Month: April 2011

Flagstaff DUI lawyer comments on deferred prosecutions in Northern Arizona DUI cases…

Driving under the influence (DUI) charges in Flagstaff, Arizona must be taken seriously. Even for your first offense, a DUI – Impaired to the Slightest, is a class 1 misdemeanor with required jail time in the Coconino County Detention Facility at 951 E. Sawmill Road, Flagstaff, AZ 86001, and significant fines and fees.

Flagstaff has great bars and restaurants in the downtown area and on Route 66. Most people enjoy their drinks at Charley’s or Zane Gray, Flag Brew, Collin’s Irish Pub, The Museum Club, The Mad Italian, or the many other Flagstaff bars that serve alcohol. But very few people actually live near downtown, not to mention the hundreds of thousands of tourists that travel through Flagstaff while visiting the Grand Canyon, Lake Powell, Zion, or even Phoenix.

So, once you drink, how do you get home or to your hotel? Far too many people risk driving after drinking, and the Flagstaff police know where to catch you committing traffic violations so that they can pull you over and investigate you for DUI. (For more information on what happens when you’re pulled over on suspicion of DUI under Arizona DUI laws, see this post: http://www.flagstaff-lawyer.com/2010/12/flagstaff-dui-what-you-need-to-knowpart.html).

Oftentimes, a great result in a Flagstaff DUI case is a deferred prosecution. So what is a deferred prosecution?

Here is what the Arizona Rules of Criminal Procedure say about it:

Whenever after the filing of a complaint, indictment or information, but prior to a plea of guilty or trial, the prosecutor determines that it would serve the ends of justice to suspend further prosecution of a defendant so that he or she could participate in a deferred prosecution program, the prosecutor, with the consent of the defendant, may, by written motion, apply to the court for suspension of prosecution.

See Rule 38.1, Arizona Rules of Criminal Procedure.

So what does this mean for a Flagstaff DUI defendant? Well, you are NEVER guaranteed a deferred prosecution. In fact, most Flagstaff DUI cases begin with a plea offer from the prosecutor to a DUI charge. Sometimes, however, “the prosecutor determines that it would serve the ends of justice” to offer you an opportunity to earn a dismissal of your Flagstaff DUI charges.

In a Flagstaff DUI case, there are numerous factors that a prosecutor considers in determining whether an Arizona deferred prosecution is appropriate. I know firsthand because I used to be a prosecutor. So I understand the thought processes behind various plea offers, plea agreements, charges, and deferred prosecutions.

In the Flagstaff DUI investigation of your case, if your blood alcohol concentration (BAC) comes back above 0.08%, your odds of a deferred prosecution are lower. However, if you do everything right, and even voluntarily do an alcohol assessment at an agency like Northern Arizona Substance Abuse Services (N.A.S.A.S.), your Flagstaff DUI may be pled down to deferred prosecution, and ultimately dismissed. It is up to the prosecutor who has a great deal of discretion under Arizona DUI sentencing laws.

A deferred prosecution offers a defendant an opportunity to complete various terms and conditions and show good behavior in order to earn a dismissal of their Flagstaff DUI case. This would be instead of a criminal conviction.

If you have been charged with a DUI in Northern Arizona, such as in Flagstaff, Williams, Sedona, or Prescott, I will offer you a free consultation in which we can discuss the many defenses and possible outcomes for your Arizona DUI case.

Flagstaff felony lawyer discusses Arizona felony drug laws including drug transportation on Interstate 40 and Interstate 17

Arizona has a detailed set of felony drug laws.

See Arizona Revised Statutes, section 13-3401 et seq.

The Arizona Department of Public Safety (DPS) is well-aware of Arizona’s relatively high-volume drug trafficking on I-40 across Northern Arizona and I-17 between Phoenix and Flagstaff, including marijuana, hydroponic marijuana, mushrooms, heroin, cocaine, cocaine base or hydrolyzed cocaine, LSD, PCP, amphetamines, and even methamphetamine. Drug paraphernalia (anything used to contain, conceal, package, smoke, inject or otherwise possess or use the drug) also comes with felony and misdemeanor charges.

Transporting drugs intended for sale is such a serious crime that a first-time felony often requires a prison sentence under Arizona law, even if the person has a clean driving history and no criminal record.

Drug courier profiling in Arizona has been the subject of litigation and argument. Trained officers are aware of many telltale signs of drug trafficking, but Arizona law does not permit officers to pull people over on a “hunch.” They need reasonable suspicion of drug trafficking, a felony, or any crime – or, of course, they need to observe a traffic violation, such as speeding, failure to control vehicle, excessive speeding, criminal speeding, reckless driving, improper or erratic lane changes, following a vehicle too closely, or other Arizona traffic violations.

See Title 28 of the Arizona Revised Statutes.

Arizona felony drug cases are charged based on several factors:

  • the type of controlled substance / drugs;
  • the amount of the controlled substance / drugs;
  • whether controlled substance / drugs are possessed, manufactured, produced, intended for sale,
  • transported, or transported for sale;
  • and other factors.

Major drug offenses in Arizona must be defended swiftly and with the full force of the Arizona Constitution and U.S. Constitution. The following issues have been raised in previous cases and may be raised in your case which can lead to suppression of evidence, dismissal of charges and not guilty verdicts:

  • Illegal basis for the traffic stop;
  • Illegal detention or unlawful arrest;
  • No probable cause to justify a warrantless search;
  • The drug detection dog or K9 was not certified and/or reliable;
  • Invalid search warrant based on material omissions, misrepresentations and/or unspecific and vague information
  • Violation of Miranda rights (right to remain silent, speak with an attorney, etc.);
  • Racial profiling;
  • Violation of right to due process if government fails to preserve evidence;
  • No knowledge that drugs were present; and
  • The drugs that were possessed were for personal use and not for sale.

Flagstaff lawyer focuses on Commercial Drivers License (CDL) issues under Arizona traffic laws…

Trucking through Arizona usually involves I-40 near cities like Kingman, Williams, Flagstaff, Winslow, Holbrook, and more. Northern Arizona traffic violations can lead to severe consequences for CDL drivers in Arizona.

CDL drivers are often faces with charges of speeding, failure to control their trucks, excessive speeding, criminal speeding, reckless driving, improper or erratic lane changes, following a vehicle too closely, driving a commercial motor vehicle (CMV) without obtaining a CDL or having a CDL in the driver’s possession, driving a CMV without the proper class of CDL and/or endorsements, and other violations of the Arizona Revised Statutes Title 28 (i.e., Arizona traffic laws).

There are a seemingly infinite number of ways for your to get your Arizona CDL suspended or for you to lose your Arizona CDL entirely. With your livelihood and career on the line, it is important that you know the facts about CDL’s and the penalties for violating CDL rules and traffic laws in Arizona.

The minimum age for a commercial driver license in Arizona is 21.
Under federal law (Code of Federal Regulations or “CFR”) and under Arizona, there are different classes of CDL’s:

Class A – Any combination of vehicles with a GCWR of 26,001 or more pounds provided the GVWR of the vehicle(s) being towed is in excess of 10,000 pounds.

Class B – Any single vehicle with a GVWR of 26,001 or more pounds, or any such vehicle towing a vehicle not in excess of 10,000 pounds GVWR.

Class C – Any single vehicle, or combination of vehicles, that does not meet the definition of Class A or Class B, but is either designed to transport 16 or more passengers, including the driver, or is transporting material that has been designated as hazardous under 49 U.S.C. 5103 and is required to be placarded under subpart F of 49 CFR Part 172 or is transporting any quantity of a material listed as a select agent or toxin in 42 CFR Part 73.

YOUR ARIZONA CDL WILL BE CANCELLED If

There are many ways to lose your CDL. In Arizona, your CDL may be cancelled for any of the following:

  1. Failing to give correct information on the application,
  2. Applying while your license/driving privilege is disqualified, suspended, revoked or canceled in Arizona or another state,
  3. Falsely stating your age as 21 or over,
  4. Not meeting the medical requirements,
  5. Failing, refusing, or neglecting to pay fees, taxes or assessments to MVD.

Traffic violations are strictly punished when it comes to your Arizona CDL.

TRAFFIC VIOLATIONS RESULTING IN SUSPENSION OF YOUR ARIZONA CDL

It is illegal to operate a CMV if your blood alcohol concentration (BAC) is .04% or more. If you operate a CMV, you shall be deemed to have given your consent to alcohol testing. This is called “implied consent” under Arizona DUI laws.

You will lose your CDL for at least one year – that is, it will be suspended for at least 1 year – for a first offense for any of the following:

  1. Driving a CMV if your blood alcohol concentration is .04% or higher. (You will be put out-of-service for 24 hours if you have any detectable amount of alcohol under .04%.)
  2. Refusing to undergo blood alcohol testing.
  3. Driving a motor vehicle while under the influence of a controlled substance.
  4. Leaving the scene of an accident involving a motor vehicle driven by the person.
  5. Committing a felony involving the use of a CMV.
  6. Driving a CMV when the CDL is suspended, revoked, disqualified or canceled.
  7. Causing a fatality through negligent operation of a CMV, including a conviction of manslaughter, homicide or negligent homicide resulting from operation of a motor vehicle.

You will lose your CDL for life for a second offense.
You will lose your CDL for life if you use a CMV to commit a felony involving controlled substances.

SERIOUS TRAFFIC VIOLATIONS

Serious traffic violations are excessive speeding (15 mph or more above the posted limit), reckless driving, racing, improper or erratic lane changes, following a vehicle too closely, a violation of the Arizona Revised Statutes Title 28 that is connected with a fatal traffic accident, driving a CMV without obtaining a CDL or having a CDL in the driver’s possession, and driving a CMV without the proper class of CDL and/or endorsements.

You will lose your Arizona CDL for at least 60 days if you have committed 2 serious traffic violations within a 3-year period involving a CMV, or for at least 120 days for 3 serious traffic violations within a 3-year period involving a CMV.
Your Arizona CDL will be suspended for violations of out-of-service orders!
Your Arizona CDL will be suspended for railroad-highway grade crossing violations!
You can even lose your Arizona CDL for a traffic violation committed while in your personal vehicle!

BACKGROUND CHECKS ON CDL HOLDERS

Arizona participates in the Commercial Driver License Information System (CDLIS), which is a nationwide computer system providing information about holders of a CDL. When you apply for a new Arizona CDL or transfer a CDL from out of state, your application is checked against this system. Just like the National Driver Register, if you have outstanding or unresolved actions in any other state or you provide false information on your application, your Arizona CDL will be cancelled.

FEDERAL REQUIREMENTS AND REGULATIONS

The feds regulate CDL’s and trucking on a heavy basis. For example, you must notify your employer within 30 days of conviction for any traffic violations (except parking), and can face penalties for failing to do so. This is true no matter what type of vehicle you were driving (including your own person vehicle).
There are many requirements, including form requirements for trucker logs. A violation can be criminal in nature. For more information on federal and Arizona CDL requirements visit the Federal Motor Carrier Safety Administration.

Flagstaff felony lawyer talks ARIZONA ARREST WARRANTS…

Got an arrest warrant in Arizona? Look no further. Call your Flagstaff Arizona Felony Lawyer immediately at (928) 607-9928. An outstanding arrest warrant is a serious matter in Arizona. Don’t end up in jail.

Arrest warrants are a scary thing. If a police officer comes upon you, and you have an arrest warrant, the police are required to arrest you, and you’ll sit in jail until a judge is available to see you. Even really old arrest warrants can and will come back to haunt you. When a warrant is issued for your arrest, your driver’s license is usually automatically suspended, which means as soon as you get a speeding ticket, you’re going to jail. Arizona arrest warrants can come out of city courts (e.g., Flagstaff Municipal Court), justice courts (e.g., Prescott Justice Court), and superior courts (e.g., Yavapai County Superior Court).

FAILURE TO PAY WARRANTS & FAILURE TO APPEAR WARRANTS

Judges can issue arrest warrants for a variety of reasons, such as a failure to pay warrant, or a failure to appear warrant. A failure to appear is also a criminal offense and you can be charged with a felony in Arizona, just for your failure to appear. Here are the two types of Failure to Appear offenses in Arizona: Failure to Appear First Degree (Arizona Revised Statutes section 13-2507) Failure to appear in the first degree is when you miss a required court date to answer to felony charges. If you missed this court date you will face this additional Class 5 felony charge. This additional felony charge has a potential sentence of up to 1 ½ years in prison.

This is a serious charge to have added to your already existing legal problems. Failure to Appear Second Degree (Arizona Revised Statutes section 13-2506) Failure to appear in the second degree is when you fail to show up for a court date in regards to a misdemeanor or infraction charge. This additional charge is a Class 1 misdemeanor. A Class 1 misdemeanor carries a potential sentence of up to 6 months in jail as well as fines up to $2,500. Arizona MVD will be notified of your failure to appear and your driver’s license will be immediately suspended.

How else can I get an arrest warrant in Arizona?

Arizona Rules of Criminal Procedure also offer judges the ability to issue an arrest warrant upon a felony indictment or finding of probable cause upon a complaint made under oath.

See Arizona Rules of Criminal Procedure, Rule 3.1.

If the court tries to summons you, and you fail to appear or are unavailable for service, the judge can issue an arrest warrant as well.

See Arizona Rules of Criminal Procedure, Rule 3.1(c).

I have an arrest warrant, what do I do now?

If you have a warrant for your arrest, you may post the amount of the bond to quash the warrant and have an arraignment date scheduled. You may also contact a warrants officer who can schedule a time to see the judge. Only the judge can make the decision of whether you are arrested or not. Once a warrant is issued, you must personally appear before the judge before the warrant is quashed.

Griffen & Stevens Law Firm, PLLC can push hard to get your warrant quashed and assist you in dealing with the basis of your warrant. There are many technical rules and Arizona laws relating to arrest warrants and the execution of arrest warrants (i.e., when a police officer arrests someone pursuant to a warrant). Let your Northern Arizona Felony Lawyer fight to keep you out of jail.

Flagstaff lawyer discusses ARIZONA MARIJUANA LAWS…

Is possessing marijuana a felony in Arizona? Does the Arizona Medical Marijuana Act change anything? When does the Arizona Medical Marijuana Act go into effect? Can I smoke marijuana in public if I have a

Cold identical weeks great setup bentyl product Collagen now: got the.
physician’s prescription?

In Arizona, it is still illegal to possess marijuana as of right now. Arizona drug laws are accompanied by strict penalties, often including prison sentences. In fact, Arizona’s prison population has grown steadily and significantly from the late 1990’s to now. Arizonans spend way too much money on their prisons, which are overflowing with drug offenders. Arizona’s spending on the Arizona prison system (Arizona Department of Corrections) has increased by 100 percent, from $409 million in 1997 to $817 million in 2007.

Incredible.

Let’s talk about the felony charge of possession or use of marijuana. Under Arizona felony law, you “shall not knowingly poessess or use marijuana.” See Arizona Revised Statutes, section 13-3405(A)(1). But what kind of felony possession is it? Here’s how it breaks down under Arizona drug laws:

Less than 2 pounds of marijuana – class 6 felony
2 to 4 pounds of marijuana – class 5 felony
4 pounds or more of marijuana – class 4 felony

NOT POSSESSED FOR SALE

Each class of felony gets more serious based on a higher net weight of marijuana. If you are accused of possessing marijuana for sale, the felonies are even more serious! In case you don’t already know… here’s how Arizona criminal law defines “marijuana”: “Marijuana” means all parts of any plant of the genus cannabis, from which the resin has not been extracted, whether growing or not, and the seeds of such plant.

Marijuana does not include the mature stalks of such plant or the sterilized seed of such plant which is incapable of germination. See Arizona Revised Statutes, section 13-3401(19). The Arizona Medical Marijuana Act is a game-changer in Arizona.

It is still very limited, but basically, the Arizona Medical Marijuana Act says that anyone who follows the strict requirements (see here) can’t be penalized for the medical use of marijuana. One such restriction is that you cannot smoke marijuana in public or on public transportation.

Here’s the schedule of major events relating to the Arizona Medical Marijuana Act:

April 14, 2011: Arizona Department of Health Services begins to accept applications for qualified patients and caregivers

June 1-30, 2011: Arizona Department of Health Services accepts applications for initial dispensary registration certificates

Mid-August, 2011: Arizona Department of Health Services selects and awards dispensary registration certificates

January, 2012: Arizona Department of Health Services accepts petitions for additional debilitating medical conditions

Felony lawyer on Aggravated DUI (or “felony DUI”) under Arizona law…

Northern Arizona has a lot of Aggravated DUI charges, in courts like Coconino County Superior Court, Yavapai County Superior Court, Navajo County Superior Court, Mohave County Superior Court, and Apache County Superior Court, for DUI cases out of cities like Flagstaff, Sedona, Prescott, Holbrook, Page, Williams, and on I-40 and I-17 in Northern Arizona. So what happens if you are charged with a felony? How does a judge sentence you on felony Aggravated DUI?

Most of us have an idea of the definition of a DUI, or Driving Under the Influence, which is, in its most basic form, a misdemeanor under Arizona law. The most basic DUI in Arizona is called “DUI – Impaired to the Slightest Degree.” And that’s because there is a common misperception that you must have a 0.08% BAC, or blood alcohol concentration, to be convicted of DUI in Flagstaff, Prescott, Sedona, or anywhere else in Arizona. That, however, is not true. In Arizona, here is all that is required for a DUI:

A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:

1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree.

Arizona Revised Statutes, section 28-1381(A)(1).

I’ll talk about “actual physical control” in a separate article. For now, let’s focus on driving while under the influence of alcohol or drugs where “the person is impaired to the slightest degree.” If you have one sip of wine, and it ever-so-slightly impairs you (e.g., hand-eye coordination, awareness, ability to focus, divided attention skills, etc.), then you risk a DUI by driving.

Where the 0.08% BAC comes in is a separate DUI offense, where you’re not just “impaired to the slightest degree” but you are driving with a BAC of 0.08% or higher. That creates a presumption of impairment, under Arizona law.

So what makes a felony DUI (“Aggravated DUI”)? Aggravated DUI happens when you commit any DUI offense while your driver license or privilege to drive is suspended, canceled, revoked or refused or while a restriction is placed on your driver license or privilege to drive as a result of a DUI. See Arizona Revised Statutes, section 28-1383(A)(1).

Aggravated DUI is also when you are convicted of a third or subsequent DUI within a period of 84 months (i.e., 7 years).

Arizona Revised Statutes, section 28-1383(A)(2).

Aggravated DUI is also when you commit a DUI with a passenger in your vehicle who is under 15 years old.

Arizona Revised Statutes, section 28-1383(A)(3).

So, there are many different ways to commit Aggravated DUI, but the most common is when you get a DUI and your license is suspended, meaning you never should have been driving in the first place, much less while impaired!

Aggravated DUI is a class 4 felony, and if you are convicted of it, you can get supervised (felony) probation, or like any other Arizona felony offense, you can be sentenced to a prison term in the Arizona Department of Corrections. Your first Aggravated DUI can send you to the Arizona Department of Corrections for up to 3.75 years and mandatory minimum fines in the $4,000 range, but up to $150,000 under Arizona criminal law.

Even if you got probation on an Aggravated DUI conviction, Arizona statutory law requires you to serve at least 4 months in the Arizona Department of Corrections.

Typically, if you are charged with an Aggravated DUI, you should hire a lawyer to try to negotiate a plea bargain for you. An Aggravated DUI is one of the worst convictions to have on your record because it requires you to spend time in prison and is also allegeable against you for life. For whatever reason, Aggravated DUI is punished worse than most felony offenses.

Fight hard and make sure your rights are protected.

Flagstaff DUI and the Admin Per Se / Implied Consent laws that cause your Arizona driver’s license to be suspended…

This article discusses the effects on your license (i.e., suspension) related to getting charged with a DUI anywhere in Arizona, including Flagstaff.

It starts with a DUI arrest, and it involves breathlyzer machines and bodily fluid samples (blood, urine, and more). It’s called Admin Per Se / Implied Consent and it relates to Arizona laws on DUI, specifically sections 28-1381 (DUI), 28-1382 (Extreme DUI), 28-1383 (Aggravated DUI), and other Arizona traffic laws related to drinking and driving. The basic rule is: Any person who operates a vehicle in Arizona gives consent (i.e., by the act of driving, it is implied that you consent) to

“a test or tests of the person’s blood, breath, urine or other bodily substance for the purpose of determining alcohol concentration or drug content” if the person is arrested for any DUI offense “while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs.”

Arizona Revised Statute section 28-1321(A).

What this means it that if the police arrest you for DUI (or for being under 21 with any alcohol in your system while driving), then you automatically consent to a test of your blood, breath, urine, or other bodily substance! Just by driving, you consent. And guess who gets to choose what bodily substance you must give?

You probably guess right: it’s the same police officer that arrested you. So, by driving, you take the risk that a police officer will believe (probable cause or “reasonable grounds”) that you are DUI and arrest you and force you to give up your bodily fluids for testing.

This can happen as long as the officer believes (probable cause or “reasonable grounds”) that you are DUI. It does not matter if you are later acquitted or found not guilty or your case is dismissed. Once you are arrested for DUI, the officer is legally required to ask you to submit to the testing of your bodily fluids or breath. See Arizona Revised Statute section 28-1321(B).

If you agree to provide a sample, and your blood-alcohol-concentration (BAC) comes back at 0.08% or higher, your driver’s license is automatically suspended for at least 90 consecutive days. You will have to do a drug and/or alcohol screening in order to get your license back after 90 days. Refusal: Two Things Happen If you refuse to submit to provide a breath sample or your bodily fluids that the police officer wants, first you will be threatened.

The law requires the police officer, upon your refusal, to threaten you with the following: Your driving privilege is suspended for 12 months, or for 2 years if this is your second refusal in an 84-month period. So if the officer wants your urine, and you refuse to provide it, your license will be suspended for 12 months. Period. However, you may appeal the suspension and request a hearing before the Arizona MVD but must do so very quickly. The second thing that is likely to happen to you is that the police officer will still take your bodily fluid.

So, not only will you lose your license for 12 months (for refusing to provide a sample), but the officer will probably send a “tele-fax” search warrant to a magistrate, who will likely issue a search warrant. See Arizona Revised Statute section 13-3915. The search warrant will allow a qualified phlebotomist to come and take your blood without your consent, authority, or approval. If you resist, you will be forcibly held down and/or strapped to a chair, and they will put a needle in your arm and take your blood. And after that, they will still take your driver’s license.

Conclusion

There are many other consequences related to Admin Per Se and Implied Consent laws in Arizona. When you are arrested for DUI, a complex chain of events, and Arizona laws, will begin changing your life.

There is no way to describe all of those events and laws in this article, but one thing is for sure: you should talk to a lawyer. The penalties for DUI are severe, including mandatory jail time in every DUI conviction.

Be careful out there, and if you get arrested for DUI, call me right away to protect your rights.