May 2013 Archives

May 29, 2013

Why Missouri v. McNeely won't have much impact in Maricopa County

1066864_police_cruiser.jpgA recent U.S. Supreme Court decision may not change Arizona DUI law, but it may bring the rest of the nation more in line with Arizona's policies.

Phoenix AZ court's Search Warrant Center is available 24 hours a day, 7 days a week for police to obtain a warrant via "eSearch". According to Phoenix Police, an officer can now obtain a search warrant within minutes. So the fact that the body's Blood Alcohol Content (BAC) levels naturally decrease over time should not compel police, to bypass a search warrant. This is because the BAC levels take hours to decline, and will not be reduced drastically within 10 minutes.

Recently, the Supreme Court ruled 8-1 that police must obtain a warrant before forcing someone suspected of drunk driving to take a blood test. The US Supreme Court's decision was that the mere fact that the body reduces BAC levels over time, is in and of itself not an "exigent" circumstance, and that each case should be decided based on it's own set of facts.

Generally, a warrantless search of a person (including invasive searches of the body like a blood test) is considered reasonable if it falls into a recognized exception to the Fourth Amendment right to be free from unreasonable searches and seizures. In Arizona, the police are required to obtain a warrant in order to proceed with a blood test.

One such exception exists when the "exigencies of the situation" present such a compelling law enforcement need that it is objectively reasonable for an officer to bypass getting a warrant. The Supreme Court found no such exception here.

The case arose when a state trooper saw the defendant driving erratically. When the state trooper pulled him over, the defendant refused to take a Breathalyzer test, so the officer drove him to a nearby hospital and ordered him to take a blood test to measure his alcohol levels.

The officer did not seek a warrant to test the defendant's blood and it turned out he had very high blood alcohol levels. When the defendant was put on trial, he moved to suppress the results of the blood test on the grounds that it had violated his Fourth Amendment rights.

The State of Missouri argued that the officer's failure to obtain a warrant was due to exigent circumstances that demanded he depart from the usual rule requiring a warrant. According to the State, because alcohol in the bloodstream slowly and predictably reduces with time, the evidence of the defendant's DUI would be lost or destroyed during the time it would have taken to get a warrant. Missouri's guidelines apparently allowed police officers broad discretion about whether to order a blood test under such circumstances.

The Supreme Court disagreed with the State's argument, stating that under most conditions, there is enough time to get a warrant to test blood by using email or cellphones to contact the magistrate. Justice Sotomayor wrote that whether an emergency made it necessary to forgo the warrant would have to be decided on a case-by-case basis with justification being offered in court later.

Around the same time that the Supreme Court heard this case, Phoenix police sped up the search warrant process by installing a program in all police patrol car computers called eSearch Warrant Application. This allows an officer to send a warrant from the car directly to a judge, who can approve or reject the document on a laptop from the bench. The application was first installed in seven police DUI vans last fall.

The expediency of the warrant process using this software application makes it more critical than ever that if you are pulled over for drunk driving, you call an experienced Phoenix DUI lawyer to handle your case. Contact the experienced Phoenix DUI attorneys of The Law Offices of James Novak at (480) 413-1499 to build a solid defense.

Additional Resources
Arizona DUI Laws
Arizona Governor's Office of Highway Safety
National Highway Traffic and Safety Administration

More Blogs

Prescription Drug DUI Charges, Phoenix DUI Lawyer Blog, January 28, 2013
Marijuana DUI: The Impact of Montgomery v. Harris in Arizona, Phoenix DUI Lawyer Blog, March 13, 2013

May 25, 2013

DUI one of four main causes of fatal and serious auto accidents on Arizona roadways.

298987_bbq_1.jpgEnforcement of Arizona's tough DUI laws tend to ramp up in May, especially over Memorial Day weekend and around graduation festivities. Last year, police arrested 3,129 people for DUIs between May 1 and May 31st, 556 of those arrests were made over Memorial Day weekend.

Police agencies statewide have joined together over the past month to patrol for people who are drinking and driving. These efforts are funded by grants from the Governor's Office of Highway Safety, which also funds training for field sobriety tests, blood draws, drug recognition and equipment.

Tempe Police is at least one law enforcement agency that announced heightening enforcement from May 24th through May 27th. They have committed increased patrols and mobile units throughout the city and will be saturated in downtown Tempe AZ. Minor Consumption violations and prevention are a main focus.

Arizona Department of Public Safety (DPS) reported that last year at this time 5 fatalities resulted from 4 separate collisions, and 85 people were injured. Arizona DPS indicated that impaired driving due to alcohol or drugs was one of 4 main causes of fatalities and serious injuries. Other causes included speeding, seat belt violations, and fatigue or drowsy driving. And while it was not mentioned in the AZ DPS press release, some recent studies and reports show that "texting while driving" is also one of the main causes of motor vehicle fatalities and serious injuries.

It announced late last week that it will be "especially vigilant" on the state's highways for this weekend to reduce the number of fatalities, injuries, traffic, and impaired driving violations. The AZ DPS is reminding everyone to be patient on the roadway while driving, get enough rest before trips, and obey traffic and seat belt laws, and refrain from drinking and driving; and "texting and driving".

Tips from the police for the weekend include using public transportation or a completely sober designated driver. All drivers should be aware that in Arizona, adults can be arrested for drunk driving even if their Blood Alcohol Content (BAC) is below .08, if they are impaired to the slightest degree by the amount they drank.

Over Memorial Day weekend, particularly at family outings, some parents may let their older teenagers drink. While some states allow those under 21 to have a BAC of .01 or .02, Arizona has a zero tolerance policy for drunk drivers under the age of 21. Those under 21 may not even have even a BAC of .01%. A relatively recent case looked at the issue of blood tests for BAC for juvenile drivers, and the facts of the case are worth considering if you are a teenager or a parent.

In that case, a monitor at a seventeen-year-old defendant's school smelled marijuana on his clothing in 2012. The monitor searched the vehicle the defendant and his friends had driven to school and found drug paraphernalia. School officials reported this to the police and the sheriff arrived and advised the defendant of his Miranda rights. Nonetheless the defendant admitted that he and his friends had smoked marijuana away from campus and driven back.

The defendant was arrested and charged with drunk driving. The sheriff read him admonitions related to the implied consent law for blood tests and the defendant agreed to submit to testing. His parents were called and came to the school. Meanwhile, the defendant's blood was tested without his parent's consent. His parents were told he was caught smoking marijuana and arrested, but weren't asked for permission to test the blood that had been drawn.

Before a delinquency hearing, the defendant moved to suppress the blood test results. He argued that, as a minor, he lacked the legal ability to consent to testing. The juvenile court granted his motion, reasoning that the Arizona Parents' Bill of Rights includes the right to consent before a minor's blood is tested, notwithstanding Arizona's implied consent law. It also found that the defendant's consent hadn't been voluntary.

The State appealed the juvenile court's decision. The State argued that the Parents' Bill of Rights was inapplicable because the parental right to consent did not prevent law enforcement officers from acting in their official capacities within the scope of their authority.

The appellate court reasoned that anybody who operates a motor vehicle in Arizona, including minors, gives consent to alcohol testing of blood, breath and urine in the context of a DUI allegation. Although someone cannot be blood tested in a DUI stop without a warrant, drivers are already assumed to have given consent. They can withdraw the consent that has been given, but they face penalties for doing so.

Continue reading "Statewide Arizona DUI Enforcement Increased over Memorial Day Weekend " »

May 17, 2013

1409595_gavel_5-1.jpgThe Court of Appeals of Arizona recently decided an appeal regarding aggravated DUI in the case State of Arizona v. John Patrick McDonagh. This is an interesting case that works in favor of DUI defendants. It arose when the State charged the defendant with four counts of aggravated DUI. These were all variations on the same facts, including: (1) drunk driving on a suspended license, (2) drunk driving with a BAC over .08 on a suspended license, (3) third instance of drunk driving within 84 months, and (4) driving with a BAC over .08 on a third offense.

The defendant was convicted of all four of these. During a sentencing hearing, the judge imposed a minimum mandatory 4-month term in prison followed by two years of probation. The court ordered the prison terms and the probation to run concurrently. It also ordered significant "Assessments" totaling $4,630 per count. From the way the court wrote the order, it was not clear whether these Assessments were imposed concurrently or if this was the sum the defendant had to pay per count.

The defendant appealed solely with respect to the issue of the Assessments. He argued that there shouldn't have been four separate Assessments assessed for four felony convictions all arising from the same driving incident. He didn't raise a constitutional issue, but rather a prohibition found in the state statutes. Specifically the code states, "[a]n act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent."

The appellate court asked the parties to report how his payments were applied. The parties' reports revealed that the court's clerk applied the payment such that each dollar was credited to only one, not four counts.

Continue reading "Arizona Court Rules Against Imposition of Non-concurrent Assessments" »