After the Supreme Court decided the case of Missouri v. McNeely, the question of when a warrant is required, before law enforcement may draw a person's blood became more interesting to say the least. On one side of the issue was the position that a blood alcohol concentrations is constantly changing, thus, there is a justification for law enforcement to bypass the traditional warrant requirement.
The contrary, and as it turns out the prevailing position, is that our Constitution does not allow law enforcement unfettered discretion to decided if they can stick a needle in your arm without a warrant (i.e. probable cause presented to a judge who issues a warrant). The reality of modern technology is that a telephonic warrant can be obtained in about 15 minutes for most cases. Accordingly, the exigent circumstances reasoning for bypassing the warrant requirement is unsound. As the U.S. Supreme Court stated in their rejection of such a per se rule in DUI cases:
But it does not follow that we should depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State and its amici. In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed 153 (1948).
Missouri v. McNeely, 133 S.Ct. at 1555 (2013).
In DUI cases, a machine called a gas chromatograph is often used to measure an alcohol concentration in a blood sample. The measurement, which the machine prints at the end of the process, is called a reported result. We are finally at the point in Arizona, where courts are starting to recognize that merely providing a reported result is not sufficient evidence. The law is coming to the same realization that science did many years ago: a reported result from a machine is an incomplete measurement.
A complete measurement includes more than just a reported result. As a matter of fact, simply providing a reported result is often misleading. A reported result is only complete when accompanied by a “statement of its uncertainty.” See NIST Technical Note 1297, 1994 Edition. No measurement is perfect. The result of any measurement is only an estimation of its value. A “statement of uncertainty” is the range of doubt that exists regarding a measurement.
A complete test result, must also include:
- a “Range of Uncertainty” and;
- a “Confidence Interval.”
To illustrate, let’s assume that a blood test result was .100. Let’s also assume, based on a review of the machine’s prior performance, a “range of uncertainty” was determined to be ± 5%, with a “confidence interval” of 100%. This means, the reported result could be as low as a .095 and as high as a .105. Moreover, this also means, if the same blood sample were repeatedly tested on this equipment, the result would only be outside of the ± 5% range 1 out of a million times. If this statistic were true, this would certainty be a reported result that you could trust.
On the other hand, what if for the same reported result of .100 the range was ± 30%, with a confidence interval of 50%? Here, this means the reported result could be as low as .070 or as high as .130. Furthermore, if you continued to test this sample on the same equipment, 300,000 times of out of a million, the reported result would be outside the range stated above.
When comparing the two complete test results, you can see that providing a mere reported result does not tell us the whole story. Merely telling us the reported result can actually tell us a very misleading story. Science will not accept incomplete measurements. Why should the law?
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.
Lawrence Koplow defends all types of DUI and vehicular crimes cases, including:
As a former a vehicular crimes prosecutor Mr. Koplow has unique experience defending felony vehicular crimes charges. Vehicular cases, such as drunk-driving accidents, are the most challenging types of criminal case and require extensive training and experience. Mr. handles the following types of vehicular crimes cases:
Mr. Koplow also represent defendants in appeals and / or post-conviction relief motions for all of the above charges. Mr. Koplow may handle other types of cases for his clients, however, these cases are accepted on a case-by-case basis.
PUBLICATIONS AND PRESENTATIONS
- Accreditation, Lies, and ISO Standards: The Continuing Scottsdale Saga, 27th Annual Aggressive Defense of the Accused Impaired Driver conference, Arizona Attorneys for Criminal Justice, Tucson, Arizona, May 10, 2014.
- Winning a Blood Case When They Say Everything Looks Perfect, June 26, 2014, APDA Statewide Conference, Tempe, Arizona, June 27, 2013.
- Daubert and the Scottsdale Crime Lab: Separating Science from Science, 2013 APDA Statewide Conference, Tempe, Arizona, June 27, 2013.
- Trial Tactics that Work, 25th Annual Aggressive Defense of the Accused Impaired Driver Seminar, Arizona Attorneys for Criminal Justice, Tucson, Arizona, May 2012.
- Prosecutor and Defense Professionalism, Maricopa County Attorney Office Training and Development
- Civil Aspects of Impaired Driving Cases, The Arizona Association of Civil Defense Attorneys
- Impaired Driving Investigations for Law Enforcement, The Northern Arizona Police Department
- Challenging Blood Alcohol Measurements, In Vehicular Homicide Cases (Chapter), Defending DUI Vehicular Homicide Cases, Aspatore Publishing, 2015 Edition.
Lawyer Of The Year For Outstanding Contribution To DUI Defense Award, May 1, 2015, by Arizona Attorneys For Criminal Justice.
For Additional Information or Case Review:
Contact Lawrence Koplow online or call him at his office at (602) 494-3444. Mr. Koplow and his firm will be available to help you solve your legal problems.