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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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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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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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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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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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:

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

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

For Additional Information:

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

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

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