Month: November 2011

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.