “driver impairment” resulting from being under the influence of drugs or alcohol as:

“A reduction in the performance of critical driving tasks”
To determine if the motorist is experiencing a reduction of performance, the police are required to follow certain procedures and protocol. The officer will need to have “probable cause” to believe the driver is impaired due to drugs or alcohol.

Determining Driver Impairment

Determining an impairment of a driver is less fact oriented and less objective than determining their Blood Alcohol Content (BAC) level. BAC levels can be obtained through use of a breathalyzer test or a chemical test such as DUI blood test.

Here are some tools the police will use to determine if a driver is impaired:

1. The motorist driving behaviors prior to the stop;
2. Police observations of the motorist at the time of, and following the stop;
3. Mannerisms and responses of the motorist to questions asked by the officer;
4. Ability of the motorist to follow instructions;
5. Statements or admittance made by motorist to police;
6. Passenger or objective witness statements;
7. DUI Roadside Standard Field Sobriety Tests (SFSTs) developed by NHTSA:
a. Horizontal Gaze Nystagmus (HGN) Eye Test
b. On-Leg Stand Test;
c. Walk-and-Turn Test
These factors, particularly the DUI Roadside Testing FSTs are often challenged; considered biased and police opinionated, by the defense. This is because the police explain the test; provide instructions; administer the tests, and then grade the tests.

Arizona DUI Laws

Under Arizona law A.R.S. §28.1381, a motorist may be arrested for DUI, if they are driving below the legal limit of 0.08% Blood Alcohol Content (BAC); or if they are under the influence of drugs, and are “impaired to the slightest degree”. Criminal Charges will be brought as a Class 1 Misdemeanor.

Criminal Defense Firm for DUI charges Tempe AZ

You should always consult a criminal defense attorney if you were arrested for any type of DUI charges. The penalties are harsh for convictions, even for firs time Drug DUI and DUI “Impaired to the slightest degree”. Sentencing is the same as those for DUI in excess of the legal limit of 0.08% BAC, but before 0.15%. Penalties include jail term of 10 days; driver’s license suspension for 90 days; use of Ignition Interlock Device (IID) on their vehicles; alcohol or drug screening and education; probation; fines, fees, and assessment costs. You will need a qualified and experienced legal advocate to defend your charges, make sure your rights are protected, and work to resolve the charges with a favorable outcome.

Additional Resources:

Arizona Department of Public Safety

Arizona State Legislature – Revised Statutes

Maricopa County Superior Court – Criminal Case Information

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Much controversy still surrounds the Arizona Medical Marijuana Act, even though the state law approved use for medicinal by qualified card-holders. Users driving who are patients that possess a medical marijuana card arrest for both possession, and Drug DUI.

Marijuana Possession Charges

Under current law qualified patients of the MM cards may purchase 2.5 ounces of Marijuana every two weeks. However, despite the fact that a person may be a qualified MM card holder they risk arrest for illegal drug possession. Some County prosecutors are not recognizing its’ medicinal legality. This is because they feel it conflicts with Federal laws which prohibit the use of it for any reason. Some Maricopa County prosecutors have vowed to prosecute these charges. They will likely be convicted in lower court, and then be compelled to appeal a possession conviction to a higher court, until a ruling can be ordered by the Court of Appeals or the Arizona Supreme Court.

Drug DUI charges

Possession of a legal MM card will not prevent a motorist from getting a Drug DUI. The effects of Marijuana can stay in a person’s system for days, weeks, and even months depending on how much and often they use it. So if a driver tests positive for Marijuana following a DUI stop, they may be arrested even if the Marijuana did not cause their driving to be impaired to the slightest degree.
If in fact, the driver was not impaired to the slightest degree due to the Marijuana found in their system, they will have a justifiable defense against the DUI drug charges under Arizona Law.

Arizona Drug DUI Laws

Under Arizona Drug DUI law A.R.S. 28-1381 it is unlawful for a person to drive or be in actual physical control of a vehicle if they are:

• Under the influence of any drugs or alcohol; and
• Impaired to the slightest degree;
• While there is any drug defined in section A.R.S. 13-3401 or its metabolite in the person’s system
The law specifies that it is not a defense that a defendant was entitled to use the drug under Arizona Law. This will be charged as a Class 1 Misdemeanor.

Criminal Defense Attorney for Drug DUI and Possession Mesa, AZ

It is important that you consult an experienced criminal attorney to discuss your matter and options for defense following an arrest. You should never plead guilty to charges without first discussing the matter with your legal counsel or without their legal representation. The Arizona laws are very strict and the penalties are harsh. Sentencing includes jail time; fines; fees; drug or alcohol counseling and treatment; suspension of driver’s license; use of interlock device on vehicle; probation, and other penalties ordered by the court. Defenses should be argued by a qualified criminal attorney under Arizona Rules of criminal procedure through proper court channels. Successful challenges may lead to evidence suppression, charge dismissal or other favorable outcome in your case.

Additional Resources:

Arizona Department of Health Services

Arizona Legislature Revised Statutes

Maricopa County Superior Drug Court

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