Going From 3 Years in Prison to Probation

I was working with a client who was facing a very serious felony charge that carried a mandatory five (5) year presumptive term in prison. When he first came into my office he asked the obvious question: What can you do for me?  This is the same question many prospective clients want answered.  Moreover, it is an appropriate question.

I always answer this question the same way: “I don’t know.” This is the only truthful answer that an attorney can give on the first day of a case. I use the following analogy to explain why I give this answer. You go to the doctor and ask him "can you cure me"? The doctor will tell you: “I need to do some tests first.” The same it true for a criminal case.  If an attorney tells you how your case will turn out on the first day, I advise that you run out of the office as fast as you can. Common sense tells you that such promises made on day one of a case are baseless.

I explained to the client how I would handle his case.  I also communicated to him my experience and my strategy to fighting criminal charges.  He retained me and I went to work on the case.

The prosecutor made it very obvious that she wanted my client to serve a long term of incarceration. She made us a three and a half (3½) year plea offer which I thought was unreasonable give the circumstances.  As the case went on, my client’s resolve started to weaken. He was considering taking the plea. I told him it was his decision, but I did not recommend taking the plea. While I advised him to seriously consider the plea before making a decision, I did not see the plea having a great benefit based on several weaknesses in the State's case.

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Everyone's Blood is Not the Same

Law enforcement's primary method for determining if a person is driving under the influence of alcohol is a chemical test.  That is, a police officer will take a sample of a susect's blood  or breath.  The chemical test assumes that the composition of everyone's blood is the same.  Specifically, the test assumes that all people have the same hematocrit level.  However, this assumption is incorrect.

The hematocrit level, or packed cell volume, is a measure of the proportion of blood volume that is composed by solids.   Whole blood is composed of solid particles in liquid.  the solid portion of whole blood contains: (1) white blood cells; (2) red blood cells; and (3) platelets.  The liquid portion of the blood is known as plasma. 

In this manner, if a man has a hematocrit level of  .51, then his whole blood consists of 51% solids and 49% liquids (plasma).  This solid to liquid ratio will effect the outcome of a blood alcohol concentration test.  The reason is the liquid portion of the whole blood, the plasma, contains water.   Alcohol is more susceptible of being dissolved in water than is the solid portion.  Consequently, the liquid portion of the whole blood will have a higher concentration of alcohol than the solid portion.

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What If I Didn't Know My License Was Suspended

The most common way that a person is charged with aggravated DUI (felony DUI), is at the time when they are allegedly driving under the influence, their drivers license was suspended.  As odd as this may sound, it is very common that a person did not know their license was suspended.  This is because the procedures of Department of Transportation's Motor Vehicle Division (MVD) are so complicated and confusing, that even most lawyers cannot figure them out.  Thus, the difference between a felony DUI requiring a prison term, and a misdemeanor DUI requiring a short term of jail, can be the simple fact the person did not pay an $85.00 fee.

Most people think, "no problem, I will just explain that I didn't know my license was suspended."  However, this explanation will not satisfy a prosecutor.   This is because Arizona law does not require that you actually know your license is suspended to make the crime a felony.  Thus, the strategy in defending these cases is to show the client did not deliberately ignore the status of his license.    

Here is the basic law regarding aggravated DUI due to a suspended license.  Aggravated DUI based on a suspended license requires proof that the defendant drove a motor vehicle under the influence of alcohol while his license was suspended, and that he knew or should have known of the suspension. State v. Williams, 144 Ariz. at 489, 698 P.2d at 734.

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