Month: December 2010

Flagstaff DUI: what you need to know…(Part 2)

Question: I was arrested for a DUI in Arizona. They towed my car and took me to the police station. They started reading me a long list of questions and something about my constitutional rights. They wanted me to take a breath test and give a blood sample. I didn’t want the cop to stick a needle in my arm so I said no to both. They got a warrant. I sat in an Arizona jail for over 12 hours. Help me, what is going on?

Ryan’s Answer: Getting arrested for a DUI in Arizona is a very serious situation. After you were pulled over and the officer performed his DUI investigation, he arrested you for DUI. Once a police officer arrests you for DUI, a whole lot of things start happening under Arizona DUI law. This blog article covers some of the major things that happen, but not everything.

When you get a DUI in Flagstaff or any jurisdiction in Arizona, you must be informed that you are being arrested for DUI. At that point, your car will usually be towed, and you will be taken to either the police station or the local jail, or both. Once you are under arrest, the police cannot interrogate you unless you have knowingly, voluntarily, and intelligently waived your Miranda rights: Right to remain silent; Right to counsel; and Right to have counsel appointed if you are indigent. Please be aware that you can always politely and respectfully decline to answer any questions.

For example, when a police officer asks you how much alcohol you had to drink before driving, unless your answer is none, keep your mouth shut. You can say, “I do not mean you any disrespect, but I do not consent to answering your questions. I also want to speak with a lawyer, unless I am free to leave right now. If I am free to leave, I want to leave now. Thank you.” If you are not in custody at this point, you may not be provided with a lawyer, but you still do not have to make any incriminating statements.

Once at the station or jail, the police are required to read you certain rights, which are called the Admin Per Se. The officer will inform you of many rights, but the major ones are as follows. You will be requested to take a breath, blood, or urine test (to be decided by the police). You can refuse to provide a sample, but if you refuse, that refusal has consequences, including a longer suspension of your driving privileges in Arizona. When you are arrested for DUI, your license will customarily be suspended as well.

Now, once you have heard your Admin Per Se rights, you have to decide whether or not to consent to providing a breath, blood, or urine sample (whichever the officer is requesting). If you refuse, and you are charged and go to trial, the prosecutor can actually argue to the jury that your refusal to provide a sample is evidence of your guilt!

If you agree to provide a sample, you may be giving the government the evidence they need to convict you. For example, if you agree to provide a breath sample, and it shows you at 0.10% blood alcohol concentration, you are almost definitely going to be charged with DUI. And that breath sample is evidence of your guilt. Trust me, the government will use it against you.

If you refuse to provide a sample, the police can seek an Arizona search warrant from a judge or justice of the peace for a blood sample. If they get the warrant, they will take a sample of your blood. If you refuse, squirm around, or assault a police officer while they are trying to stick a needle in your arm against your will, you can be charged with several felony offenses like Resisting Arrest or Aggravated Assault on a Law Enforcement Officer. So, once they show you a warrant, do not resist the blood sample.

Unfortunately for you, Arizona law does not require a medical professional to take your blood. Under Arizona law, a “qualified phlebotomist” is all that is required for taking a blood sample. Most police agencies in Arizona, including the Flagstaff Police Department and Coconino County Sheriff’s Office, have qualified phlebotomists on staff. They are usually police officers and/or detectives who are qualified to take your blood. Therefore, you will be placed in a chair, told to extend your arm, and to allow a police officer to stick a needle in you and withdraw your blood.

Once your blood is taken by a qualified phlebotomist, it will be stored in the Evidence Unit and sent over to the Arizona Department of Public Safety (DPS) crime laboratory. Scientists at the DPS crime lab will perform a blood alcohol analysis on your blood sample and file a report with their results.

While your breath sample will be analyzed immediately, your blood sample will not. It often takes months for the DPS crime lab to return results on a blood sample.

So what happens to you?

After the police investigate you for DUI, arrest you for DUI, take you to the station or jail, read you your Admin Per Se, and then obtain a breath or blood (or urine) sample, you can either be held or released. If they hold you in jail, they have to take you in front of a judge within 48 hours, or release you from custody. If you are released, your case will be processed by a city prosecutor or county attorney’s office, and you may be charged with a DUI. Be aware that the government has one (1) year to file a complaint against you for a misdemeanor DUI. If it is a felony DUI, you can be charged up to seven (7) years after the date of offense.

While your license is suspended for DUI, DO NOT DRIVE A MOTOR VEHICLE. You do not want to also be charged with Driving on a Suspended License. If you can afford it, do an alcohol screening assessment with a qualified counselor and find out if you need help with your alcohol addiction, if you have one. Get the help you need. Stay out of trouble and wait to find out if you are charged with an Arizona DUI.

Flagstaff lawyer: Murder in Flagstaff…

In the middle of a beautiful summer two years ago, people were hiking, running, and sharing the sunshine in Flagstaff, Arizona. But some of the community’s teenagers, as in every community, were living a dark secret involving parties, drugs, and guns. If it happens in Flagstaff, it almost seems inevitable that it will happen everywhere.

On the night before Justin Jackson was murdered, he was up to no good. Justin was both a loving brother and son, and a small time drug dealer. He was out drinking, and in fact was very drunk. He got a call from a friend on the east side of Flagstaff that somebody was looking to trade marijuana for Justin’s ecstasy pills. That somebody was Micah Neumann. Justin agreed to swap drugs with Micah, but he had a different plan in mind.

Moments later, Micah showed up in the passenger seat of a car, ready to swap his marijuana for ecstasy. As Micah weighed the marijuana on a scale on his lap, Justin came up to the passenger side of the car and started pummeling Micah in the head and face with a closed fist. He took Micah’s marijuana and walked away. Micah left, too, and decided to call his drug supplier for help. That drug supplier was Jesse Collier.

Jesse Collier has a great family and strong community support. Nothing would have predicted that he held a dark secret: he was a drug dealer. And when Micah called Jesse after being beat up by Justin, Jesse revealed that he had a gun, a real one, with bullets. Jesse gave Micah a fake gun and held onto the real gun for himself. They did not decide to get revenge on Justin that night, but Justin was now on their radar.

Jesse lived with his best friend and fellow drug-dealer, Ben Hamilton. When Jesse woke up the next morning, after Micah had been beat up by Justin, Ben asked Jesse what had happened. Jesse told him, and Ben said they may have to kill Justin. The day unfolded quickly for Ben, Jesse, and Micah. Shockingly, Justin placed several calls to Jesse that day. They had never spoken before.

After one of those calls, Jesse realized that the “Justin” he spoke with is the same Justin that beat up Micah, the same Justin that was on their radar. Jesse and
Ben decided to exact revenge on Justin. The plan was simple, kind of. They would pick Justin up under the pretense of a drug deal. For some reason, Justin wanted to buy marijuana from Jesse, or at least that’s what Justin told Jesse.

Ben and Jesse drove to Micah’s house and told him to hide in the cargo area of Jesse’s SUV. Micah was told to get a blanket, and hide under it, so that he could secretly confirm that the “Justin” they were going to meet up with was the same one that jacked Micah the night prior. Ben, Jesse, and Micah drove off to meet up with Justin. On the way there, Ben tried to load a bullet into the chamber of Jesse’ gun. It jammed. Ben couldn’t get it to load. Jesse stopped the car, loaded the bullet into the chamber, and handed the gun back to Ben.

It was time.

They met up near the big movie theater in Flagstaff. Justin wanted to do the drug deal in a car wash. Jesse asked Justin to get in the car instead. They drove off. Micah secretly confirmed that it was the same Justin that had jacked him.

They drove out to a dirt road, in the far-west city limits of Flagstaff. It’s called Woody Mountain Road. Jesse took a dirt road off of Woody Mountain Road, back into the woods, into seclusion, and came to a stop. Ben said, “You robbed our runner, now you’re fucked.” He pointed the gun at Justin. Micah popped out from under the blanket. Jesse pulled a switchblade. It was an onslaught.

Justin refused to get out of the car. Ben kept the loaded gun pointed at Justin. Jesse put the knife to Justin’s throat. They all demanded Justin to get out of the car. He did.

They checked him for weapons and then ordered him to the ground. Justin laid face down on the dry Flagstaff dirt, with his hands up near his head. He looked back at his robbers, pleading for his life, “Micah don’t do this, Micah don’t do this.”

Suddenly, Ben pulled the trigger and sent a single bullet spiraling through the dry air, through the baseball cap on Justin’s head, through Justin’s skull, and out Justin’s cheek. Within minutes, Justin was dead. He was 16 years old.

Micah was the first to crack. Within 48 hours, he told the Flagstaff Police almost everything. Jesse was arrested hours before he was scheduled to fly to Italy for a pre-planned vacation. Ben turned himself in after learning that the police were looking for him.

Jesse ultimately cooperated with the police, led them to the gun (which Jesse and Ben had buried after the murder some 10 miles into the woods), showed them the victim’s cell phones (which Jesse and Micah had destroyed and buried in the woods), and agreed to testify against Ben Hamilton at trial.

Jesse testified, and so did Micah. Ben was convicted of Felony Murder, Second Degree Murder, Armed Robbery, Aggravated Robbery, Kidnapping, and Possession of Marijuana for Sale.

Ben got 27 years to life in prison. Jesse got 8.5 years. Micah got 5 years. Justin’s family… they got justice.

Flagstaff lost 4 promising young lives.

Flagstaff lawyer: So you earned a misdemeanor on a felony charge…

Question: I earned a misdemeanor after successfully completing my felony probation on an undesignated class 6 felony plea agreement. But now I have some questions. (1) Can I apply to have my conviction set aside? (2) Are my rights automatically restored now that I completed felony probation? (3) How do I approach job applications when they ask about my felony history?

Ryan’s Answer: Congratulations on successfully completing probation. Now let’s get to your specific questions:

  1. You or your lawyer may apply to have your judgment of guilt set aside. The rule is: on fulfillment of the conditions of probation or sentence and discharge by the court, you may apply to the judge, justice of the peace or magistrate who pronounced sentence or imposed probation to have the judgment of guilt set aside. It is not a guaranteed right. It is in the discretion of the judge. So if you have good reasons and think you deserve it, give it a shot. Beware that you cannot apply if your offense involved the use or exhibition of a deadly weapon or dangerous instrument. A lawyer can help you with the various issues involved. You want to put your best foot forward on the first try.
  2. If this was your first felony conviction, then you shall automatically be restored any civil rights (except right to possess weapons) that were lost or suspended by the conviction, as long as you successfully completed probation and paid all fines and restitution. Beware this rule does not apply to your right to possess weapons, which requires special pleadings to the court.
  3. In regard to job applications, read the question carefully. If it says, “Have you ever been charged with a felony?” It seems that your answer is “Yes, but I do not have a felony conviction.” If it says, “Have you ever been convicted of a felony?” It seems that your answer is “Yes, but my conviction is now a misdemeanor.” If the question is, “Do you currently have a felony conviction?” The answer is “No.” This can be tricky, so be careful, and you’ll probably want to explain your answers in much more detail.

You have the right to hire a lawyer to assist you with all of your excellent questions. A lawyer can help you apply to have your conviction set aside, can help you get your rights restored, and can help you word your job application to be both truthful and to give you your best chance at success.

Contact me for a free evaluation of your situation.

Flagstaff DUI: What you need to know… (Part 1)

Question: I got pulled over in Flagstaff for a DUI. The officer asked me a lot of questions, like whether I’d been drinking, and whether I’d do field sobriety tests. What should I have done?

Ryan’s Answer: You do not have to say yes to every request of the police officer. Let’s go over the basic three things that happen.

First, you must pull over when the red and blue lights are behind you. Unlawful flight from a law enforcement vehicle is a class 5 felony; don’t do it.

Second, you must remain in your vehicle unless and until the officer directs you to step out. If the officer perceives you are a threat, he/she can detain you and pat you down. Also, if you trip, stumble, stagger, or even use your hands while getting out of your car, the officer can use those things as indicia of intoxication. Stay in your car (until told otherwise).

Third, you must produce your license, registration, and proof of insurance. Have those items ready by the time the officer approaches your window. Have your window rolled down already. Do not fumble around with anything in your car. After all of that, you do not have to agree to answer any questions that could be incriminating. You have to say your name. And I always advise my clients to be polite and respectful toward the police. But there is a difference between being polite and incriminating yourself.

If asked to say or do anything that could be incriminating, you should say something like, “I wish to remain silent and to speak with an attorney. If I am free to leave, I would like to leave please. I do not mean any disrespect.”

If the officer detains you further, do not become uncooperative. Keep your cool. If the officer asks you to perform field sobriety tests (commonly called FST’s), you may decline. FST’s are not required. They are optional and voluntary. You can tell the police officer that you respectfully decline to do them. You should also tell the police officer if you have any injuries or ailments that would prevent you from walking perfectly (i.e., a sprained ankle), or from performing coordination tests. However, there’s a downside to refusing to perform FST’s.

If you are charged with DUI and you go to trial, the prosecutor can (usually) use the fact that you refused to do FST’s against you. But it’s better to go that route than totally fail the FST’s and have the officer tell the jury about everything you did wrong.

FST’s are very hard to do perfectly, even for a completely sober person, so if you want to do them when asked, go ahead, but realize the risk that you are taking.

Call me if you have any questions about this article, or if you need legal help.

Got a ticket for a legal left turn…

Question: I got pulled over and cited for going through a red light, but I didn’t do it. When the light turns “red,” the left arrow is actually green, so I made a left turn on
the green arrow. The officer just saw the red light and didn’t see the green arrow. How do I fight this?

Ryan’s Answer: You certainly can challenge your ticket/complaint in court. You can deny responsibility (similar to a “not guilty” plea, except a traffic ticket like yours is not a criminal offense, so you would be pleading “not responsible”) by appearing in person or by notifying the court in writing.

Once you do that, the court must promptly notify you of a hearing date. At the hearing, you can cross examine the police officer, and you can testify on your own behalf about what happened. Just be aware that if you lose, you may have to pay additional court fees.

You do have the right to represented by legal counsel, but there are serious time restrictions on having a lawyer represent you in traffic court cases, so if you’re going to hire a lawyer, I’d suggest getting a consultation sooner than later.

Coerced into accepting a plea agreement…

Question: I have been forced to sign a plea agreement. I have not been shown evidence of any kind. No police report or video. What can I do now?

Ryan’s Answer: For a valid guilty plea, it must be knowing, voluntary, and intelligent. This means that you must be of a clear mind; that you have not been coerced, forced, or the victim of any false promises; and that you have read, understand, and agree with the contents of the plea. No court or judge should accept any plea agreement that is not knowingly, voluntarily, and intelligently entered by the defendant. So, what did you sign? Who presented it? How were you “forced” to sign it (quoting your question)? Signing a plea is not enough; you have to go in front of a judge.

Have you done that? You have the right to hire a criminal defense lawyer to assist you in reviewing the substance and procedure behind this plea agreement, to ensure that your constitutional rights are not being violated.

So you got busted for shoplifting…

Question: What are the fines and punishment for shoplifting? What if I have a prior drug paraphernalia conviction, is this still a first-time offense? Is shoplifting a felony or a misdemeanor? Help!

Ryan’s Answer: First, it’s important to know that shoplifting
can be a misdemeanor or a felony, depending on certain factors. Here’s the rundown for you:

Felonies

  • If the value of the shoplifted property is $2,000 or more, it’s a class 5 felony.
  • If the shoplifting was done to “promote, further or assist any criminal street gang,” it’s a class 5 felony. Shoplifting property with a value of $1,000 to $2,000 is a class 6 felony.
  • Shoplifting a firearm is generally a class 6 felony, regardless of value.
  • If you use an artifice, instrument, container, device or other article with the intent to facilitate shoplifting, it’s a class 4 felony.
  • If you commit shoplifting and have previously committed or been convicted within the past 5 years of 2 or more offenses involving burglary, shoplifting, robbery, organized retail theft or theft, it’s a class 4 felony.

Misdemeanor

Shoplifting property valued at less than $1,000 is a class 1 misdemeanor.

First Time Shoplifting

Yes this is a “first time” shoplifting offense, if all you have is a prior drug paraphernalia conviction. Just be aware that if you have committed burglary, shoplifting, robbery, organized retail theft or theft, within the past 5 years, then it’s not a first time offense.

Fines and Jail

Punishment obviously depends on whether it’s a felony (and what class) or whether it’s a misdemeanor.

A typical run-of-the-mill first-time shoplifting, under $1,000, class 1 misdemeanor, can have fines up to $2,500 (plus surcharge) and up to 6 months jail, in addition to paying restitution. Sentencing, however, depends on many factors, and a lawyer can help you

You have the right to hire an attorney to defend you whether it’s a misdemeanor or felony case. This was just a summary of relevant information. There’s more information you may need, but I hope what I’ve laid out for you is educational.

Felony on your record…

Question: I have an old felony conviction on my record. It might be a misdemeanor, but I think it’s a felony conviction. And I successfully completed probation. Am I stuck with this felony conviction forever? I can’t get a job even though I’ve had no police contact in a decade! What do I do?

Ryan’s Answer: Even if your conviction is an Arizona felony, you can still file an application to set aside the judgment pursuant to A.R.S. 13-907. Upon receiving your written application, a court can, but is not required to, “set aside” your judgment of guilt. If the court agrees to grant your application, according to Arizona law, the judge shall set aside the actual judgment of guilt, dimiss the accusations or information and order that you be released from all penalties and disabilities resulting from the conviction, with some specific exceptions.

If you succeed on your application, you can ask the court to notify the Arizona Department of Public Safety (DPS) at their Criminal History Records Division, to inform them of the fact that your judgment of guilt was set aside. Ideally, your Arizona criminal history can then be amended to reflect the setting aside of your conviction, which may help your chances at finding employment. You can also petition the U.S. Department of Justice for an amendment to your National Instant Criminal Background Check System (NICS) record.

If your conviction is already a misdemeanor, you can still ask that it be set aside.

You have the right to hire an attorney to complete this process on your behalf.

Pre-Trial Services…

So you’re on Pre-Trial Services (PTS) release, under their supervision while your csae is pending (i.e., you have been charged and are awaiting trial), and you have to take submit random urinalyses (UA’s). You relapse, let’s say, and end up with 3 “dirty” UA’s, which your PTS officer finds out about. You check yourself into rehab where you hope the police will not arrest you. What happens now?

The fact that you had 3 “dirty” UA’s while on PTS release is a little more serious than just having one. Your PTS officer has the discretion to file a non-compliance report to the judge, who then can find that you violated your release conditions and must be taken into custody while your case is pending. That’s just one possibility.

And unfortunately, while at rehab, you are not insulated from arrest. Hopefully, voluntarily entering rehab will show your PTS officer, the judge, and even the prosecutor that you are taking the initiative to get clean. No matter what, stay in touch with your PTS officer as required and always comply with every release condition. If you don’t give them any more reasons to file a non-compliance report, you may luck out. And it sounds like rehab may be appropriate for you. Remember, rehab only works if you put in the effort, so don’t give up on yourself.

Arizona Traffic Complaint – When you miss a hearing date…

Arizona Traffic Ticket Question: I was pulled over for a secondary offense of failure to wear a seat belt in Arizona, and I was given an Arizona traffic complaint with a court date. I went on vacation and forgot about my hearing. What happens now? Can I still challenge the illegal traffic ticket?

Ryan’s Answer: First, you are right that failure to wear a seatbelt is a secondary enforcement law. If you were only pulled over and cited for a violation of A.R.S. 28-909, in terms of that being considered a secondary enforcement law, section 28-909(C) states: “A peace officer shall not stop or issue a citation to a person operating a motor vehicle on a highway in this state for a violation of this section unless the peace officer has reasonable cause to believe there is another alleged violation of a motor vehicle law of this state.” With that in mind, make sure the officer did not indicate any other reason for pulling you over, and if not, then you may have a strong case.

Second, unfortunately, it is likely too late for you to fight your charge in traffic court. There is a traffic court rule that says where a defendant fails to appear as required, the allegations of the complaint shall be deemed admitted, and the court shall enter a judgment for the prosecution, impose a civil sanction, and report the judgment to the Department of Transportation. Therefore, you should call the court where you were told to appear, advise them that you unintentionally missed your court date, and ask what happened with your case. If they continued it (i.e., moved it to to a new date), you may still have a shot. But they most likely entered judgment against you. On the upside, the fine for a seat belt violation is not very high.

Third, even though you probably “lost” your case in traffic court by failing to appear, there is an appeal process in the civil traffic rules. Be careful, you only have 14 days after the judgment was entered to file a notice of appeal. To ensure your appeal is correctly filed in accordance with statutes and rules, it is advisable that you speak with an attorney.