Month: December 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.