Year: 2011

Arizona Holiday DUI Surge

Flagstaff, AZ – Griffen & Stevens Law Firm, PLLC has obtained new police data showing that Arizona traffic stops and DUI arrests are surging this holiday season.

In just one month – November 24th to December 24th – Arizona’s holiday DUI task force has conducted 46,194 traffic stops. This has resulted in over 2,840 arrests for DUI charges, ranging from simple DUI (DUI Slightest), to DUI – 0.08% or more, to Extreme DUI – 0.15% or more, to Extreme DUI – 0.20% or more, to Aggravated DUI which is a class 4 felony requiring, upon conviction, 4 months to 3 years in Arizona prison.

Stay safe out there and consider the following information if you are pulled over in Arizona:

  1. Be polite and prepared. If you get pulled over, have your registration, insurance, and driver’s license ready in your hand. Do not fumble with your documents. Do not fumble with the window. Do not try to get out of the vehicle unless the officer tells you to do so.
  2. Have the window down. When the officer arrives at your vehicle, have your window down and be prepared to speak with the officer.
  3. Listen to what the officer says to you. Try not to let your hands shake.
  4. Do not admit to drinking alcohol. You have the right to remain silent and not incriminate yourself.
  5. Field Sobriety Tests (FST’s) are not required. Do not let the officer trick you into thinking you must do FST’s. You may decline to do them. Later, if you go on trial, the State can use your “refusal” to argue that you refused to do FST’s because you knew you were intoxicated. This is generally easier to defend against than a person who totally fails FST’s.
  6. Ask the officer, “Am I free to leave?” If the answer is yes, get out of there.
  7. If you are arrested for DUI, you will have some tough decisions to make. Ask to speak to a lawyer. You have the right to counsel. You should obtain advice from an Arizona DUI attorney based on the facts of your specific case. Ask to use a phone to call an attorney.

Free DUI consultations by Griffen & Stevens Law Firm, PLLC are offered every day.

Arizona DUI: Independent Testing

In Arizona, a defendant has the right to seek a private blood draw if the State does not administer a blood test. State v. Olcan, 204 Ariz. 181, 61 P.3d 475 (Ariz. App., 2003).

What does this mean? When a DUI suspect is arrested, and the police don’t administer a test (pursuant to Arizona’s implied consent laws), the police are required to advise the suspect that the suspect has a right to obtain a sample to preserve, test, and prove his DUI innocence.

Generally, the right to independent testing is derived from a defendant’s due process right to gather exculpatory evidence, Van Herreweghe v. Burke, 201 Ariz. 387, 389, ¶ 8, 36 P.3d 65, 67 (App.2001), and is codified at A.R.S. § 28-1388(C), which states in part:

The person tested shall be given a reasonable opportunity to arrange for any physician, registered nurse or other qualified person of the person’s own choosing to administer a test or tests in addition to any administered at the direction of a law enforcement officer.

The Court of Appeals of Arizona explained the plain meaning of A.R.S. § 28-1388(C) as follows:

A.R.S. § 28-1388(C) expressly allows a person to have a qualified person administer a test ‘in addition to any test’ administered by the State. Thus, it grants a defendant a reasonable opportunity to arrange for a competent person to draw an independent sample of the defendant’s blood and analyze that sample regardless whether the State has collected, analyzed, and preserved a portion of the defendant’s blood. The statute is plain and unambiguous[.]

Olcan, 61 P.3d at 478.

“[Section 28-1388(C)] affords a reasonable opportunity to obtain an additional test. Such a test may be administered only by a ‘physician, registered nurse or other qualified person.’” Olcan, 61 P.3d at 477.

In Olcan, the State argued that, when police officers had already collected a sample of a defendant’s blood, the defendant had no right to an independent blood draw. Instead, the State asserted that the defendant’s right was satisfied by allowing the defendant to arrange for an independent analysis of the State’s sample. The Court of Appeals of Arizona, Division 1, disagreed with the State’s argument and refused to grant the State any relief. 61 P.3d at 477.

Additionally, it is a due process violation to prohibit a driver who refuses to take a breathalyzer test from obtaining an independent blood test. Smith v. Cada, 114 Ariz. 510, 562 P.2d 390 (App. Div. 1, 1977).

Implied Consent and Independent Test Advisory

Unfortunately, the Court of Appeals of Arizona has consistently held that police are not obliged to inform DUI suspects of their right to independent testing. See, e.g., State v. Ramos, 155 Ariz. 153, 745 P.2d 601 (App. 1987), 155 Ariz. 153, 745 P.2d 601; State v. White, 155 Ariz. 452, 747 P.2d 613 (App.1987). “The only Arizona case which has ever found a duty to inform is Montano v. Superior Court, 149 Ariz. 385, 719 P.2d 271 (1986).” State v. Superior Court In and For County of Yavapai, 878 P.2d 1381, 1383, 179 Ariz. 343, 345 (Ariz. App. Div. 1, 1994). Montano, however, involved a unique situation where the arresting officers did not have access to a breathalyzer and did not invoke implied consent. Under those circumstances, our supreme court held, the police are obligated to inform the suspect that he has a right to obtain a blood or breath test elsewhere.

In State v. Kemp, the Arizona Supreme Court held:

[L]aw enforcement officers, when obtaining a blood sample pursuant to [A.R.S. § 28-1388(E)], need not advise the suspect of his right to obtain a portion of the same sample for independent testing, at least when the sample taken by law enforcement officers will still be available for testing by the defendant at the time of trial.

168 Ariz. 334, 336-37, 813 P.2d 315, 317-18 (1991).

The court noted, however, that if a defendant affirmatively requests a separate blood sample for independent testing, law enforcement officials may not interfere with his efforts to obtain such a sample. Id. at 337 n. 4, 813 P.2d at 318 n. 4 (citing Amos v. Bowen, 143 Ariz. 324, 327-28, 693 P.2d 979, 982-83 (App.1984)). The court thereby clarified that a “portion of the same sample” is what the defendant receives from the State, whereas a “separate blood sample” is what the defendant receives from an independent blood draw. “Kemp therefore suggests that due process guarantees a defendant a reasonable opportunity to obtain an independent blood draw even when the State has collected a blood sample and preserved a portion for inspection.” Olcan, 61 P.3d at 478.

In a memorandum opinion, the Court of Appeals of Arizona stated:

[Defendant] argues that the State unreasonably interfered with his right to obtain an independent blood sample because he was not explicitly informed by the police of his right to have an independent sample drawn. We note that A.R.S. § 28-1388 only mandates that suspects be given a ‘reasonable opportunity to arrange’ for an independent sample and does not require that the State inform a suspect of that right.

The court went on to state:

Olcan does not require that a suspect be advised of their right to arrange for an independent blood test, but only mandates that law enforcement not interfere with the suspect’s efforts to obtain one. Id. at 184, ¶ 12, 61 P.3d at 478 (citations omitted); see also State v. Kemp, 168 Ariz. 334, 336-37, 813 P.2d 315, 317-18 (1991) (holding that the due process standard is different for breath tests and blood tests, and “law enforcement officers… need not advise the suspect of his right to obtain a portion of the same sample for independent testing, at least when the sample taken by law enforcement officers will still be available for testing by defendant at the time of trial”).

Other cases have confirmed that a defendant need not be informed of his right to obtain an independent sample.

Montano is one of the rare cases finding that a defendant was entitled to be advised of his right to obtain an independent sample. In that case, the defendant was arrested and charged with a felony DUI and taken into custody. The police did not test the defendant’s breath, blood, or urine, and the officers did not inform the defendant of his right to arrange for independent testing. To safeguard a defendant’s due process rights, the court found that “[t]he [S]tate has no obligation . . . to actually gather evidence for a suspect, but in the absence of the implied consent law it must provide suspects a fair chance to gather evidence by informing them of their right to testing.” Montano at 391, 719 P.2d at 277.

With all of the foregoing in mind, it is very important that DUI suspects get a fast-acting attorney who will work hard to preserve evidence and hold the State to their burden at a DUI trial if the State comes up short.

Arizona DUI – BAC Not Required

Flagstaff, AZ – Too many people learn the hard way in Arizona. You go out to dinner. You enjoy a beer with dinner. You drive home. You get pulled over by Flagstaff Police or another Arizona law enforcement agency. You are told you didn’t fully stop at a stop sign.

“Have you had anything to drink tonight?”

“Yes, two beers at dinner a while ago.”

“Step out of the vehicle.”

You proceed to get peppered with questions about whether you drank, how much you drank, where you drank, etc. Then the next question comes:

“I’d like you to do a few tests for me so I can be sure you’re safe to drive home tonight. Would you do that for me?”

First of all, you are never required to perform Field Sobriety Tests, or FST’s, in Arizona. You have the right to decline to perform the tests. (That refusal can later be used “against” you at trial, but “failing” the tests is the worst thing you can do.)

Second of all, FST’s are difficult. You will definitely show at least some clues or “cues” that the officer can use to suggest you are impaired by alcohol. “You are under arrest for DUI.” Handcuffed and ashamed, you are dragged to the police station or jail. Even if the Intoxilyzer 8000 (breathalyzer machine) is broken, or even if the police do not draw your blood, you may still be charged, tried, and convicted of a DUI in Arizona.

Under Arizona law, the police do not need to obtain your blood alcohol concentration, or BAC, in order to charge you with a DUI.

In fact, a BAC is not required at all to prove a violation of Arizona Revised Statute section 28-1381(A)(1). This common misconception leads to problems. Many people believe, I’m under 0.08% so I am safe from a DUI. You should be informed when driving in Arizona.

Take positive steps to protect yourself from a DUI, which comes with statutory minimum punishments of at least a day in jail, alcohol screening and counseling, fines up to $2,500, sanctions on your drivers license, ignition interlock device, and more.

Know your rights. Know justice. Call your Arizona DUI Attorney at Griffen & Stevens Law Firm, PLLC.

Double Jeopardy in Arizona

It is widely known that the U.S. Constitution’s 5th Amendment guarantees every person accused of a crime the right to be free of repeated attempts to convict. This guarantee against being twice placed in jeopardy is applicable to the states through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056 (1969); State v. Ortiz, 120 Ariz. 384, 586 P.2d 633 (1978). But it’s not that simple in Arizona.

Just because a person isn’t convicted in the prosecution’s first shot does not mean that the prosecutor won’t take a second shot. Here is what the U.S. Supreme Court has said about the double jeopardy issue:

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the state with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223 (1957).

Years later, the Court went on to say:

“…one of the principal threads making up the protection embodied in the double jeopardy clause is the right of the defendant to have his trial completed before the first jury empaneled to try him…”

Oregon v. Kennedy, 456 U.S. 667, 672, 102 S. Ct. 2083, 2088 (1982).

The Arizona Constitution has its own version of the double jeopardy clause. It says,

“No person shall . . . be twice put in jeopardy for the same offense.”

Art. 2, Sec. 10, Arizona Constitution.

But the real issue arises when a jury is empaneled in Arizona and the trial court declares a mistrial before the jury has a chance to deliver a verdict. With a mistrial, the prosecution must cease immediately.

So, a jury has been empaneled, the defendant has faced prosecution, and that prosecution has ended. Wouldn’t “double jeopardy” preclude a second or subsequent prosecution of the same defendant for the same crime in front of a new jury? Not always.

The Arizona Rules of Criminal Procedure allow a trial court to dismiss a case with prejudice, which means that the case can never be re-filed, nor can any further prosecution take place, against the same defendant for the same crime. The rule says,

“Dismissal of a prosecution shall be without prejudice to commencement of another prosecution, unless the court order finds that the interests of justice require that the dismissal be with prejudice.”

So in an Arizona jury trial, where a mistrial is declared, the trial court has to find that the interests of justice require such a dismissal in order for the defendant to be safe from another prosecution.

There are additional cases by the Arizona Supreme Court and Court of Appeals of Arizona that discuss how a prosecutor will not be precluded from taking a second shot at a defendant, even where the prosecutor was at fault in causing a mistrial, so long as the prosecutor did not knowingly engage in improper and prejudicial conduct indifferent to the fact that such conduct would likely result in a mistrial or dismissal.

Therefore, conflict exists between the double jeopardy clause, both the federal one and the Arizona one, and Arizona case law and a defendant’s due process rights. For now, the debate will rage on, as prosecutor’s take second, third, fourth, and fifth shots at the same person for the same crime, each case in front of a new jury and each case costing thousands of tax dollars. I’ll leave it at that.

How do you strike the balance between a person’s individual rights and society’s interests in prosecuting people accused of a crime?

Arizona Vehicle Searches

If you’ve driven on Arizona’s interstates – I-17, I-40, and I-10 – you’ve probably seen Arizona DPS officers pulling over cars and trucks. But have you ever seen them tearing apart a car as though they were looking for gold? It happens more often than you think. So let’s raise the question:

How is it that a police officer found, say, ten pounds of marijuana hidden in vacuum-packaged containers in secret compartments of luggage in the trunk of a person’s car?

It used to be that police officers could perform a “search incident to arrest” of your vehicle, including anywhere there may be weapons. It didn’t matter that the arrested person was handcuffed, seated in the back of a patrol car, and nowhere near the “weapons” in his car. The police would still go looking for “weapons” and, of course, find every piece of contraband possible, resulting in numerous felony drug charges. This was all without consent, without a search warrant, and without probable cause – in some cases – of there existing drugs in the vehicle.

A major United States Supreme Court case changed that two years ago. It’s called Arizona v. Gant, 556 U.S. 332 (2009). In Gant, the Supreme Court changed previous precedent, now holding that the police can still perform a “search incident to arrest” of the passenger compartment of a vehicle (as long as an occupant was arrested), but only where the arrestee could access the vehicle and is not handcuffed and detained in a safe place.

The Gant case also allows a search of the vehicle if the object of the search relates to the actual arrest. This is a key point. Here is what Justice Antonin Scalia wrote, in a concurring opinion, “I would hold that a vehicle search incident to arrest is ipso facto ‘reasonable’ only when the object of the search is evidence of the crime for which the arrest was made, or of another crime that the officer has probable cause to believe occurred.”

So many people were getting arrested for having an expired driver’s license, and yet the police were searching the vehicle inside and out for weapons and drugs. What do weapons and drugs have to do with the crime of driving on an invalid license? Nothing. And now, those searches are unconstitutional thanks to Arizona v. Gant.

INVENTORY SEARCHES

Of course, the police have a way around Gant. Inventory searches differ from Gant searches. Inventory searches are performed not to look for weapons or contraband but to protect… YOU! The purpose of an inventory search is to secure and document all of your property contained in the vehicle before it is impounded. That way, nothing will be lost or stolen. And if the police officers just so happen to find contraband while performing an inventory search, yes you will be charged with a crime.

Inventory searches are challengeable under many circumstances. Just because an officer claims he is doing, or did, an inventory search does not mean it was legal and constitutional. Like all other areas of the law, inventory searches are subject to litigation, argument, and ultimately, can be the key to you or your loved one’s freedom from jail.

Windshield-Mounted GPS in Arizona

For the arrested in Arizona – Yes. Global positioning system (“GPS”) devices are legal in Arizona. But we are seeing a huge increase in the amount of traffic stops by Arizona DPS officers on the basis of a GPS device being displayed or mounted on a driver’s windshield. Let’s take a close look.

The Scenario

The typical scenario is this. You’re traveling through Arizona, maybe stopping at the Grand Canyon. According to the National Park Service, nearly 5 million people visit the Grand Canyon each year. And do you think they all have Arizona license plates? Of course not.

So there you are, driving through Arizona, with a California license plate. Or maybe you rented a car in Las Vegas and it has Nevada tags. It doesn’t matter: all that the police officer sees is that you are a tourist, an outsider, a visitor – not from Arizona. You’re driving east on I-40 through Arizona and you see an Arizona DPS officer.

You slow down to ensure you are at or below the speed limit. You look in your rear view mirror. You see the officer pulling out of his hiding spot. He accelerates. He’s right behind you. But you weren’t speeding. Then, his lights come on. Is he really pulling me over? You calmly turn on your signal, pull onto the shoulder, and come to a stop. The officer appears at your window and says, “I’ve pulled you over because of your GPS device.”

Rental Companies Offer GPS to Customers

Rental car companies regularly offer GPS devices with your car. Hertz offers a GPS device with its service “NeverLost.” Avis and Budget offer the Garmin where2 system. Enterprise and National also provide GPS devices to customers. It makes sense: you’re renting a car, which means you’re probably not an Arizona local, which means you probably will need driving directions. The rental car comes with the GPS device pre-mounted on your windshield, toward the center at the bottom. Or the GPS device has a weighted base, which allows it to be placed on the center dash. So, does Arizona law prohibit GPS? No. It matters, however, where the device is mounted.

Arizona Traffic Stops and GPS Devices

Let’s go back to our scenario. The officer has pulled you over because of your GPS device. But what does that mean? There are a couple of Arizona traffic laws to consider here. The first law says:

Except as otherwise provided in this section, a person shall not operate a motor vehicle with an object or material placed, displayed, installed, affixed or applied on the windshield or side or rear windows or with an object or material placed, displayed, installed, affixed or applied in or on the motor vehicle in a manner that obstructs or reduces a driver’s clear view through the windshield or side or rear windows.

A.R.S. section 28-959.01(B).

And there you have it. The Arizona DPS officer has pulled you over not because you have a GPS device, but because that device is, in the officer’s opinion, obstructing or reducing your clear view through the windshield. But can he prove it? The second law says:

B. A person shall not operate a motor vehicle with an image display device that is visible to a driver seated in a normal driving position when the vehicle is in motion. C. This section does not apply to any of the following: . . . 4. Image display devices that are portable and are not used to display dynamic visual images other than for purposes of navigation or global positioning to a driver while the vehicle is in motion.

A.R.S. section 28-963.

Traffic stops based on these laws have not been litigated heavily in the Arizona appellate courts. So we are left to wonder if the first law, A.R.S. section 28-959.01, which has not been updated or amended since 1996, is such a powerful tool for law enforcement that it allows officers to pull over people in virtually any rental car, any time, because the driver rented the car from out-of-state and the car came with a windshield-mounted GPS device.

Or, is the law being abused so that drug interdiction officers can pull over rental vehicles, perceived to be drug courier vehicles, that are otherwise obeying all traffic laws, in an effort to get out a drug sniffing K9 and detain the driver on the side of the road?

At Griffen & Stevens Law Firm, PLLC, we aggressively challenge these GPS stops. We defend all drivers accused of wrongdoing, whether it’s a CDL holder accused of DUI or a tourist with a cannabis card accused of hauling marijuana through Arizona.

If you’re in a rental car with a GPS device, get ready to spend more time in Arizona than you had expected. On the side of the road. Or in jail. Let us aggressively defending your rights in court.

Arizona DUI – No Jury Trial?

Flagstaff, AZ – We all lose out when the government downgrades individual rights but retains 100% of its governmental powers. People charged with a first-time DUI offense in Arizona are entitled to a jury trial. But only until December 31, 2011.

The Arizona Legislature, in an effort to undermine constitutional rights under the guise of budget cuts, has taken away an individual’s right to a jury trial in a misdemeanor first-offense DUI case involving a blood alcohol concentration (BAC) of below 0.15%. So if you want to preserve your right to a jury trial in a DUI case, you had better be blitzed with a BAC above 0.15%. Otherwise, whether you’re innocent or not, your case will have to be tried to a judge – a government employee, on the same government payroll as the prosecutor – who will decide your fate. So much for a jury of your peers.

In Arizona, every defendant charged with a DUI offense had a substantive right to a jury trial. In 2011, the Arizona Legislature passed a law amending A.R.S. § 28-1381 to reflect that first-offense simple DUI defendants are no longer afforded that substantive right to a jury trial. The new law does not go into effect until January 1, 2012.

The current law says:

“At the arraignment, the court shall inform the defendant that the defendant may request a trial by jury and that the request, if made, shall be granted.” A.R.S. § 28-1381(F).

The new law says (amendments are capitalized and underlined):

“F. At the arraignment, the court shall inform the defendant that IF THE STATE ALLEGES A PRIOR CONVICTION the defendant may request a trial by jury and that the request, if made, shall be granted.” See Arizona Senate Bill 1200, Chaptered Version.

Those simple words, “if the State alleges a prior conviction,” substantively deprive first-time DUI defendants of the right to a jury trial. Under the new law, you have to have a prior DUI, or a BAC above 0.15%, to get a jury trial.

JURY TRIALS ARE A SUBSTANTIVE CONSTITUTIONAL RIGHT

It is well-founded in Arizona case law that all defendants charged with a misdemeanor DUI offense have a substantive right to a jury trial. See, e.g., Phoenix City Prosecutor’s Office v. Ybarra, 182 P.3d 1166, 218 Ariz. 232 (Ariz., 2008) (“The parties do not contest that A.R.S. § 28-1381(F) grants a defendant charged with a misdemeanor DUI offense a statutory right to a jury trial if requested.”); see also Manic v. Dawes (Tucson City Attorney’s Office), 213 Ariz. 252, 254, ¶ 9, 141 P.3d 732, 734 (App.2006) (holding that § 28-1381(F) created a substantive right to a jury trial); State ex rel. Wangberg v. Smith (Levinson), 211 Ariz. 101, 104, ¶ 11, 118 P.3d 49, 52 (App. 2005) (§28-1381(F) plainly and unambiguously created “a substantive right to a jury trial.”).

Prosecutors have tried to deprive defendants of the right to a jury trial in the past – and the prosecutors were shut down. In Dawes, the trial court afforded the defendant a right to a jury trial over the prosecutor’s objection. Upon appeal by the State, the Court of Appeals of Arizona, Division 2 expressly held that § 28-1381(F) created a substantive right to a jury trial. Dawes, 141 P.3d at 734 (“The state contends that, to create a substantive right to a jury trial, the legislature must do so in ‘plainer and clearer’ language . . . and the language of § 28-1381(F) is insufficient to create a substantive jury trial right. We disagree.”) (emphasis added).

JURY TRIAL NO LONGER A RIGHT, BUT GOVERNMENT RETAINS ALL ITS POWERS

Current Arizona law provides a substantive right to a jury trial for all simple DUI defendants. Arizona’s amended law, which goes into effect on January 1, 2012, changes a fundamental historical right to a trial by a jury of your peers. Yet, the police have broad, almost unrestricted, powers in DUI cases.

Once an officer pulls you over, you can be detained and arrested for DUI based on the police officer’s speculation about your driving, body language, coordination, and other factors. The officer then has the power to force you to give a blood sample, to suspend your driver’s license for 12 months (innocent until proven guilty?), and to charge you with DUI. Then, you’ll get a Court Summons, appear in Court, assert your innocence, and ask for a jury trial. The judge will hear testimony from the police officer, listen to the arguments of a prosecutor, and then will, without the assistance of any jury of your peers or members of the community, decide whether to pronounce you guilty of DUI. If convicted, you can go to jail for up to six (6) months, with no jury ever hearing your case.

It’s you versus the government.

Drug Trafficking Stops in Arizona

Flagstaff, AZ – The typical drug or marijuana transportation case begins like this.

Arizona Department of Public Safety (DPS) officer watches traffic on I-40 or I-17. Officer sees indicators of drug transportation, such as a rental vehicle, non-caucasian driver, “heat” car and “load” car traveling together, nervous-looking driver (e.g., rigid posture), covered loads (e.g., pickup truck with covered bed), sole occupants, adult driver with children in the vehicle, and many other considerations. Officer decides to pull the driver over. Officer follows the driver until observing a relatively bogus traffic violation, such as a GPS device mounted on the windshield, low-level speeding, close following distance, unsafe lane change, or any other traffic violation contained in Title 28 of the Arizona Revised Statutes.

Next, the officer initiates a traffic stop. The officer observes more indicators. Some of the ones that I have seen in police reports include the officer’s opinions, such as: “overly” nervous driver, hands “shaking,” voice “quivering badly,” strange or odd statements (e.g., “I only smoke tobacco”), and many others.

Officer then decides that this traffic stop is about far more than a GPS device or other traffic violation. It’s about drugs, or at least marijuana. The officer starts asking questions, “Where have you been?” “Where are you going?” “Why are you going from California or Las Vegas to New Mexico all in one day?” “Did you fly to California? Why didn’t you fly back?” The list goes on and on. And many nervous drivers get confused by the questions. But as soon as an “inconsistent” statement is made, the officer will use it against the driver to suggest that the driver is intentionally lying in order to hide something.

Soon, the driver is ordered out of the vehicle, on the side of a busy highway. The officer takes the driver’s pulse (to again accuse the driver of being “overly” nervous as tractor trailers go whizzing by) and asks to see the driver’s tongue to see if it is green and has raised taste buds. Then the officer says, “If you don’t have anything to hide, you’ll let me search your vehicle, right?” Or the officer runs a K9 dog sniff around the exterior, and when the pup barks (e.g., “alerts”), the officer says he has probable cause to search your vehicle.

These scenarios occur regularly and require the strict, critical scrutiny of a well-educated criminal defense attorney, one who is familiar with Arizona case law against unlawful detentions.

By law, an officer may detain a person no longer than necessary to confirm or dispel suspicion. Adams v. Williams, 407 U.S. 143 (1972). The use of a drug-sniffing K9 dog does not, by itself, unreasonably delay the traffic stop. Illinois v. Caballes, 543 U.S. 405 (2005). In one U.S. Supreme Court case, the majority ruled that an officer had reasonable suspicion that the driver was engaged in illegal activity considering the following:

  1. Nature of the travel plans;
  2. Mounted cellular phones, indicating more than one phone was in use;
  3. Fast-food wrappers and containers of food;
  4. Luggage and clothing hung in the backseat rather than in the trunk;
  5. Driver’s response to a question was that he was not “aware” of anyone placing contraband in the vehicle;
  6. Driver’s decision to exit the vehicle and approach the patrol car; and
  7. Stop occurred on a “known drug corridor.”

U.S. v. Arvizu, 534 U.S. 266 (2002).

Of major concern in the typical traffic-stop-turned-drug-investigation is that officers do not need reasonable suspicion to ask about crimes or matters unrelated to the purpose of the traffic stop unless the stop is unreasonably prolonged. U.S. v. Mendez, 476 F.3d 1077 (9th Cir. 2007) – a case involving Arizona police officers. And if the person fails to ask the officer if they are free to leave, the traffic stop and detention can easily become a “consensual encounter” in the eyes of the law. Virginia v. Moore, 128 S. Ct. 1598 (2008).

Make sure your criminal defense lawyer knows your constitutional rights. They evolve every day. And there may be a case out there that can save you.

Flagstaff’s Drug Court Program

Flagstaff is fortunate. We have one of the best Drug Court Programs available in Arizona. In this article, I’ll define what makes a Drug Court; how it is authorized by Arizona law; and how it resolves some of the most difficult Arizona drug prosecutions.

The mission statement of the Coconino County DUI/Drug Court is as follows: To require abstinence and accountability, and promote recovery through a court-supervised treatment program which reduces crime, improves community safety, and leads the participant to a healthier, more productive lifestyle.

Every superior court in Arizona has the vested power to form a Drug Court Program at any time. See A.R.S. section 13-3422(A). Eligible defendants are limited to those who are “drug dependent persons.” See A.R.S. section 13-3422(B).

Those ineligible include violent/dangerous offenders, sex offenders, and those who have previously completed or were terminated from a Drug Court Program. To be admitted in the Flagstaff program, each defendant must be individually screened and approved by the Drug Court Program and its team consisting of a substance abuse professional, judge, prosecutor, defense lawyer, and other qualified individuals.

The Coconino County DUI/Drug Court is a voluntary and court-supervised attempt to provide drug dependent persons with substance abuse rehabilitation and community involvement. It is, in many cases, a superior alternative to a prison term.

Flagstaff’s program is generally 12 months in duration with an intensive outpatient treatment program of counseling, recovery support groups, urinalysis tests, and a victim impact panel. Flagstaff’s program utilizes an incentive-based structure for sobriety and compliance and immediate sanctions for relapse or non-compliance. Speaking of non-compliance, where a program participant fails to fulfill the terms and conditions of probation, the court is required to find the participant guilty and sentence the defendant as provided by law, including a prison sentence in many cases.

On the other hand, compliance and successful completion of Drug Court allows the court to discharge the participant (i.e. the defendant) and dismiss the charges as agreed upon. Some of the toughest felony cases in Flagstaff, and elsewhere in Arizona, come as a result of drug abuse and drug addiction.

Whether it’s alcohol, marijuana, or more addictive substances like cocaine and heroin, abuse and addiction leads to felony DUI, selling drugs, transporting drugs, prostitution, theft, shoplifting, and other crimes punished severely by Arizona’s mandatory sentencing schemes. Many young adults get caught up in a drug-fueled lifestyle and, at a young age, realistically face 20+ years incarceration in the Arizona Department of Corrections.

Such cases are often a perfect opportunity for admittance into the Drug Court Program, to rehabilitate and save taxpayers millions of dollars in prison costs and future prosecutions of recidivist offenders. Drug Court offers an alternative to prison in an attempt to help individuals and serve the public by rehabilitating the accused and helping them build a stable, drug-free life.

Such offenders are far less likely to reoffend. And we are all better off.

Making Bail in Arizona

Bail and bonds play a major role in felony cases in Arizona. Occasionally, bail and bonds affect misdemeanor cases, too. So let’s talk about how the bonds system works in Arizona.

Initial Appearances in Arizona

When someone is arrested for a criminal offense, they get taken to jail, booked in, and thrown into a holding cell. But they get to see a magistrate. If you are arrested, you “shall be taken before a magistrate without unnecessary delay.” Rule 4.1(a), Arizona Rules of Criminal Procedure (ARCP).

Instead of arguing over what “unnecessary delay” means, we have an additional explanation in Rule 4.1(a): “If the person is not brought before a magistrate within 24 hours after arrest, he or she shall immediately be released.” Get the arrested person before a judge within 24 hours or let the person leave jail. Plain and simple. That first appearance is called an “Initial Appearance.”

At the Initial Appearance, the magistrate is required to inform the inmate of many things, including the charges, right to counsel, right to remain silent, whether probable cause exists for the purpose of release from custody, and more. See ARCP 4.2(a). Because of the Initial Appearance rule, most jurisdictions and Arizona jails have systems in place to ensure that arrested people are seen by a magistrate within 24 hours of the arrest, even on weekends. That way, they are not required to release people.

However, if the police want to throw somebody in a drunk tank (i.e., a large jail cell in which intoxicated arrested persons are left to sober up), they can do that as long as they had sufficient probable cause to arrest. Then, before the 24 hours is up, the jail can release the now-sober person, having never taken them before a magistrate.

Within 48 hours of a warrantless arrest, a criminal complaint must be filed against the arrested person, or else release is mandated.

Setting of Appearance Bond

An “appearance bond” is an undertaking, on a form approved by the Supreme Court, to pay to the clerk of the court a specified sum of money upon failure of a person released to comply with its conditions. ARCP 7.1(b). Rule 7.2 discusses the right to release of all arrested persons: “Any person charged with an offense bailable as a matter of right shall be released pending or during trial on the person’s own recognizance[.]” “Own recognizance” means release without any condition of an undertaking relating to, or deposit of, security. ARCP 7.1(a).

That sounds like good news for inmates. However, there is a major exception to this rule. If “the court determines, in its discretion” that own recognizance release “will not reasonably assure the person’s appearance as required[,]” then the court is not required to release the person. And this is where bail comes into play.

The court is permitted to set an appearance bond. Such a bond can be “unsecured” or “secured” or, worse, cash only.

Unsecured Bonds

Let’s talk about unsecured bonds first. An unsecured appearance bond means that a person will be released, unless they fail to satisfy the other conditions of release, and that they must appear for subsequent court proceedings. If they fail to appear for the subsequent proceedings, then they will owe the amount of the unsecured bond as a sort of punishment for their failure to appear.

Typically, a warrant will issue for the person’s arrest. When arrest is made, that person will then be ordered to pay, or else continue to sit in custody.

Secured Bonds

A secured appearance bond is an amount of money that the person must put up before being released. Contrast that to the unsecured bond, which does not require the person to ever post the bond unless they fail to appear.

With a secured appearance bond, you can get a bail bondsman to put up the money and essentially promise the court that you will appear or else the bondsman will find you, arrest you, and bring you before the court. This added security is often used to make judges more comfortable releasing you. Bail bonds companies often assess the risk of bonding you out. If they decide to help you, they will require a down payment, which they will keep, even after your case is over. That’s how they get paid.

Typically, that amount is roughly 10% of the total secured bond.

For example, if you are arrested for felony DUI, or Aggravated DUI, you will be taken into custody, held for up to 24 hours, and taken before a magistrate. The magistrate will inform you of many rights and then decide on a bond. The magistrate may decide on a $5,000 secured appearance bond. Then, you or your family can try to locate a bail bonds company, who may require a $500 down payment in order for them to put up the remaining $4,500 to secure your release.

Cash Bonds

Worse, even, than a secured appearance bond is a cash bond. A cash bond is exactly what it sounds like: you must put up the full amount of the bond in cash in order to secure your release from custody.

Bonding Out Matters to Your Case and Your Sanity

When a criminal defendant is held in custody, the person has limited access to evidence; all communications with friends and family are recorded or copied; no telephone calls are safe; visitation with the person’s lawyer is restricted and strained; stress and fear are higher; and, most importantly, you are physically limited from assisting in your own defense. Getting out of jail is absolutely critical. It can help your case; it will keep you sane.

For a free consultation on any criminal matter involving bond or bail, call Griffen & Stevens Law Firm, PLLC right now, or use the Contact form at the top of the page. It’s free. And you should be too.