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August 27, 2013

Arizona V. Cooperman: DUI Partition Ratio relevant, competent evidence to show lack of DUI Impairment.

breathalyzer-465392-m.jpg Blood Alcohol Content (BAC) refers to the concentration of alcohol in the blood that can currently be measured either by a DUI blood test or a breath test. Interestingly, however, the results of a breathalyzer test for DUI may not always be the same as the results from a blood test. This may be the case even if the blood and breath are tested at the same time.

Partition Ratio in DUI Breathalyzer Tests

Breathalyzer tests produce a numerical score, only by mathematically converting the breath sample to a Blood Alcohol Concentration level. This conversion process is known as the "partition ratio" when the conversion factor is used. The conversion is considered problematic by some because it is not necessarily reflective of the actual partition ratio for an individual; actual partition ratios for individuals can vary. Factors that may cause the ratios to vary include but are not limited to body temperature, medical conditions and gender. This means a breathalyzer test for an individual may not accurately translate to a blood alcohol concentration level indicative of impairment.

Case Background: State of Arizona v. Cooperman

In a recent case, the Arizona Supreme Court addressed whether partition ratio evidence could be admitted in a DUI case where (1) the state chose to bring in breath test results to prove a defendant had a .08 percent or more BAC within two hours of driving, and (2) evidence related to how much partition ratios varied in the population was relevant to the defendant's level of impairment. The defendant here wanted to show how the partition ratio varies in the general population in order to introduce doubt as to whether the results of the breath test showed impairment.
In this case, a motorist charged with one count of driving while "impaired to the slightest degree" in violation of A.R.S. 28-1381 (A) 1; and the other was for having an alcohol concentration of .08 percent or more within two hours of driving in violation of A.R.S. 28-1381 (A) 2.

The Prosecution generally attempts to prove beyond a reasonable doubt that the latter charge (.08 percent BAC) by presenting a jury with evidence of a defendant's blood alcohol content and establishing a DUI test sample was taken within two hours of the defendant driving. When a person's BAC is .08 percent or higher, the presumption is that a person is under the influence, in violation of Arizona's legal limit. However, to have a level below the .08 percent BAC does not however, create a presumption. If the officer had probable cause to believe that a motorist's was still impaired, even though their BAC was below .08 percent, they may bring charges in violation of "impaired to the slightest degree". The impairment, however, cannot be presumed, and must be decided in connection with other probable cause evidence.

The prosecution in this case attempted to prevent the defendant from submitting evidence that showed the partition ratio used to convert the breath reading to a blood reading was variable, meaning inconsistent, or liable to change. The prosecution argued that it planned only to introduce the breath test results for proof that the defendant's BAC exceeded .08 percent; but not to prove the first charge of "impairment to the slightest degree". Since the prosecution was not going to introduce the breath test for the impairment to the slightest degree charge, they argued the defendant could not present the partition ratios related to that breath test to cast doubt on whether or not the defendant was impaired at all.

Experts for both parties testified regarding the partition ratio. The defendant again tried to introduce exculpatory evidence of the partition ratio to that would cast doubt on whether or not he was impaired to the slightest degree. The State argued the defendant's evidence was irrelevant and had the potential create unfair prejudice. The court ruled that partition ratio evidence was in fact relevant whenever breath test results are brought forward by the State. The court of appeals affirmed this ruling. The State then appealed to the Arizona Supreme Court.

Arizona Supreme Court Analysis

The Arizona Supreme Court held that evidence is relevant where it can make a material fact in a case more or less probable. If evidence is relevant, it is permitted at trial, unless there is specific rule or provision in the law that prohibits it. In this case, the State was required to prove that the defendant was impaired because he drank alcohol. Therefore evidence of his impairment was relevant.

The AZ Supreme Court recognized the strong correlation between Blood Alcohol Content levels and intoxication. The prosecutors had argued that they had the unilateral ability to invoke the presumption that the defendant was under the influence and the partition evidence was irrelevant because they chose not to invoke the presumption of impairment to the slightest degree.

The Arizona Supreme Court disagreed with this approach by the prosecution. They held that there is nothing that precludes a DUI defendant from presenting partition ratio evidence to show he was not impaired in an impairment case. In fact, they cited specific Arizona Law, A.R.S. 28-1381(H) which specifically provides that any "competent evidence" on the issue of the question of the defendant's impairment in DUI charges brought against them.


In conclusion the Arizona Supreme Court cited Sandstrom v. Montana, 442 U.S. 510, 524 (1979). Which holds the need to satisfy constitutional requirement presumptions in criminal cases must be rebuttable, enabling either side to provide evidence or argument that challenges or opposes the presumption. Thereby The Arizona Supreme Court affirmed decisions made by all previous courts, Municipal, Superior, and Appeals Court of Arizona, which was to allow the exculpatory evidence regarding partition ratio variability to be admitted to show the defendant's lack of impairment.

Continue reading "Arizona Supreme Court: DUI Partition Ratios Evidence Admissible" »

September 18, 2012

In Carillo v. Houser Maricopa County, the Arizona Supreme Court held that the Implied Consent Law, A.R.S. § 28-1321 did not authorize police to conduct DUI blood testing without a warrant. The exception is if the suspect expressly gives their consent for officers to administer the chemical test.

It is not enough for a suspect to object to the blood or urine test. They must expressly refuse, or consent to it. Failure of a person to expressly agree, or to consent to completing the chemical test is considered a refusal.

If a driver refuses a DUI breath test the police may obtain a warrant to collect a blood or urine sample. In order to obtain a warrant the police must have "probable cause" to believe that a motorist was driving impaired under the influence of drugs or alcohol.

If a driver refuses to participate in the chemical testing, there are civil and criminal consequences. A refusal of a DUI chemical testing with a valid warrant will result in a 12 month suspension of the motorist's driver's license. The police may proceed with a DUI arrest with probable cause for DUI charges.

Arizona Implied Consent Law

Under the Implied Consent Law A.R.S. § 28-1321 a motorist driving in Arizona inherently gives their consent to DUI breath, blood or urine test if requested by police to determine if they are driving under the influence of alcohol or drugs.
The Police Officer who makes the DUI stop decides what type of test should be administered. The officer must have cause to believe that the person was driving or in actual physical control of a motor vehicle either alcohol or drugs.

Implied Consent Law - Underage 21 Drinking

Arizona is a "Zero Tolerance" state with regard to underage 21 drinking. This means an underage drinker may be arrested for being under the influence of any alcohol in their blood stream. The Implied Consent Law A.R.S. § 28-1321 also gives authority to police in Arizona to administer chemical testing to a person under the age of 21 years of age. They police may administer the test to determine if the person under age 21 has in their body, whether or not they were driving or in actual physical control of a vehicle.

DUI Lawyer Tempe AZ - Defense

If you were arrested for DUI based on breath or blood testing, there may defenses you are not aware of that can lead to suppression of evidence or even a dismissal of charges. An arrest is not a conviction. Anyone arrested has a constitutional right to defend their charges. In order to make sure your rights are protected, and to defend your charges, you should always retain the services of a qualified criminal defense attorney.

Additional Resources:

Arizona Legislature Implied Consent Law

Arizona Legislature DUI law

Arizona Supreme Court JOSE CARRILLO v. HON. ROBERT HOUSER Ref: CV-09-0285-PR

Arizona Department of Transportation

Continue reading "DUI Blood Test Laws: DUI chemical tests taken without consent not admissible in Court" »

March 16, 2012

"The purpose of a DUI Task Force is to seek out and arrest persons driving drunk, or driving impaired due to alcohol or drugs. The laws regarding routine DUI stops and DUI Task Force Stops are very different. To preserve your rights and defenses you should know the differences."

Difference between DUI Task Force Stops and DUI Stops

The difference between a regular DUI "pull over while driving" stop and a DUI Task Force Stop are the circumstances that lead to the initial DUI stop. In a DUI roadblock situation, Police do not need "reasonable suspicion" that someone is driving drunk or DUI, in order to stop a vehicle.

A routine DUI stop occurs when the driver is "pulled over" in absence of a DUI Task Force Situation. In a routine DUI stop, the police must have "reasonable suspicion" that a crime is in progress or other violation of the law has occurred. This standard has been upheld by the US Supreme Court, as held by the rights given under the 4th Amendment of the U.S. Constitution. If a person is stopped for DUI or any other crime in absence of "reasonable suspicion" that a crime or violation is in progress or has occurred, then the stop is unlawful. Subsequently, it would be considered a violation of the driver's rights.

DUI Task Forces are organized and conducted according to The National Highway Traffic and Safety Administration (NHTSA), and along with City or State Laws in place for DUI Task Force Stops. The purpose of a DUI Task Force is to seek out and arrest persons driving drunk, or "driving impaired to the slightest degree" due to alcohol or drugs. No one is immune to the stop. In most cases, The vehicles to be stop at are decided in advance by city, or county officials and their respective law enforcement Agencies. The NHTSA guidelines require that the determination be made on the basis of a mathematical or numeric formula, for example, every vehicle, or every 2nd vehicle. According to the NHTSA guidelines, the determination must be made by means of some sort of mathematical formula. For example, they will stop every first, third, or every other vehicle passing through the DUI roadblock. Police need no other reason to make the checkpoint DUI stop.

Arizona DUI Penalties

Generally, there is no difference in penalties sentencing for convictions resulting from DUI Task Force arrest and a routine DUI Task Force Arrest. Arizona has some of the toughest DUI penalties in the country. Currently they include 24 hours jail time; suspension of driver's license for 90 days; interlock device installation; fines, fees, costs; drug or alcohol screening or counseling and other penalties ordered by the court. Penalties increase in severity for higher Blood Alcohol Content (BAC) levels and repeat DUI offense.

DUI Lawyer for Defense, Gilbert AZ

If you face DUI charges in Maricopa County, you should consult an Arizona criminal defense attorney regarding your charges, and defense options. If retained an experienced DUI attorney will review the facts of your case. They may find that there are defenses that can be used to challenge the evidence or charges in your matter. If the DUI stop was unlawful, it is considered to be a violation of your constitutional rights. In that event, any evidence gathered after that stop may be prohibited by the court from being used against you as evidence. This severely weakens the prosecution's case, and usually results in DUI case dismissal. Any defenses are the most effective, when presented by a qualified and experienced criminal defense lawyer. They will defend your charges; protect your rights; and represent you throughout the DUI case stages to obtain the most favorable outcome possible in your case.

Continue reading "DUI Task Force Stops: No one is immune. The police need no reason to stop you for DUI investigation, except the number of your vehicle in line." »

June 11, 2010

How To get Your Arizona DUI Charges Dismissed!

If you have been charged with an Arizona DUI, you have already learned that Arizona has some of the toughest DUI laws and DUI penalties in the Country. What you need now is to contact a good Arizona DUI attorney, the sooner the better. You may be feeling helpless against the prosecution at this point. But there are things you can do in conjunction with the guidance of your Arizona criminal attorney, to take control your DUI charges. It will require some actions on your part. But it will be well worth your time, if the results turn out to be a dismissal or reduction of your charges.

Here are just a few items out of "24 things" from the third DUI Defense book from the Arizona DUI Winning Defense Strategies Series by Author: James Novak, Arizona Criminal and DUI Defense Attorney. It is entitled "Your 24 Hour Defense Action Plan * 24 hours * 24 things you should do following Your AZ DUI Arrest":

Write, Type, or Document in some form a Detailed Narrative of the Incident As You Recall It:
Your Arizona DUI Defense will depend on these specific facts about your DUI. It is of little or no difference whether you got a Phoenix DUI, Tempe DUI, Scottsdale DUI, Gilbert DUI, Mesa DUI, Chandler DUI, misdemeanor DUI or felony DUI. The type and location of the stop is of no concern at this point for your Arizona drunk driving defense. What matters most is for you to record what happened- Who, what, why, where, and when that night or day. The sooner you do this the better. The further away from the event, the harder it will be to remember the details. Include everything leading up to the initial encounter with Arizona law enforcement stop. The more details you remember, the better the chances of you and your DUI lawyer identifying defenses that can be used, improve credibility of your story and testimony, and getting your case dismissed in Arizona.

Eating and Drinking:
Include a description of your eating and drinking from over the 24 to 48 hours until the time of the stop. (including drinking while driving and/or especially drinking or eating after driving), where did you eat or drink, what did you eat or drink, how much, actual time of start to finish for each meal, and for each drink, duration from time of last drink time until you drove, and until the first police contact. Try to remember how long was it from when you last drank until the time before you drove until the time of blood and/or breath tests took place. Try to recall where was the location of the stop and results of each breath or blood test.

Contact the Arizona MVD If You Want a Hearing:
In most cases the Arizona police will take your driver's license and gives you a pink carbon copy of a notice of suspension and temporary license, unless you had an out-of-state license or the alleged DUI is drug-related instead of alcohol related. Note: You have only 15 days from the date you received the notice (usually the arrest date, but not always) to request an MVD for a hearing (it's called an Admin Per Se hearing). This MVD suspension or revocation is otherwise automatic on the day your pink license expires, and is entirely different from the criminal court's proceedings. The MVD matter is more like a second civil matter in and of itself, separate from your criminal charges. So there are two entities to deal with: The State or County Court and Prosecution and then the State Motor Vehicle Department (MVD).

Photographs of the Location of the Stop or Arrest:
Your DUI attorney will explain that photographs of things that the police relied on as a reason for the stop may be challenged if the facts support it. Therefore, photograph anything that is related and referenced by the police such as objects that may have been hit or otherwise barriers such as other vehicles, light signals, trees. Also include mechanical items that were broken or failed such as turn signal lights, brake lights, taillights, a stop sign or traffic signal you may have been accused of disobeying, any surrounding barriers such as long branches or trees covering a sign or signal, or large utility truck or bus stopped in front of a traffic signal blocking its' view, or low branches, electrical lines that may have been covering the view of the sign or signal. Document weather conditions and landscaping such as large snow drifts blocking a sign, large hail stones slamming on to your windshield and the like. Note, a photo of the scene of the arrest and/or sobriety testing, photo or video of the terrain or landscaping, damage to a vehicle, injury to you or others may be critically important later when the actual evidence has disappeared.

Consult an Arizona DUI Lawyer as Soon as Possible:
DUI cases in Arizona are serious offenses. Even for some attorneys, they are difficult to defend due to changing laws, and the many facets involved with effectively defending a case. You need to consult an Attorney who is well versed in all such matters surrounding Arizona DUI Cases, defends them on a daily basis and has extensive DUI litigation experience. Criminal Defense & DUI Attorney must have the needed experience and education to know the principles of biology, alcohol physiology, and the flaws of the breath machine and blood testing process, roadside police investigation procedures, be familiar with the constantly changing and radical Arizona DUI laws, and the vast number and type of DUI defenses that can be used to defend your case, and get you a successful outcome.

If you have been charged with any Arizona DUI, Misdemeanor or Felony DUI, Repeat DUI, DUI with an accident or injury, Extreme DUI, Super Extreme DUI, Underage Drinking DUI, Aggravated DUI, DUI with prescription drugs, DUI with dangerous drugs, or any other Arizona Drug DUI, or any Criminal charge contact the Law Office of James Novak, for your Free Consultation at (480) 413-1499.

Continue reading "ARIZONA DUI DEFENSE " »

March 26, 2010

AZ DUI blood testing is considered to be the most accurate form of testing for determining AZ DUI blood alcohol content (BAC). However, that does not change the fact that many errors can still occur in the Arizona DUI blood testing process. Arizona DUI laws require that specific protocol and procedures be followed for blood collection. If these protocols are not strictly followed, and standards met, it could cause blood test results to be inaccurate. In that event, the blood evidence may be thrown out, leading to a case dismissal of your Arizona DUI.

The following are some factors that could affect the accuracy of blood test results:

1. Use of Contaminated or faulty medical equipment

2. Improper method used to draw the blood

3. Improper storage or transportation of the blood sample

4. If a test subject has anticoagulants present in their blood, this can result in an inflated and inaccurate BAC test result

5. The drug testing or narcotic identification kit could be expired

6. Rubbing alcohol could contaminate the blood sample

7. Too much preservative in the vacuum tube could result in an inaccurate reading

8. Lab technicians could mix in too much salt which will artificially inflate results

9. Results could be inflated if only blood serum or plasma is tested instead of whole blood.

If you are stopped for suspicion of driving impaired and the police request and you agree to a blood test then only a person trained in blood withdrawal can take your blood sample. The person responsible should be careful not to allow alcohol from a swab to contaminate the blood drawn.

Arizona DUI prosecutors claim that blood testing machines are accurate to within 5%. But many Arizona DUI defense attorneys and experts will tell you that they are not nearly that accurate as they claim to be. Problems exist in operation error or sample collection procedures that can cause the results will be unreliable. Top Arizona DUI Attorneys recommend you request a second sample to be taken at the same time or as close as possible to the first, for your AZ DUI Lawyer to have retested independently for evidence in your Arizona DUI Defense.

Continue reading "Defense for DUI in Arizona: Inaccurate DUI Blood Tests" »

March 25, 2010

Arizona DUI police and prosecutors use breath, blood and urine to prove its case to the jury and seek an AZ drunk driving conviction. The breath test is usually given at the police station or in the AZ DUI van. This breath test is not without its faults and is highly susceptible to error. If the breath test is not given properly, then it will not accurately measure your blood alcohol concentration. A good Arizona DUI Lawyer may be able to file the appropriate motion to ask the judge to throw it out.

Below are some factors that can impact the accuracy and reliability of breath test results:

Temperature of Your Breath
The breath test works on the assumption that your breath is 34 degrees centigrade. Studies done with this equipment have shown that the real average breath temperature for people who have been arrested on a DUI/DWI is closer to 35.5, with some as high as 37. Thus, any error in quantification of the person breath temperature could provide incorrect blood alcohol content (BAC) results.

How Fast the Body Eliminates Alcohol
Another assumption on the part of the breath testing machine. Not all persons metabolism is the same, but the breath test machine assumes that everyone is the same. A person whose body gets rid of alcohol slower will have a higher BAC than someone with a faster metabolism. If you have a slow metabolism, you might still be absorbing alcohol by the time you take the test. If so, the machine will read your BAC higher than it actually is.

Belching, Hiccupping or Vomiting Prior to a Test

Part of the breath test mandates the officer to constantly observe you to verify that you have not belched, hiccupped or vomited within 15 minutes of taking the test. Constant observation is a rule that the officer must follow. If it is not followed, the results of the test may be called into question.

Inherent Margin of Error The breath machines have an acknowledged + 10% margin of error. Therefore, even when the device is calibrated and operating properly, it will still have a 20% range of error.

Mouth Alcohol
The breath testing machines are frequently having difficulties distinguishing between alcohol in a person's mouth and blood alcohol. Contaminants in a person's mouth, such as, smokeless tobacco, denture adhesives, mints, and lip balm may also result in erroneous BAC results.

Operator Error Arizona DUI police often lack proper training in the use of the DUI breath test machines. Officers generally receive minimal training in the use of the device for purposes of AZ DUI Testing, and are not provided adequate written materials.

Despite efforts by the breath test machine manufacturers to detect these problems, they continue to result in many unjust Arizona DUI convictions, despite the fact they were innocent of Arizona Drunk Driving. Thus, another reason, to retain AZ legal representation from an experienced Arizona DUI Attorney who can provide you with the best AZ DUI defense possible.

Continue reading "AZ DUI Defenses: Inaccuracy of the Breath Testing Device" »

March 24, 2010

Arizona DUI Prosecution may not unreasonably prohibit or interfere with your Arizona DUI Lawyer's reasonable efforts to gain evidence that may assist in defending your Arizona DUI charges. Under the Fourteenth Amendment to the U.S. Constitution, the defendant has a due process right to collect independent scientific evidence of his or her blood alcohol concentration (BAC). Independent chemical tests are exculpatory evidence, (new evidence presented to help clear guilt, dismiss evidence or challenge an AZ DUI in this case).

Under AZ DUI laws, you do not have a choice of which test to take. The selection of blood, breath, or urine is up to the police at the time of the arrest. If you do not take the test requested by the police you will be deemed to have refused the test. If you do take a test, it is important that you request to have a second sample be preserved and given to you for purposes of having your Arizona DUI Attorney's own independent testing of the sample be completed. You have the right to obtain this second test sample. It is in the interest of your best AZ DUI defense to insist that your request for a sample be granted. Note, today under the current testing methods an independent breath is nearly impossible. However, a second blood test or sufficient urine sample should always be requested and preserved for defense testing and verification.

An additional review of police equipment may prove the breath test machine to be broken, or a blood test result inaccurate. Some top criminal defense attorneys, may direct you as soon as possible after you are released to proceed immediately to a hospital emergency room or your doctor and request that your blood be drawn and tested for alcohol levels. Further, if you wait too long, this test may not help you. Your independent test must be conducted promptly if it is to be of any use in your defense.

Keep in mind, you will be responsible for the cost of this test; the doctor or ER Services could be costly: And the costs may not be covered under your medical insurance policy. Next, the Arizona DUI testing methods, chain of custody or timetable may prove more of a hindrance than a defense. Lastly, hospital emergency rooms are busy with other medical emergencies, and may not consider providing a test to help your AZ DUI defense a priority. It is up to you to make the decision for the independent test or not. Do not rely on after the fact opinions. Most likely, you are reading this after getting charged with an Arizona DUI offense and make this issue moot.

Continue reading "DUI in Arizona: Legal Representation, AZ DUI Defense - Denial of Independent Test " »

March 23, 2010

Arizona DUI laws now limit how an AZ DUI Retrograde extrapolation defense can be used. This drunk driving defense provides a mathematical process by which someone's blood alcohol concentration at the time of driving. A blood alcohol content (BAC) is projecting backwards from a later chemical test. This is a fancy way of presenting that you were not driving illegally at the time of driving.

This process involves estimating the absorption and elimination of alcohol between driving and testing. The rate of elimination in the average person is commonly estimated at .015 to .020 percent per hour. This number may be different for each person's individual characteristics.

Metabolism can be affected by numerous factors, including such things as body temperature, the type of alcoholic beverage consumed, and the amount and type of food consumed. As always, if your have an experienced Phoenix DUI Lawyer, these factors should be discussed and factored into your specific Arizona DUI or DWI case.

Although this defense of drunk driving may be limited, a top Arizona DUI Attorney may still present it to the prosecution. The Arizona DUI Lawyer may present it as estimation of your BAC when driving; or by contradicting the results of the state's toxicology report; or by challenging the results of your Field Sobriety Tests (FTS).

If you have been charged with an Arizona DUI or other Criminal offense, contact the Law Office of James Novak. Call now for your Free Consultation at (480) 413-1499, with experienced Phoenix Criminal and DUI Defense Attorney and James Novak (Former Prosecutor).

The Law Office of James Novak provides legal representation to persons facing DUI & criminal charges valley-wide including Phoenix AZ Tempe AZ, Scottsdale AZ, Chandler AZ, Gilbert, AZ, and Mesa Arizona.

This post was intended to provide general information only and is not intended as specific legal advice. You should not rely upon this information alone, but should consult legal counsel regarding the application of the laws and regulations discussed and as applied to your specific case or circumstance

March 22, 2010

A common Arizona DUI arrest question is whether your DUI in Arizona can be dismissed because the Arizona DUI police did not read your Miranda rights or delayed in the reading. When stopped for an AZ DUI the police officer is not required to read you your Miranda rights immediately after the stop or after you're arrested for Arizona drunk driving.

The beginning phrase of the Miranda warning is "You have the right to remain silent. Anything you say can and will be used against you...." Most people assume that officers are required to read Miranda whenever they make any criminal arrest including a DUI arrest. That's not actually true.

There are two conditions that must be met before the police are required to read you your Miranda rights. First, you are placed under arrest. Second, in the event the officer continues to interrogate you. Your Miranda rights are to inform you that you don't have to answer any questions the policed asks you that would solicit incrimination statements. The Miranda rights are required when:

1. You're placed under arrest for DUI and the police continue to interrogate you.
2. "Under arrest" means that the Arizona DUI officer places you in handcuffs and into custody.
3. "Interrogation" means the Arizona police continue to ask questions designed to seek incriminating responses. This includes: "How many drinks did you have? What were you drinking? Do you feel intoxicated?"

Thus, if you are arrested for an Arizona DUI and are not asked and any questions about what occurred that could be used against you then there's no need for you to be read your Miranda rights, by the police officer. Normally, if you are not yet "in custody", as Arizona DUI law defines "custody", the Miranda rights need not be read. Word of caution: Police officers get around the Miranda requirement with DUI cases by asking questions before they arrest you, then whatever you say can go in the police report and be presented at trial, your DMV hearing, and used against you.

However, if the police didn't read you your rights and you gave incriminating statements harmful to your Arizona DUI defense, be sure to have an experienced Arizona DUI attorney review the facts to determine if anything you said may be suppressed or excluded from evidence as allowed by AZ DUI Law.

This post was intended to provide general information only and is not intended as specific legal advice. You should not rely upon this information alone, but should consult legal counsel regarding the application of the laws and regulations discussed and as applied to your specific case or circumstance.

March 21, 2010

If you have been charged with a DUI in Arizona, you should consult an Arizona DUI lawyer. When hired, an experienced Arizona DUI Attorney will gather and evaluate all the evidence. Based on the facts, he or she will determine what defense can be used in your case. A common defense utilized is Improper Administration of a Field Sobriety Test (FST). It is not unusual for the police officer to administer it incorrectly. A variety of reasons may also exist causing a person to perform poorly in absence of being under the influence of alcohol or drugs.

The National Highway Traffic Safety Administration (NHTSA) has established standardization guidelines regarding the administration of an FST in order for the results to be valid. Any non-standardized field tests performed by the officer, are invalid Arizona, unreliable, and can be challenged as evidence. (Neither the Federal Government (NHTSA) nor medical science considers touching your finger to your nose, saying the alphabet, or counting backwards, as valid field sobriety tests.

Standardize testing may include the Horizontal Gaze Nystagmus (HGN), Walk and Turn, and the One Leg Stand. NHTSA has set forth guidelines regarding Field Sobriety Tests (FST). The tests should not be given if the suspect:

1) is 50 pounds or more overweight;
2) is 65 years of age or older;
3) has any back, hip, leg, knee, or ankle injuries o has any disability effecting balance (past head injuries); and/or;
4) is wearing shoes with heels two (2) inches or higher.

Your attempting to do the FST is voluntary and you can refuse to do any of the field sobriety exercises mentioned above. Police attribute poor performance to possible intoxication and few people can perform the tests perfectly. Police tend to score and report your performance on the FST toward you being DUI, without taking into account the interest of Officer, nervousness, unnatural tasks, poor instruction for field sobriety test, and unfavorable conditions of environment.

So if you should fail an FST, do not fear the worse, that you will be charged with an Arizona DUI. Instead, try to remain as calm and polite as possible (easier said than done). Remember, that is just the beginning. Only an experienced Arizona DUI Lawyer can tell you what defenses you may have, to get your case dismissed, and avoid an Arizona DUI conviction, penalties, fines, and incarceration.

Continue reading "Arizona DUI Defense: Improper Administration of Field Sobriety Tests (FTS)" »

March 20, 2010

Your Arizona DUI Attorney can have your DUI in Arizona dismissed if there is "No Probable Cause to Arrest". The police officer must have reliable information which would lead a reasonable person to conclude that criminal activity has been or is being committed prior to the arrest. Otherwise, the arrest is unconstitutional and invalid. Therefore, in this event, your Arizona DUI attorney can have your Arizona DUI case dismissed. This right comes from the Fourth Amendment of the United States Constitution. The amendment specifically requires among other things, that arrests and arrest warrants be supported by "Probable Cause".

"Probable cause to arrest" holds a higher standard than "reasonable suspicion to stop" or detain a driver for questioning. For example if you were stopped because the officer, with no other witnesses, saw you drinking out of what appeared to him or her to be an opened alcohol container, that would prompt justification for a "reasonable suspicion' to stop you, and merely to begin an AZ DUI investigation. It does not justify the "probable cause" standard needed to make an Arizona DUI Arrest. The police officer must still have "probable cause" to prove that the person is under the influence of drugs or alcohol, and as a result is impaired prior to making an arrest. The police officer needs more in the way of specific evidence and facts including but not limited to, field sobriety tests, breath tests, and/or chemical tests, "enough to cause a reasonable person to believe that a crime has been committed." The judge needs to hear this actual evidence and specifics, not just assumptions, conclusions made by a police offer or the prosecution.

It is your Arizona DUI attorney's job to make sure your rights are protected and have not been violated if you have been arrested for an Arizona DUI. You have the right to a defense. You should make sure that Arizona DUI Lawyer you choose to defend your Arizona DUI is experienced and knowledgeable about Arizona DUI laws, and drunk driving defenses, and your constitutional rights. That choice can make all the difference in the outcome of your AZ DUI case and your future.

Phoenix, DUI Lawyer - Arizona DUI Attorney

Continue reading "Beat Your DUI in Arizona: No Probable Cause to Arrest Defense" »

March 19, 2010

When charged with a DUI in Arizona, you have the right to request to speak with an Arizona Criminal Defense or Arizona DUI Attorney. The police must allow you the opportunity to speak with one, at least telephonically as soon as is reasonably possible. Such a denial of your access to speak with an Arizona Criminal attorney or AZ DUI Lawyer is a violation of your constitutional rights.

Your constitutional right to counsel is derived from multiple sources including both the United States Constitution, and the Arizona Constitution. Although your right to speak with or be represented by an attorney exists, the point at which you are allowed access to that attorney may be in question. Each case presents its' own set facts and circumstances, under which the person is able to have access to speak with an Attorney. That is why it is important that you retain legal representation immediately if you have been charged with an Arizona DUI.

It will take an experienced Arizona criminal defense attorney well versed in Arizona criminal defense laws and AZ DUI laws to gather the evidence and determine if your constitutional rights were violated. So if the police unreasonably or unjustifiably deny or delay your request to speak with an attorney, regarding your Arizona DUI arrest or AZ DUI charges, be sure to relay this information to your lawyer accurately and completely. Consequently, your Arizona DUI Attorney, may later be able to request either dismissal or suppression of all the evidence in your AZ DUI case.

Continue reading "Arizona Criminal and DUI Defense: Denial of Right to Counsel " »

March 18, 2010

If you have been charged with a DUI in Arizona, another strategy used by Arizona DUI lawyers to pursue dismissal of a case is "No Reasonable Suspicion to Stop" or "No Reasonable Suspicion to Detain" a driver charged with an Arizona DUI. If you have been stopped with no reasonable suspicion to stop or be detained, all evidence may be suppressed and the case dismissed on those merits.

An investigatory stop is unconstitutional if the stop is not supported by reasonable suspicion that criminal activity is afoot. Thus, if the officer lacked a constitutionally valid reason for making the traffic stop, all evidence of drunk driving obtained as a result of the unlawful stop must be suppressed.

Examples of no reasonable suspicion to stop could include but is not limited to a police officer stopping or detaining a driver simply due to race, religion, gender, age, or other such unjustifiable reasons.

A successful defense by an Arizona DUI Attorney against an AZ DUI charge depends on first recognizing that many cases can have potential defenses to the Arizona DUI arrest and charges It may be true that you were driving under the influence, or even drunk driving in Arizona at the time you were stopped; but that, in absence of suspicion to stop or be detained, does not give law enforcement officials "free reign" to violate the Arizona DUI Laws, and your constitutional rights under them.

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March 17, 2010

If you have been charged with a DUI in Arizona, one strategy used by drunk driving defense attorneys in your case in an effort to get it dismissed is called "Lack of Driving or Actual Physical Control" while under the influence. Arizona DUI Law requires that the State establish you were driving or in actual physical control of a vehicle while impaired. In some cases there are no witnesses to testify who was driving a vehicle and then the State may be unable to meet its burden of proving the accused was driving or was in actual physical control.

Recent case law by the Supreme Court of Arizona v. Zaragoza (Arizona, 6/3/2009) shows that the potential to drive while drunk is sufficient for an Arizona DUI conviction. In other words, the tough Arizona DUI laws just got tougher. Blow is the new Arizona Jury Instructions:

"...In determining whether the defendant was in actual physical control of the vehicle, you should consider the totality of the circumstances shown by the evidence and whether the defendant's current or imminent control of the vehicle presented a real danger to [himself] [herself] or others at the time alleged. Factors to be considered might include, but are not limited to:

1. Whether the vehicle was running;
2. Whether the ignition was on;
3. Where the ignition key was located;
4. Where and in what position the driver was found in the vehicle;
5. Whether the person was awake or asleep;
6. Whether the vehicle's headlights were on;
7. Where the vehicle was stopped;
8. Whether the driver had voluntarily pulled off the road;
9. Time of day;
10. Weather conditions;
11. Whether the heater or air conditioner was on;
12. Whether the windows were up or down;
13. Any explanation of the circumstances shown by the evidence.

This list is not meant to be all-inclusive. It is up to you to examine all the available evidence and weigh its credibility in determining whether the defendant actually posed a threat to the public by the exercise of present or imminent control of the vehicle while impaired..."

It has now become even more challenging to use this defense. You need an experienced Arizona DUI Attorney to fight the tough and changing AZ DUI laws you are up against in order to defend your Arizona DUI Charge. You need to feel confident your Arizona DUI Lawyer will use every possible defense to avoid an Arizona DUI Conviction.

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March 16, 2010

DUI Defenses exist that Good Arizona DUI Lawyer can use to challenge your Arizona DUI Charges, in an effort to get your case dismissed or brought down to less serious charges. In future blogs we will discuss each of these in greater detail. Here are 10 commonly used Arizona DUI Defenses:

1. Lack of Driving or Actual Physical Control.
The Prosecution must establish you were driving or in actual physical control of a vehicle while impaired. The state may be unable to meet this burden of proof, if there were no witnesses to testify.

2. No Reasonable Suspicion to Stop.
An investigatory stop is unconstitutional if the stop is not supported by reasonable suspicion that criminal activity is afoot. Thus, if the officer lacked a constitutionally valid reason for the traffic stop, all evidence of drunk driving obtained as a result of the unlawful stop must be suppressed.

3. No Probable Cause to Arrest.
The Officer must have reliable information which would lead a reasonable person to conclude that criminal activity has been or is being committed at the time of the Arizona arrest, otherwise the arrest is unconstitutional and the case must be dismissed.

4. Improperly Administered Field Sobriety Tests (FST's).
The National Highway Traffic Safety Administration (NHTSA) has established guidelines regarding the administration of the FST. If there was a violation of any of these guidelines the test results can be suppressed.

5. Denial of the Right to Counsel
When a DUI person requests a lawyer, the police must provide you with an opportunity to speak with a lawyer telephonically as soon as is reasonably possible.

6. Violation of Miranda Warnings
The timing of when or if "Miranda Rights" may be an issue, that could lead to suppression of evidence.

7. Inaccuracy of the Breath Testing Device
For the test evidenced to be allowed, proper protocol must be followed, factors to consider are type of device used, proper maintenance of the device, its accuracy, reliability, and even the credentials of the officer administering the test.

8. Retrograde
Subtractive retrograde is a method to compensate for any alcohol consumed shortly before driving that could show a higher reading at the time of the test than "at the time of driving." This is because usually a person requires between 30 minutes and hours to completely absorb alcohol.

9. Deficiencies in Blood Alcohol Testing & Issues in Blood Cases
Results of blood alcohol testing are admissible only if the State can establish the blood was drawn by qualified personnel, proper protocol and scientific analysis used.

10. Denial of Independent Test
A person has a due process right to collect independent scientific evidence of their blood alcohol concentration (BAC). The State may not unreasonably interfere with this right.

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