Arizona DUI Lawyer & Attorney : Koplow & Patane Law Firm : Arizona DUI Defense

1.  If I am convicted of an Arizona DUI, do I have to go to jail?

The only way to avoid going to jail is to avoid a DUI conviction.  However, if you are convicted, Arizona DUI law requires a mandatory term of jail.  The amount of jail will depend on several factors.  To start, the results of a blood alcohol concentration (BAC) test will generally control the amount of mandatory jail required.  Here are the mandatory minimum terms of jail based on a person's BAC: 

• BAC under .150 - 1 day
• BAC of .150 and below .200 (new laws pending) - 10 days
• BAC of .200 and above - 45 days

These jail terms apply to first time DUI convictions.  Second time DUI convictions have much longer mandatory minimums. 

2.  Will I lose my driver's license if I am convicted of a DUI in Arizona?

A person's driver's license will be suspended if the results of a chemical test are above .08.  This suspension is actually through the Motor Vehicle Division - not the courts.  Thus, the suspension often occurs prior to a court conviction. 

To illustrate, take the example of a person who is arrested for DUI and performs a breath test.  Suppose the breath test results are .100 and .101.  Because the test results are above a .08, the officer will give that person a form called an admin per se / implied consent affidavit.  The affidavit will state that the person's driver's license will be suspended in 15 days.  The term of suspension is 90 days.  However, after the first 30 days the person may be eligible for a restricted driving permit.  Thus, a conviction is not even necessary for the suspension to take effect.

3.  What is the penalty if I refuse to take a breath or a blood test?

Arizona law requires that a person submit to a chemical test.  If a person refuses the test, then a 1 year driver's license suspension is triggered.  However, the person may be eligible for a special restricted driver's license after the first 90 days.  If a person is considering refusing a chemical test, they should attempt to contact an attorney to assist with this decision.

4.  Are there any other penalties to my driver's license in addition to suspension?

Yes.  After September 2007, all Arizona DUI convictions require a person to install an Ignition Interlock Device in their vehicle.  This device takes a sample of a person's breath and measures if there is any alcohol in their system.  If alcohol is found to be present in the person's system, then the vehicle will not start.

5.  If I am convicted of a DUI, will I have to go to substance abuse treatment?

A conviction for DUI requires that a person go to a drug and alcohol screening.  Based on the results of the screening the person will be required to attend substance abuse education and possibly treatment. 

• Email This
• Print
• Comments
• Trackbacks

There is an alarming increase in the number of people being charged with boating DUI, also known as OUI (operating or in actual physical control of a motorized watercraft while intoxicated) in Arizona.  What is just as troubling is the lack of evidence that has been observed in many police reports for those people charged with OUI.  For example, many people are being charged with OUI based upon field sobriety tests performed on a swaying boat giving them no chance to pass.  These types of cases have been observed at:

• Lake Pleasant
• Bartlett Lake
• Saguaro Lake
• Lake Havasu

The Arizona State legislature has passed several changes to the boating DUI statute.  Those changes will take effect in the near future. However, the current version of the law can be found in A.R.S. 5-395.  Under the current law, before a person can be convicted of the crime of OUI (boating DUI), the prosecutor must prove the person operated or was in actual physical control of a motorized watercraft that was underway within this state under any of the following circumstances:

1. While under the influence of intoxicating liquor, or drug, if the person is impaired to the slightest degree.                                                                                                                                                  
2. If the person has an alcohol concentration of 0.08 or more within two hours of operating or being in actual physical control of the motorized watercraft and the alcohol concentration results from alcohol consumed either before or while operating or being in actual physical control of the motorized watercraft.                                                                                                         
3. While there is any drug as defined in section 13-3401 or its metabolite in the person's body.  
4. If the motorized watercraft is a commercial motorized watercraft and the person has an alcohol concentration of 0.04 or more. 

Possible Boating OUI Defenses

Boating OUI cases have unique challenges and require specialized training to properly defend.  Here are some of the defenses that may be used in boating cases:

1. Illegal search and seizure violating the Fourth Amendment;
2. Field sobriety tests performed on wet, slippery and unstable surfaces (boats);
3. Falsely high blood or breath test results causing a person to be wrongfully charged with OUI, extreme OUI or super extreme OUI;
4. Detention of boaters without reasonable suspicion;
5. Use of outdated and uncalibrated breath testing machines.

The above list is merely a short sample of some of the potential defenses that may be used in an OUI case.

For Additional Information:

Lawrence Koplow is a former DUI and Vehicular crimes prosecutor.  He has extensive experience with boating DUI (OUI) cases and defenses. Lawrence uses what he learned as a prosecutor to defend people charged with boating OUI charges.  This unique experience helps him obtain the best possible results for his clients.

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.

• Email This
• Print

Reckless driving is one of the more serious misdemeanor offenses in Arizona.  The crime can be either a class 1 or class 2 misdemeanor.  When charged as a first time offense, as a class two misdemeanor, the statute has a maximum penalty of four months in jail and $750.00 fine.  Moreover, there are some additional consequences to a person's driver's license.  Reckless Driving is considered a serious moving violation and places 8 points on a person's driver's license.  This in turn, requires the person to complete Traffic Survival School. 

The crime of Reckless Driving is codified in section 28-693 of the Arizona Revised Statutes.  The statute states: 

A. A person who drives a vehicle in reckless disregard for the safety of persons or property is guilty of reckless driving.

B. A person convicted of reckless driving is guilty of a class 2 misdemeanor.

C. In addition, the judge may require the surrender to a police officer of any driver license of the convicted person, shall report the conviction to the department and may order the driving privileges of the person to be suspended for a period of not more than ninety days. On receipt of the abstract of conviction and order, the department shall suspend the driving privilege of the person for the period of time ordered by the judge.

D. If a person who is convicted of a violation of this section has been previously convicted of a violation of this section, section 13-1102 or section 13-1103, subsection A, paragraph 1, in the driving of a vehicle, or section 28-708, 28-1381, 28-1382 or 28-1383 within a period of twenty-four months:

1. The person is guilty of a class 1 misdemeanor.

2. The person is not eligible for probation, pardon, suspension of sentence or release on any basis until the person has served not less than twenty days in jail.

3. The judge may require the surrender to a police officer of any driver license of the person and shall immediately forward the abstract of conviction to the department.

4. On receipt of the abstract of conviction, the department shall revoke the driving privilege of the person.

E. The dates of the commission of the offense are the determining factor in applying subsection D of this section. A second or subsequent violation for which a conviction occurs as provided in this section does not include a conviction for an offense arising out of the same series of acts.

F. On pronouncement of a jail sentence under this section, and after the court receives confirmation that the person is employed or is a student, the court may provide in the sentence that if the defendant is employed or is a student the defendant can continue employment or schooling for not more than twelve hours per day nor more than five days per week. The defendant shall spend the remaining days or parts of days in jail until the sentence is served and shall be allowed out of jail only long enough to complete the defendant's actual hours of employment or schooling.

In sum, the crime of Reckless Driving can carry some very onerous consequences including jail, fines, traffic school and a driver's license suspension.  However, unlike a DUI conviction, jail is merely discretionary.  Thus, a person convicted of Reckless Driving does not necessarily have to serve a term of jail.

• Email This
• Print
• Comments
• Trackbacks

In the context of a DUI case, there are two common scenarios when a motorist will receive an order of suspension for their driver's license:

1. After they refuse to take a chemical test pursuant to A.R.S. 28-1321(D)(2); and
2. After a test result of .08 or greater pursuant to A.R.S. 28-1385(A).

The Motor Vehicle Division of the Department of Transportation permits a person a hearing prior to the suspension.  The hearing request can be made by mail, facsimile or email.  The request for the hearing must be received by the department within 15 days after the notice.  A timely request stays the suspension until at least the time of the hearing.

The hearing is a civil proceeding.  The burden of proof for the government is only a preponderance of evidence, as opposed to the criminal standard of beyond reasonable doubt.  The Arizona Rules of Evidence do not apply to the hearing.  For example "reliable hearsay" evidence is admissible during the hearing.

 

• Email This
• Print
• Comments
• Trackbacks

The are several types of DUI offenses in Arizona.  An extreme DUI is based on the blood alcohol concentration (BAC) level of the person accused of DUI.  Specifically, if the person has a BAC above a .150 they will be charged with extreme DUI under § 28-1382 of the Arizona Revised Statutes. 

Some of the penalties for being convicted of an Extreme DUI charge include:

• Incarceration (a term of jail)
• Fines
• Installation of an Ignition Interlock Device
• Driver License Suspension
• Substance Abuse Screening and any recommended treatment

The minimum jail term has been 30 days with up to 20 days suspended if the person complied with the recommended treatment resulting from the mandatory drug and alcohol screening.  Simply out, the judge could reduce your sentence to 10 days.  However, the Arizona Extreme DUI laws are changing in the near future.  The legislature has amened the extreme DUI statute removing the ability of judges to do the following:

1) suspend all but 10 days of first offense extreme DUI sentences. Thus, offenders must serve a full 30 day term of jail.

2) suspend all but 60 days of second offense extreme DUI sentences. Thus, offenders must serve a full 120 day term of jail.

The date of the offense will determine which penalties a person is facing. Moreover, the above stated penalties are for offender whose BAC level was between .150 and below .200. A person with a BAC of .200 or above will be facing even more punitive jail terms.

• Email This
• Print
• Comments
• Trackbacks

Luige del Puerto of the Arizona Capital Times is reporting that a proposed DUI Bill recently vetoed by Governor Janet Napolitano may have new life. The Arizona Capital times article states:

Lawmakers said they have found a way to revive a vetoed drinking-and-driving bill, minus the provision that prompted its rejection by the governor. The provisions of H2395 will be offered as a floor amendment to a House measure that deals with liquor licensing, lawmakers said. H2395 was vetoed by Gov. Janet Napolitano April 29.

This time, however, it doesn't include a provision that called for a six-month reduction of the interlock penalty for first-time offenders who met certain conditions. Napolitano has said the penalty reduction was the reason for her veto.

Sens. Linda Gray of Glendale and Jim Waring of Phoenix said the move has the support of House Speaker Jim Weiers and added they anticipate no problems for the amendment. The amendment would:

*Require the State Treasurer to deposit 5 percent of modified restaurant license fees into the DUI Abatement Fund.

*Increase penalties for operating a watercraft while intoxicated, bringing some parity between driving a motor vehicle and operating a watercraft.

*Fix a discrepancy in statute that arose from the passage of the DUI bills last year.

*Require DUI offenders to submit to alcohol screening, education and treatment before a suspended license will be returned.

*Expand the circumstances in which a police officer may serve a license-suspension order.

• Email This
• Print
• Comments
• Trackbacks

Kim Smith of the Arizona Daily Star has reported that a Tucson City Court judge has ruled prosecutors cannot use the results of breath tests administered to 49 people scheduled to be tried before him on DUI charges. Her article states:

If other judges agree with Judge Thomas Berning, prosecutors could find it hard to prosecute thousands of other DUI cases locally and statewide. "I'm optimistic the other judges will agree with Judge Berning. It's a well-written decision," said defense attorney Joe St. Louis.  "This could be really big."

Last year, law-enforcement officers across Arizona began administering breath tests to suspected drunken drivers using a new machine called the Intoxilyzer 8000, St. Louis said. Almost immediately, defense experts realized the machines were sometimes providing "weird" or inexplicable results, St. Louis said.

In order to figure out what was going on, the experts said they needed to see the machines' "source card" or software. The software would also enable the experts to determine whether the results were accurate and reliable, St. Louis said.

 

 "It's a Sixth Amendment issue," St. Louis said. "Defendants have the right to cross-examine and confront their accusers." Defense attorneys began demanding the software from prosecutors, arguing they have a constitutional right to the information. Because prosecutors revealed they didn't have access to the software, Berning ordered the machine's manufacturer, CMI, to provide the software.

When CMI refused, defense attorneys filed a motion on behalf of 49 defendants asking Berning to dismiss their cases completely, suppress the results of the breath tests or assess monetary damages against CMI. Prosecutors told Berning the software is "proprietary" and can't be ordered disclosed, and the law doesn't allow for the evidence to be suppressed. They also argued they had given defense attorneys everything they had in their possession. Late last week, Berning ruled the results of the breath tests should be withheld from jurors.

Prosecutors will still, however, be able to provide jurors other evidence that could prove a defendant's guilt, such as the results of field-sobriety tests, St. Louis said. Although she can't comment on pending litigation, city prosecutor Laura Brynwood said she plans to appeal the judge's decision.

• Email This
• Print
• Comments (1)
• Trackbacks

It is commonly believed that “drunk driving” is the reason for a DUI charge. However, DUI stands for “driving under the influence” of alcohol or drugs. Under Arizona law, you do not have to be “drunk” to be convicted of DUI. Rather, the law requires only that your driving be impaired by alcohol; Arizona law provides that you cannot drive if your ability to do so is impaired to any degree.

When you are arrested for DUI, you generally receive two types of charges. The first alleges that you were driving while impaired by alcohol or drugs to at least “the slightest degree.” Thus, to violate the statute, you do not have to be falling-down drunk. Rather, a slight impairment of your ability to drive, due to alcohol, violates the law.

The second type of charge you receive when arrested for DUI relates to your blood-alcohol concentration (BAC). For a basic DUI allegation, you’re charged with having a BAC greater than .08 percent within two hours of driving. If your BAC is greater than .150, you may receive an additional charge of Extreme DUI (or if above .200 a "super-extreme DUI.")  These are sometimes referred to as “per se” charges, meaning that if the State can prove your BAC is above a certain limit, that alone proves a violation of the DUI statute.

Many “per se” violations are defended on the grounds that the means used to determine one’s BAC have a large range of accuracy. That is, even if the device used to test your breath or blood was working perfectly, your BAC may actually be lower than indicated. The State concedes that this range of accuracy exists. However, the real debate is over the extent of this range.

Let’s assume that an argument exists that expands this range of accuracy, or that some other flaw occurred in the testing process, that puts your BAC results below the per se limit of .08 percent. Does that mean the State cannot proceed with the DUI case? The State may still be able to prosecute the case, but it will be forced to rely on the charge that you were impaired to the slightest degree.

In practical terms, it would be very difficult for the State to proceed with the case if it cannot prove that your BAC was greater than .08. Moreover, there are certain legal presumptions regarding a person’s BAC that could further complicate the State’s case. However, the above situation illustrates a crucial point: You do not have to be drunk to be charged with DUI.

While I cannot remember a DUI client who was convicted with a BAC of less than .08, drivers should know that they do not have to be “drunk” to be charged with DUI. In addition, if you do get charged with DUI and end up beating the charge, the entire process will be costly and fraught with risk.

Thus, before you drink and drive, do not ask yourself “Am I too drunk to drive?” Rather, the question should be “Will the alcohol at all impair my driving?” Asking – and honestly answering – this question may keep you out of my office.

• Email This
• Print
• Trackbacks

There has been a lot of publicity regarding the new Arizona DUI laws. These new laws have created some of the toughest penalties in the nation. However, it appears that drinking and driving in Arizona could result in something worse than jail.

Mark Flatten of the East Valley Tribune is reporting that a man shot a hit-and-run suspect in Scottsdale, Arizona.

An attempt to block a fleeing hit-and-run suspect ended with a gunshot in Scottsdale Saturday.

Martin Ezekiel, 23, of Phoenix was arrested on charges of aggravated assault after he fired a shot into a truck that had been involved in an accident a short time earlier, wounding the passenger, according to Scottsdale police.

The truck driven by Adbul Muhammad, 28, of South Carolina, struck another vehicle about 1 a.m. Saturday in a Phoenix parking lot and left the scene, according to police reports. Ezekiel and Shawn Azzarello, 24, of Phoenix, witnessed the accident and followed Muhammad’s truck into Scottsdale, eventually blocking it in a parking lot at 15550 N. 78th St. When the truck backed toward Ezekiel’s vehicle, he fired a single shot, striking an unidentified passenger in the right forearm, according to police reports. Both vehicles then left the area but were later stopped by police.

Ezekiel was arrested on charges of aggravated assault, and Azzarello for DUI and drug possession. Muhammad was arrested for DUI.

The unidentified gunshot victim was taken to Scottsdale Healthcare Osborn. His wound was not considered life threatening.

I guess having to use an ignition interlock device is not as bad as being shot. Who knew that it could get worse for people suspected of DUI in Arizona?

• Email This
• Print

Lawrence Koplow is a founding member of Koplow & Patane. His criminal practice is dedicated and focused on DUI law and vehicular crimes defense. His clients have included police officers, firefighters and lawyers charged with DUI. Attorneys often consult with him to assist with their own DUI Clients.

He is a proud graduate of the University of Texas at Austin. He is also an active member of:

• The National Association of Criminal Defense Lawyers (NACDL)
• The State Bar of Arizona
• The American Bar Association
• The Arizona Attorneys for Criminal Justice

Lawrence is a former prosecutor with the Maricopa County Attorney’s Office. When he left the County Attorney’s Office, he was working in the Vehicular Crimes Unit. While in the vehicular Crimes Unit, Lawrence prosecuted:

• Felony and Misdemeanor DUI Cases
• Leaving the Scene of Injury Accidents Cases
• Vehicular Assault cases
• Vehicular Homicide cases

After leaving the prosecutor’s office. Lawrence worked in the in-house counsel group for Farmer’s Insurance, where he primarily handled the defense of automobile accident cases. This included defending civil lawsuits arising from DUI crimes.

Mr. Koplow subsequently co-founded the law firm of Koplow & Patane.  His practice is focused on the defense of impaired drivers charged with DUI and vehicular crimes. Now he uses what he learned as a prosecutor to benefit his clients. Lawrence frequently writes regarding emerging DUI issues and defenses. He also presents lectures on DUI defense strategies, DUI prevention and effective DUI investigations. Some of the people has conducted DUI seminars for include:

• The Chicago Cubs
• The Oakland Athletics
• The Arizona Association of Civll Defense Attorneys
• The Northern Arizona Police Department

He has also been a guest lecturer on KTAR Radio in Phoenix regarding DUI and Vehicular Crimes cases. 

For Additional Information:

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.

Locations

Lawrence and his firm practice in the following Arizona locations:

Phoenix Scottsdale Tempe Gilbert Chandler Surpirse Apache Junction Flagstaff Sedona Bullhead City

Glendale Peoria Avondale Buckeye Carefree Cavecreek Casa Grand Prescott Lake Havasu Tucson

• Email This
• Print

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.

Pursuant to A.R.S. § 28-3318(A), the MVD must provide written notice to a licensee informing him when his license is suspended. The written notice must be sent by mail to the address provided to the Department on the licensee’s application, unless the licensee has notified the Department of a change in his address pursuant to § 28-448(A) (requiring licensees to “notify the department within ten days” of any change in address). § 28-3318(C). Moreover, pursuant to § 28-3318(D), “[s]ervice of the notice provided by this section is complete on mailing.” Furthermore, § 28-3318(E) provides:

Compliance with the mailing provisions of this section constitutes notice of the suspension, revocation, [or] cancellation . . . for purposes of prosecution under § 28-1383[.] The state is not required to prove actual receipt of the notice or actual knowledge of the suspension, revocation, [or] cancellation[.]

Although the law establishes a presumption that the licensee has received notice, and therefore has actual knowledge of his license suspension when the Department complies with the mailing requirement, this presumption is rebuttable and a person may demonstrate that he did not receive the notice. See State v. Jennings, 150 Ariz. 90, 94, 722 P.2d 258, 262 (1986). “[O]nce the state proves mailing of the notice of suspension, the state no longer has the burden to prove receipt of the notice or actual knowledge of its contents. The burden then shifts to the defendant to show that he did not receive the notice.” State v. Church, 175 Ariz. 104, 108, 854 P.2d 137, 141 (App. 1993).

Therefore, it is not enough for an attorney to merely argue the person did not know his license was suspended.  Rather this is just the first step in the defense.  The defense must also show the person did not deliberately ignore the status of his license.    

 

• Email This
• Print

What are the new DUI laws that go into effect today?  Most people do not really know what our legislature has done to the DUI law.   Effective today, Arizona probably has the toughest DUI laws in United States.  There are significant penalties for first time offenders.  An article written by the Arizona Republic's Linsey Collon provides a summary of the new changes.

This week Arizona will enact one of the toughest DUI laws in the nation.  Hardest hit are first-time violators and a new class of "super extreme" DUI offenders whose blood-alcohol concentration registers 0.20 percent or above, which is more than double the legal limit of 0.08 percent.

Beginning Wednesday, new penalties include mandatory ignition-interlock devices for first-time offenders, increased fines and a minimum of 45 days in jail for super extreme DUI convictions.

The law was modeled after legislation passed in New Mexico in 2005 requiring interlock devices for all people convicted of driving under the influence. Officials there linked a 4 percent decrease in alcohol-related fatalities to interlock use in the year following the law's passage.

Although lawmakers hope for a similar result in Arizona, DUI attorneys say the higher stakes will lead to increased court caseloads and an extreme inconvenience in the lives of "super extreme" and first-time offenders.

The Arizona Motor Vehicle Division expects about 17,000 first-time drunken drivers in the coming year. They all will have to pass a breath test before getting behind the wheel. 

Rep. David Schapira, D-Tempe, realizes the bill he sponsored may not win him votes in popularity, but he hopes the law will make Arizona's roads safer.

One Arizona State University student said during a recent chat with legislators " 'Gosh, that DUI bill is just ridiculous. Whose idea was this?' " Schapira said.

The negative response is understandable, he said, given that the penalties are meant to be strong deterrents.

Schapira, the Legislature's youngest member at 27, and his staff came up with a DUI bill earlier this year after learning about New Mexico's success. Although a victim of an alcohol-related crash in 1996, Schapira said he hadn't fully realized the problem of drunken driving in Arizona.

National Highway Traffic Safety Administration records show Arizona had the sixth-highest number of alcohol-related fatalities in the nation. There were 585 alcohol-related fatalities statewide in 2006, up 15 percent from 2005.

Overall, drunken driving has significantly decreased in the past 20 years, but the state has hit a plateau, said Ericka Espino, executive director for Mothers Against Drunk Driving Arizona.

"Saturation patrols certainly help, as do sobriety checkpoints, and we're thankful," Espino said. "Unfortunately, Arizona's numbers are not going down. . . . We need to figure out what's going on. We truly believe ignition interlock is the solution for us: It takes the weapon out of the hands of the drunk driver."

The law, which was signed by Gov. Janet Napolitano in May, made Arizona the second state to require ignition-interlock devices for first-time offenders. Louisiana and Illinois also followed suit.

Interlock devices are wired beneath the dash of a vehicle and require a clean breath sample to start the car. Most units will prevent the car from starting if a blood-alcohol content of 0.03 percent or above is detected. A person has three tries to blow a clean sample before the device shuts down and requires a technician to recalibrate it.

About 100,000 people in the U.S. use the devices; about 7,000 of those are in Arizona, according to MVD records. Most, if not all, users in Arizona are repeat offenders. 

The harsh new stance on drunken drivers has its share of detractors.   Critics say interlock devices are expensive to maintain and provide a short-term answer to a long-term problem.
The offender pays for the device, which typically costs $100 for installation and about $80 a month to maintain. Most first-time offenders will have the device for 12 months. That cost is in addition to the more than $1,000 in fines imposed for a DUI conviction.

And studies have shown that while interlock devices are effective while in use, drivers tend to slip into old habits once the units are removed.

"We recognize that many offenders may have an alcohol dependency that underlies their drinking-and-driving behavior," said Anne McCartt, vice president for research at the Insurance Institute for Highway Safety. "Even if interlocks don't prevent drinking and driving when they're removed, it can reduce drinking and driving while they're installed, and we think that's important."

The article goes on to point out that the new law requires those charged with the new "super extreme" violations (BACabove a .200) must serve at least forty-five (45) days in jail.    The likely result of these new penalties is that more people will take there there cases to trial.  Since the penalties are so server for first time offenders, there is little incentive for a person to enter into a plea agreement.

• Email This
• Print

Arizona DUI attorney Lawrence Koplow is a former DUI and Vehicular Crimes prosecutor.   Lawrence uses what he learned as a prosecutor to help his clients charged with drunk driving crimes.  His practice, which is located in the Phoenix / Scottsdale area, is focused on DUI defense. 

Arizona law is unique when it comes to the crime of DUI.  Thus, it is important to understand exactly what conduct is illegal in our State.  Under the current law, it is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:

1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree;
2. If the person has an alcohol concentration of 0.08 or more within two hours of driving or being in actual physical control of the vehicle and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle;
3. While there is any drug defined in section 13-3401 or its metabolite in the person's body;
4. If the vehicle is a commercial motor vehicle that requires a person to obtain a commercial driver license as defined in section 28-3001 and the person has an alcohol concentration of 0.04 or more.

Under subsection one of the statute, it plainly states that a person has committed DUI when they are merely "impaired to the slightest degree" by alcohol.  Thus, a person doe not have to be "drunk" to in violation of Arizona law. 

The penalties for a first time Arizona DUI conviction are numerous.  A conviction for a first offense DUI conviction is a class 1 misdemeanor.  Consequently, the maximum jail sentence is six months; and the maximum fine is $2500.  For most cases, the maximum penalties are very unlikely.  On the other hand, the statute contains several other penalties.  The following list outlines these potential penalties:

• Mandatory minimum jail term of 24 hours (1 day)
• Fine of not less than $250.00
• Driver's License Suspension
• Ignition Interlock Device
• May be ordered by a court to perform community restitution
• An assessment of 500.00 to the prison construction and operations fund
• An assessment of 500.00 to the state treasurer in the state general fund
• Court ordered alcohol screening, education or treatment program

A DUI conviction also results in 8 points on a person's driver license.  The accumulation of these points will result in the the Motor Vehicle Division of the Department Transportation requiring the motorist to attend Traffic Survival School.  As stated above, a person will also have their driver's license suspended.  The suspension is for a period of 90 days.  However, a restricted license may be available after the first 30 days of the suspension.  

These cases are complex and the penalties are harsh.  If you are facing a DUI charge 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.

• Email This
• Print

Phoenix Traffic Attorney Lawrence Koplow has extensive experience defending both criminal and civil traffic violations.  In additional to DUI cases, Mr. Koplow's firm also assists motorists with the following types of traffic issues:

• Criminal Speeding Tickets
• Civil Speeding Tickets
• Red Light Tickets
• Photo Radar Tickets
• Driver's License Suspensions
• Driver's License Revocations
• CDL & Trucker Violations
• Traffic Warrants
• Reckless Driving
• Aggressive Driving
• Out-of State Drivers

For Additional Information:

Lawrence Koplow is a former DUI and Vehicular crimes prosecutor.  He has extensive experience with the Arizona traffic laws. Lawrence and his firm use this experience to defend people charged with traffic violations.  This unique knowledge helps him obtain the best possible results for his clients.

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.

• Email This
• Print

It is unusual to find someone charged with the crime of aggressive driving in Arizona.  The primary reason is that the statute is complicated and requires several different traffic violations.  

ELEMENTS OF AGGRESSIVE DRIVING (A.R.S. §28-695)

In Arizona, a person commits the crime of aggressive driving if both of the following occur:

During a course of conduct the person commits a violation of either section 28-701, subsection A or section 28-701.02 and at least two of the following violations:

• Failure to obey traffic control devices as provided in section 28-644. 
• Overtaking and passing another vehicle on the right by driving off the pavement or main traveled portion of the roadway as provided in section 28-724.
• Unsafe lane change as provided in section 28-729.
• Following a vehicle too closely as provided in section 28-730.
• Failure to yield the right-of-way as provided in article 9 of this chapter.                                    

The person's driving is an immediate hazard to another person or vehicle. 

For the purposes of this statute "course of conduct" means a series of acts committed during a single, continuous period of driving.  Moreover, the statute requires some type of speed violation when it refers to a violation of sections 28-701, subsection A or section 28-701.02.

PENALTIES FOR AGGRESSIVE DRIVING

A person convicted of aggressive driving is guilty of a class 1 misdemeanor.  As a class 1 misdemeanor, the maximum penalty is a six month jail term and maximum fine of $2500.00.  However, there is not a minimum jail or fine requirement.  The aggressive driving statute does have the following additional penalties:

• A person convicted of a violation of this section shall attend and successfully complete approved traffic survival school training and educational sessions that are designed to improve the safety and habits of drivers and that are approved by the department.                    
• The court shall forward the abstract of conviction to the department and may order the department to suspend the person's driving privilege for thirty days.

If you are facing an aggressive driving charge 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.

• Email This
• Print

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.

• Email This
• Print

Challenging the reliability of a chemical test result is usually essential to effectively defending a DUI case.  In order to accomplish this task a thorough understanding is needed of the types of chemical testing used in Arizona and the scientific principals behind those tests. Here are the three types of chemical tests used by Arizona law enforcement:

1. Breath Testing
2. Blood Testing
3. Urine Testing

Blood and breath testing are by far the most common.  Moreover, there is a trend in Arizona law enforcement moving towards blood as the primary testing method.  However, some police agencies such as the Department of Public Safety appear to be staying primarily with breath testing.  Urine testing is utilized mostly in cases where it is suspected that a person is under the influence of drugs.  Urine testing is seldom used in our state for blood alcohol testing.  Below is a summary the potential defenses for cases involving both breath and blood alcohol testing. 

BREATH TESTING DEFENSES

In order to know what defenses may be available to an attorney, an understanding of the breath alcohol testing process is required.  Breath testing is based on the scientific principal of Henry's law (also referred to as Henry's coefficient).  Henry's law was conceived by the English scientist William Henry. The principal provides in a closed container over time some of the molecules in a liquid will travel into the gas above the liquid. The amount of molecules that travel into the gas will be directly proportional to the number of molecules in the liquid.  Henry's law assumes a constant temperature and a closed system.  Consequently, all the factors that may influence Henry's law may also effect the results of a breath test.

The instrument used to apply Henry's law to breath testing is an Intoxilyzer.  In Arizona, most agencies now use the Intoxilyzer 8000.  The instrument is manufactured by a company named CMI.  The instrument is supposed to take a sample of the subject's lung air and use the principals of Henry's law to estimate a person's blood alcohol concentration.

Her are some of the challenges to evidentiary breath testing:

• Range of Accuracy
• Temperature Changes
• Lack of a Deprivation Period
• Radio Frequency Interference
• Failure Keep Calibration Records
• Partition Ratios
• Lack of Warranty
• Forced Agreement of Tests
• Breathing Patterns
• Mouth Alcohol
• Hermatocrit Levels
• Calibration Errors
• Source Code Disclosure

 BLOOD TESTING DEFENSES

Similar to breath testing, blood testing also relies on the principals of Henry's law.  However, a different instrument is used to test the blood sample.  Most forensic laboratories use a headspace gaschromatograph.  Headspace refers to the space in a vial above the sample where the gas portion is located. Headspace analysis is the analysis of what is present in that gas. In its simplest terms, gas chromatography attempts to separate and identify what is in that head space gas. 

Some of the attacks that can be made on this blood testing process are:

• Margin of Accuracy
• Improper Tube Inversion
• Chain of Custody
• Contamination of Sample
• Proper Site Cleaning
• Lab Testing Errors
• Expired Materials
• Serum Samples
• Failure to Follow Manufacturer's Instructions

While blood testing can be an accurate and precise measure of a person's blood alcohol concentration, it is not perfect.  Even under ideal conditions, there will still be a range of accuracy regarding test results.  However, conditions are not always ideal.  When basic scientific protocols are not followed the reliability of the test comes into question.

• Email This
• Print
• Comments
• Trackbacks