The filing of motions on legal issues is part of the art of "lawyering." In the DUI arena, most motions are intended to either suppress (i.e., keep out) evidence for various constitutional violations, or to dismiss the case in its entirety due to lack of evidence, procedural error, bad-faith prosecution, or hundreds of other reasons. All of these motions, and the numerous other types that are filed on a daily basis, ultimately are used as a tool to both protect and enforce our clients' rights.
One of the things that people always ask me when they find out what I do is, "What should I do if I'm pulled over?". In Arizona today, the enforcement of DUI's has become an obsession that often leads to innocent people being arrested. We know this, because one of the pieces of information that we get in all of our client's cases is a results page. We will often see that a huge percentage of people whose blood was tested along with our client's is either zero or significantly below the legal limit. That equates to dozen's innocent people being accused, arrested, and forced to have a cop (with less than a week's training) draw their blood every night. So the question asked is certainly a valid one. The answer is "immediately". You are always allowed to consult with an attorney. You are however, required to affirmatively request one. Ambiguous references to an attorney do not suffice. So don't ask, "Should I get a lawyer?", or "Maybe I should have a lawyer here". What one must do is unequivocally proclaim their desire to consult counsel. Many unscrupulous officers will advise you that you don't have that right at this point, and that you must balance or dance for them roadside. They are not being entirely forthright with you. From the second that the officer treats you like you are accused of DUI, it is well advised to firmly but politely insist on speaking with counsel before completing any exercises or answering any further questions. If you ever find yourself in that unfortunate situation you can contact us 24 hours a day/ 7 days a week.
In every DUI case, the first thing that the State must prove before they even start presenting any evidence about blood, breath, or urine results is driving or actual physical control of a motor vehicle. The determination as to whether a person is driving is obvious, and is usually demonstrated by a police officer testifying that they saw the Defendant drive a vehicle. Proving actual physical control of a vehicle is somewhat more complicated, and there are numerous different factors that a court takes into account to determine whether a person whom, although was not driving the vehicle at the time of their impairment, was in actual physical control of the vehicle. (For further information on actual physical control see our previous blogs).
One of the myths that I am determined to dispel is the idea of "perfection" in DUI blood testing. I have had far too many clients come to me and indicate that they have heard from friends, family, and shockingly even other attorneys, that because they took a blood test in their case, there is nothing that can be done to help them. This statement is 100% inaccurate.
People who don't live in Arizona, or even Arizonians who don't live in Scottsdale or Maricopa County, are shocked when they learn about how DUI charges are initiated and prosecuted in Arizona. Not only are people horrified to learn that the police officers here can haul you into the jai and forcibly draw your blood themselves, but are more shocked by the draconian the sentencing scheme which provides for some of the harshest penalties in the nation.
For those of you who have had enough trying to decipher the legal and scientific nuances, but are interested in following what is going on in the Scottsdale Crime lab, here is the Cliff's Notes version of the events, and reasons why this drama is so important.
The answer is a resounding yes. When someone is charged with a DUI, they are almost always charged with two separate DUI offenses. The State uses this strategy because it increases their conviction rates; i.e., if they don't get a guilty verdict on one charge, they can still try and get you on the other. In a DUI case where the cops think you are under the influence of alcohol, most of the time a person will be charged with being impaired to operate a motor vehicle at least to the slightest degree, and also with having a Blood Alcohol Concentration (BAC) above a certain amount, either .08, .15, or .20. In a case where it is alleged that a person is impaired by drugs, a similar thing happens. The suspect will be charged with driving while impaired to the slightest degree, as well as driving with the presence of a drug or its metabolite (waste product) in the blood.
Rosenstein Law Group welcomes its fifth attorney, Ashley Sinclair, to the firm. We are excited to add her to the team. Ashley had previously worked at a Phoenix based criminal defense firm before making the move. She is excellent at researching and writing as well as possessing amazing trial skills. She is an asset to the firm and we are excited to have her. You can check out her impressive list of accomplishments by clicking here or here.
Reading little fine print is important. Because when you signed up for your driver's license in Arizona you consented to having your blood, breath or urine sample taken and analyzed if a stopping officer has reasonable suspicion to believe you are driving under the influence. That is what is known as the implied consent law. By getting your license and driving on Arizona roads you have agreed to those terms. You have no say in which test is administered; that is completely up to the officer who stops you.
For the second time in two years, I have been named to the Southwest Super Lawyers "Rising Stars" list. It is honor to be recognized and it is honestly humbling to be in the company of what I consider to be some of Arizona's most capable and impressive lawyers. Being named a Super Lawyer Rising Star has many benefits. Most notably, it creates confidence that the countless hours of hard work and zealous advocacy are being recognized by my peers and the Judiciary. However, it also comes with a responsibility. I am thankful to be selected but am dedicated to proving myself worthy of this distinction and honor. To any fellow lawyers or judges who may be reading this blog and who voted for me, I say thank you.