You have a bandwidth problem

An analyst from a crime lab testifies that a defendant, who is charged with DUI, has a blood alcohol concentration of .120.  Despite the legal requirements that the state must prove the test is trustworthy, most jurors have made a blink judgement the that test is correct.  As is often the case, the appearance of science is a powerful tool of persuasion.  This is true  even when the opinion is based upon junk science.
 
Here, despite the claims of the analyst and unbeknownst to the jury, the test result was done using unreliable equipment relying on defective software.  Your challenge: undo the jury's initial judgments, demonstrate the analyst is too biased and lacking the qualifications to understand the severity of the equipment's defects, and show the result can't be trusted.  This is no small task.
 
This task will take time.  It requires a thorough understanding of the many underlying scientific disciplines involved.  Adequately educating the jury will require information from several different sources.  Each piece of evidence will present a different evidentiary challenge.  In short, beyond the inherent difficulties of such cases, you also have a bandwidth problem.
 
Bandwidth is the amount of data that can be transmitted in a fixed amount of time.  DUI trials have time and evidentiary limitations.  There are not intended to be semester long science classes.  There are practical realities inhibiting you from properly educating a jury with the knowledge they need to debunk these unsound claims.  If left unaddressed, a court may not even recognize this bandwidth dilemma.
 
Consider the problem in the following terms.  A presentation that does not reach the audience persuades no one.  If Netflix creates next years best new drama, but there is not enough bandwidth to stream it, then what was the point of creating it.  No one pays a subscription fee to see a "buffering" message.  Quality is meaningless without bandwidth.
 
Being right is does not convince a jury without an adequate opportunity to present it to a jury.   In these cases, you don't have a right or wrong problem - you have a bandwidth problem.  Accordingly, neglecting the bandwidth argument can be fatal.  If you don't sufficiently address this issue, then no one may hear how right you are.

No Consent, No Warrant, No Blood

Some things in life seem obvious. It is hotter in the summer. It is colder in the winter. The government must get a warrant to stick a needle in your arm before they forcibly take your blood. However, this last presumption has not been so obvious in Arizona.

For years in Arizona, attorneys have been arguing that law enforcement must get a warrant before taking your blood during a DUI investigation. Unless, of course, the person “expressly consents” to the blood draw. However, many Arizona courts have held that, under Arizona law, we should "imply" your consent to the blood test. Thus, there is no need to ask for your consent, nor to get a warrant before taking blood.

In most DUI cases, officers ask the person suspected of DUI if they will consent to the blood draw. The officer will explain that if you refuse to give consent, a one (1) year license revocation will be triggered. Moreover, the officer will likely inform you that they will also get a telephonic warrant, in a matter of minutes, and forcibly take your blood. Consequently, the majority of people do give consent to the blood draw. This scenario is perfectly legal.

However, every year I see a number cases where law enforcement just takes the person’s blood without asking for consent. They merely say "give me your arm" and take the blood. Most experienced DUI officers will not engage in such conduct. Yet this situation keeps occurring. And until now, many courts have upheld the officer's actions.

On September 1, 2009, the Arizona Court of Appeals stated the obvious.  They held that law enforcement must obtain a search warrant to take a DUI suspects blood - unless the person “expressly agrees” to have their blood drawn. The Court reasoned:

Arizona’s Implied Consent Law, A.R.S. § 28-1321, requires the State to obtain a warrant before drawing a blood sample from a DUI suspect unless the suspect “expressly agree[s]” to submit to the blood test. A.R.S. § 28-1321(B), (D) (Supp. 2005).

We hold that the “express agreement” required by the statute must be affirmatively and unequivocally manifested by words or conduct, and may not be inferred from a suspect’s mere failure to communicate clear objection to the test.

In sum, there is nothing “obvious” about Arizona DUI laws.

Services

Lawrence Koplow defends all types of DUI and vehicular crimes cases, including:

Mr. Koplow also defends traffic crimes and driver's license issues such as driver's license suspensions, speeding tickets and photo radar tickets.  Mr. Koplow and his firm have extensive experience resolving issues with the Motor Vehicle Division (MVD) of the Arizona Department of Transportation.  This area of his practice includes the following types of cases:

As a former a vehicular crimes prosecutor Mr. Koplow has unique experience defending felony vehicular crimes charges.  Vehicular cases, such as drunk-driving accidents, are the most challenging types of criminal case and require extensive training and experience.  Mr. handles the following types of vehicular crimes cases:

Mr. Koplow also represent defendants in appeals and / or post-conviction relief motions for all of the above charges.  Mr. Koplow may handle other types of cases for his clients, however, these cases are accepted on a case-by-case basis.

PUBLICATIONS AND PRESENTATIONS

  • Accreditation, Lies, and ISO Standards:  The Continuing Scottsdale Saga, 27th Annual Aggressive Defense of the Accused Impaired Driver conference, Arizona Attorneys for Criminal Justice, Tucson, Arizona, May 10, 2014.
  • Winning a Blood Case When They Say Everything Looks Perfect, June 26, 2014, APDA Statewide Conference, Tempe, Arizona, June 27, 2013.
  • Daubert and the Scottsdale Crime Lab: Separating Science from Science, 2013 APDA Statewide Conference, Tempe, Arizona, June 27, 2013.
  • Trial Tactics that Work, 25th Annual Aggressive Defense of the Accused Impaired Driver Seminar, Arizona Attorneys for Criminal Justice, Tucson, Arizona, May 2012.
  • Prosecutor and Defense Professionalism, Maricopa County Attorney Office Training and Development
  • Civil Aspects of Impaired Driving Cases, The Arizona Association of Civil Defense Attorneys
  • Impaired Driving Investigations for Law Enforcement, The Northern Arizona Police Department 
  • Challenging Blood Alcohol Measurements, In Vehicular Homicide Cases (Chapter), Defending DUI Vehicular Homicide Cases, Aspatore Publishing, 2015 Edition.

AWARDS

Lawyer Of The Year For Outstanding Contribution To DUI Defense Award, May 1, 2015, by Arizona Attorneys For Criminal Justice.

For Additional Information or Case Review:

Contact Lawrence Koplow online or call him at his office at (602) 494-3444.  Mr. Koplow and his firm will be available to help you solve your legal problems.

 

Lawrence Koplow, Aggravated DUI Attorney / Lawyer, Arizona

Aggravated DUI is one of the most serious vehicular crimes in Arizona.  The crime is codified in subsection 28-1383 of the Arizona Revised Statutes.  It is one of the few crimes that can require a mandatory prison term for first time felony offenders.

ELEMENTS OF AN AGGRAVATED DUI

Under Arizona law, a person is guilty of Aggravated DUI, sometimes known as felony DUI, if the person does any of the following:

  1. Commits a violation of section 28-1381 (DUI), section 28-1382 (extreme DUI) or this section while the person's driver license or privilege to drive is suspended, canceled, revoked or refused or while a restriction is placed on the person's driver license or privilege to drive as a result of violating section 28-1381 or 28-1382 or under section 28-1385.
  2. Within a period of eighty-four months commits a third or subsequent violation of section 28-1381 (DUI), section 28-1382 (extreme DUI) or this section or is convicted of a violation of section 28-1381, section 28-1382 or this section and has previously been convicted of any combination of convictions of section 28-1381, section 28-1382 or this section or acts in another jurisdiction that if committed in this state would be a violation of section 28-1381, section 28-1382 or this section.
  3. While a person under fifteen years of age is in the vehicle, commits a violation of either the DUI or extreme DUI statutes
  4. While the person is ordered by the court or required pursuant to section 28-3319 by the department to equip any motor vehicle the person operates with a certified ignition interlock device, does either of the following:

(a) While under arrest refuses to submit to any test chosen by a law enforcement officer pursuant to section 28-1321, subsection A.

(b) Commits a violation of section 28-1381 (DUI), or section 28-1382 (extreme DUI).

Aggravated DUI is a class 4 felony when the person is alleged to have committed a DUI while his license was suspended, revoked, canceled or restricted (including an ignition interlock).  It is also a class 4 felony when it is alleged that the person committed a third DUI within 84 months.  Moreover, Aggravated DUI is a class 6 felony when it is alleged that the person committed a DUI offense and there was a person under the age of 15 years old is in the automobile.  It is also a class 6 felony to have a requirement of an ignition interlock device and while under arrest refuse to submit to any test chosen by a law enforcement officer pursuant to Arizona's implied consent law.

 
PENALTIES FOR AGGRAVATED DUI

The penalties for an Aggravated DUI will vary depending on portion of the statute violated.  For class 4 felony DUI cases: "a person is not eligible for probation, pardon, commutation or suspension of sentence or release on any other basis until the person has served not less than four months in prison." The minimum prison term can be raised to eight months in certain circumstances.  The term of imprisonment will be followed by a term of probation.  However, it is important to remember that a judge is not required to sentence a person to these stated minimum terms.  While uncommon, a judge does have the discretion to sentence a person to a longer term of prison.

For the class 6 felony, prison is not mandatory.  However, a person will have to serve a term of jail.  The minimum term of jail will be based on the results of the person's blood alcohol concentration test.  Thus, the minimum term of jail will be either one day or ten days (soon to be increased by the legislature.) 

Beyond incarceration, there are several other penalties that come with an Aggravated DUI conviction.  Below is summary of a few of the potential penalties:

  • Attend and complete alcohol or other drug screening, education or treatment from an approved facility;
  • Revocation of the person's driving privileges;
  • Require the person to equip any motor vehicle the person operates with a certified ignition interlock device;
  • Order the motor vehicle owned and operated by the person at the time of the offense forfeited;
  • Fine of not less than seven hundred and fifty dollars;
  • Pay an additional financial assessments.

If you are charged with an Aggravated DUI offense then feel free to contact Lawrence Koplow online, or call him at his Phoenix / Scottsdale area office at (602) 494-3444 to discuss your legal options.