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About James E. Novak

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Marijuana Mandatory Minimums: A Crime of Epic Proportions

A Comprehensive Overview: Arizona Marijuana laws, Mandatory Minimum Drug Sentencing, and Impacts on Society. 

Drug Conviction Results in Sentencing Typically Reserved for Murder

John was accused of a first-time, non-violent drug offense.  He had no prior criminal record, no evidence of drug abuse, and no prior drug convictions.

The Defendant was convicted and sentenced to the longest known prison term in US history for a drug conviction. A Florida judge ordered John to serve two life terms, plus twenty years, with no chance of parole.

Some reports indicate no Marijuana or other illegal drugs were found or produced in the drug investigation, and that the only evidence used to convict John was testimony by two informants.

Now 67 years of age, John was sentenced to life without parole 17 years ago, for conspiracy to import and distribute marijuana.  The arrest took place following a reverse sting operation, in Florida.

John’s family describes him as being a passive model prisoner, subject to the “harshest of conditions and treatment”.  John and his family declare his innocence; and say that he was simply at the wrong place, at the wrong time, with people he didn’t know.

Sending a man to die while serving two life sentences in prison, for a crime he did not commit is without a doubt a violation of basic fundamental human rights, and the truest of injustices in and of itself.

If for one moment we try to set aside the issue of innocence over guilt, and look at this punishment, I think most would agree that it is polarizing.  If in fact a crime took place, and the defendant played a role in it,  does such an egregious punishment fit the crime?   In this case, the judge ordered a sentence that is more commonly reserved for one guilty of homicide.

Many people, including Judges, are struggling to make sense of the harsh punishments called for under Mandatory Minimum for drug crime convictions.

Under Mandatory Minimum drug laws, a judge does not have the same discretion needed to reduce a sentence so that it is fitting and just for the crime of which the defendant is convicted.   They are held to order minimum long term prison sentencing for drug crimes under those laws, regardless of the circumstances.

This brings our discussion to its core,  Mandatory Minimum Sentencing for drug crimes.  Currently, Marijuana is the most common drug offense committed in the US.  That is, for now anyway.  So our discussion will evolve around Marijuana offenses, arrests statistics, sentencing,defenses, economics, trends, and the impacts of Mandatory Minimum sentencing laws in Arizona and the USA.

The Mandatory Minimums Debate: “Justice v. Cruel and Unusual Punishment”

According to recent statistics reported by Families Against Mandatory Minimums (FAMM), the Federal prison population has increased from 28,000 to 218,000, nearly 8 times its size over the last 40 years. Many, including FAMM attribute the skyrocketing prison growth and overpopulation to mandatory minimum sentencing for drug convictions.

Mandatory Minimum (MM) sentencing laws are those that give judges far less discretion in sentencing and require long term minimum prison sentencing for certain drug offenses. They apply even to first-time, non-violent, low-level drug crimes.

These MM long-term and life sentencing guidelines have become the center of much debate in our Country, and prime targets of public scrutiny, and demand by the public. In addition to the exorbitant costs to tax payers, prison overcrowding, another primary element of the debate is the constitutionality of Mandatory Minimum drug sentences. Opponents argue that they are in violation of the Eighth Amendment rights afforded by the Constitution against cruel and unusual punishment.

Mandatory minimum sentencing laws were around long before increased MM laws were passed in the late 1980s by Congress and State Legislatures. They were intended to keep sentencing more consistent for certain crimes. However, the “War on Drugs” escalated in the 1980s during the Reagan Administration. As a response to public outcry over the safety of society in light of drug crimes that plagued the country, more severe MM sentencing was established. It was felt that by creating laws demanding more harsh punishments would reduce the incidents of drug offenses.

Since then, the cost of incarceration has spiked over 12 times what it was before the 1980s “War on Drugs” battle. Before the egregious sentencing mandatory minimums, the USA was spending about $540 million on Federal Prisons as compared to $6.8 billion dollars reported in 2013. Meanwhile tax payers are spending approximately $50 billion dollars a years to support State Prisons.

According to the Federal Register The Daily Journal of the United States Government, the average cost to house and guard an inmate in prison, in 2013 was approached nearly $30,000.00.

For the past the 4 decades the incarceration of non-violent, non-dangerous drug crimes has cost taxpayers trillions of dollars, without any significant evidence that it has reduced incidents of illegal drug offenses, or made streets in the USA safer.

Nearly 50 percent of all Federal prison inmates are serving time for drugs offenses; and one im five inmates are serving sentences for drug crimes in State prisons.

To address these issues, a bipartisan bill SB 1410 was passed by the Federal Senate Judiciary Committee January 30, 2014 known as the “Smarter Sentencing Act of 2014”. It serves to reduce prison sentences for non-dangerous drug offense convictions, which would lead to a reduction of spending of about $4 billion dollar over the next 9 years. The Congressional Budget Office (CBO) estimates that it would lead to a reduction of sentencing and early release of over 250,000 prisoners over that time span in comparison to current laws.

The US Sentencing Commission recently announced that it will continue its work with Congress toward reforms of mandatory minimum drug sentencing for non-dangerous non-violent drug crimes will be a priority over the next year. Earlier in 2014 the Commission unanimously voted to reduce some of the harsh guidelines in mandatory drug sentencing, as starting point in their efforts. The Commission recognizes that addressing these mandatory minimums is critical to reducing the prison overpopulation crisis, and sharply rising costs of incarceration and resources to meet the overpopulation demands.

Marijuana Arrests in the US: FBI and Federal Bureau of Prison Statistics

According to recent statistics by the Federal Bureau of Investigation (FBI), it was estimated that every 42 seconds a Marijuana arrest was made in the United States.

According to the FBI Uniform Crime Reports in 2012 there were over 1.5 million drug crime arrests in the USA. The total drug violations reported was 1,552,432. Of those Marijuana charges constituted nearly 750,000, nearly half of all drug arrests in the country. Of those, a staggering 88 percent, 658,231 were for possession and use, making it the most common drug crime in the country.

In January 2014 The Federal Bureau of Prisons reported that a total of nearly 99,000 inmates were currently incarcerated in Federal Prisons. This means that 49 percent of the all inmates serving in prison are there for drug offense convictions. Most of those are for Marijuana related crimes.

Where Can You Purchase Recreational Marijuana in Arizona?

There is no place in Arizona where a person can lawfully purchase Arizona outside of the AMMA Guidelines. Recreational Marijuana is currently prohibited in Arizona.

In Arizona, All Marijuana violations are classified as felonies. A person is in violation of Marijuana laws if they knowingly possesses or uses Marijuana outside of the scope of AMMA for under A.R.S 13-3405 (B):

  • Personal use and possession of 2 pounds or less of Marijuana, will face Class 6 felony charges.
  • Possession of at least two pounds of Marijuana will expose a person to Class 5 felony charges.
  • Possession of Marijuana equals four pounds or more of Marijuana they may be guilty of a Class 4 felony.

Penalties for convictions expose a person to prison terms. Statutory Threshold Amount for Marijuana possession is 2 pounds. Convictions involving amounts that exceed 2 pounds, or are repeat offense, call for more harsh punishments. With few exceptions, if a person is convicted of possessing more that amount, with few exceptions, a person will not be eligible for suspended sentencing, probation, pardon, or release from incarceration until they have served imposed court ordered sentencing.

In some cases, first time offenders may be eligible for a drug diversion program that will allow them to avoid jail in return for successful completion of a substance abuse program, known as TASC.

Marijuana Arrest Statistics in Arizona

According to the Arizona Department of Public Safety (AZDPS) crime statistics for 2012, there were a total of 28,935 arrests for drug crime violations. Of those, 15,001 or 52% of all drug crimes arrests were for possession or use, making it the most common drug offense in Arizona.

Arizona Marijuana Laws

Under Arizona Law A.R.S. § 13-3405 Possession, personal use, sales, transportation, distribution and production is prohibited. The law requires that the suspect must “knowingly” or “intentionally” be in possession, or be committing one of the other prohibited acts related to Marijuana.

A person may be guilty of violating this law, when the offense is outside of the requirements, provisions, exceptions and limitations afforded with the AMMA guidelines.

It is not a valid defense to claim that the person charged was aware of the Arizona laws. However, in order to prosecute the charges, the prosecution must be able to prove without a reasonable doubt, that the person knowingly used, or possessed the Marijuana.

Arizona Drug Sentencing Factors in Convictions

Sentencing and penalties for marijuana possession convictions vary depending on at least five factors which include:

  • First time or repeat drug offense;
  • Amount or quantity found in the suspects possession;
  • Quantity is below, equal or exceeds the statutory Threshold Amount;
  • Prior criminal history;
  • Age of persons involved in the offense;
  • Other crimes surrounding the Marijuana possession charges;
  • Mitigating or aggravated factors;
    • Whether or not the possession crime was dangerous, violent, or involved weapon crimes.

Possession of Marijuana or paraphernalia charges, or usually classified as Misdemeanors. However, the quantity of the drug found in a person’s possession is what drives the charges.

By this, it means that the higher the quantity allegedly found in a person’s possession, the more severe the charges and penalties for conviction.

If the quantity the Marijuana possessed exceeds the Statutory Threshold Amount of 2 pounds the possessor will be exposed to prison terms. The Threshold Amount is the street or market value of an illegal substance.

Mandatory prison sentencing guidelines apply for possession of quantities in excess of 2 pounds, even for a first time offense. Exorbitant fines of up to $in amounts $100,000.00 per defendant and up to $1 million for enterprises may be ordered in addition to other penalties.

Possession in any illegal drug, in higher quantities is perceived by law enforcement and prosecution as an indicator that the possessor of the drug was selling it or intending to sell it, distributing it, or transporting it for sale.

Eligibility Guidelines for Participation in a Drug Diversion Programs

In the case of first-time non-serious drug convictions, a defendant may be eligible for the TASC program. TASC stands for Treatment Assessment Screening Center. Successful completion of the charges may reduce it from a felony down to a misdemeanor and may serve to reduce or eliminates incarceration.

Participation in TASC is not an automatic entitlement program. The person must be considered eligible, and acceptance into the program must be agreed upon by the Defendant, Judge, Prosecution, and TASC itself. Though guidelines may vary, here are some general eligibility rules:

  • The defendant must plead guilty;
  • The Defendant must have displayed signs of drug addiction or abuse which resulted in criminal charges;
  • The violation was a first time offense;
  • The crime was non-serious, non-dangerous, non-violent;
  • The defendant has not been convicted of any prior violent or sexual offenses;
  • Criminal charges were limited to use and possession of a small amount of an illegal drug.

The eligibility guidelines, requirements, and limitations may vary between drug courts in which the jurisdiction where the Superior Court is located, and where the TASC programs are operated.

There is no such thing as a successful “cookie cutter” defense. An effective criminal defense attorney will conduct their own investigation, tailor and build a defense strategy that is unique to the facts and circumstances of that case. This is the only way to gain the best results.

10 Criminal Defenses for Marijuana Possession/Use Charges

An effective Criminal Defense Attorney will tailor and build a defense strategy based on the unique circumstances of each defendant’s case. Below are 10 common defense strategies that might be used to challenge drug charges and evidence:

  • Unlawful search and seizure;
  • No probable cause of arrest;
  • Wrong person was arrested;
  • Miranda Rights were not read;
  • No knowledge that the Marijuana was in your possession;
  • No knowledge that the Marijuana was consumed;
  • Challenging quantity in possession, especially the Threshold Amount;
  • Entrapment by police;
  • Actions were within the AMMA laws guidelines
  • Procedural rights, trial rights, or other Constitutional Rights violations

It is important to keep in mind that if you wish to challenge your drug charges it is important to plead “not-guilty” and invoke your right to be represented by an effective criminal defense lawyer. This will increase your chances of getting a favorable resolution to your matter.

Marijuana Economics

Some financial experts project  that governments that legalized Marijuana would reap revenues that exceed $3 billion dollars annually; and up to 10 billion dollars annually by 2018. Those are projections are compelling, and apparently difficult for states and government to ignore, when debating about the legalization of Marijuana.

Each year we are seeing more states are passing laws to legalize Marijuana narrowly, or broadly. Legalization in any form creates opportunities for financial gain from cultivation, dispensary retailers, jobs, and retail profits, state and federal taxation revenues, and opportunities for start-ups.


Photo Credit: Donald Petersen, Law Office of Donald Petersen

For example on September 17, 2014 The New York Times recently wrote of a Company, Mjardin Management, whose operations involve helping licensed cultivators set up nurseries, grow plants and run their businesses. Spokespersons for Mjardin reported that the company is currently reorganizing in with the long term goal of listing on the stock market with a traditional public offering.

Recently in Arizona it was reported  that at least one state lawmaker proposed legalizing recreational Marijuana, to raise tax revenue due to a massive budget shortfall which is projected to be $667 million dollars in 2015, and $1 billion dollars for 2016.

Whether you are a proponent or opponent of legalization, there is no denying that it is big business. Profits are expected to grow, businesses prosper, and states tax revenues rise sharply over the next 3 to 5 years, as a result of legalization.

Drug Defense Attorney for Marijuana Charges

Any Marijuana charge is potentially serious because all felonies call for prison sentencing. No matter how serious the crime by law you are entitled to retain an effective criminal defense attorney to defend you charges, and protect your rights.

Even if you are interested in applying for TASC it is important that you retain qualified legal representation. It is never a good idea to go to court without proper legal representation, especially if you face drug charges, or other serious criminal charges.

You should always consult an experienced attorney if you face drug possession charges, to discuss your options for defense. If retained, your lawyer will protect your rights and defend your charges. Their goal will be to provide you with qualified representation and secure the best possible resolution to your matter.

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AMMA Today: What’s Covered, What’s Not Under Arizona’s Medical Marijuana Laws

“Patient-to-patient sales and transfers were never intended under the law.  Why it’s no longer being prosecuted”.   

On-Line Marijuana Purchase Turns Deadly

Recently in Arizona, an incident involving an online Medical Marijuana sale went tragically wrong, and resulted in a shooting death. A 19 year old man answered a Craigslist advertisement from a seller, age 54.  The parties arranged for a meeting to conduct the transaction.

After the seller requested to see the buyer’s Medical Marijuana Card, the 19 year old pulled out a gun and pointed it at the seller.  He had apparently intended to rob the seller of the Marijuana.

But the seller had a gun of his own, and quickly retrieved it.  The seller then fired several shots, one which hit the suspect.  The suspect fled away, while returning fire, hitting the seller’s vehicle. The 19 year old suspect died that evening at a local hospital.

Though the investigation is pending, police were reported as saying that based on what the seller had told them, the seller’s actions were justified from a self-defense standpoint.  No charges have been brought against the seller at this point.

This case was very tragic, and illustrates the importance of exercising caution in both buying and selling of Medical Marijuana among qualified users.

Where Can You Safely Purchase Medical Marijuana in Arizona?  

The laws are strict with regard to where the Marijuana may be purchased. Under the AMMA, a qualified users may only purchase Marijuana from the following sources:

  • A licensed and state approved dispensary;
  • A patient’s designated caregiver;
  • Another qualifying Medical Marijuana Patient;
  • Home cultivation when authorized.

In the case above seller that placed the advertisement on Craigslist to sell it, was a qualified user, and qualified patient-to-patient sales is not a prohibited practice in Arizona.

However, selling “patient to patient” was not initially included in the 2010 AMMA law. According to the Director of the Arizona Department of Health Services, William Hubble, selling in this manner was never intended to be a lawful provision in the program.

The practice became acceptable following a July 2, 2014 Arizona Court decision on a criminal case State of Arizona v. Jeremy Allen Matlock.  

In the case Jeremy Matlock had placed an ad on Craig’s List which offered to give Medical Marijuana in return for a donation of $25.00 per plant.

Matlock’s criminal defense attorney argued that the provision allowed for a qualified user to transfer or sell Medical Marijuana to another qualified user without the threat of arrest or prosecution. The prosecution argued to the contrary. The decision was left up to the judge who concluded that the 59 word provision that contained no commas, under A.R.S. 2811 was ambiguous, and could be interpreted in more than one way.

Under Arizona judicial laws, if language may be interpreted with a dual meaning, or in more than one way, the court must give leniency to the defendant.

On July 2, 2014 the presiding judge in the case, Honorable Judge Richard Fields, decided that the language that applied to the practice of patient-to-patient sales was so confusing that the suspect could not possibly know he was violating the law.  Fields concluded that the language was drafted poorly and needed much work.

Since then, the practice has been accepted for qualified users to sell to other qualified users, as long as the sale meets all other requirements, not in violation of any other AMMA provisions or limitations.

Qualified users see this practice as convenient. While qualified users who sell it, see it as way to profit, and opportunity for Entrepreneurship

Opponents of the practice feel that it leads to safety and law enforcement problems, and abuses; and that it should be appealed. At this point, it is not known if the case will be appealed, or the language of the law rewritten to prohibit patient-to-patient sales and transfers.

A safe practice does not always prove to be lawful. And just because its lawful, does not necessarily make it safe.

 AMMA Laws: Past, Present and Future    

It’s been four years since Arizona legalized Medical Marijuana since the voters of Arizona passed the Arizona Medical Marijuana Act (AMMA) by a majority in 2010.  But licensed dispensaries have only been opened for operation and dispensing for about 18 months. After lengthy court battles related to zoning, and criminal prosecution concerns, the program is finally operational and functioning well.

To reflect on where we’ve been and where we are now, you would never know that implementing it was not easy. It faced legal battle after legal battle in civil courts, and many qualified users, dispensaries,   and those with medical or economic interests, pressed on, under the threat of Federal prosecution.

Though Medical Marijuana is legal, those who qualify to use, distribute and sell, are well aware of the narrow limitations that apply under the laws governed by legislation, and created by the Arizona Department of Health Services (ADHS).  The ADHS spent significant economic resources to create these guidelines and help regulatory make sure growers, buyers, sellers and distributors are in compliance.

Among the many reasons the laws exist to make sure that Marijuana is sold safely and only to those who qualify, are sold by licensed sellers and distributors who lawfully sell it, and to make sure it does not wrongly fall into the hands of children.

As of June 30, 2014 there were 52,638 qualified users in the state, 1,231 dispensary agencies, and 502 caregivers.  There were 38,923 new applications pending at that time.

As of June 30, 2014 there were 94 qualified minors in the program.  Use by minors is subject to stringent eligibility and parental supervision guidelines.

Since the passing of the AMMA, the ADHS added Post Traumatic Stress Disorder (PTSD) to the list of qualifying conditions. It will be added with an effective date of January 1, 2015, to allow time for certification of agents, dispensaries, and physicians to develop policies for administration under the guidelines.

The program has been deemed a success thus far, but it continues to evolve.  State regulations, case law, police enforcement guidelines, federal and state legislation, governing entities, medicine, taxing, and other economic influences subject to change, and evolution.  In four more years, the program may look quite different than it does today.

Protections Not Afforded under Arizona Medical Marijuana Laws 

Under the AMMA a qualified user is allowed to purchase and possess 2.5 ounces of Marijuana for treatment and symptoms related to a qualified condition.

If a qualified patient lives more than 25 miles from the nearest dispensary, they are allowed to cultivate not more than 9 plants within an “enclosed locked area”.

There are some state prohibitions however, even with Medical Marijuana.  The AMMA does not authorize users to engage in any of the following activities:

  • It does not allow a person to drive, or operating any vehicle, aircraft, or boat while impaired to the slightest degree as a result of being under the influence of Marijuana solely or in combination with other drugs or alcohol;
  • It does not authorize a person to undertake any task while under the influence, that may result in negligence or professional malpractice;
  • A qualified user is not authorized to possess or use on a school bus, or any pre-school through high school grades;
  • It does not authorize use of Marijuana in a public place or on public transit;
  • It does not require federal assistance programs or health insurers to pay any costs associated with Medial Marijuana use;
  • It does not require an owner of private property, or an employer of a work place to allow the use of Marijuana on their property or at work.
  • It does not prevent medical facilities, nursing care, hospitals, or other health care facilities from adopting their own necessary and reasonable restrictions on the AMMA guidelines related to storage and use of qualified patients for their safety and the safety of other residents.
  • No person under the age of 18 may use Medical Marijuana unless they are examined by a doctor; the parent or guardian of the patient applies on their behalf, and a parent or guardian serves as a designated caregiver.

Out of State Card Holders

Under A.R.S. 36-2804 a qualified user registered in another state to use Medical Marijuana, may possess and use it. However, the qualifying patient registered outside of Arizona is prohibited from purchasing the Marijuana from a dispensary. This is because the dispensaries are prohibited from selling it to unregistered users, not verified by the State’s system.

A “Visiting Qualified Patient” is recognized by law as being one who is not a resident of Arizona; or has been a resident less than 30 days; a person who has been diagnosed with a debilitating medical condition by a medical professional who is licensed authorized to prescribe the drug in their state of residence; or the former State of registry within 30 days of the relocation.

A person may apply and qualify to hold a card in more than one state, as long as they meet all eligibility requirements of the states in which they wish to register.

States that have legalized medicinal Marijuana recognize reciprocity to some extent, in that they recognize qualified cardholders in other states for purposes of use and possession.

However, states may vary with regard to how much may be in their possession, whether or not it can be purchased, and other various provisions.

So if a user is a registered, qualified card holder in Arizona, and plans to visit another state, it is important that they become familiar with the guidelines and laws pertaining to out of state users and possessors.  Users visiting or relocating to a different state are bound by the laws,  and prohibitions while in that state.

States v. Federal Laws in Legalizing Marijuana

Despite the fact that 23 states have legalized Medical Marijuana and two states have legalized recreational Marijuana, the Federal Government still prohibits Marijuana in all forms, and for all uses.

Not only is it prohibited under Title 1 of the United States Code (USC) 21 Controlled Substances Act, but it is classified as a “Schedule I Drug”.  The Federal Drug Law categories drugs into 5 classifications with Schedule I drugs considered to be the most dangerous and addicting.

Much controversy, inconsistencies in prosecution, and litigation has surrounded the conflict of Federal Prohibition and State Legalization of Marijuana.

Historically, the Government has been granted supremacy in the event that there is a conflict with state and federal laws. However, the Government made a the decision not to  enforce criminalization, or to intervene into State legalization laws as they pertain to Medical or Recreational Marijuana, as long as the State’s Marijuana Laws are not violated.

The Federal Government enforces violations of the AMMA act, and similar laws in other states. They reserve prosecution for those violations, as well as serious, violent, or dangerous drug crimes, as well as those involving high level dealers v. street dealers; serious offenses; drug crimes that involve smuggling across borders, drug trafficking, and large quantities.

Criminal Defense for Marijuana Crimes

It is important to be aware that violations of the AMMA guidelines are harsh, and expose a person to both civil fines and penalties, and criminal prosecution, in violation of A.R.S. 13 – 3405.  

All Marijuana drug crimes are charged as felonies, which expose a person prison sentencing in Arizona.  If you or someone you know has been charged with any drug crime, you should consult an experienced criminal defense attorney before going to court for or pleading guilty.  James Novak, DUI and Criminal Defense Attorney, provides a strong defense  in drug cases.  He is a former prosecutor, and exclusive criminal defense attorney serving Phoenix, Mesa, Tempe, Gilbert, Scottsdale, and Chandler Arizona.

 

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UNDERAGE DRINKING: Arming Youth Influencers with Safety and Prevention Resources

74 percent of young persons consider their parents to be the greatest influencers in their lives.

Resource Article – Part 2 of 2   

Underage Drinking: Subduing the Problem

We start this article with a quote:  “The supreme art of war is to subdue the enemy without fighting.” – The Art of War

First we define the “enemy” in our discussion which is “the behavior of underage 21 drinking.  According to the National Centers for Disease Control (CDC) it is the most abused of all substances.  And according to the National Council on Alcoholism and Drug Dependence (NCADD) it is responsible for 5,000 youth fatalities annually.   These deaths were the result of homicide, suicide, and falls.   An alarming 600,000 youths under the age of 21 were the age of suffered injuries related to alcohol; 700,000 were involved in altercations or assaults with other youths who were under the influence; and 100,000 became victims of alcohol-related assaults, or sexual assault, or “date rape.”  With these statistics in mind, it’s fair to consider the high risk behavior of drinking under the legal age of 21, as “the enemy”.  

Secondly, we take the position, that it is far more effective and beneficial to prevent minor consumption rather than to face its deadly consequences.

Overview

In our first segment, we provided an in-depth discussion about Arizona’s Underage Drinking crisis; laws, medical, and criminal consequences.  In part two, we take a closer look at causes; prevention, treatment; trends; education; warning signs; the concept of influencers; and strategies being used to help parents and society respond to the problem.

Top Three Sources Arizona Teens Gained Access to Alcohol

In a recent local survey conducted in Chandler AZ, in 2012 by Chandler Coalition on Youth Substance Abuse (CCYSA, the leading methods for youths to gain access to spirituous liquor in Chandler AZ cited “parties” as the leading method.  Of those teens survey, the top three locations where youths admitted to obtaining alcohol in either one, or a combination of the following sources:

  • Parties (54 Percent);
  • Giving money to someone else to buy the alcohol (37 percent);
  • Parents provided it (21 percent)

On a National level, the Federal Trade Commission (FRC) reported that nearly 72 percent of teenagers who drink get access to liquor without paying for it.  Most youths reported getting it from parties, friends, families, or taking it without supervision or permission from adults, or stealing from retailers.

Results from the “2012 National Survey on Drug Use and Health” released by released by SAMHSA 23 percent or 2,139,000 of youths who drank alcohol got it from their parent, other family members or guardians.  This has been a continuing controversy in the USA.  Proponents of this practice feel that drinking at home is much safer than doing so away from home; and that the adult family members can teach them to drink responsibly at home with supervision.  Opponents of this practice argue that consumption by youths under 21 years of age is not safe, so therefore, neither is allowing youths to drink at home, even if it’s supervised by the parent.

Underage Alcohol Consumption:  National Statistics and Trends 

Alcohol related fatalities are still the leading cause of death in youths in the USA.  According to a research study by the Substance Abuse and Mental Health Services Administration, 52.1 percent or 135.5 million of Americans between 12 and 20 years of age reported that they were drinkers of spirituous liquor. This was up slightly from the year before for which a total of 51.8 percent were reported.  Of those in 2012, nearly 25 percent reported engaging in the dangerous behavior of binge drinking just within the last 30 days prior to the study.

According to the National Centers for Disease Control (CDC) binge drinking means drinking 4 to 5 drinks within an hour or shorter period of spirituous liquor.  Binge drinking can lead to serious injury such as alcohol poisoning, and death.

A recent report posted on StopAlcholAbuse.gov reported that in fact, while there is still much work to be done, prevention efforts have made an impact resulting in an overall decreased from 2002 to 2012 bringing incidents down from 29 percent to 24 percent.  Binge drinking declined on a national level from 19% down to 15 percent.   They attribute this decrease to state laws and their enforcement.

The Federal Trade Commission (FTC) reports that after prohibition nearly all states adopted minimum legal drinking age laws in some fashion. But many states reduced the age from 21 to 20, 19, or 18 to coincide with the legal age to vote.  To encourage states to increase the age limit to that of 21 Congress passed The National Minimum Drinking Age Act (MLDA) in 1984, imposing a minimum legal drinking age of 21.   Millions of dollars in Federal National Highway Construction Funds were withheld from those states that did not adopt the MLDA laws prohibiting youths under 21 years of age from drinking. Under the threat of losing valuable federal highway funding, all states in turn had adopted the law by 1988.  The FTC reported that imposition of MLDA under age twenty one, resulted in both a reduction in unlawful teen drinking as well as alcohol related fatalities and serious auto accidents.     But in those states where the drinking age was lowered to 18, 19, or 20 years of age, the number of minors who drank increased, so did alcohol-related auto accidents, injuries and fatalities.

Consequences: Minor Consumption and Alcohol-Impaired Driving 

The CDC also reported that teens and youths under the legal drinking age, were more likely to experience poor grades; mental physical, cognitive, and behavioral dysfunctions; and disruption of normal growth and development including brain, liver functions, disruption in immune system and endocrine functioning which can have irreversible and have life-long impacts.  The Mao Clinic also reported that some research studies concluded that alcohol use may permanently distort a growing youth’s mental development

High School and College students who drank also had a sharp increase over non-drinkers in suicides; unplanned pregnancies, sexually transmitted diseases; legal problems such as criminal arrests related to DUI, youth alcohol consumption, and assaults. They were also more likely to become victims of suicide, injuries such as violent crimes, burns, drowning, physical and sexual assaults; and other fatal incidents. It also may lead to abuse and addictions of other illicit drugs or substances; serious DUI related auto injuries or fatalities.

Young persons under 21 impaired or driving impaired are not the only ones at risk of serious injury or fatalities. Bystanders at a gathering can be injured when violence or altercations breaks out.  Passengers of all ages, and other drivers and their passengers are at risk with drivers under 21 get behind the wheel while under the influence of alcohol.

15 Causes of Youth Drinking

According to reports from The National Institute on Alcohol Abuse and Alcoholism and the Mayo Clinic below are someknown causes that young adults under twenty one years of age turn to alcohol:

  • Stress;
  • Social anxiety or general anxiety;
  • Hereditary factors;
  • Community risk factors such as media advertising and parties;   
  • Peer pressures or the need to fit it;
  • The desire for independence and to engage in high risk behaviors;
  • The expectation of a pleasurable experience;
  • Personality characteristics, behavioral and mental health issues;
  • Low self-esteem;
  • Behavior problems at home and school;
  • Child abuse of other major trauma in the youth’s history;
  • Close friendships with teens who drink or use other drugs;
  • Lack of awareness and education of the dangers and consequences;
  • Problems or conflicts within the family unit such as parental alcoholism or divorce;
  • Inability to cope with the stress of change or transitions such as moves or new schools.

Seven Prevention Strategies for Parents 

Mothers Against Drunk Driving (MADD) reported on national research that concluded a staggering 74 percent of teens considered their parents to be the leading influence on their decision to drink, or not to drink alcohol.   The National Institute on Alcohol Abuse and Alcoholism outlined prevention efforts at many four levels including the family level, school level, extracurricular level, law and community level. Here we will focus on family and parental strategies.  Their combined recommendations include:

  • Improve relationships with children using good communication skills; listening; problem solving; and seek effective ways to discuss hazards of alcohol use and prevention.
  • Make rules. Enforce them.  Be consistent. Include constructive discipline and carry through on the consequences of breaking the rules.
  • Monitor youth activities.  This might mean getting involved in supervision or volunteering for special activities.  Or it may mean simply informal monitoring at home by knowing where they are and who they are with.
  • Strengthen the family system, and promote bonding.
  • Get equipped with materials such has handbooks, videos, and other information to help education and raise awareness at home, of the dangers and consequences alcohol related crimes. Resources can be obtained from an abundant amount of sources including but not limited to local law enforcement agencies, safety and prevention organizations such as MADD, schools, authority agencies, and medical websites on-line sources.
  • Make time to be involved in your teen’s life. This may include sporting events, attendance at plays if they are in theater; concerts if they are in a band; or any other organized activities.
  • Encouraging honesty, and opened communication: Teens are less likely to be truthful when it comes to engagement in high risk behaviors.  Promote confidence, trust, and honesty.  Let them know you are there to help resolve despairing issues that may lead them to harmful activities.  Never punish teens for being honest, especially if it involves high risk behavior.

10 Warning Signs That Your Son or Daughter May Be Drinking  

The National Institute on Alcohol Abuse and Alcoholism provides some signs and warnings for parents to be aware of if they suspect their son or daughter has been drinking liquor:

  • Mood swings with anger, agitation and irritability; and
  • Drop in grades, or other school behavior problems;
  • Combative or rebellious personality;
  • A change of friends;
  • Lack of interest in activities, or involvement they used to enjoy;
  • Low energy and lack of motivation to care for their appearance and hygiene needs;
  • Find spirituous liquor cans or bottles at home, vehicles they drive; or belongings;
  • Decreased memory and concentration abilities;
  • Slurred speech and decreased coordination.
  • An odor of alcohol near the youth, on their breath, or clothing.

Four Main Treatment Options

Depending on the degree, amount, and frequency in which a youth has been drinking, treatment is available. Every case is unique and should be treated in the way most appropriate for that person. The parents may begin with these options:

  • Consult a mental health professional to address underlying mental/nervous disorders;
  • Participation in outpatient substance abuse programs;
  • Consult  a substance abuse counselor, specialized in treatment of alcoholism;
  • Admittance to an inpatient hospital or treatment facility to treat addictions.

National Prevention Efforts – Parental Influence is Key to Success    

The US Department of Health and Human Services working together with Substance Abuse and Mental Health Services Administration (SAMHS) devised an action plant to identified areas to focus on for prevention.   They involved intervention of “influencers.” They may also include teachers, mentors, coaches, faith based ministries, and those who interface with youths away from home.

The plan focused on engaging parents and other youth influencers in the youth’s life both on a personal level, and participating in organized prevention programs.  The calls to action include active efforts to strengthen bonds with their teens, and family, increasing communications, and instill values which will lead to good judgment decisions, behavior, and character development.

Other areas of focus were turned to schools, communities, social systems, extracurricular programs, and law enforcement, local and government agencies.

The CDC recommends other strategies including the reduction of advertising, and marketing targeted to young adults and teens; increasing excise taxes on liquor; and stronger law enforcement of existing laws that target minor consumption.

The monitoring, researching, gathering, reporting, and responding to specifics in the plan were primary plans of action.  Studies would target and identify causes or factors that may increase the propensity of a youth to drink. These include but are not limited to factors such as environmental, cultural, geographical, gender, age, family influences, school influences, anxiety or stress triggers engagement in high risk behaviors such as use of illegal drugs, peer pressers, inherited traits; and other characteristics.

Summary and Conclusions 

Arizona has had a 7 year consistent upward trend in consumption arrests, while the National Average has declined during that same time frame.

At a National Level there has been a decrease in consumption by youths under the age of 21. The credit for this decrease went to enforcement of laws, and environmental factors such as media campaigns, increase in taxes, out-reach programs, and an increase in positive parental influences.

It’s clear that prevention and education area critical in reducing incidents; and that parental influence is a major factor in a youth’s decision to drink.  Parents need to be provided with abundant resources and support in their efforts to raise awareness and positively influence their child.   Both youths and parents should strive to increase communication; and strengthen family bonds.

The continued offering of these programs in community and school settings is emphasized by many authoritarian agencies.  Partnerships and shared efforts are crucial to the success of the programs including those with law enforcement agencies, city officials, medical affiliates, and the many other entities who serve in raising awareness and prevention.

Once programs are in place, they should be monitored for success. Data should be gathered and reported to review the effectiveness programs.  Additional financial resources need to be allocated for those programs that prove to be effective in educating, preventing and addressing under age alcohol prevention and treatment.

Research studies by the CDC concluded that in states with more stringent minor consumption laws and consistent enforcement of them, served to decrease use, injuries and fatalities related to alcohol use by those under the age of 21.

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UNDERAGE DRINKING: Not Just a College-Town Problem in Arizona

No parent is ever fully prepared for a call from their son or daughter from jail following an arrest. The question all parents ask is “What now?”  This is where you start.

Resource Article: 1 of 2 Parts: Arizona’s Trends, Arrests, Laws; Consequences; and criminal defense

Maricopa County Mesa Arizona DUI Task Force Van

On March 30, 2013, an 18-year-old Tempe ASU student Naomi McClendon fell to her death from a ten-story apartment building. She had just returned from an “all you can drink” party at an off-campus, now-banned fraternity house. Security video footage showed Naomi walking the halls of the apartment stumbling and unable to steady balance after she left the party, where friends say she was drinking heavily. Security cameras from outside the building revealed Naomi straddling the 10th story balcony railing before falling to her death. It is not known whether she fell accidently or intended to take her life. All we know is that Naomi died that day.

Naomi McClendon was the last person that one would expect to abuse alcohol.  Both of her parents were school teachers. Naomi was the Student Body President of the former High School she attended. According to those who knew here, she was positive and optimistic. Her college major was in non-profit leadership and Management, a field with so desperate a need for people like Naomi McClendon, to make a difference in their lives, communities, and all those who she would have served rewardingly. But Naomi’s life ended abruptly along with her aspirations, hopes, and dreams, at the hand of alcohol abuse. Her family, her friends, the school, the city, the state polarized by her death.

Naomi McClendon’s story is not the first of alcohol related tragedies in Tempe, AZ. Similar alcohol related deaths occurred within months prior to hers.  The alcohol related violence, and fatalities devastated Tempe, and the State.  As a result the police significantly increased their alcoholism crimes enforcement efforts. They hit the streets, bars, parties, sporting events, and any place they thought they may find minors consuming alcohol.  Hundreds of arrests were made within just a few weeks prior to the spring 2014 graduation.  Though many students have returned home following the spring 2014 semester, police remain vigilant. This is because alcohol abuse by minors is not “just a college town problem”; its’ impacts are wide spread on youths, drivers, passengers, families; and victims of its wrath.

Naomi’s death presents haunting questions: “Could her death have been prevented? Was Naomi Troubled? Did warning signs go unnoticed? Why did no one recognize that she had too much to drink? Why did no one help her?”

Youth Drinking Crisis: – Overview

This in-depth article is intended to raise awareness to the crisis of drinking by minors. We will reveal statistics in Arizona, and compare them to the National statistics; provide information on laws, penalties, other consequences, trends of violations, prevention, causes of high risk behaviors; their impacts on the teen, and society; resources to help raise awareness; the response by schools, local and government agencies; and the role of influencers in a teens life with regard to their decisions to drink or engage in high risk behaviors. This series has two parts:

1)Underage Drinking: Arizona’s Crisis; Minor Consumption Arrests reach record high; Laws; Trends; Consequences” –  In this segment we will discuss Arizona’s 7 year trends that have continued to increase; laws; consequences; and how Arizona compares to the rest of the nation; and State and National Medical Amnesty Initiatives.

2) “Subduing the Enemy: Underage Drinking War”: Causes, Prevention; Social and Influencer Responses” – In part two we will discuss consequences, causes, prevention, and treatment. We will also take a closer look at the critical role parents play as influencers in their teens decision making processes; provide tips and strategies for parents to recognize warning signs, raising awareness and helping to prevent the problem; and calls to action by local and national authorities to combat the problem.

Arizona’s Youth Drinking Reaches all Time High

As the national average declines each year, Arizona’s teen and below legal drinking age arrests have reached historically high numbers that continues to climb. Recent reports released from the Arizona Governor’s Office of Highway Safety (AGOHS) 2012 and 2013 DUI enforcement statistics. Arizona has experienced a dramatic upward trend during the last 7 years, in citations involving drinking violations, under the legal age of 21.

In 2013, there were 85,247 violations cited over 7,988 in 2012. This increase despite the fact that there was a 5.57 % drop, 48,894 fewer police contacts in 2013 than 2012. These figures do not include DUI arrest statistics for drivers below 21 years of age.

In 2013, Arizona experienced a 6.3 percent increase in drinking arrests over 2012 according to the Arizona Governor’s Office of Highway Safety (AGOHS) DUI Enforcement Statistics. Even more compelling is the fact that drinking alcohol under the age of 21 violations has progressively increased nearly six times higher within the last 7 years. AGOHS reported the following citations for violations in this category:

  • 2007 – 1,502
  • 2008 – 1,571
  • 2009 – 2,019
  • 2010 – 3,169
  • 2011 – 7,708
  • 2012 – 7,988
  • 2013 – 8,527

DUI violations of those drivers under the legal drinking age limit increased over the most recent 6 year period, rising to nearly 3 times higher in number from 2008 to 2014.

  • 2007 – 655
  • 2008 – 590
  • 2009 – 783
  • 2010 – 910
  • 2011 – 910
  • 2012 – 1,337
  • 2013 – 1,532
  • 2014 – 1,450

In June of 2012 the National Centers for Disease Control (CDC) released their 2011 “Youth Risk Behavior Surveillance Summaries” for 2011.  At that time, Arizona took the number 1 spot in the country, with 27 percent of those surveyed admitting to engaging in “Binge Drinking”, a dangerous drinking practice that can result in alcohol poisoning or death.

Arizona also ranked second for having 44 percent of high school students admitting to using alcohol within the last 30 days prior to the survey.

Arizona Compared to the National Averages – AZ Higher in all alcohol use categories

According to the most recent statistics from the National Centers of Disease Control (CDC) 2011 Youth Risk Behavior Surveillance Report, Arizona teens scored higher in all 4 categories, over the national level related to youth alcohol consumption.

  • Drank alcohol before the age of 13 – Arizona 21. percent v. USA 21 percent
  • Drank alcohol during the last 30 days – Arizona 44 percent v. USA 39 percent
  • Engaged in Binge Drinking during last 30 days – Arizona 27 percent v. USA 22 percent
  • Drank alcohol on school property within last 30 days – AZ 6 percent v. USA 5 percent

It is unclear why Arizona is higher than the National Averages. However, this was the case in the substance abuse categories as a whole, and not only use of spirituous liquor.

National Medical Amnesty Initiative – Good Samaritan, #911-Life Line Calls Save Lives

Medical Amnesty Laws related to drugs and alcohol, are laws that provide immunity in some form to victims or witnesses who call or seek emergency medical treatment for someone who has suffered from a fatal overdose. Currently, there are only eighteen states in the USA with such laws in place. Arizona does not have drug or alcohol immunity laws in place at this time.

National Medical Amnesty Initiative was recently proposed, and is also known as “911 Life Line” or “Good Samaritan” laws. Advocates of the initiative report an alarming study from Cornell University revealed that nearly 70 percent of teenagers reported they feared being cited or arrested by police because their alcohol consumption was a violation of the law. As a result 19 percent of college students admitted that medical attention should have been sought for person who suffered from alcohol poisoning or high levels of intoxication; but that only 4 percent actually called 911 or went to seek emergency medical treatment.

In states where alcohol or substance abuse amnesty laws existed, it was discovered, that more calls were made and more lives were saved as a result of the immunity laws.  Interestingly, this same study revealed that while the #911 calls increased, the fatalities decreased. But the drinking behaviors and the number of teens drinking stayed relatively the same or constant.  This can safely lead us to the conclusions that adopting “Medical Amnesty” laws neither compel teens to drink alcohol at all; or compel them to drink more in volume.

7 of the Most Common Youth Drinking Crimes

  • Minor in Consumption (MIC);
  • DUI;
  • Purchase of liquor;
  • Possession of Spirituous Liquor;
  • Using or possessing false identification (ID);
  • Employee under the legal drinking age, selling or distribution of alcohol
  • Using or possessing ID to buy liquor or get into an establishment where it is sold

Arizona Minor Consumption Laws (Excluding DUI)

In Arizona the legal age for buying or drinking spirituous liquor is age 21 under A.R.S. 4 – 244. Arizona is a “Zero Tolerance” state. This means it is unlawful for a person under age 21 to purchase, or have amount of spirituous liquor in their blood stream, in a pubic or in any establishment.  Consumption violations involving those below 21 years of age, excluding drinking and driving are brought as a Class 2 Misdemeanor. However, if a person uses a false ID to gain entry into an establishment or to obtain alcohol the offense is elevated to a Class 1 Misdemeanor.

There are few exceptions for which defenses may apply under the law. Exceptions to prosecution include alcohol consumption for faith based ceremonies, medicinal purposes; and where there is no danger to public safety as a result of the minor consumption.

Criminal liability will also be imposed for violations by persons, business owners, retailers, and other businesses that knowingly sell alcohol to persons under the legal drinking age of 21 are in violation of A.R.S. 4 – 244. In this article, however, we focus on laws and penalties related to consumption, and DUI for those under age 21.

Penalties for Possession or Consumption of Alcohol for Person Under 21

Non-dangerous, first time Class 1 Misdemeanors generally call for 6 month jail sentences and a period of 4 months incarceration for Class 2 Misdemeanors. The court judges may use their discretion to order sentences for alcohol related convictions of minors in possession, consumption, or false identification.

However, those charged will be exposed to harsh penalties. These include: 2 years driver’s license suspension or refusal; alcohol abuse screening, counseling, or treatment; fines up to $750.00 for Class 2 Misdemeanors and fines up to $2,500 before surcharges for Class 1 Misdemeanors.

Under Age 21 DUI Laws: (Excluding minor consumption without driving) 

Arizona is a “Zero Tolerance” state with regard to under age 21 drinking in Arizona. A person found to have any spirituous liquor in their blood stream is in violation of DUI minor consumption laws applying to roadway motor vehicles A.R.S 4-244. (34), and for watercrafts (35).

This law differs from that which applies to adults in that it is lawful for an adult over age 21 motorist to drive as long as they are not “impaired to the slightest degree,” and the Blood Alcohol Content (BAC) in their bodily system is below .08 percent.

Underage 21 drinkers do not have to be driving impaired, in order to be prosecuted for DUI. This means “Zero Tolerance” for alcohol use for those not of legal age in the State of Arizona.

These charges are brought as Class 1 Misdemeanors, the most serious of Misdemeanor crimes. Convictions will expose a driver to a minimum 10 day jail sentence.

Penalties for Underage Drinking and Driving

A person convicted of a Class 1 Misdemeanor, who is below 21, will face the same Criminal Penalties as adults plus additional civil driver’s license penalties. Under A.R.S. 28 –3320 & 3322, related to loss of driving privileges, drivers below the age of twenty-one, will lose their driving privileges for two years; as opposed to adults who face a 90-day suspension.

Suspension period is increased to 3 years for an Aggravated (Felony) DUI.  Restricted driver’s licenses may be issued in some situation for driving to work and school, but subject to installation of special Ignition Interlock Devices (IID).

Criminal penalties for driving under the influence of any alcohol, even in absence of driving impairment, for a motorist below the age of twenty one, calls for a 10-day jail term. This time may be reduced to a maximum of 1 day upon successful completion of an alcohol abuse treatment program; fines, fees and assessments of at least $1,200.00; participation in an alcohol or substance abuse counseling or treatment program; and use of IID for one year following the reinstatement of driving privileges.

Criminal Defense for Alcohol-Related Crimes

No parent is ever fully prepared for a call from their son or daughter from jail following an arrest. The question all parents ask is “What now?” This is where you start.

If you or a family member has been charged with a DUI or other alcohol related crime, you should consult a private practice criminal defense lawyer as soon as possible, to discuss your son or daughter’s matter and their options for defense.

It is important that both the parents and youths charged fully understand the consequences of a conviction. Without a qualified and experienced defense attorney, alcohol related charges will result in swift and harsh conviction that exposes a person to jail terms, and loss of driving privileges. A conviction can interrupt and have severe impacts on a person’s life. In Arizona, most sentencing will include orders by the judge to participate in substance abuse programs. Successful completion may result in reduce jail terms.

But a person should never plead guilty without being properly represented by a criminal defense attorney. There may be defenses that can be used that will lead to dismissal or reduction of charges and sentencing. James Novak, DUI & Criminal Defense Attorney of the Law Office of James Novak, is a former prosecutor, and experienced trial attorney. He provides exclusive defense and offers a free initial consultation for those who face active alcohol related charges in Phoenix, Mesa, Chandler, Tempe, Gilbert, or Scottsdale Arizona.

Resources

Other Articles Related to This Topic by Law Office of James Novak

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AZ Court of Appeals Rules: Public Drunkenness Not a Crime

Appeals Court says to prosecute public drunkenness, violates legislature’s decision to treat alcoholism and substance abuse as a disease, not a crime.

Appeals Court Decision: State of Arizona v. David Harold Cole 

On Monday May 5, 2014 an Arizona Appeals Court ruled unanimously on State of Arizona v. David Harold Coles, deciding that being drunk in public was not a crime. The Arizona Court of Appeals Division One overturned a criminal conviction resulting from violation of a Scottsdale AZ municipal ordinance, making it a crime to be “incapacitated in public” due to alcohol.

Criminal Court Proceedings Leading to the Appeals Court Ruling   

The Scottsdale Municipal court originally dismissed the charges based on State preemption over city ordinance.  The state law provides immunity for criminal prosecution of “common drunkards or being found in an intoxicating condition” when that is the sole criminal charge.

As a result of the dismissal, the City of Scottsdale appealed the dismissal to the Maricopa County Superior Court, who then reversed the Municipal Court’s decision, and remanded for continued prosecution.  The court acknowledged the general rules of pre-emption of the state law over the city ordinance.  However, at the same time, the Superior Court also accepted the prosecution’s argument that the language in the state law “being found in an intoxicated condition” failed to precisely include the words “under the influence of alcohol” which was contained in the city ordinance.  Therefore, the Maricopa County Superior court did not meet the test of being the same law as that recognized by the state.

The defendant then Appealed to the Arizona Court of Appeals –Division1.  The Appellate court felt that prosecution was in violated of a 1972 law which decriminalized public drunkenness, with the exception of statutory activities including driving vehicles which would be charged as Driving under the Influence (DUI) of alcohol or drugs; and operating machinery (OUI).   The Justices felt that the language in the state law under A.R.S.  2031 (A), (B) was sufficient to be interpreted as being “under the influence of alcohol” under the city ordinance language.

Analysis of the Appeals Court Ruling

The Appeals Court weighed heavily on the intent of the 1972 State Legislature Referendum which was targeted at treating alcoholism and substance abuse as diseases which should be treated as medical conditions, and not crimes that can be reformed through incarceration only.  The exceptions to criminal immunity dealt with other alcohol related crimes such as DUI, DWI, OUI, Underage drinking, and minor consumption.

The Court of Appeals Judge Kent Cattani wrote that it did not matter that the Scottsdale Ordinance applied solely “when it reasonably appears that he or she may endanger himself or other persons or property” This argument was rejected by the Appeals court because it was felt that this ordinance undermined State Law which decriminalized it.  Judge Cattani wrote that “Almost anyone who is under the influence of alcohol in a public place arguably presents a danger to himself or others.” Cattani pointed out that in 1972 the Arizona legislature eliminated criminal liability for public drunkenness “even where it reasonably appears the person may endanger himself or other persons or property”.

Cole’s conviction was appealed on the basis that the city ordinance conflicted with Arizona’s Criminal Laws Limitations under A.R.S. 36-2031.  In sum this revised law serves to provide criminal and civil immunity for persons found to be in an intoxicated condition as an element for penalties or sanctions.  There are exceptions to the immunity which included but were not limited to offenses such as drunk driving, and driving while impaired due to alcohol or drugs.

Further the law was very clear that no county, municipality or other subdivision politically could adopt or enforce the local laws, or city ordinance to circumvent this provision.

So what we have here is an illustration of the state’s exercising its right to supersede a city ordinance that conflicts with state law. The Appellate court cited that a state statute preempts a local ordinance when:

  • The city creates a law in conflict with the state law;
  • The state law is of statewide concern; and
  • The state legislature intended to appropriate the field through a clear preemption policy”.   

Then in 1972, the Arizona Legislature amended this law with A.R.S. § 13-379 which decriminalized the general condition of being “under the influence of alcohol in a public place.” The exceptions to this decriminalization involved the same criminal offenses such as DUI, OUI, DWI, and other alcohol related specific crimes, other than public drunkenness in and of itself.

At the same time, the State of Arizona established alcohol and substance abuse treatment programs for alcoholism and substance abuse patients on a voluntarily basis, in order to obtain treatment if they are transported to an approved facility by police or other law enforcement officials  A.R.S. §§ 36-2021 to -2031 cited by the court.

Another argument that the Scottsdale City prosecution argued was important was the fact that the word “drinking” was absent in the state statute.  But the Appeals court refused to accept that argument as important.  To put it simply, it was more than a reach to make it an important issue, considering the focus of both the statute was on decriminalizing alcohol-related conditions. Therefore they conclude the words intoxicated and drinking as being one in the same for purposes of criminal immunity for the disease of alcoholism.

In summary, the appeals court was committed, to treating alcoholism as a medical issue, not a criminal issue, despite language differences in the city ordinance verses the state laws.  The dismissal of charges by the Appeals court was the product of this decision.

Impacts of Ruling

What we know at this point according to news reports is 1) that the Scottsdale City Attorney instructs police to immediately stop enforcement; and that the ruling Monday and 2) The Scottsdale case Appellate ruling will be legally binding on trial courts throughout the state of Arizona.  No information has been made available as to whether or not the city will file an appeal in the decision at a future date.

The Scottsdale Police reported to local media outlets that approximately 600 citations were given out over the last 12 months and that from here forward they will be in compliance.  They are still reviewing what additional steps will need to be taken, in order to fully comply in light of the Appeals Court Decision, or if they intend to appeal it.  The thing to keep in mind is that this immunity applies strictly to cases where no other laws have been violated.  For example, if a person is drunk in public, and acting disorderly, or disturbing the peace of others or businesses, they may still be arrested and prosecuted for disorderly conduct.  If they fail to follow police instruction, even though they are drunk, they may be arrested for failure to obey a police officer’s instruction or resisting arrest.  If they get in a fight, or altercation while drunk, they may still be arrested for assault or aggravated assault, even though they are drunk in public.

Criminal Defense for Alcohol-Related Crimes in Arizona

Almost all alcohol related crimes in Arizona are serious and call for jail time, large fine, fees, costs, probation, substance abuse counseling.  If the charges involved impaired driving, other penalties are involved such as suspension or revocation of driver’s license, and installation of Ignition Interlock Device (IID) on your vehicle.

It is never a wise decision to go to court and defend your charges without proper legal representation by an experienced criminal defense attorney. This often leads to a swift conviction with harsh penalties.

An arrest is not a conviction.  Once arrested you have the right to defend your charges. The most effective way to do this is by hiring a Law Firm to defend your rights, protect your charges, and build a strong defense strategy and tailor it to the needs of your case.   There may be defenses that you are not aware of that apply in your case.  The illustration above is just one of many examples of this.

Your chances of getting a favorable outcome in your case will increase drastically, with qualified representation.  James Novak, of the Law Office of James Novak, PLLC, provides exclusive defense for criminal charges including alcohol related, and DUI charges.  James Novak is a former Maricopa County Prosecutor with a wealth of trial and litigation experience.  He brings over 20 years of experience to your case, along with familiarity of the laws, and court systems where he represents clients.   For a strong defense at an affordable cost contact Law Office of James Novak.  He provides a free initial consultation to discuss your matter, and options for defense. Call today if you have active charges in Scottsdale, Phoenix, Tempe, Mesa, Chandler, or Gilbert, AZ.

Additional Resources:

Arizona Court of Appeals Division I – State of Arizona v. David Harold Coles

Arizona Criminal Laws Limitations

Arizona Department of Health Services –Substance Abuse Treatment Facilities

Mothers Against Drunk Driving (MADD) Arizona

Scottsdale City Court Resources

Recent Blogs of Interest:

Scottsdale DUI Survival Guide

Arizona Supreme Court Ruling on Marijuana DUI

Risks and Consequences of Drug DUI

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Arizona Heroin Drug Crimes: Trends, Laws, Penalties, and Rehabilitation

Heroin: Fighting the Epidemic and Clearing its Path of Destruction – Part 2 of 2

After a fatal drug overdose, moments count. Call #911 first. Get emergency treatment. If you are arrested, or Criminal Charges are brought, they can be defended by an experienced drug defense attorney. But you only get once chance to save a life.

Twenty-year-old Stephen Cardiges of Lawrenceville, GA was a week from celebrating his 21st birthday. He was an Eagle Scout, excited about his plans to join the US Navy after turning 21.  Stephan slipped into unconsciousness in the back of a Honda Civic, from a Heroin overdose, while his friends drove around town. His companions knew he was unconscious but didn’t want to call #911 or seeking help for him. Why? The reason was, they feared arrested for possession and use of Heroin. Perhaps they thought he would wake up on his own. Nonetheless, after a while, Stephen’s friends allegedly left Stephen there unconscious, in the back of the parked vehicle while they went their separate ways.

An observant officer noticed the youth in the Honda Civic parked in a driveway, with no one else in it, but Stephan. The observant officer approached the vehicle concerned that the youth was having a medical emergency. The officer immediately noticed the Heroin paraphernalia next to Stephen. The officer called for Emergency Paramedics and in the meantime tried to revive him. But it was too late. Stephan had already slipped into a coma. He was pronounced dead at the East Side Medical Center, which was a mere 2 miles away.

Would Stephen be alive today if someone had called #911 or taken him to the Emergency room for medical attention? With the proper medical care, I strongly suspect Stephan would have survived.

The Upward Trend in Heroin Use in the USA

The National Institute for Drug Abuse (NIDA) reports alarming statistics and trends in heroin.

Over 4.2 million people in the USA, in those among the ages of 12 or older, admitted to using heroin at least once. Of those, it is estimated that nearly 25% of those became addicted to it. In 2012, drug overdoses was the number 1 cause of deaths, exceeding motor vehicle accidents in 17 states in the USA.

In the last 7 years, use has been driven sharply upward, especially in young adults, ages 18 through 25. In 2012, a research study by nearly 670,000 Americans reported using it. Of those, ages 12 and over have doubled during that time. It’s been identified throughout the USA as being the most important drug issue plaguing out country, thus being called an epidemic by the NIDA Community Epidemiology Work Group (CEWG).  he US Government, other national, and local agencies, including law enforcement agencies, the medical community, and parents seek desperately, for solutions toward prevention, intervention, and treatment.

More Police to Carry “Miracle Drug” for Emergency Fatal Overdose Treatment

Many drug overdose deaths, including heroin overdose fatalities are preventable. They may have been prevented, if victims, friends or family were not afraid of arrest or prosecution.

In our part 1 of 2 segment on this topic, we discussed the fact that the FDA recently approved a life- saving injection “Evizo”, that can be administered by trained first responders such as police officers, family, or other health care professionals. The injection contains the drug “Narcan” (Brand name) or Naloxone (Generic), which has proven effective in reversing a fatal overdose of heroin or other opioid in a patient. It is known to actually revive patients who would otherwise have not survived. This treatment is only temporary and immediate for use to revive the patient until specialized medical treatment can be administered. Also, it has not been effective in reversing other potentially fatal overdoes such as those on cocaine or other methamphetamines, for which other life-saving drugs exist. Nonetheless, it is being called a miracle drug for opioid overdoses. The key to its effectiveness is immediate use, as soon as possible following the over dose.

#911 Good Samarian Laws: Immunity for Seeking Overdose Help

A minority of states have what are known as #911 Good Samaritan Laws. If these are in place, and if people in those states were aware of them, they may be more inclined to seek emergency medical assistance for an overdose.

These Good Samaritan laws are intended to provide a certain amount of immunity from arrest and prosecution for themselves, when they seek emergency medical treatment for overdoses or call #911. But currently, just a handful of states have them. They exist in only 18 states including Alaska, California, Colorado, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Rhode Island, Vermont and Washington. This leaves 65% of the country without #911 criminal immunity laws for witnesses, or overdose victim to call for help.

Drug Good Samaritan #911 Laws vary by state, with regard to provisions and immunities to arrest or criminal charges. But most states extend immunity laws narrowly to drug possession and use crimes, and do not suppress evidence for other more serious charges such as sales, manufacturing, and distribution crimes.

Arizona does not Good Samaritan Laws such as this in place. This presents a great concern, in light of the fact that it is recognized as a 6th highest state in the country for heroin  overdose fatalities according to the National Institute on Drug Abuse..

People often to call #911 or seek medical treatment for fear of arrest or prosecution since the use or possession was in violation of Arizona State Drug Laws. And currently there is no protection for those seeking emergency help for themselves or others in absence of these Good Samaritan Overdose laws. This decision, not to seek help, has unfortunately led to preventable fatalities.

It is recognized my many, that the state needs to adopt more of the 10 strategies for states with similarly high drug overdose fatality rates recommended b Trust for America’s Health. Thus far, only 4 of the 10 known strategies were adopted, and did not include immunity laws from arrest or prosecution by a person, or others seeking emergency medical treatment for overdoses.

Heroin Crimes, Laws, Classifications, Penalties  

Heroin is an Opiate and is classified as a Narcotic. It is also considered “Controlled Substances” under Arizona Laws and classified as a Schedule I drug. Offenses are prosecuted pursuant to Arizona’s Narcotic Drug Laws.

With regard to Narcotic violations, a person may be found guilty under A.R.S. 13-3408 of Arizona drug law, if they “knowingly”:

  • Possess or use a narcotic drug; (Class 4 Felony)
  • Possess equipment or chemicals for manufacturing narcotic drugs (Class 3 Felony)
  • Obtain a narcotic drug through use of a fraudulent prescription, deceit, or misrepresentation (Class 3 Felony)
  • Possess narcotics with intent to sell; (Class 2 Felony)
  • Manufacture narcotics (Class 2 Felony)
  • Administer a narcotic drug to another person (Class 2 Felony)
  • Transport for sale, import into this state, offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer a narcotic drug (Class 2 felony)

Narcotics violations in Arizona carry some of the toughest penalties of all illegal drug crimes. Narcotics charges are all classified as felonies. This exposes a person to prison sentencing, and steep fines, along with other harsh punishments in Arizona. Fines for felonies in Arizona can reach up to $150,000.00 per person, per charge; or $1,000,000.00 million per charge, per enterprise.

Arizona’s Statutory “Threshold Amount” under A.R.S. 13 – 3401.36 is one gram. The Threshold Amount refers to the market value, weight or measurement of a particular drug or substance as it relates to criminal drug laws.

Sentencing for convictions involving an amount of controlled substances that are under the statutory “Threshold Amount” may range from 3 years mitigated sentencing to 12.5 for aggravated sentencing for Class 2 felony charges.

Arizona punishments are harsh for repeat offenses, especially if they involve amounts that equal or exceed the “Threshold Amounts” for the given drugs. Sentencing is increased for these convictions can range from 10 to 12 years for maximum non-aggravated offenses; and 12.5 to 15 years for aggravated Class 2 felonies.

If a person is convicted of amounts that equal or exceed the Threshold Amount, more stringent penalties apply. They will not be eligible for sentence suspension, probation, pardon or release from prison until they have served the prison term ordered by the court. The exception to this earned credits, restoration or commutation pursuant to A.R.S.41-1604.07.  

Probation is required for those convicted of use or possession of a controlled substance or drug paraphernalia. Participation in a substance abuse education or treatment program is also a required condition of probation for simple possession/use charges. Second offense possession or use penalties may require incarceration as a term of probation.

Drug Treatment Program Alternatives to Reduce or Avoid Incarceration in Arizona

Your criminal defense attorney will work with you, and the court system to determine if you qualify to participate in an educational drug counseling or treatment program in turn for a waiver of incarceration or mitigation of time for which a person is sentenced to incarceration. Certain criteria must be met to qualify, and a defendant must be invited to participate in the program by the prosecution and the courts. They are designed to provide the defendant with the medical counseling or treatment needed, and incentives to help reduce the person’s dependency on illicit drugs, so that they can avoid repeat offenses, and become healthy and constructive in society.

Successful Completion of the program can also lead to a reduction in charges for example, reducing a felony to a misdemeanor to avoid prison terms. If an inmate is incarcerated for drug crimes, they may be offered the option of participating in a substance abuse program voluntarily. If completed successfully, they may earn credits that can be applied to early release due to reform and rehabilitation program guidelines in place.

These programs may also be used as a conditional requirement during parole, or probation, following a term of incarceration. Failing to complete the program would institute the original jail or prison time to the longer term.

Recent legislation as has been introduced with similar provisions and incentives at the Federal Level to reduce prison overcrowding, the costs of incarceration, and the reduction of repeat offenses.

Criminal Defenses for Heroin or Opioid Charges

If you, a loved one, or someone you know experiences a life threatening overdose due to heroin or other opioid, you should call #911 and seek emergency medical attention immediately. Following a potentially fatal drug overdose, moments count. Get emergency medical treatment to save a life. Criminal Charges can later be defended with good legal representation.

If you are subsequently charged or arrested of any heroin or opioid crime, you should consult an experienced drug defense attorney who will defend your charges and protect your rights. James Novak, of the Law Office of James Novak, is an experienced criminal defense trial attorney, who defends drug charges on a regular basis, and provides a strong defense.

James Novak, Attorney at Law, is a former Maricopa County Prosecutor. He has extensive training, and litigation experience defending Heroin Drug Charges, and will fight for your freedom and future.   The Law Office of James Novak, PLLC serves Tempe, Mesa, Chandler, Phoenix, Gilbert, and Scottsdale AZ. If you have been arrested or charged in these cities, call today for a confidential free consultation. James Novak, criminal defense attorney will discuss you matter with you or a loved one you have designated to speak on your behalf. He will provide information regarding the criminal justice process, and your defense options.

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FDA Approves Emergency Life Saving Treatment for Potentially Fatal Overdoses

Often people don’t seek emergency medical treatment for themselves or others following a potentially fatal overdose of heroin, for fear of arrest or prosecution. But the greatest threat is not criminal charges, its fatality.

Combating the Heroin Epidemic:  7 Heroin Facts; Statistics; Prevention and Treatment

According to the National Centers for Disease Control (CDC), overdoses of drugs in the USA have tripled during the last 25 years and are now the Number 1 cause of deaths. In 2010, they reported 38,329 overdose deaths in the U.S.A, and according to other reports, these numbers continue to rise in epidemic proportions. Accidental overdoses now exceed auto accident fatalities, in adults aged 25 to 64.

According to a recent analysis reported by Trust for America’s Health (TFAH), drug overdose deaths have increased 100 percent in just the last 10 years. One main drug responsible for this increase includes the drug, Heroin.

According to a recent Arizona Department of Health Services (ADHS) Heroine remained the number one illegal drug responsible for overdoses that resulted in deaths in 2013.

FDA Approves Life Saving Proven to Reverse Potentially Fatal Overdoses

We are about to see more police being equipped with a Life Saving Drug for Heroin Overdose Treatment to save lives as first responders.

On April 3, 2014 the U.S. Food and Drug Administration (FDA) announced its approval of a hand-held auto-injector for treatment of overdoes. The injector rapidly delivers a lifesaving drug into a victim who is suffering from a potentially fatal overdose of heroin or other opioid. It’s been approved for use by trained family members and caregivers for emergency treatment.

Evizo (naloxone hydrochloride injection) is the injector. The drug it injects is known by its brand name “Narcan”, also known as “Naloxone” by its generic name, being used by Police Agencies throughout the country.

Narcan or Naloxone is a drug that has proved to reverse heroin or opiate overdose almost immediately. Some police agencies are allowing specially trained officers to carry and administer it in several states around the country to overdose victims. One pilot program conducted by police agencies in Quincy Massachusetts, report that its’ officers administered naloxone 221 times where needed, and it reversed the overdoses 210 times, giving it a 95% earning it 95 percent success rate.

First responder police recently began administering the drug in the field as a result of the soaring numbers overdose casualties.  Generally, an opioid or heroin overdose causes a person’s breathing to stop. Narcan in many cases will revive the patient, if it’s administered early enough. The drug is said to keep the patient alive until paramedics arrive or until the patient can get the specialized medical assistance needed to treat the overdose symptoms.

Narcan has proven to be effective for heroin and other opiate overdoses only. It has not been effective t in reviving patients who have overdosed on other drugs such as cocaine or ecstasy.

Naloxone delivery system is through either inhalation, by inserting it into the nasal passage, or injection into the patient. The risks and adverse side effects are said to far outweigh the advantages or benefits of its use following a potentially fatal heroin or opioid overdose.

The FDA warns that Evizo is not a substitute for immediate medical care, it’s simply temporary until paramedics arrive, or until the patient can be taken to the Emergency Room or hospital for further care.

Common side effects include dizziness, weakness, skin flushing, and agitation. Reportedly rare and severe side effects include heart disturbances, neurological damage, lung fluid build-up, seizures, coma and death.

In response to the drug overdose fatality crisis, Evizo was granted “Priority Review” under the FDA’s Priority Review Program. This review is granted where the need is critical; and for those drugs that are proving to be effective, safe solutions, where no other alternatives exists. The benefits of the new drug should be far more significant than existing treatments in place. The product was granted a fast-track designation, and expedited processing by the FDA as they worked with closely with The White House White House’s Office of National Drug Control Policy’s National Drug Control Strategy since 2012.

The device is scheduled to be made available mid-June 2014 due to expedited processing, and will be available in pharmacies which will dispense by prescription.

7 Heroin Facts

(1)   Classification

Heroin is classified by the Federal Drug Enforcement Administration (DEA) as a Schedule I drug, out of five distinct categories. Schedule I drugs carry the highest potential for mental and physical addiction. They are considered the most dangerous classification of drugs. Heroin is identified by the DEA as having no current legally accepted medicinal use, and possessing a high risk of substance abuse and addiction. The U.S. Department of Health and Human Services (HHS) classifies Heroin addiction as a chronic brain disease.

(2)   Description

According to the National Institute on Drug Abuse (NIDA) Heroin is an “Opioid” and a depressant. It is made from Morphine alkaloid in opium, and is considered to be far more potent and addictive and dangerous than Morphine. The drug impacts portions of the brain and body that depress perceptions of pain, and which also impact vital life functioning such as blood pressure, alertness, and respiration. This is why overdosing frequently involves fatality. Overdoes of the drug can suppress or halt the critical breathing processes in body.

(3)   How it’s used:

It may be needle injected, inhaled, or smoked. All 3 delivery methods of heroin to the brain are fast, which contribute to its addicting nature, which causes changes in the brain that result in an uncontrollable dependence.

(4)   Impacts of heroin on the body

Users who inject heroin, users report feeling a rush at first. Then it is followed by dry mouth, skin flushing, a feeling of heaviness of the arms and legs, confusion, and an alternate wakeful to drowsy state. Habitual users experience brain function changes, which include tolerance. This causes more of the drug needed to experience the euphoric state, and to avoid adverse withdrawal symptoms. Effects associated with Heroin include fatal overdoes, infectious diseases such as HIV, and hepatitis, collapsed veins, heart lining infections, abscesses, GI problems, liver, and kidney diseases, pulmonary collapse, pneumonia, and other respiratory disorders, causing permanent damage or fatality.

(5)   Appearance, consistency and street names

Pure Heroin is a white powder, but is often cut with other illicit substances giving it a brownish tint. Another form of Heroin is known as “black tar” which is of sticky or tar-like consistencies, and varies in color from dark to black. Street names include but are not limited to “brown sugar”, “Smack”, “black tar”, “smack” or “junk”.

(6) Signs and Police Drug Testing for Heroin

Detection of Heroin in the body can be revealed by a urinalysis, for up to 24 hours after use. It can be detected by a blood test for up to 72 hours following use of the drug.

Environmental signs of possible use include injection supplies, or paraphernalia such as needles, cotton, towels, spoons, matches, bottle caps other equipment or supplies to heat the drug.

Physical signs include but are not limited to restlessness, drowsiness, diarrhea, nausea, vomiting, chills, involuntary movements of extremities, behavior changes, hyperactivity, disorientation, weight loss, marks, bruising, or scarring of arms and legs, and continued respiratory symptom.

(7)   Long Term Treatment for Heroin or Opioid Addiction

Specifically, heron and opioids require medication-assisted treatment (MAT) programs. One of those most effective MAT assisted drugs is buprenorphine used both in a specialty and noni-specialty treatment setting. Traditionally, effective treatment indicated for heroin or opioid addiction required in-patient specialty treatment and counseling.

But since 2011, years specialty in-patient hospital admissions had declined sharply due to a spike in increased outpatient treatment alternatives now available. Out-patient settings are less costly, and more convenient for patients. In 2012 it was reported that accredited physicians treated almost 900,000 patients on an out-patient basis with a combination of buprenorphine/naloxone therapy, in non-specialty treatment settings.

Substance Abuse and Mental Health Services (SAMHSA) oversees compliance of heroin and Opioid Treatment Programs (OTPs), provides certifications to operate. They work with state, local and federal agencies including the Drug Enforcement Administration (DEA) to accomplish their goals. There are currently 1,311 Specialty Opioid Treatment Centers (OTP) in operation in the USA.

Why More Users Do Not Seeking Long Term Treatment Options

U.S. Health and Human Services reported that in 2012 only 10.8 percent of individuals suffering from alcohol or drug abuse including heroin or opioid users, received specialty medical facility known to effectively treat their condition. Other studies showed that 94.6 percent of those who needed treatment did not receive because they refused it or denied their need for the substance abuse treatment. Another 3.7 percent felt they needed it, but did not seek it, due to affordability, lack of insurance or other barrier. Of some of the respondents who reported they needed it but did not seek it, 17.4 percent were worried about negative impacts such as fear of arrest and prosecution, negative impacts on their job, family, transportation, and the inconvenience.

Criminal Defense Attorney for Heroin or other Drug Charges in Phoenix East Valley AZ

Immediate medical attention is critical, and every moment counts.  The number one priority following an overdose is to seek immediate medical attention, and to call #911 if you feel a person has taken a potentially fatal overdose.   If criminal charges are brought against you, they can be dealt with after the ordeal.

Heroin and Narcotic charges carry some of the most severe penalties of all drug crimes under Arizona laws.  All heroin charges are brought as felonies.

If drug charges are brought against you, or you are arrested, you can then consult an experienced criminal attorney to defend the charges and protect your rights. In some cases a person may qualify for a drug treatment program in order to reduce the charges from a felony to a misdemeanor or to avoid incarceration. Not everyone qualifies, and it is not automatic. Your attorney will assist in the process if you meet the criteria. If you do not qualify for the program, other defenses may apply to your case that you may not be aware of.

If your rights were violated, or if the evidence against you is weak or unjust, it may lead to a dismissal of charges. The Law Office of James Novak, PLLC defends Heroin and other serious drug charges on a regular basis. James Novak is an experienced drug defense attorney, and former prosecutor. If retained, he will tailor a defense that best fits your circumstances and that has the potential for the most favorable outcome. Call today for a free consultation. James Novak, DUI and Criminal Attorney to discuss you matter in confidence and to obtain your defense options, if you have active charges in Phoenix, Mesa, Tempe, Chandler, Scottsdale, or Gilbert AZ.

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Arizona’s 7 Year Extreme DUI Trend: .015% BAC Average, Not Exception

Arizona DUI Arrest Statistics

In looking back over the last six years of DUI arrest statistics released by the Arizona Governor’s Office on Highway Safety (AGOHS), we see an alarming trend in DUI arrests with Blood Alcohol Content (BAC) at the “Extreme” levels, which is 0.15 percent or higher. In 2008, 2009, 2010, 2011, 2012, and 2013 the average Blood Alcohol Content has been over 0.152 percent. Initial reports released for the first quarter of 2014 are showing relentlessness in this trend. Drinking in excess of the extreme impaired driving laws has evidently become the norm, rather than the exception.

The legal limit for driving under the influence of alcohol in Arizona is 0.08 percent. However, a motorist may still be arrested if they are driving under the influence with a BAC lower than 0.08 percent if they are found to be driving or in actual physical control of a vehicle while “impaired to the slightest degree”.Extreme DUI BAC in Arizona is .015 percent; and Super Extreme BAC is .020 percent or greater.

Causes of Extreme DUI

According to the National Centers for Disease Control and Prevention (CDC) binge drinking is the most common form of excessive alcohol consumption. In general, binge drinking is defined as a person drinking 4 to 5 spirituous alcoholic beverages on one occasion; usually during a short period of time. One drink is measured as a 12 ounce glass of beer or wine cooler 5 ounces of wine; or 1.5 ounces of 80 proof distilled spirits or liquor.

The practice of excessive or binge drinking increases a person’s chance of physical harm due to alcohol poisoning, being involved in a serious or fatal impaired driving crash, and being arrested for Extreme DUI.

Interestingly, the CDC reports that most people who engage in binge drinking are not alcoholics and are not alcoholic dependent. We seem surprised when we hear of police officers and judges being arrested for drunk driving. But the fact is that people in all walks of life may be the subject of an Extreme DUI arrest. This includes young adults as well as senior adults, teens, parents, teachers, nurses, pilots, celebrities, professional sports players, legislators, trucker drivers, doctors, lawyers, farmers, military personnel, or faith ministry leaders. Being aware of causes and what factors increase the risk of excessive BAC levels, can help prevent extreme or any other impaired driving arrests.

The National Highway Traffic and Safety Administration (NHTSA) identified other factors that contribute to higher BAC levels. These include but are not limited to the following:

  • Increasing the number of drinks per hour
  • Higher strength proofs of alcohol
  • Lower body weights and builds
  • Drinking on an empty stomach
  • Low metabolic rate
  • Alcohol combined with medications
  • Female’s usually reach higher BAC levels than men, given the same amount of liquor during the same amount of time, due to stomach enzyme differences and lower water content in their bodies than males.
  • Persons who are ill, under a great deal of stress, or drowsy will rise to a higher level of BAC than if those factors are not present, given the same amount of alcohol

Level of Driving Impairment for Extreme DUI levels

The degree of a driver’s impairment is usually judged by the investigating officer at the DUI stop. The police use a series of roadside tests in combination with questions and observations of the driver before, during, and after the stop.

NHTSA research has concluded that drivers with a 0.15 percent or higher BAC level will experience “substantial impairment in vehicle control”. This includes impairments in attention and tasks necessary to drive, including visual and auditory abilities.

At the extreme level, the driver will experience far less muscle control, major loss of balance, and vomiting if the BAC is reached within a short periods of time.

Extreme DUI Laws in Arizona

A person is in violation of A.R.S. §28-1383 and Extreme DUI laws if they are found to be driving or in actual physical control of a vehicle while under the influence of alcohol or spirituous liquor with:

  • A Blood Alcohol Content of .15 percent through .1999 percent – Extreme Influence
  • A Blood Alcohol Content of .020 percent or greater – Super Extreme Influence

Both Extreme and Super Extreme DUI offenses are Class 1 Misdemeanors, in absence of “Aggravated Factors”.

However, even though the charges are classified as misdemeanors, the criminal penalties are severe, and the higher the BAC, the more harsh the penalties.

Extreme DUI Penalties for first time conviction:

Penalties for first offense DUI 0.15%, but less than 0.199% or greater (Extreme):

  • 30 consecutive days in jail;
  • $2,500.00 in fines, fees, costs, and assessments;
  • Ignition interlock device (IID) for 1 year;
  • Alcohol or drug education, counseling, or treatment program;
  • Driver’s License suspension for at least 90 days;
  • Probation;
  • Possible Community Service and/or restitution

Penalties for first offense DUI 0.20% or greater (Super Extreme):

  • 45 consecutive days in jail;
  • $2,750.00 in fines, fees, costs, and assessments;
  • IID for 18 months;
  • Substance abuse counseling, or treatment program;
  • Driver’s License suspended for at least 90 days;
  • Probation;
  • Possible Community Service and/or restitution

Penalties for DUI BAC 0.015% to 0.199%- 2nd Extreme Violation within 7 years:

  • 120 days jail with 60 consecutive;
  • Fines, fees, costs, assessments up to $3,250.00
  • Driver’s license revocation for at least 1 year;
  • IID 1 year (after driver’s license is reinstated)
  • At least 30 hours of community service
  • Drug or Alcohol Education Classes or Counseling;
  • Probation;
  • Possible Community Service and or restitution

Penalties for DUI BAC 0.020% or greater – 2nd Super Extreme Violation within 7 years:

  • 180 days jail with 90 consecutive;
  • Fines, fees, costs, assessments up to $3,750.00
  • Driver’s license revocation for at least 1 year;
  • IID 2 year years (after driver’s license is reinstated)
  • At least 30 hours of community service
  • Substance abuse counseling or treatment;
  • Probation;
  • Possible Community Service and or restitution

Penalties for Third and Subsequent Impaired Driving Convictions (Extreme and Super Extreme)

Impaired driving offenses of any kind, including those under those under the extreme level, are considered “Aggravated DUI” felony charges. Penalties include but are not limited to at least:

  • 4 month prison terms for the third offense;
  • 8 month prison terms for any subsequent offense thereafter.
  • $4,000.00 fines, fees, and assessments;
  • License revocation one year;
  • IID 2 years;
  • Possible forfeiture of vehicle;
  • Restitution or community service;
  • Felony Criminal Record;
  • Loss of some civil rights including right to vote and right to possess firearms.

Defenses for Extreme and Super Extreme Impaired Driving Charges in Arizona

Any kind of impaired driving charge in Arizona is serious. Higher BAC levels and repeat offenses carry the highest punishments. If you have been arrested, you have the right to hire an attorney to defend you against your charges.

Often people think that because their BAC was to the extreme there is nothing an attorney can do to help them. To the contrary, it is even more important to retain a qualified DUI lawyer to defend their charges and protect their rights.

Defenses are multifaceted for impaired driving charges. An experienced criminal defense attorney will protect your rights, evaluate your case and tailor a defense that has potential to obtain the most favorable outcome in your case.

Examples of some common impaired driving defenses include, but are not limited to the following:

  • Constitutional Rights violations;
  • Unlawful stops by police;
  • Improper field sobriety test administration (FST);
  • Unreliable or invalid FST results;
  • Inaccurate breath tests results or readings;
  • Lack of calibration, maintenance or maintenance records for breath machines;
  • Breath results inaccurate due to contamination, other external, or medical factors;
  • Discrepancies in police DUI chemical testing results to independent results;
  • Mishandling, improper processing, or storage of chemical evidence

These are just a sample of some common areas where defenses may apply to a particular case. Successful challenges of weak evidence can lead to dismissal, reduction of charges, mitigation of penalties, and other favorable outcomes in DUI cases.

DUI Attorney in Tempe, Arizona

If you have been charged with any DUI in Tempe, Mesa, Phoenix, or other East Valley Cities, contact the Law Office of James Novak, for a free consultation to discuss your matter and defense options.

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DUI Arrest: When Game Victory Quickly Turns Into Defeat

Safety Messages; and Overview of Impaired Driving Laws and Penalties in Arizona  

One of America’s most popular days of the year for sports, Super Bowl Sunday, is also one of the most dangerous.  This is due to the incidents of impaired driving, and other crimes that historically increase on game day including under age 21 drinking, assaults, disorderly conduct and domestic violence.

Advertising for liquor specials, great places to eat, have fun, and watch the game are everywhere.  But as a criminal defense attorney, dealing with the aftermath of a DUI and criminal arrests every day, I see the consequences it has on those who have been arrested and their families, as well as victims and their  families.  To make sure you have fun, and your event or celebration ends safely, I urge everyone not to let the excitement and festivities distract you from making wise judgment decisions.   You can do this by planning ahead for a ride home; knowing your limits even if you are not driving; and looking out for others safety as well as your own.

In the spirit of safety, I’m sharing formal messages from National Centers for Disease Control, Arizona Department of Public Safety, The National Highway Traffic Safety Administration, and Mothers Against Drunk Driving; as well as providing information on Arizona DUI laws, and penalties.

The Arizona Department of Public Safety (ADPS) just announced its plan to increase DUI enforcement for Super Bowl Sunday.   Saturation patrols are scheduled to begin Sunday February 2, 2014 and continue through February and continue through Monday, Feb, 3, 2014.  A large number of officers are expected to participate in the saturation patrols.  A command post will be set up in Phoenix and mobile patrols will be present on freeways and other high traffic areas. Their message was simple but clear, “Drivers have a choice to not drink and drive” and reminded people that there are usually always alternatives.

The Center for Disease Control (CDC) reports that most alcohol impaired driving charges are the result of binge drinking, which is the result of having 4 or more drinks within a short time period.  Binge drinking may result in alcohol poisoning and in some cases can be fatal.   The CDC urges everyone this year to “Call a time-out on alcohol”. This includes selecting a designated sober driver; not drinking and driving or allowing others to drive impaired; and for hosts to remind their guests of the same as well as offering alcohol-free beverages as an alternative.

Mothers against Drunk Driving (MADD) organization encourages party goers to arrange for a designated sober driver to take you home as part of your plan preparations, and well before the game and festivities begin.   MADD encourages football fans “to play the most important position in the NFL: the designated driver.”

The National Highway Traffic Safety Administration (NHTSA) reports that 43 percent of all auto collision fatalities occurred on Super Bowl Sunday the morning hours that followed on the following Monday last year, as a result of impaired driving.  Their theme in a Consumer Advisory released January 31, 2014, was my This was my personal favoriteFans Don’t Let Fans Drive Drunk. Before choosing to drink, choose your team’s MVP”.  Of course, when they refer to MVP, they are referring to the section of your designated driver.

Last year there were over 525 impaired driving arrests in Southern Arizona alone. Violations of Impaired Driving under Arizona law includes driving impaired to the slightest degree due to alcohol, or driving under the influence of drugs or their metabolites under A.R.S. 28-1381.

A Car Accident alone involving a serious injury is traumatic on everyone involved.  Being arrested for DUI charges is a serious crime.  An impaired driving arrest involving a serious injury or fatal crash is overwhelmingly tragic ordeal.  It can take lives, and forever change the lives of the survivors.

A few days ago a young Tempe woman was reportedly arrested on six counts of endangerment, aggravated assault, leaving the scene of an accident, and DUI charges in violation of Arizona’s Super Extreme DUI Laws which is .20 Blood Alcohol Content (BAC).  In the incident 5 vehicles were damaged, and a pedestrian taken to the hospital, after the driver allegedly damaged two vehicles at a Tempe intersection, left the scene, and ended up slamming into vehicles in a crowded parking lot.

These are very serious criminal charges.  Even a first time conviction for Super Extreme DUI in violation of  A.R.S. 28 – 1382 calls for a 45 day jail term; fines, fees, and assessments of $,750.00; license revocation for one year;  use of Ignition Interlock Device (IID) for two years after driving privileges are restored; substance abuse counseling and treatment;  probation, and community service.

In Arizona, when a serious injury results from a DUI, the charges are elevated to a Felony DUI in violation of A.R.S. 28 – 1383,  Aggravated Assault, and Endangerment A.R.S. 13- 1204.  These felony charges expose a person to harsh punishments including prison terms of at least 1.5 years to 15 years or more in prison depending on mitigating, and aggravated factors that surrounding the incident; large fines, fees, and restitution; and other severe punishments. A Serious Injury caused by an impaired driver, or wrongful death of a victim, will also expose a driver to civil litigation against them by the victim or their surviving families.

Most impaired driving crashes and arrests can be prevented by planning ahead.  But mistakes and error in judgment can easily happen.  If you are arrested for drunk driving, impaired driving or any felony charges, your future and freedom are at stake.  Being arrested does not necessarily mean you will be found guilty.  By law you are entitled to retain an attorney to defend your charges, and protect your constitutional rights.   A person facing drugged or alcohol impaired driving charges, should always consult an experienced criminal defense attorney before pleading guilty to Drunk or Impaired Driving charges.  James Novak provides a free consultation, and a strong defense for those arrested in Phoenix, Mesa, Tempe, Chandler, Gilbert, or Scottsdale Arizona.

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City of Mesa AZ Ranks as 3rd Safest City in the USA for Violent Offenses and Property Crimes

Putting Statistics into Perspective; Arizona Felony Assault laws; Overview of City, State and Country-wide violent crime trends

On New Year’s Day two “Good Samaritans” stopped their vehicle in Arizona to help a victim being assaulted, after they reported it to the police. The Good Samaritan told the dispatcher that help could not wait. He jumped out of his vehicle to aid the victim of the assault. As soon as he did, the aggressor attacked him as well. The passenger of the Good Samaritan’s vehicle also got out. But during the attack, the assailant got behind the wheel of the Good Samaritan’s car; and used the vehicle as a deadly weapon to hit all three people. The initial victim being assaulted died at the scene. Both of the Good Samaritans were rushed to the hospital. One remains in critical condition with life threatening injuries.

I read of the events surrounding this tragic and disturbing incident, moments before I heard the good news about violent crimes statistics being down in Mesa AZ. I was still jarred by the first events, while I read the Mesa AZ media release. Suddenly I felt compelled to share it as illustration that even in light of lower crime rates, violence continues to exist and should “remain cause for vigilance” no matter where we live.

In this discussion we’ll cover the following topics:

  • City of Mesa AZ’s recent announcement about decrease in violent crimes;
  • Factors credited to the historic lows in violent crimes;
  • Arizona Department of Public Safety (DPS) city and state violent crime statistics;
  • FBI Uniform Crime Results (UCR) Overview of Violent Crimes in the USA;
  • Arizona Aggravated Assault Laws, and Penalties

Factors credited to historic lows in crime rates in Mesa AZ

The City of Mesa AZ ranked the third lowest in violent offenses and property crimes in 2012 according to recent statistics released by the Federal Bureau of Investigations (FBI) of populated with 400,000 or more.

The City of Mesa hit the lowest violent crime rates they have seen in 50 years. Mesa Police attribute this largely to increased police efforts, technology, and active community partnerships. .

Violent Crimes Remain Cause for Vigilance in Arizona

While this announcement should be perceived as a good thing, at the same time, improved safety statistics, can often leave us with a false sense of security. Common sense tells us we still lock our doors, close our windows, and remain attentive to our surroundings as we return to our vehicles in a dark parking lot. No one is immune to being a victim of violent crime, matter where they may be. Prudence tells us to remain aware of their surroundings, and take safety and security measures to protect themselves, their loved ones and property.

Looking back on the Arizona Department of Public Safety (DPS) Statistics, the Mesa Police Department reported 1,804 violent crimes in 2012; while the 2013 statistics are apparently still being gathered.

The State of Arizona reported a total of 25,902 crimes statewide with 10.3 percent of them being categorized as violent crimes. Of the violent crimes Aggravated Assault crimes accounted for the largest number of all violent crimes with 16,579 incidents, representing 64 percent of all violent crimes. Statewide, this is just one percent higher than the national average of 65 percent.

FBI Uniform Crime Results Overview of Violent Crimes in the USA

The FBI Uniform Crime Report (UCR) classifies violent crimes as aggravated assault, sexual assault, murder, and robbery. Here some additional statistics revealed in the 2012 FBI UCR statistics:

  • Over 1.2 million violent crimes occurred in the USA representing a 0.7 percent increase over the prior year;
  • A review of the prior five year trend shows an actual decrease of 13 percent in violent crimes;
  • A total of 760, 739 Aggravated Assaults were reported, constituting 63 percent of all violent crimes in the USA;
  • Offenses described as aggravated assaults include unlawful attacks on a person with the intentional purpose of inflicting severe bodily injury upon them.
  • Guns were used in 69 percent of the homicides; 41 percent of robberies; and 22 percent of aggravated assaults.

Violent Crime and Property Crime Laws in Arizona

Under Arizona Criminal Code A.R.S. 13-706 “Violent” felony crimes are “serious crimes”
against victims. These include but are not limited to murder, sexual assault, dangerous crimes against children, armed robbery, and aggravated assault involving a deadly weapon, drive-by shootings, first degree burglary, and other serious offenses.

Under Arizona Criminal Code A.R.S. 13- 105 Definitions, “Crimes” are defined as any Misdemeanor or Felony involving a victim’s Personal Property. “Persona Property” is defined as meaning anything of value owned by a person. This includes tangible or intangible property. It includes offenses such as theft of property including auto theft, and non-violent burglary. These are by nature more common in most cities in Arizona.

Aggravated Assault Laws in Arizona

Assaults that are not considered to have “Aggravated” circumstances are those described under A.R.S 13-1203 and are classified as Misdemeanors. They are loosely described as offenses that knowingly, intentionally or recklessly cause physical injury to another person; or cause a victim to be provoked or compelled to have a reasonable apprehension of physical injury;

Although classified as Misdemeanors assault charges are very serious and can expose a suspect to severe penalties including jail terms, victim restitution, anger management counseling, counseling, probation, fines, fees and a criminal record.

An Aggravated Assault is a Felony. It is an Assault Charge that has been raised to the level of a felony due to “aggravated factors” as described in the term itself. These are some of the most serious criminal charges a person can face, and offense is considered a violent crime. A person may face these charges under Arizona Criminal Code A.R.S. 13-1204. There are a number of circumstances that are named as aggravated factors under the code. Just a few include:

  • Causing serious physical injury to the victim;
  • Assault that causes substantial disfigurement, even if temporary;
  • Assault that results in impairment to bodily organ or fracture of bones;
  • Use of a lethal weapon or deadly instrument in the assault;
  • Assault on a police officer, peace officers or other described individuals;
  • Assault by person 18 or over against a person 15 years of age or under;
  • Assault while a person is restrained, bound, or physically impaired against resisting an attack.

The Arizona law is comprehensive and covers these and additional factors to a great degree.

Felony Assaults are considered serious and violent crimes against victims. They may be charged as Class 5, Class 3 or Class 2 felonies depending on the nature of the charges. They may also be combined with the most serious of charges Class 1, reserved for homicide.

If convicted of an Aggravated Assault a person may face long term or life prisons sentences. In some cases, depending on the circumstances, they may not be eligible for parole until a term of 25 to 5 years has been completed. Other penalties include exorbitant fines which range up to $150,000.00 per charge or 1 million dollars per charge for enterprises; victim restitution; prison and other assessment fees; loss of civil rights including right to possess firearms, and right to vote. A felon criminal record follows a person for many years and often even after released from prison, impacts the person’s ability to obtain a job, credit, and adversely impacts many aspects of their lives, making the transition to back into society extremely difficult.

Being charged with a felony assault puts a person’s future at great risk. The laws can be complex and the penalties extremely harsh. It’s too important of a matter to go unrepresented by an experienced and highly qualified criminal defense attorney. No matter how grim the situation may appear, or how serious the charges, the constitution affords a suspect with the right to retain proper legal representation to defend their charges, protect their rights, and tell their side of the story through the criminal justice process. If you have active felony charges in Mesa AZ, or any Phoenix East Valley Cities, contact James Novak, DUI and Criminal Defense Attorney to discuss your matter and options for defense. He will provide you with a free consultation regarding your matter, and options for defense.

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