Where Does the Right to An Attorney Come from?

Over a century ago, the Indiana Supreme Court in Webb v. Baird, 6 Ind. 13 (1853) , formally recognized the right to an attorney for a person accused of a crime.  However, the court did not base its decision on constitutional law.  Rather, it determined this right was grounded in "the principles of a civilized society." 

Since Baird, courts have vastly expanded the right to counsel beyond just appointing an indigent person a lawyer.  Specifically, a person has the right consult with an attorney, indigent or not, even before trial.  A person has a right to the assistance of counsel at any stage of an investigation or custody. 

In Arizona, the right to counsel comes from four sources.  First, the right to counsel was established in the United States Constitution.  The Fifth Amendment of the United States Constitution states: "No person shall...be deprived of of life, liberty, or property without due process of law..."  See also Fourteenth Amendment, U.S. Constitution.  Moreover, the Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right...to have the Assistance of Counsel for his defense."

Second, the right to counsel is also codified in Arizona's Revised Statutes.  Arizona Revised Statutes section 13-114 states: "In a criminal action [the] defendant is entitled...[t]o have counsel."


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Introducton to Field Sobriety Testing

Field sobriety tests are any one of several roadside tests that can be used to determine whether a suspect is impaired.  These psychophysical tests are performed on DUI suspects to assist an officer in the decision to make an arrest.  In theory, these tests directly assess impairment by focusing precisely on the human capabilities needed for safe driving. 

The procedures for conducting field sobriety tests are put forth by the National Highway Traffic Safety Administration (NHTSA).  NHTSA is a federal agency charged with reducing deaths and injuries from motor vehicle crashes.  They also attempt to fight drunk driving.  The are responsible for the field sobriety testing guidelines.  They base their procedures on scientific studies.  However, NHTSA does not conduct their own studies.  Rather, the studies are done by those who write grant proposals and are given monetary compensation.  Moreover, none of the studies  supporting the NHTSA Standardized Field Sobriety Testing Manual are "peer reviewed."  This is the process of subjecting an author's scholarly work, research or ideas to the scrutiny of others who are experts in the same field.

The Toughest Cases Can Have the Best Results

"If you are going through hell, keep going."
- Sir Winston Churchill (1874-1965)

The goal of every criminal defense attorney is to win.  However, in some cases the facts are so difficult to overcome, even an experienced defense attorney cannot envision winning.  This mindset is almost always fatal to a case. 

Nothing great ever came about easily.  You must believe that you can have success in order to be successful.  While you need to be realistic about the case to advise your client properly, you still must start the case with the mindset that you can win.  You cannot forclose on the possiblity of success.

Here is a real life example from one my cases.  The allegations were my client was driving a car and as it entered an intersection he struck a police officer.  Not a car carrying a police officer, but a police officer standing in the intersection directing traffic.  Prior to driving, it was also alleged that he drank a substantial amount of alcohol.  The police basically stated that he was so drunk that after the accident he was vomiting alcohol.

These are horrible facts.  It would be ridiculous for an attorney to think he could win this case.  Well I did have this case.  It may have been ridiculous for me to entertain the possibility I could win the case.  However, we did win.

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What is an Ignition Interlock Device

According to the Arizona Department of Transportation's Motor Vehicle Division, an ignition interlock device is:

...slightly larger than a cell phone and is wired to your vehicle's ignition.  The device...requires your breath sample before the engine will start.  If the ignition interlock device detects alcohol on your breath, the engine will not start.  As you drive, you are periodically required to provide breath samples to ensure the continued absence of alcohol in your system.

When the Arizona Certified Ignition Interlock Program requires the uses of a Certified Ignition Interlock Device (CIID) following a period of driver suspension / revocation, you must have one installed by a company that is authorized by the Department of Motor Vehicles (MVD).  Moreover, the MVD will monitor drivers required to have the device installed.  A person will also receive a replacement driver's license with "Ignition Interlock" written on it.

After the device is installed, the CIID must be calibrated and inspected by a certified installer every thirty (30) days for the first three months and then every other month for the duration of the installation requirement.  Drivers who do not comply with the CIID requirements are reported to MVD and may have the period for use extended.

When Can an Officer Make a DUI Arrest Without a Warrant?

In almost all DUI cases the police officer will make an arrest without an arrest warrant.  To make a lawful arrest the police officer must have "probable cause" to believe the person was driving under the influence of alcohol (DUI).  Arizona has codified this probable cause requirement in Arizona Revised Statute §13-3883. 

Arizona courts have defined probable cause as "such a state of facts as would lead a reasonable man of ordinary caution or prudence to believe and consciously entertain a strong suspicion of guilty." State v. Emery, 131 Ariz. 493, 642 P.2d 838 (1982).  When the constitutional validity of an arrest is challenged, the court must decide if the facts available to the officer at the moment of arrest “warrant a man of reasonable caution in the belief” that an offense has been committed. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).  In DUI cases, the determination to arrest is based on the what the officer has observed at the time of arrest.  At that time, was it reasonable for him to believe the person was driving under the influence of alcohol?


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Penalties For a First Offense DUI

As of September 19, 2007, Arizona has new penalties for a first time DUI conviction.  Under the new law, the penalties vary based on the blood alcohol level of the person.  Here are some of the changes the legislature has made for a person convicted of a first offense DUI with a blood alcohol concentration of above a .08 and below a .150.  

The potential jail remains the same as it did before the new law went into effect.  The minimum amount of incarceration is one (1) day and the maximum is six (6) months.  The way to avoid the one day of jail is to either get the case dismissed or reduced to a charge other than DUI.  Moreover, the penalties still include a mandatory alcohol and drug screening.  Based on the results of the screening the person can receive education and treatment.  The amount of education and / or treatment is discretionary. 

Some of the most onerous penalties concern the person's drivers license. There are three primary ways that a person's drivers license can be impacted.  First, as part of every DUI investigation the police will perform some type of chemical test.  The test is usually in the form of blood, breath or urine.  If the test results shows the person had a blood alcohol concentration above a .08, then the Motor Vehicle Division (MVD) of the Arizona Department of Transportation will be notified.  Upon receipt of the results, MVD will suspend the person's driving privileges for a period of ninety (90) days.  However, after the first thirty days (30) days a person may be eligible for a restricted driving permit.  The permit allows a person to go to and from work or school.


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