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.
• 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
Landmark ruling will have widespread impact for qualified medical marijuana users in Arizona.
“Statutes should be construed sensibly to avoid reaching absurd conclusions.
On Tuesday, April 22, 2014, The Arizona Supreme Court ruled that an unimpaired driver cannot be prosecuted for the merely presence of inactive Marijuana metabolites in their system. The decision was expected back in January 2014. But the Supreme Court took three additional months to make and announce its ruling with prudent care and judgment. For many, the ruling was expected, and many Medical Marijuana users who drive can breathe easier today because of the decision.
Court Case History
In December of 2010, the defendant, Hrach Shilgevorkyan stopped in Maricopa County by officers of the Arizona Department of Public Safety (DPS) for moving traffic violations.
At the stop, DPS officers conducted roadside field sobriety tests, and DUI blood tests, both of which the defendant voluntarily agreed to take. Court records indicate that the defendant admitted to smoking Marijuana the night before the DUI stop. The test results revealed the presence of an inactive ingredient known as Carboxy-THC in his blood stream. No other active impairing substances or intoxicating alcohol was found in the driver’s blood stream. The defendant was charged on two counts of DUI, the first being “impaired to the slightest degree” in violation of A.R.S. § 28-1381 (A,(1) and driving under the influence of drugs, A.R.S. § 28-1381(A)(3) defined by statute.
The lower Justice Court dismissed both counts voluntarily by the lower court, based on the fact that the driver was not found to be driving “impaired to the slightest degree”, and no evidence was presented of any impairing substances found in the driver’s blood stream.
The State appealed the dismissal to the Arizona Court of Appeals. The Appeals court granted relief to the State of Arizona prosecution and overturned the lower court’s dismissal. The lower ruling was remanded for continued prosecution of the defendant. The Appellate court accepted the reasoning by the prosecution that “metabolite” though not defined by statute, should also include any and all metabolites, both active and inactive; whether non-impairing or impairing; and that it should be interpreted broadly. Interestingly, the citations used to support the decision, did not address “metabolites”. But the Appeals court expressed its wish to that the court intent to “effectuate the legislative purpose and intent” of the statutory language. This verdict faced much public opposition both at the state and national level, creating public outcry through the media as well as law enforcement confusion and inconsistent court decisions throughout the state for cases with similar circumstances.
Through Legal Counsel, Shilgevorkyan then requested Arizona Supreme Court review. According to court documents, the high court agreed to hear the case because the Drug DUI laws under A.R.S. § 28-1381(A)(3) that involved non-impairing metabolites presented recurring issues of statewide importance in Arizona.
Arizona Supreme Court Ruling and Analysis of the Debate
The arguments evolved around two Marijuana Compounds. The first was THC, and the second was Carboxy-Tetrahydrocannabinol, better known as Carboxy – THC. One is active (THC). The other is an inactive compound (Carboxy – THC) which is a byproduct of the drug which helps the body break it down and exhume it. Traces of this residual byproduct are capable of remaining in a person’s system weeks or months after use of Marijuana. It takes much longer to metabolize this inactive byproduct than the actual active ingredient (THC).
Also, of interest in this case, there was no dispute, not challenge made to the courts questioning the legitimacy of the opinion that Carboxy – THC does not cause driver impairment. The question evolved around whether or not this inactive bi-product qualified as a “metabolite” for purpose of DUI prosecution under the law; and whether or not the mere presence of an inactive byproduct, particularly Caboxy – THC, non-impairing justifies DUI prosecution, even if the driver was not impaired.
In this case, the driver was found to be unimpaired. The motorist’s DUI chemical tests results revealed the mere presence of the non-active ingredient Carboxy-THC. Court records show, that he did admit, however, to police that he smoked Marijuana the day prior to the DUI stop. But no evidence of the active ingredient THC was revealed in the DUI chemical test.
Under Arizona law A.R.S. § 13-3401 The Cannabis definition includes THC the active ingredient It’s the substance that results in the “high” and resulting driving impairments depending on certain circumstances.
In Arizona it is a violation of the Drug DUI law A.R.S. § 28-1381 to drive or be in actual physical control of a vehicle with any drug or “its metabolite” under A.R.S. § 13-3401.
The term “metabolite” referenced under DUI law is currently not defined under the statute. So in this case the court relied on dictionary definitions as well as the State’s expert witness testimony which the felt were consistent. The court accepted the definition that a metabolite was defined as “any chemical compound that is produced during the process of metabolism, the breakdown process of getting rid of a drug or substance.”
The Arizona Supreme Court was asked to decide if “its metabolite” includes Carboxy-THC, the non-impairing substance found in Cannabis. The AZ Supreme Court made note of the fact that the language under the drug definition or DUI law didn’t define “metabolite” and was ambiguous It made no reference to distinguishing whether it was one that caused driving impairment, or did not cause any impairment, for the purpose of prosecuting a driver for DUI.
The Arizona Supreme Court concluded that the non-impairing substance “Carboxy-THC” did not constitute part of this drug definition. Further, because Carboxy-THC, the inactive metabolite can stay in a user’s system for so long, even for weeks or a month, following its and does not cause impairment in motorist. The Court laid out its concern that that interrupting metabolites to include non-impairing, inactive substances, would “create criminal liability regardless of how long the metabolite remains in the driver’s system or whether it has any impairing effect”.
The high interpreted the intent of the legislature according to the history behind A.R.S. 28-1381 alcohol and drug DUI was to prevent impaired driving. They noted that in 1990 this statute was added by H.B 2433, along with a fact sheet. These documents were clearly interpreted as being intended to prevent impaired driving due to alcohol or drugs.
The AZ Supreme Court’s opinion included a compelling citation that “Statutes should be construed sensibly to avoid reaching an absurd conclusion” (Mendelsohn v. Superior Court, Maricopa County, Arizona 1953). This simplifies their concerns that an overly broad interpretation of an ambiguous term such as any and all “metabolite” could result in prosecution of unimpaired drivers, would be representative of “absurd results.”
In conclusion, the Arizona Supreme Court overturned the Appeals Court’s ruling related to the Drug DUI count under A.R.S.28-13891 (A)(3). Since Carboxy-THC, the inactive byproduct, which does not cause driving impairment, was the only metabolite found in the defendant’s blood stream, the case was vacated in favor of Shilgevorkyan, and his case was dismissed, consistent with the original lower Justice Court ruling.
Impacts of the Landmark Ruling
Medical Marijuana became legal in 2010. According to the Arizona Department of Health Statistics (ADHS) reported in 2014, there are currently 48,301 qualified patients using Medical Marijuana. Many users with valid driver’s licenses refrained from driving while unimpaired for fear that they would be stopped for a routine traffic violation, and tested for Marijuana. Until the ruling this week, by the Arizona Supreme Court, they were under the threat of being prosecuted and convicted of DUI if the presence of the inactive ingredient was revealed in their blood stream from their last Marijuana use. The ruling removes that threat.
The Prosecution and Court extended caution to remind users that they may still be prosecuted if evidence of the active ingredient THC is found, or they are found to be driving impaired; and that this ruling applied to Marijuana DUI charges where there was no active impairment or presence of the active ingredient in Cannabis, THC. Further they made it clear that each case should be reviewed on its own merits.
It is hoped and expected that all pending cases in the Arizona court systems, involving non-impairments, and non-impairing substances, will be dismissed.
At this point, it is not known if any convictions that resulted from circumstances similar to this case, where a defendant was convicted, with lack of impairing evidence, will be overturned.
Maricopa County Prosecutor Bill Montgomery expressed his disappointment with the high court’s decision expressing that he felt the Legislature should have clarified any ambiguity. Interestingly however, this issue was not raised while the lower court was interrupting the law to include all metabolites. It is unknown at this point, if the decision will be appealed to the US Supreme Court.
At least for now, Medical Marijuana users can breathe easier that if they are not impaired or during under the influence of active THC, they will be less likely to face prosecution or conviction of Marijuana DUI. It doesn’t prevent them from being stopped, tested or arrested for DUI. But at least the law is on their side in the case of no driving impairment or active ingredient. In these cases their chances of getting a favorable outcome with the representation of a qualified criminal defense attorney have substantially increased due to the ruling.
Difference between Drug DUI and Alcohol DUI Penalties
Marijuana DUI Penalties in Arizona are harsh. The penalties are much the same as alcohol related impaired driving, in that for a first time conviction is a Class 1 Misdemeanor, which calls for 10 days jail time; $1250.00 fines, fees, and assessments, 6 months to 1 year Ignition Interlock Device (IID) on vehicle; and alcohol/substance abuse education, screening or treatment. In most cases, with successful completion of the substance abuse programs, jail terms may be reduced to 1 day instead of 10 days. The biggest difference however, in drug DUI vs. alcohol DUI convictions is that that for first time, non-aggravated, non-extreme alcohol impaired driving convictions a person’s driver’s license is suspended for 90 days verse 1 year for Drug DUI convictions.
Tempe DUI Defense Attorney
If you or someone you know has been arrested for DUI it is critical that you retain an experienced and qualified criminal defense firm to protect your rights and defend your charges. There may be defenses you are not aware of that can be used that will lead to a dismissal of the charges or other favorable outcome in your case.
The Law Office of James Novak, PLLC in Tempe AZ defends all types of DUI arrests, including those involving alcohol and drug charges. Attorney, James Novak is a former prosecutor, with a vast amount of Alcohol and Drug DUI defense and litigation experience. He provides a free initial consultation, Phoenix –Metro, and surrounding East Valley Cities including Mesa, Tempe, Chandler, Scottsdale, and Gilbert Arizona.
Prior Articles on this Topic:
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.
Other Articles Related to this Topic
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
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.
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.
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;
- 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;
- 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;
- 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;
- 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.
Arizona DUI Drug Laws; first-time, repeat offenses penalties; high risk arrest factors
East Valley Arizona Teen with aspiring dreams of going to college, was returning home from a gathering, and arrested for DUI. The youth had not been drinking, nor was he under the influence of any illegal drugs. A DUI blood test turned up negative for any alcohol or drugs in his system. Task Force Police originally stopped the young man after his vehicle swerved when he leaned over to pick something up while driving. The driver reportedly didn’t do well on the Field Sobriety Tests, and had apparently admitted to being around some people earlier that evening who had been smoking Marijuana. The police apparently felt they had probable cause to make an arrest, and did so.
The case was eventually dismissed, after blood tests results proved negative for any alcohol, drugs, or other illegal substances, and the State’s evidence thrown out. Despite the dismissal, the young man had to deal with the entirety of the ordeal. This includes the traumatic experience of being arrested and booked into jail; needing to hire an attorney to defend his charges; fighting to get his record cleared from the arrest.
On the upside, this case may not have ended well for this driver had he not retained his own DUI lawyer to defend the charges on his behalf. Though many police officers are training in Drug recognition, mistakes still happen; and can happen to anyone.
DUI Drug Laws in Arizona
Arizona has some of the toughest Drug DUI laws in the Country, and that faced much scrutiny in recent years, especially following the passing of Arizona’s Medical Marijuana Law (AMMA), and its implementation.
The language in the law distinguishes between alcohol and drug DUI charges, though the penalties are largely the same. For purposes of this discussion, we have outlined the areas of Arizona law that refers to when a person may be in violation of driving under the influence of drugs. A person can be found guilty of violating Arizona’s Drug DUI Laws A.R.S. 28-1382 under one or both of the following circumstances:
1) If they are found to be driving or in actual physical control of a vehicle while “impaired to the slightest degree” due to drugs, vapor releasing, or toxic substances; or any combination of these with spirituous liquor: and/or
2) While there is any drug defined in section A.R.S. 13-3401 “or its metabolite” in the person’s body.
So basically, under the first provision, the motorist ability to driving must have been “impaired to the slightest degree” due to any, or any combination of the substances in its definition.
The second provision refers to the Arizona Legislatures Statute A.R.S. 13-3401 which pertain to definitions under the Drug Offenses category. It is quite comprehensive and includes descriptions of dangerous drugs, Cannabis, narcotics, and many other drugs and substances that may apply in criminal drug laws. Marijuana and its metabolites are included in this definition.
This brings us to the contrast, between the first and second provision above. In sum, if the motorist is found driving with any of the substances “or their metabolites” in their bodily system that are defined under statutory law, they may be arrested. But this provision falls short or stating the motorist’s ability to drive must have been impaired even in the slightest degree.
This second provision has raised national controversy and criticism directed at the law, particularly when it comes to Marijuana, following Drug DUI convictions such as in “Arizona v. Shilgevorkyan” where trace metabolites existed but the driver was not impaired.
This is because an inactive ingredient in Marijuana called Carboxy-THC is a trace substance that is so slowly metabolized by the body. It is a race substance can remain in a person’s bloodstream, days, weeks, and even months after using Marijuana. Most interesting is the fact that this trace, inactive substance does not cause impairment to judgment, cognitive, or driving functions required by a driver.
Several cases for Marijuana DUI where only trace substances of Marijuana were found in the driver’s system are pending appeal ruling by the Arizona Supreme Court.
Arizona DUI – First, Second, Third, and Subsequent DUI Penalties
- First time impaired driving charges that do not involve aggravated factors, are brought as Class 1 Misdemeanors, which are the most serious of Misdemeanor charges. If the teen had been convicted of Drug DUI charges, his penalties would have included 10 days in jail, $1250.00 in fines, fees, and assessments; installation of an Ignition Interlock Device for a year, after reinstatement of his driver’s licenses; probation; mandatory substance abuse screening, education, or treatment; and a criminal record that will follow you for a long time. The drug DUI convictions call for 1 year driver’s license revocation, in contrast to Alcohol DUI offenses, which call for 90 day driver’s license suspensions.
- Repeat DUI convictions are more serious, and carry more severe penalties including longer incarceration. A second DUI conviction in 84 months calls for 90 day jail terms with 30 consecutive days to be served; $3000.00 in court costs, fines, fees, and assessments; loss of driver’s license for one year; one year use of Ignition Interlock device once the license been reinstated; substance abuse counseling and treat; and possible community service. If a person is arrested for a third impaired driving offense within 7 years, after being convicted of two prior impaired driving charges, they will be brought as Aggravated DUI charges. Aggravated DUI offenses are classified as Felonies.
- A third DUI within 84 months is charged as a Class 4 Felony in Arizona. Penalties call for 4 months in prison for the third offense within 84 months; and 8 months prison for subsequent offenses; fines, fees, and assessments of $4,000.00; 1 year revocation of driver’s license; 2 years use of Ignition Interlock Device after restoration of driving privileges; court ordered substance abuse counseling and treatment; probation and/or community service; and possible forfeiture of vehicle; and felony criminal record.
These are just the criminal penalties for a first time drug DUI defense. There are other consequences that result from an impaired driving conviction as well. It can adversely impact your job or ability to get a job; obtain financial aid for school, scholarships, or even be accepted into school; ability to obtain other credit; cause distress for both you and your family due to inability to drive resulting from loss of license and many other aspects of life. Felony Convictions related to impaired driving will also result in loss of some civil rights a person currently has such voting and gun carry rights.
7 High Risk Drug DUI Arrest Factors
In Arizona, there are some obvious factors and some not so common factors that can place a person at a higher risk of being arrested for drug related impaired driving charges in Ar. Knowing what they are, may help you avoid or eliminate the risk of being arrested. They include but are not limited to driving under the influence, or while in actual physical control of a vehicle while:
- Under the influence of Marijuana or illegal drugs;
- Under the influence of prescription or over-the-counter drugs that cause driver impairment;
- Under the influence of a combination of spirituous liquor and illegal or impairing drugs;
- Impaired to the slightest degree by any drug, vapor, or substance;
- Driving fatigued or drowsy
- Failure to allow adequate time to rest or “sleep off” the adverse impairing impacts of drugs;
- Being unaware of the impairing effects of a drug you may have taken.
Also, it is a good idea to limit the amount of driving you do, while carrying your Medical Marijuana Card with you. As unfair as it sounds, there is a good chance that police may pursue a DUI investigation at a traffic violation or safety check-point stop, if they see that you are a qualified Medical Marijuana user.
What to do if you are stopped and arrested for Drug DUI Charges
If the police suspect you are under the influence of drugs, they will likely order a blood or urine test. Usually they will collect a second sample for your defense. If not, you have the right to ask that a second sample be collected for your defense case. Once the police have made a decision to arrest a driver for DUI-DWI, they generally will not change their mind. Even if you are innocent of the charges, you should try to stay calm and obey the orders the officer gives to you. Resisting arrest will only result in more criminal charges, and also increase the potential of physical harm to you as a result of the officer’s continued attempts to restrain you and make the arrest. Remember the arrest is only the first step of the criminal judicial process. You should invoke your right to remain silent if you are questioned about details surrounding the charges; and you have the right to retain an attorney to defend them.
Why You Should Retain a Criminal Defense Attorney to Defend the Charges
An experienced criminal defense lawyer will protect your constitutional rights and defend your charges. They will have the blood or urine sample independently tested, to explore if there are any discrepancies between the crime lab results and the independent results. If material discrepancies exist, you attorney will file a motion to suppress the evidence so that it cannot be used against you. Often, suppression of primary evidence, can lead to dismissal of charges. If your rights were violated, this many also lead to a dismissal, in that any evidence gathered after the violation of your rights occurred may not be used against you.
If the evidence the prosecution plans to use against you is weak, or other factors exist in your defense, your attorney will tailor a defense to present on your behalf. Hiring a qualified and experienced DUI defense lawyer will increase your chance of obtaining a favorable outcome in your case. If you have been arrested and have active charges in the Phoenix, or East Valley cities, contact the Law Office of James Novak, PLLC for your free consultation. James Novak, Attorney will speak with you directly to discuss your matter in confidence and provide you with defense options today at (480) 413-1499.
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 favorite “Fans 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.
Other Articles of Interest:
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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