Arizona DUI Defense Blog : by Lawrence Koplow, Scottsdale & Phoenix DUI Lawyer & Attorney | Koplow Law Firm

Here is the math used in Arizona: INCREASED JAIL + DUI PROBLEM = REDUCED DUI PROBLEM.  It makes perfect sense, right.  Who would risk more than a month in jail for a few drinks.  

Apparently - lots of people.  Maybe even more people now, than when the penalties were previously lower.  Unfortunately the State's math is flawed.  Let me give you some anecdotal evidence.

A few weeks ago I was sitting in an arraignment with a client waiting for our case to be called.  Before the judge started calling cases he told the packed court room about Arizona's DUI penalties.  After going through the sentencing schemes he also made the following disclosure in open court. He stated, these DUI penalties have become harsher and harsher ever since he had been practicing law (and by grey color of his remaining hair that appeared to be a long time). "However, my courtroom still stays full." He went on to say that "we all know" the new DUI penalties have not reduced the number of DUI cases but it is the law.  "Fair or not these are the laws I am required to follow."

Well it is not everyday a judge, in open court, makes such a candid admission.  Moreover, the judge's speech was absolutely correct about the Arizona DUI laws.  Those of who are involved in Arizona DUI cases, "all know" the math is wrong.  We all know, law enforcement included, raising penalties does not reduce the number DUI cases.  One reason is the real consequence of a DUI is not jail, but taking someone's life.  If that is not enough to stop someone from driving impaired, then long jail terms that no person really knows the specifics of (until after they are charged), certainly will not have a great impact.

However, I have an idea of what may work.  In part two of this post I make my case for how I believe we should address the problem.  That is, if we are serious about solving it - which I hope we are.


Lawrence Koplow

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DUI stands for driving under the influence. However, years ago Arizona, like many other states, changed its DUI laws to cover situations where the person was not actually driving. Instead, to be guilty of DUI, a person just needed to be "controlling" a vehicle. The classic example is the vehicle stopped in the middle of the road and the driver is passed out drunk. That is an obvious case of someone controlling a car without driving.

However, there are many situations, where it is not so obvious that a person is "actually controlling" a car. There has been a growing debate regarding as to what it means to be "controlling" a car in a DUI case. For example, people can legally use their car as a shelter after they have been drinking alcohol.  Someone who sleeps in their properly parked car after getting drunk is not "controlling" their car for purposes of Arizona DUI law. However, if they put the key in the ignition to turn on the air condition, does that action create a DUI? The Arizona Supreme Court Case recently attempted to end the debate in the case of State v. Zaragoza.

Zaragoza was convicted on an Aggravated DUI charge after he was found at an apartment complex:

•    Sitting in his car
•    The engine was off
•    His hand on the wheel, and
•    The keys in the ignition,
•    Alcohol in his system

Zaragoza claimed that he had no intention to drive, but only to sleep in his car. He claims the reason the keys were in the ignition was to roll down the window, and turn on the radio. 

He appealed his conviction based on the argument that the jury was provided inappropriate instructions regarding the law of actual physical control of vehicle.

The Arizona DUI statute does not define what “actual physical control” of a vehicle is, and there have been varying types of jury instructions on the meaning of this phrase through-out the courts. 

The Arizona Supreme Court took this case, and attempted to clarify the law’s definition. They stated that actual physical control has nothing to do with the intent of the driver to move or use the vehicle, but the actual and imminent danger to the him/her self or others at the time alleged to have control. This means that all facts must be looked at together in order to appropriately determine if there was an actual or imminent danger.

The Court also held that in this case, the instructions did not mislead the jury, but that they may have misstated the law. Because of the variations in instruction, and the result of Zaragoza's case, the Arizona Supreme Court decided to provide a new jury instruction for future cases.

The new instruction will be published in Part II of the blog post.

If you need assistance or additional information about an Arizona DUI case, please contact the Koplow Law Firm Online or by phone at (602) 494-3444.

Lawrence Koplow

 

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I was in the Scottsdale City Court yesterday when I heard a Judge discussing the much anticipated Home Detention Program.  It appears that they have finally implemented the program.  Here are the minimum qualifications based on the information I was given at court.

• The date of your offense must be after May 27, 2010; and
• You must start your self-surrender date on or after October 1, 2010

There may be some exceptions to the time restrictions if your attorney can demonstrate a serious medical condition. Since the program is so new (as a matter of fact, several of the court clerks did not even know it had be approved yesterday) I am sure there will be some additional details and restrictions.  In addition, keep in mind: (1) admittance into the program is not automatic.  The judges have already hinted that not everyone will be receiving the benefit of this program; (2) there will still be an initial term of jail for anyone accepted into the program.  Thus, this program is for lengthier terms of incarceration.

If you need assistance or additional information about a Scottsdale DUI case, please contact the Koplow Law Firm Online or by phone at (602) 494-3444.

Lawrence Koplow

 

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While the City of Scottsdale has approved a home detention program, it has not released any of the program's details. The most anticipated detail is the start date. As of yesterday, the start date has not been released. There has been speculation that it may not start until the end of summer. However, no one really knows. As soon as the details become available I will post them here.

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What is going on in Scottsdale?  In the last 30 days two judges have been let go by the City Counsel.  What is coming next? 

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I am starting a new list of the best DUI blog posts for the past month.  I am admittedly stealing the idea after reading Kevin O'Keefe's Best In Law Blogs.  However, as I am one of Kevin's clients, I don't think he will mind (as long as the check clears.)  Here are the posts that I found most interesting for the past month:

• United States Tax Law Encourages Drunk Driving - I guess we have to give credit to a very clever accountant.

• DA Appeals Ruling in Massachusetts DUI Blood Testing Case - It should be obvious to any prosecutor that to get laboratory results into evidence, there needs to be a someone to testify to them.  I am sure I just jinxed this attorney by making this statement.

• Minnesota DWI Lawyers Pissed about Urine Cases: What Happens When Judges Assume the Role of Scientist - This post is very technical.  There is an excellent discussion regarding urine testing.  More importantly, the post has a great title.

• DUI Innocence Project: 93% Wrong-False Use of Roadside Tests Can Lead to False Arrest  - This post presents a very good idea and a clear presentation of the truth about field sobriety testing.

• And Introducing The Unethical Attention-Whoring Crappy Douchebag Lawyer - This is the most entertaining post of the month by far.

 If there are any DUI lawyers that think I should have put their post here, let me know. 

Thanks,

Lawrence

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Last night I am reading Gideon’s blog and I see a post with the title: “This Seattle DUI lawyer is a Douchebag.” As someone who loves a good fight, I started reading. Here is the beginning of the post:

So normally I don’t write posts like this, because I don’t give flyin’ rat’s ass. But lately, I’ve seen a string of hits in my Google Alert for “public defender” (yes, that is one way I keep up with relevant news) from some “let me help you on the internet by giving out free advice” sites.

The most recent one popped into my RSS reader this evening and it followed the same tenor of the others: Don’t opt for a public defender because they’re overworked, don’t have resources, etc. In other words, the same BS that smarmy “defense lawyers” use to scare clients into giving them money…

Towards the end of the post, Gideon concludes:

The problem is that sites like these come up on the first page of a Google search for something like “should I hire a private lawyer or keep my public defender” (and trust me, I get a lot of hits with similar search terms).

Another site that comes up? New lawyer darling Avvo.

So yeah. Douchebag.

Gideon, you had me at douchebag. More importantly, as someone who only does private work, I completely agree with your position. I know plenty of public defenders that do an outstanding job. Moreover, if I were going to make my own top ten list of attorneys you don’t want to represent you – you would not find even one public defender on it.

 

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The harsh penalties for an Arizona extreme DUI conviction have been well chronicled in this blog.  However, what happens when we apply these penalties to people who were only visiting Arizona and charged with DUI?

One could take the view: who cares?  When people come to "our state" and commit crimes, they deserve whatever they get.  On the other hand, you could look at what I believe are the unintended effects of these penalties on visitors to Arizona.  Moreover, these unintended consequences really demonstrate the disconnect between what should be the goals of the law (deterrence) and the means (more jail) used to carry out those goals.

Here are some basic facts.  First, for obvious reasons, we get a lot of visitors to Arizona.  Second, we have DUI laws and enforcement that are much stricter than in most states. And third, despite the promise that increased penalties (i.e. jail time) would prevent DUI offenses, it appears law enforcement agencies are still arresting the same amount (or more) of people for DUI.  If there is a reader of this post who has some statistic showing my third premise is incorrect, please post it in the comments and I will publish it.  However, I am doubtful that anyone will find such a statistic.  In addition, I contend that the increased DUI penalties fail to deter both in-state and out-of-state visitors.  Thus, visitors to Arizona, lots of visitors to Arizona, are getting charged with DUI offenses.

Let's add the penalties for an Arizona extreme DUI conviction to the equation.  For a first time extreme DUI offense (i.e. blood alcohol result of .150 and below a .200), even if the judge believes you are the best person on the planet, the minimum sentence is 30 days jail.  Combine this with certain prosecuting agencies that offer a plea agreement of 30 days jail (or close to it), and out-of-state visitors have a real problem.

For the Arizona resident, 30 days jail is a tremendous burden.  However, at least with work release, you should be able to keep your employment.  If you live in California and are sentenced to 30 days jail in Arizona, your job (your career) is now in jeopardy.  How many employers are going to say "sure, take thirty days off to go serve a jail term in Scottsdale, no problem?"  This misdemeanor offense can have penalties that could ruin someones livelihood.

Here are the solutions we have found in the past.  An out-of-state visitor can request an order to do their jail in their home state.  That request is almost always granted.  However, the judge will tell you it is "your" responsibility to find a jail in your home state that will comply with the incarceration order.  In my experience, the average person can find a jail that will take them for a day or two, but 30 days - good luck!  To solve this problem, we have had to employ former law enforcement officers and had them assist with getting our clients accepted into the facility.  Even using this method, it is still difficult.  Moreover, how many people can afford this service?

The other option is going to trial.  If you can convince the jury that your blood alcohol concentration was merely over .08 but below .150, then the minimum jail is reduced to one (1) day.

In sum, Arizona has set up a terrible dilemma for out-of-state visitors charged with extreme DUI.  My experience is that prosecuting agencies have little sympathy for the unique problems they face.  The reality is law enforcement takes the attitude - "its your problem - deal with it."  Dealing with it may be a lot harder for out-of-state visitors.

If you need legal advice for a specific problem, you must consult with an Arizona Criminal Defense Attorney. For more information about Arizona Criminal Law or a specific legal problem, please contact Koplow & Patane Online or by phone at (602) 494-3444. 

 

 

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The truth of the matter is we don’t really know. Most labs in the Phoenix Arizona area claim to be accurate within 5%. That means if your blood result came back at .08, then the true result can be anywhere from 5% lower or 5% higher.

Other scientific organizations claim 5% is not a realistic range of accuracy. For example, the American Academy of Forensic Sciences claims that the accepted range of accuracy is 10% higher or lower.

After interviewing toxicologists over 100 times, doing a substantial number of DUI trials with blood results at issue, I am convinced that the accuracy is totally dependent on the procedures used by the lab, and most labs overstate their accuracy.

To support my conclusion, I need to explain how blood testing with a gas chromatograph works. At its most basic level, gas chromatography simply compares known alcohol concentrations to unknown blood samples. A blood tester does not inherently know what a blood alcohol concentration (BAC) is. You must calibrate it every time you do a test. You teach the machine what a .08 is by putting known alcohol concentrations into it, and essentially build a ruler.

Most labs in the Phoenix area put four known alcohol concentrations into the blood tester to build their ruler. These known concentrations are called calibrators. It is important to remember these calibrators are water based. That is, they are known alcohol concentrations in water. See the graphic below for an illustration.

As you can see in the example, there are four points on the ruler. The blood tester simply connects the dots on the ruler. If the four places on the ruler are accurate, then you should have a fairly accurate ruler. However, many labs make their own calibrators, and there is no way to know how accurate the ruler really is. There is no outside agency auditing their work. All we have is their word that they are accurate.

In addition, while it is a good first step to be able to build a ruler using water and alcohol, we are not testing alcohol in water in DUI cases. We are testing alcohol in blood. In science, we need to take into account what is known as the matrix effect. Simply put, water and blood are not the same substance. Water does not have red blood cells, white blood cells, plasma, virus, and bacteria. In order to measure alcohol in blood, we need a blood-based ruler. However, law enforcement labs do not actually use a blood-based ruler. This is where the procedures of the lab really make a difference.

Labs will use a known concentration of alcohol in blood and compare it to their water-based ruler. This is known as a calibrator. This procedure may be acceptable if done enough times with an accurate blood based sample.

Here is the problem. There are very few companies that make the blood based alcohol concentrations, they are not accurate, and some labs use only one calibrator (not four like the water-based.) When the blood-based alcohol sample comes from the manufacturer, there is an insert. The insert tells you that the stated blood alcohol concentration is just a target value. It states that the known concentration it is really just a range. For example, I recently had a case with a blood-based control with a target value of .182. However, upon reviewing the insert that came with the sample, according to the manufacturer, .182 could be anywhere between a .166 and a .198. Thus, the ruler used is not as accurate as we would like it to be. That is a tremendous range when we are trying to determine someone’s true blood alcohol concentration. The picture below illustrates what the blood-based ruler looks like with only one this one known value.

As you can see, you can’t build a ruler with only one point on a line. Thus, with using only one known value, your ruler just is not very accurate – unlike the water-based ruler. The less accurate your ruler is, the less accurate your test result will be. Consequently, the true range of accuracy could be significantly greater than even 10%.
 

 

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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.

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Arizona is one of a few states that has created something referred to as "Super Extreme DUI."  A DUI is "Super Extreme" if a person's blood alcohol concentration is .200 or above.  While this crime is still a misdemeanor, it carries a minimum jail term that is greater than most first time felonies.  There are several characteristics of this crime that make it unique.  Here are the five most important:

1. An extended period of an Ignition Interlock Device.  All Arizona DUI convictions require a person to install and maintain an ignition interlock device.  For a first time regular DUI, the minimum period is one year.  A conviction of Super Extreme DUI requires a minimum period of 18 months (or one and one-half years.)

2. Extended jail period.  For a regular DUI conviction, there is a minimum jail term of 1 day.  For an extreme DUI (BAC result of .150 and below a .200) conviction, there is a minimum jail term of 30 days.  For an Arizona Super Extreme DUI, the minimum jail term is 45 days.

3.  A better chance of getting your name in lights.  The Maricopa County Attorneys' Office has a website that posts booking photos of DUI offenders.  While they do not provide explicit details of how they choose who they post pictures of, we do know that they focus on people alleged to have higher blood alcohol test results (i.e. "Super Extreme DUI" and "Extreme DUI.")

4. Out of state offenders will probably go to trial.  If you live in another state and get a "Super Extreme DUI", you will have an inherent difficulty with taking a plea offer.  Many prosecuting offices offer long periods of jail for these cases.  It is not uncommon for them to offer the same amount of jail the person may get if they went to trial and lost.  For the person that lives in Arizona, they may be be able to maintain their employment during their jail term if granted work release and / or home detention.  However, out of state offenders may not have these options.  While most Arizona courts will permit them to do their jail out of state, there are very few out of state jails that will accommodate them.  Finding a jail in someone's home state for a few days can usually be accomplished.  When it comes to jail terms of 30 to 45 days, it is nearly impossible.  Most out of state jails will not accommodate these requests. Consequently, an out of state offender may need to go to trial and fight the Super Extreme allegation.  If successful, on that count alone, the minimum jail can be significantly reduced.  Thus, trial is often times the best option in these cases.

5.  Simply being charged with "Super Extreme DUI" does not mean you will be convicted of "Super Extreme DUI."  While prosecutors tend to offer extended periods of jail on these cases, that does not mean a reduction (or even dismissal) is not possible.  There are several factors that need to be examined: (1) How far above a .200 is the test result? (2) Were there any problems with the blood testing process? (3) How bad was the driving prior to the traffic stop? (4) Is there a disconnect between how the person was acting and the test result? and (5) Are there any procedural or constitutional violations?  Moreover, there are many other factors that may affect the outcome of the case.  The general concept is that if the government believes they might lose the case, the better the chance of a reduced plea offer.

In sum, Arizona Super Extreme DUI convictions are truly unique, in that the increased penalties for this misdemeanor can be more onerous than many felonies. 

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The short answer is not much. At best, they may correlate to someone having a blood alcohol concentration over a .08. At worst, they prove nothing at all. To understand their meaning you must look at how they came into existence and who developed them.

In the late 1970’s, NHTSA (the National Highway Traffic and Safety Administration) paid for some research to see if tools could be developed for law enforcement to identify people who are potentially DUI / DWI.

There were several studies paid for by the government. Specifically, there are six primary studies relied on by law enforcement. However, none of the studies have been subject to peer review.

1977 Study (Not Peer Reviewed)

1981 Study (Not Peer Reviewed)

1983 Study (Not Peer Reviewed)

Colorado Study (Not Peer Reviewed)

Florida Study (Not Peer Reviewed)

San Diego Study (Not Peer Reviewed)

According to Wikipedia, peer review has been defined as:

...the process of subjecting an author's scholarly work, research, or ideas to the scrutiny of others who are experts in the same field. Peer review requires a community of experts in a given (and often narrowly defined) field, who are qualified and able to perform impartial review...Pragmatically, peer review refers to the work done during the screening of submitted manuscripts and funding applications. This process encourages authors to meet the accepted standards of their discipline and prevents the dissemination of irrelevant findings, unwarranted claims, unacceptable interpretations, and personal views. Publications that have not undergone peer review are likely to be regarded with suspicion by scholars and professionals.

Thus, the research has not been subject to scrutiny in the scientific community and begs the question why not? Only the government can answer this question.

So what does the government say these studies show? Unfortunately, much of law enforcement does not even know what their own research says. If you ask most officers who regularly conduct DUI investigations, they will tell you that field sobriety tests show “impairment.”

However, the government’s own research concludes this is not the case. If you are willing to accept these non-peer reviewed studies, then you may merely conclude that a poor performance correlates to a blood alcohol concentration above a .08. Moreover, the tests were previously used to show a blood alcohol concentration above a .10. Then the law changed in several jurisdictions, and somehow it also changed scientific results.

Consequently, even if you believe NHTSA’s own research, these agility tests do not show driving impairment.

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Arizona DUI cases almost always involve a chemical test. There is a movement in Arizona towards the exclusive use of blood testing. It is well settled that blood testing is more accurate than breath testing. But how accurate is blood testing? Can it truly determine a person's blood alcohol concentration? I believe that these are reasonable questions to be asked by a person accused of DUI and facing 30 to 45 days in jail.

Under our system of justice we should demand better answers from the government than "because we said so" or "because our lab has the highest standards." Simple conclusions are not good enough in science and they should not be good enough in justice.

So who checks the government's test results in Arizona? The simple answer is the government. They merely claim to check themselves. I have yet to see one Arizona crime lab that conducts blind testing by an independent party.

Here is how the actual process works. In Arizona DUI cases, The government expert will tell juries that they do double check their work. That is, they have a quality assurance program to make sure the blood alcohol test results are accurate. But the government's oversight of their work is not what you my think. Instead retesting every sample, or randomly retesting a portion of the samples, the lab merely does a technical review.

A "technical review" is not retesting. The Government toxicologist usually puts between 30 to 40 blood samples into a blood tester. Then they turn the blood tester on and leave. The blood tester commonly runs overnight and the printed results are reviewed by the government lab person.

 

This review of the printed documents is what is known as a technical review. The actual documents are called chromatograms. They are simply pieces of paper with graphs and data on them (retention times, area counts, etc...) If the run has the usual 30 to 40 samples there could be well over 100 pages of data.

In court, the government will tell the jury that they "double check" all the tests. What they actually do is take those 80 to 100 pieces of paper and give it to another employee of the same lab.  That person then reviews the data. As long as the data appears to be consistent, they conclude it is an accurate test. In Court, they tell the jury they got a second opinon from another analyst to ensure the accuaracy of the tests.  

A nationally recognized expert, Dr. A.W. Jones, has opined that in forensic testing of blood samples retesting should be done, not a mere a "technical review." It is his opinion, that a mere technical review is inadequate to ensure the accuracy of the test results.

This standard makes perfect sense in DUI cases because the level of punishment is often dependent upon the test result. If a person's blood alcohol concentration result is .165 the person is facing a minimum of 30 days in jail. If he was under a .150 then he is merely facing 1 day in jail. Is it too much to ask the government to check their work when 29 days of jail is at stake? I guess the answer depends on how important the result is to you.

If you were at the doctor and she said "the blood tests were back," "we need to operate," let's "prep for the mastectomy." Most people would seek a second opinion. Why...because the issue is too important to merely rely on the first test. When it matter to you - you retest.

P.S. I will address the Defendant's ability to do their own retesting in my next entry.

 

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I ran across an excellent post discussing the source code issue.  That is, the fight between criminal defense attorneys and the maker of the breath tester (CMI) to disclose the code used in their breath testers.  CMI will not allow an inspection of the code.  Consequently, it cannot be checked for accuracy.  CMI essentially tells everyone charged with DUI to "just trust us."

Ed Brayton, a journalist and the co-founder of Michigan Citizens for Science, discusses the source code litigation in Florida.

Here's a very interesting case from Florida, where an appeals court has upheld a lower court ruling that threw out evidence from a breathalyzer test in a drunk driving case because the manufacturer of the device refused to release the source code and allow defense experts to analyze the accuracy of the machines.

The results of breath tests in more than 100 local drunken-driving cases will not be allowed at trial, a judge announced Tuesday.

The validity of those breathalyzer tests has been challenged for more than three years because of the Intoxilyzer 5000, a machine that uses a breath sample to measure a person's blood-alcohol content.

Manatee County Judge Doug Henderson ruled two years ago that any Intoxilyzer 5000 tests were inadmissible in trial, but prosecutors appealed. On Tuesday, Henderson told lawyers that his ruling had been affirmed by the Second District Court of Appeal and Circuit Court.

Breath analysis machines are notoriously inaccurate and this has been a problem for a very long time. Dr. David Hanson, a sociologist who has written on this issue for decades, writes:

Breath analyzers (Breathalyzer, Intoxilyzer, Alcosensor, Alcoscan and BAC Datamaster are common brand names) don't actually test blood alcohol concentration (BAC), which requires the analysis of a blood sample. Instead, they estimate BAC indirectly. Different types of machine use different techniqes and larger machines generally yield better estimates than do hand-held models. Therefore, some states don't permit data or "readings" from hand-held machines to be presented as evidence in court. South Dakota does not even permit evidence from any type or size breath tester but relies entirely on blood tests to ensure accuracy and protect the innocent.

A major problem with some machines is that they not only identify the ethyl alcohol (or ethanol) found in alcohol beverages, but also other substances similar in molecular structure. Those machines identify any compound containing the methyl group structure. Over one hundred compounds can be found in the human breath at any one time and 70 to 80 percent of them contain methyl group structure and will be incorrectly detected as ethyl alcohol. Important is the fact that the more different ethyl group substances the machine detects, the higher will be the false BAC estimate.

The National Highway Traffic Safety Administration (NHTSA) has found that dieters and diabetics can have acetone levels hundreds and even thousand of times higher than that in others. Acetone is one of the many substances that can be falsely identified as ethyl alcohol by some breath machines.

One investigator has reported that alcohol-free subjects can generate BAC readings of about .05 after eating various types of bread products.

Substances in the environment can also lead to false BAC readings. For example, an alcohol-free subject was asked to apply a pint of contact cement to a piece of plywood and then to apply a gallon of oil-base paint to a wall. The total activity lasted about an hour. Twenty minutes later the subject was tested on an Intoxilyzer, which registered a BAC of .12 percent. This level is 50% higher than a BAC of .08, which constitutes legal intoxication in many states.

Similarly, a painter with a protective mask spray painted a room for 20 minutes. Although a blood test showed no alcohol, an Intoxilyzer falsely reported his BAC as .075.

Any number of other products found in the environment can cause erroneous BAC results. These include compounds found in lacquers, paint removers, celluloid, gasoline, and cleaning fluids.

Other common things that can cause false BAC levels are alcohol, blood or vomit in the subject's mouth, electrical interference from cell phones and police radios, tobacco smoke, dirt, and moisture.

Breath testers can be very sensitive to temperature and will give false reasings if not adjusted or recalibrated to account for ambient or surrounding air temperatures. The temperature of the subject is also very important. Each one degree of body temperature above normal will cause a substantial elevation (about 8%) in apparent BAC.

Many breath testing machines asume a 2,100-to-1 ratio in converting alcohol in the breath to estimates of alcohol in the blood. However, this ratio varies from 1,900 to 2,400 among people and also within a person over time. This variation will lead to false BAC readings.

Physical activity and hyperventilation can lower apparent BAC levels. One study found that the BAC readings of subjects decreased 11 to 14% after running up one flight of stairs and 22-25% after doing so twice. Another study found a 15% decrease in BAC readings after vigorous exercise or hyperventilaion.

Some breath analysis machinnes assume a hematocrit (cell volume of blood) of 47%. However, hematocrit values range from 42 to 52% in men and from 37 to 47% in women. A person with a lower hematocrit will have a falsely high BAC reading.

It's about time a judge took a stand on this issue.

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Here is a very well researched and produced video regarding an Ohio DUI case.  While I do not agree with everything he argues, her certainly makes some vaild points.  Enjoy:

 

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There is significantly more drinking and driving during the holidays.  It happens every year, in every place.  I have plenty of business.  However, I don't want you to become a customer. Trust me, you have better things to do than hang out with me in a courtroom for the next three or four months.  Thus, I am going to republish a post that I have previously written.  The post is titled: "3 Things I Wish People Knew Before Drinking & Driving."

Before you read the post, please watch this video.  The story is more persuasive than anything I could ever write.

 

 

This post was originally published on 07/31/08:

It's 5:00 p.m. on Friday afternoon in Phoenix, and Joe just walked through the door of his favorite restaurant to meet some friends for happy hour.  He drove himself to the restaurant.  When he is done, he is going to drive to his house in Scottsdale.

At the table, Joe sees everyone has one of the restaurant's signature margaritas in front of them.  The waiter comes to the table and asks Joe: "can I get you something to drink?"  Before Joe answers this question, I wish he would consider the following facts:

1. There is no crime of Drunk Driving in Arizona.  Arizona law makes it illegal to drive while Joe is impaired to at least the slightest degree by alcohol.  This means that if Joe's ability to drive is impaired to any degree, Joe is technically in violation of the law;
2. If Joe is stopped by the police, they will stick a needle in Joe's arm.  Regardless of the law on this subject, it has been my experience that if Joe is stopped by a police officer for a traffic violation, and the officer smells any alcohol, Joe is going to end up taking a chemical test.  Many police agencies are now using blood testing instead of breath testing.  If the officer smells alcohol on Joe's breath (or just imagines it), Joe is going to have a needle stuck in his arm and a blood sample will be taken.  The results of the blood test will probably take at least 30 days to come back.  While Joe is waiting to find out the results of the blood test, he will not sleep very much or very well;
3. If Joe refuses the blood test, the officer will get a warrant and forcibly take his blood.  Once the officer meets the requirements of Arizona's implied consent law, he may require Joe to submit to a chemical test.  If Joe says "no," he will then lose his driver's license for 12 months.  Moreover, the officer will then make a phone call to the judge.  Within minutes, the judge can then issue a telephonic warrant.  If Joe still refuses, he will be held down by several police officers, and a needle will be shoved into his vein. 

Now if Joe knew these three things when the waiter asked him: "can I get you something to drink" - how might Joe answer?  I think the average Joe would say: "Yes...Diet Coke."

Please consider the above before you drink and drive.  Moreover, if you know someone who needs to become aware of these "3 Things" please use the "email this post" button at the bottom and send it to them.  This is a subtle way of possibly preventing a life changing tragedy. Thanks!

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In case you ever wondered what happens on the side of the road when a person is stopped for DUI, here is a video showing exactly what goes on.  Enjoy:

 

DUI Stop from konu on Vimeo.

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It turns out my previous post showing Wonder Bread causing a false blood alcohol concentration reading was not an isolated incident.  The same forensic toxicologist and drug recognition expert did another Wonder Bread experiment.  Here it is:

 

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As demonstrated below, it appears that Wonder Bread is like Kryptonite to the Intoxilyzer 8000. While I cannot guarantee the accuracy of the test that occurred in this video, I have very little reason to doubt its veracity.  Especially since the manufacture of the Intoxilyzer 8000 (CMI) will not allow anyone (including the government) to inspect the source code used in this contraption.  Enjoy:

 

 

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You can keep track of all the news about the Arizona DUI laws by watching our Twitter Feed. 

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The legislature has once again raised the DUI penalties.  However, the changes only affect those convicted of extreme DUI.  That is, the penalties are only increased for those convicted of a DUI having a blood alcohol concentration between .150 and below .200.  The new penalties are illustrated below:

 If you need legal advice for a specific problem, you must consult with an Arizona DUI attorney. For more information about Arizona DUI law or a specific legal problem, please contact Koplow & Patane on-line or by phone at (602) 494-3444.

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I found a great website for information on jury research.  Kathy Kellerman is a communications consultant who regularly posts answers to questions about how jurors make decisions.  She has an informative post about the effectiveness of evidence of a defendant's good character in a criminal trial.  I think most people (including attorneys) will be surprised by what the research concludes about this type of evidence.

Question:

Does character evidence help or hurt defendants in criminal trials?

Answer:

Recent research by Hunt and Budesheim (2004) studied the effects of positive character evidence when offered alone, and when followed by a prosecutor cross-examining about specific bad acts.

 

These researchers found that, on its own, general descriptions of a defendant's positive personality characteristics had little effect on juror decision-making; that is, positive character evidence did not reduce guilt perceptions or decisions to convict. Additionally, when a character witness was cross-examined with examples of a defendant's previous specific bad acts, jurors' impressions of the defendant were more negative, guilt perceptions higher, and conviction decisions more likely than when no information at all was provided about the defendant's character.

The researchers concluded that permissible positive character evidence does little to help a defendant, and negative character evidence in the form of specific bad acts cross-examination can hurt a defendant considerably.

Source: Hunt, J. S. & Budesheim, T. L. (2004). How jurors use and misuse character evidence. Journal of Applied Psychology, 2, pp. 347-361.

I recommend you check out her website here.

DISCLAIMER: The information in this blog is NOT legal advice, nor does it establish an attorney-client relationship between you and Koplow & Patane. Legal advice usually varies from case to case.

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Lisa Halverstadt of The Arizona Republic is reporting that the Tempe Police will have a DUI task force this weekend.  Her article states:

Tempe police will have its DUI task force at Dorsey Lane and University Drive this weekend. This is the last weekend before the fall semester begins Monday at Arizona State University.

The task force command post, which will operate from 8 p.m. to 3 a.m. on Friday and Saturday nights, will be located at the Tempe Fire Department/APS Joint Fire Training Center.  The Tempe Police Department is collaborating with the Governor's Office of Highway Safety to host the anti-DUI effort.

 Please be careful when driving this weekend.

 

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It's 5:00 p.m. on Friday afternoon in Phoenix, and Joe just walked through the door of his favorite restaurant to meet some friends for happy hour.  He drove himself to the restaurant.  When he is done, he is going to drive to his house in Scottsdale.

At the table, Joe sees everyone has one of the restaurant's signature margaritas in front of them.  The waiter comes to the table and asks Joe: "can I get you something to drink?"  Before Joe answers this question, I wish he would consider the following facts:

1. There is no crime of Drunk Driving in Arizona.  Arizona law makes it illegal to drive while Joe is impaired to at least the slightest degree by alcohol.  This means that if Joe's ability to drive is impaired to any degree, Joe is technically in violation of the law;
2. If Joe is stopped by the police, they will stick a needle in Joe's arm.  Regardless of the law on this subject, it has been my experience that if Joe is stopped by a police officer for a traffic violation, and the officer smells any alcohol, Joe is going to end up taking a chemical test.  Many police agencies are now using blood testing instead of breath testing.  If the officer smells alcohol on Joe's breath (or just imagines it), Joe is going to have a needle stuck in his arm and a blood sample will be taken.  The results of the blood test will probably take at least 30 days to come back.  While Joe is waiting to find out the results of the blood test, he will not sleep very much or very well;
3. If Joe refuses the blood test, the officer will get a warrant and forcibly take his blood.  Once the officer meets the requirements of Arizona's implied consent law, he may require Joe to submit to a chemical test.  If Joe says "no," he will then lose his driver's license for 12 months.  Moreover, the officer will then make a phone call to the judge.  Within minutes, the judge can then issue a telephonic warrant.  If Joe still refuses, he will be held down by several police officers, and a needle will be shoved into his vein. 

Now if Joe knew these three things when the waiter asked him: "can I get you something to drink" - how might Joe answer?  I think the average Joe would say: "Yes...Diet Coke."

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I was reading DUI Attorney Mark Steven's blog and he touched upon a subject that concerns many DUI attorneys.  Why don't more police officers videotape DUI arrests?  Clearly, this would be the best evidence of a person's degree of impairment.  So, why not use videotape in a DUI investigation?

Mark addresses this issue in his post Why Aren't Most New Hampshire DWI Arrests Video Recorded?  He writes:

Just about everywhere you go today in public you are being videotaped. You are videotaped at your bank, supermarket, shopping mall, drive through lines for fast food, donut shops, even little convenience stores. Just about every place is equipped with a video camera these days. If someone holds up a little store or commits just about any crime in public there is a video of the event on the evening news, copied from a surveillance camera. It has become very inexpensive to capture a high quality audio and video recording for safety and security purposes of just about every aspect of our everyday lives.

When you watch cop shows at night all sorts of DWI and other arrests are captured on cruiser videos all over the country. You can see clearly and hear easily whether the driver is drunk or not on these video recordings made from cruiser cameras. Police departments all around the country also video and audio record bookings. With a good quality video recording little is left to the imagination as to whether the driver was really drunk or not. So why aren't most DWI arrests in New Hampshire video and audio recorded?

Is it a "safety issue"? It would seem unlikely that there is a safety issue here that doesn't exist in any other part of the United States. Is it cost? That seems unlikely with the massive amount of money being thrown into inefficient DWI roadblocks and inaccurate hand-held breath testing gadgets. Last year stories were published about a $400,000.00 "batmobile" for the local police to use during DWI roadblocks. It cannot seriously be argued that the police cannot afford to videotape DWI arrests.

So if it's not safety and it's not cost, what could it be? We all know that DWI is a serious law enforcement concern; we hear that all the time, year after road-blocking year. Wouldn't the best way to prosecute a drunk driving case be to show the judge or jury a videotape of the driver if he or she was really drunk? So why don't the police want to show a videotape of a drunk driver at a drunk driving trial?

Could it be that some of the people arrested for drunk driving are not drunk? Or that they really don't act and speak as drunkardly as the police reports describe? It is easy enough to form your own conclusions as to why most DWI arrests are not videotaped.

Think about the power a videotape could have in a DUI case.  When a person has a blood test result of .200, there is an expectation that person will be acting in a certain manner (generally, this manner is face down, on the floor, drunk.)  A video showing them walking around, following a police officer's instructions and responding appropriately to instructions may make a person (like a juror) question the accuracy and reliability of that test result. 

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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) - 30 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. 

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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.

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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.

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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.

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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.

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The "Super" Extreme DUI is a relatively new creation by the Arizona State Legislature.  The language of the statute does not actully refer to the word "super."  Most attorneys have simply adopted this name because of the harsh "super" jail sentence that can result from a conviction of this law.

To be convicted of this law a person must be proven to have been driving and have a blood alcohol concentration of .200 or above.  The resulting jail term, which is only one of several penalties, is a minimum of 45 days.  The good news regarding this statute is there are several cases currently challanging the legality of the statute.

 

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Arizona law enforcement often uses breath-testing devices to determine the blood-alcohol concentration (BAC) of a person suspected of DUI.  The Intoxilyzer 8000 is commonly used in Maricopa County.  When a person is suspected of DUI, he is generally requested to blow twice into an Intoxilyzer; this is referred to as “duplicate breath testing.”

The Department of Public Safety (DPS) has issued regulations for duplicate breath testing, which it defines as “two consecutive breath tests that immediately follow a deprivation period, agree within 0.020…of each other...”

In addition, the Department of Public Safety defines a deprivation period as “at least a 15-minute period immediately prior to a duplicate breath test during which period the subject has not ingested any alcoholic beverage or other fluids, eaten, vomited, smoked or placed any foreign object in the mouth.”  Breath-testing experts have stated that the deprivation period is critical to the breath-testing process. (See Kurt Dubowski, “Quality Assurance in Breath-Alcohol Analysis,” Journal of Analytical Toxicology, Vol. 18, October 1994.)
Commonly referred to as “quality assurance” measures, the DPS regulations seek to prevent any factors from affecting the breath sample.  Putting something in the oral cavity prior to the test could certainly change the results. Thus, law enforcement officials must prevent anything being put into a DUI suspect’s mouth prior to the breath tests.

When examining the breath test record, the starting and ending times of the deprivation period must be noted.  A 15-minute time span wherein a person does not put anything in his mouth is not sufficient; the deprivation period must “immediately” precede the first breath test.

The record must not show any gap between the deprivation period and the first breath test. Moreover, the police officer who conducted the deprivation period should be questioned. If he cannot account for any gap in time, then the test fails to comply with DPS regulations and may be inadmissible.

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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.

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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?

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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 Civil 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 on-line 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 Surprise Apache Junction Flagstaff Sedona Bullhead City

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

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If you were wondering who is this person that is writing about Arizona DUI and criminal law, then you can read more about my practice on the About page and the Arizona DUI Attorney Services Page.

You are now on my DUI Blog.  Here you will find in depth discussions on Arizona DUI law.  Some of the topics include:

• Arizona DUI news;
• Breath Testing;
• Blood Testing;
• Arizona DUI Penalties;
• Arizona Driver's License Suspensions;
• Arizona DUI Trials;
• Felony DUI;
• Super-Extreme DUI;

My firm also publishes an Arizona Criminal Defense Blog.

Thank you for reading our blogs and if you have any question please contact me.

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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.

Stated another way, the higher the hematocrit level (thus the less liquid) in the blood, the greater the concentration of alcohol in the liquid portion of the blood.  Ultimately this means several people with the same amount of alcohol in their body, but different hematocrit levels, will have different test results. 

Men and women have different average hematocrit levels.  A normal hematocrit for a man is 45 (plus or minus 7%). Women have a normal hematocrit level of 42 (plus or minus 5%).  There are numerous other factors that can effect a hematocrit level.  However, a person's hematocrit is not proportional to body size. 

Hematocrit ranges primarily effect breath alcohol testing. This is because in blood testing the blood is mixed with an internal standard (such as N-Propranol which has similar structure to Ethanol, but has a different number of carbons).  In sum, varying hematocrit levels expand the range of accuracy in blood alcohol concentration testing.  This expanded range of accuracy can be a valuable defense for a person accused of driving under the influence alcohol (DUI).

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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.    

 

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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.

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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.

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

DUI & DWI Defense Super Extreme DUI Aggravated DUI (felony)

Extreme DUI Boating DUI (known as OUI) Commercial Driver's DUI

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:

Reckless Driving Drag Racing Driver's License Suspensions Ignition Interlock Devices Photo Radar Tickets

Aggressive Driving Driving on a Suspended License Driver's License Revocations MVD Hearings Traffic Tickets

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:

Vehicular Homicide Vehicular Manslaughter Endangerment

Vehicular Murder Vehicular Assault Leaving the Scene of Injury Accidents

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.

 

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.

I practice in courts all over Arizona.  However, there are some courts that  have a larger volume of DUI cases.  Below is some additional information and some of the nuances regarding cases that are prosecuted in theses courts.

Phoenix DUI Charges

I usually refer to this court as the the Costco of Phoenix DUI cases.  The reason being is that this court works on volume. Most DUI cases committed in the Phoenix area are prosecuted in the Phoenix Municipal Court.  Some cases are sent to the one of the justice court courts (county courts) located within the Phoenix.  

 

 

The court is located at:

 

City of Phoenix
Municipal Court
300 West Washington Street
Phoenix, AZ 85003
602 262-6421

 

 

 

 

 

 

 

You can get directions to the court by clicking here. http://phoenix.gov/COURT/parkmap.pdf

 

The Court’s hours of operation are:

 

Open:            8:00 a.m. - 5:00 p.m. - Public

7:45 a.m. - 5:00 p.m. - Jurors

 

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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.

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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.

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