Four defenses used to challenge flakka and other synthetic drug charges in Arizona; laws, penalties; and what you need to know about Flakka.
Each day we are learning more about the deadly effects of the new street drug “flakka” – a drug described as being so dangerous, that even dealers and those suffering from drug addictions are afraid to use it.
The DEA reported an alarming 780 percent increase in cases over the last three years, largely due to its affordability and accessibility.
Now many questions are being raised about the drug’s legality, as well as other synthetic drugs of its kind.
Among many other impacts, flakka, bath salts, and other synthetics are changing the face of state and federal drug legislation and case laws setting precedents.
This article focuses on drug laws, criminal penalties, criminal defenses that apply flakka and other synthetic drugs.
It will also provide important facts and resources about “flakka”.
Laws that Apply to Flakka and other Synthetic Drugs in Arizona
Flakka is unlawful in Arizona. It is both a Controlled Substance and a Dangerous Drug, which carries the most severe penalties.
Synthetic drug manufactures and sellers, are presenting unique challenges to police, prosecution, and state officials making it difficult to prosecute synthetic drug offenses.
This is due to the fact that synthetic drugs, including flakka, are continually evolving in their ingredients.
New chemicals and substances are being introduced in to their mixtures faster than laws can be enacted to ban them.
After several legislative changes, over recent years, the Legislature unanimously passed House Bill 2327 in 2013. This bill added the alpha-PVP, which is the main active ingredient in flakka, to Schedule I of the state’s Controlled Substances Act to the Arizona Drug Laws, those drugs and substances regarded as being the most dangerous.
The bill also banned all synthetic versions of marijuana cocaine and ecstasy, labeling them as “Dangerous Drugs” defined under A.RS § 13 – 3407.
Defenses for Flakka and Synthetic Drug Charges – Lack of Knowledge; Mistake of Fact; Mistake of Law and Constitutional Violations
While many defenses exist to challenge drug charges in Arizona, we will focus on three common defenses, and one recent uncommon defense heard in the United States Supreme Court recently.
The four defenses that will be discussed are:
- Lack of Knowledge;
- Mistake of Fact;
- Mistake of Law; and
- Constitutional Violations
Lack of Knowledge
Under A.R.S. 13-3407, a person may be in violation of the dangerous drug laws if they knowingly possess, use, manufacture, transport, offer to transport for sale, sell, or distribute dangerous drugs.
As provided under Arizona Law A.R.S. 13-202 the word “knowingly’ expressly provides a mental state or culpability which must exist in order for a person to be prosecuted for a drug crimes offense.
Not all criminal laws contain this language. For example this language is not included in the Arizona DUI laws.
With that, the burden rests with the prosecution to prove beyond a reasonable doubt that the defendant had knowledge that they were using or possessed an illegal drug.
There are a number of situations where “Lack of Knowledge” may apply. In one example, a person borrows a friend’s car to go to work and is stopped by police for speeding.
During the traffic stop the police see the drugs which appear to be cocaine or flakka, on the back seat floorboard of the borrowed vehicle. The driver is then arrested for possession of a dangerous drug.
The driver did not have knowledge that the drugs were in the back seat when he borrowed it from his friend.
In this scenario, the suspect could utilize this defense. They would need to provide a showing that they did not know the drugs were there, and no reasonable person would not, or should have known under the same circumstances.
Mistake of Fact
Mistake of fact exists when a person honestly and genuinely believes they are not committing a crime, when they engage in an offense.
Thus, a person acknowledges that they carried out an act, but did so under purely innocent circumstances.
One example of the applicability of this defense is if a person purchases a dangerous drug, but thought they were making a purchase for candy, a lawful edible substance.
However, what the consumer did not know at the time, was that the manufacturer intentionally disguised or mislabeled an unlawful product such as flakka, bath salts, or other synthetic drugs.
Recently, a Consumer Alert was issued in June 30, 2015 by the Miami-Dade Police Department’s Forensics Services Bureau.
Officials found a variety of substances being sold that resembled a variety of popular candy sold in retail stores. Officials later discovered the candy was coated or laced with flakka, and its derivatives.
Thus, if a person unknowingly purchased the product that any prudent person would have reasonably thought was a lawful edible, this is both a material and mistaken fact.
Such circumstances would present a valid criminal defense, in this case.
Search and Seizure Law Violations
Drug charges are often challenged as a result of Constitutional Rights violations.
Suspects have afforded by both the state and federal constitution.
One of the most common Constitutional challenges in drug defense cases is for violations of “search and seizure laws.’’
If material evidence is obtained by police unlawfully, a motion can be filed with the court to suppress the evidence.
An example of an unlawful search and seizure would result, if evidence was obtained by police without a valid search warrant.
If the court agrees, the evidence will then be inadmissible against the defendant for prosecution.
There are exceptions under A.R.S. 13-3925. If one does not apply, then generally suppression of material evidence leads to dismissal of the charges, or other favorable outcome in the case.
Some exceptions include:
- Exigent circumstances;
- Protective sweeps;
- Searches incidental to arrest; or
- Consent by the suspect to search home or property
In a recent Arizona Supreme Court case the Justices analyzed the Arizona statutes relating to privacy rights.
In their ruling, the high court justices acknowledged that based on the language in the Arizona statutes, the state of Arizona affords it residence more privacy than the Federal laws.
The Arizona Supreme Court also reaffirmed that a higher standard of privacy protections exist for a person in their home or residence over their vehicle.
Mistake of Law
Under A.R.S. 13-204 the Arizona laws basically states that a mistaken belief of the law does not relieve a person of criminal liability unless it negates or contradicts a culpable mental state.
Under Arizona law, having a culpable mental state means to act intentionally, knowingly, recklessly, or with criminal negligence in committing an offense.
Generally, the lack of knowledge of the law usually is not a valid defense. But successful challenges in a synthetic drug case in the US Supreme Court, contradicted that rule.
In a landmark case June 18, 2015, the U.S. Supreme Court handed down a landmark ruling involving mistake of law dealing with synthetic drugs.
In McFadden v. United States, the defendant successfully argued that he did not know the “bath salts” he was distributing were regulated as an Analogue Drugs under the Federal Controlled Analogue Enforcement Act.
As a result, the U.S. Supreme Court vacated and remanded the two lower court decisions on the grounds that the Analogue Act requires the prosecution to prove beyond a reasonable doubt that the defendant knew he was distributing a Controlled Substance under the Act.
The complicated mixtures of synthetics, ever changing laws to ban them, and mistaken understanding of whether or not they were lawful or unlawful, impacted the US Supreme Court Decision in this case.
The High Court opined that “A defendant needs to know more than the identity of the substance… [He] needs to know that the substance is controlled.”
While the full impact of ruling on Arizona Laws on future cases has not yet played out, it may arise as an effective defense.
10 Sentencing Considerations – Classifications – Penalties
The classification of an offense dictates the range of penalties for drug charges, and penalties.
Arizona Revised Statutes § 13-3401(6)(c)(iii) defines alpha-PVP as a “dangerous drug.” A person convicted of a crime involving a dangerous drug can face increased penalties us ARS § 13-3407.
Ranges of penalties exist within each Classification. The Judge has the discretion of providing mitigated, presumptive, or aggravated sentencing within those ranges.
- First-time or repeat offense;
- Quantity of the drug found;
- Under or over the Statutory Threshold Amount
- Intended Purpose (use v. sale)
- Age of the defendant;
- Prior criminal history;
- Eligibility for Drug Court Program;
- Other Drugs found in possession;
- Other crimes committed during the same incident
- Whether or not a firearm or other deadly weapon was involved
Classifications for Dangerous Drugs A.R.S § 13- 3407 (B)
- Possession or use Class 4;
- Possession of chemicals, and/or equipment used for making narcotic drugs Class 3 Felony:
- Administration Class 3 Felony:
- Possession of equipment, and/or chemicals Class 3;
- Intent to sell or sales of the dangerous drug Class 2;
- Transfer of the drug, or offer to transfer for the purposes of selling Class 2.
The mere knowing possession of a dangerous drug is a class 4 felony. Conviction can lead to a presumptive sentence of 18 months to three years in prison, with a presumptive sentence of 2.5 years, along with a fine of $1,000 or up to three times the value of the possessed substance with a maximum fine of $150,000.
If a person is accused of possessing flakka for the purpose of sale, transporting flakka for sale or import into the state or manufacturing flakka, they face class 2 felony charges. The sentence for these offenses is a prison sentence of seven to 21 years, with a presumptive sentence of 10.5 years.
Any drug-related conviction can also have profound collateral consequences. You may be ineligible for financial aid for school. You will have a permanent criminal record that could impede any future job search.
In addition, to other penalties, Drug Treatment programs are mandatory for first time, and repeat offenses.
What is Flakka?
Put simply, flakka is a synthetic version of cocaine, but far more dangerous. It follows “bath salts” as the next generation of synthetic drugs.
You may also have also heard it referred to as “Gravel,” “$5.00 Insanity,” “powered psychosis,” “mind melt,” or “$5.00 intensity.
It can be used through means of vapor, injection, smoking or ingesting in pill or other edible form.
According to the National Institute on Drug Abuse, “vaping” the drug will send the drug into the bloodstream very quickly and can rapidly cause overdose.
One of the reasons it is considered deadly, is because the dosage is hard to control. As a result, there is a fine between achieving the desired “high” and death.
Synthetic drugs presently fall into two categories: synthetic cannabinoids and synthetic cathinones. Synthetic cannabinoids include Spice and K2, and are purportedly intended mimic the effects of ingesting marijuana. Much observation has shown that the actual result of ingesting these synthetic cannabinoids is far different than those of smoking marijuana, though.
Flakka, sometimes called “gravel,” is categorized as a synthetic cathinone. Cathinones are stimulants, often called “uppers,” including cocaine and methamphetamine. A synthetic cathinone, therefore, is intended to simulate the effects of ingesting one of these stimulants. Substances identified as “bath salts” are often considered synthetic cathinones.
The chemical name for the drug called flakka is alpha-Pyrrolidinopentiophenone (alpha-PVP).
What $5.00 a hit really buys you: Adverse effects of flakka
As a synthetic cathinone, flakka is intended to act as a stimulant: To speed up the heartrate, making the user more awake.
The actual effects of ingesting the substance, however, are very hard to predict.
Flakka is produced using chemicals, and the exact chemicals may vary. Alpha-PVP, according to the National Institute on Drug Abuse, is intended to cause and “excited delirium.” Reported effects have included:
- Heart failure
- Mental disturbances. short and long term
- Kidney Failure
- Severe Hallucinations
- Bizarre behavior
- Violent aggression
- Screaming, struggling, flailing
- Extreme rise in body temperature
- Dehydration due to extreme body temperatures and overactive behavior
Serious, and sometimes fatal injuries indirect injuries which include but are not limited to suicide, homicide, self-inflicted wounds, injuries or fatalities resulting from police attempting to subdue the suspect; suspects running out in front of speeding vehicles, including trains.
Some have reported that the drug gives them the false impression that they possess “super human strength”. This is more likely a combination of its hallucinogenic quality coupled with its tendency to lead to violent behavior.
Flakka incidents frequently involve nudity because the spike in body temperature can lead a judgment-impaired person to strip their clothing off, and the inability to reduce their body temperature.
However, the combination of effects on the body, in addition to their extremely unpredictable nature, is very dangerous, both to the user and to others.
A flakka user in Florida was charged with child neglect after she blacked out and abandoned her one-year-old on the street.
In addition to the inherent health risks of the drug, use can result in harm or death when law enforcement officers are called on the scene to subdue a violent, or dangerous behavior while under the influence of Flakka.
Failure of the suspect to obey police commands or orders to retreat, will result in the suspect being tased, or fatally wounded. Police have been finding it necessary to use deadly force and are unable to subdue a suspect in an effort to protect public safety.
Synthetic Drug Defense Lawyer Mesa, AZ
Arrests are being made for use and possession of unlawful synthetic drugs, throughout the country, and penalties are severe.
If you are arrested and alleged to be in possession of flakka or any other synthetic drug, it is important to realize that you have not been convicted.
It is important not give up hope. You should never plead guilty before talking to an experienced drug crimes defense attorney to discuss your charges, and defense op tions.
There may be defenses applicable to the circumstances of your cas0 e that may be used to obtain a favorable outcome on your behalf.
Options like Drug Court may be available, and in some cases are mandatory depending on the charges.
If a defendant is eligible, they may qualify for a drug treatment program as an alternative to more harsh sentencing, longer prison terms, or reduction of felony charges to a misdemeanor.
An experienced criminal defense attorney will protect your rights, defend your charges, and determine the best defense strategies, and present your case in an effort to obtain the best possible outcome on your behalf.
A former prosecutor, James E. Novak understands both sides of the criminal courtroom. He puts his experience to work for those accused of drug offenses and other crimes in Maricopa County, including Tempe, Mesa, Scottsdale, Phoenix, Chandler and Gilbert.
If you have been arrested for any crime involving flakka or synthetic drugs, contact James Novak today to schedule a free initial consultation.
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♦ Little-known facts revealed, and why they matter.♦
“Underage Drinkers at Highest Risk of Fatal Accidents, Arrests – New Studies Find Links between Youth Alcohol Abuse, Learning Disabilities and Long-Term Brain Impairments.”
Over the last decade the National Safety Council (NSC), and The National Highway Traffic and Safety Administration (NHTSA) have reported Independence day and the New Year Holiday as being the deadliest driving days of the year.
These conclusions were based on the number of impaired driving crashes, and alcohol related fatalities.
Last year in Arizona, the Governor’s Office of Highway Safety (AGOHS) reported a sharp increase in the number of DUI arrests over the July 4th holiday last year from the preceding year.
Particularly during the summer months and around the holidays, it is easy for drinkers to lose track of how much they are drinking.
This is particularly true for teenagers, adolescents, and underage drinkers.
Consequences of youth drinking have been largely understood.
We are now learning about new research which suggests links between adolescent alcohol abuse and interruptions during the brain developmental process.
This intrusion on the brain’s development is said to be responsible for causing some learning disabilities, and long term brain dysfunctions.
We will discuss this research in more detail, as well as the following topics as we focus on Underage Age Drinking Safety, Prevention, and Criminal Defense:
- Underage DUI and drug arrest statistics from AZ Governor’s Office of Highway Safety;
- Underage DUI laws, penalties and consequences;
- Consequences of youth drinking from the National Centers for Disease Control;
- Youth Drinking Prevention Tips from the Substance Abuse & Mental Health Services Administration;
- Safety tips from the Arizona Department of Highway Safety;
- The importance of criminal defense for charges.
Increase in Underage DUI and Drugs Arrests
On June 18, 2015, the Arizona Governor’s Office of Highway Safety (AGOHS) announced that our State was named as the harshest state in the Country in penalizing DUI convictions, based on a study conducted by an independent finance company.
Penalties include jail sentencing and extended use of ignition interlock devices on vehicles as well as other criminal and civil punishments. This is the case even for first time DUI charges.
In an effort to keep impaired or drunk drivers off the road, Arizona drivers can expect increased presence, DUI Checkpoints, and patrols over the Independence Day holiday weekend this year.
According to AGOHS, the number of DUI arrests statewide increased from 421 in 2013 to 534 in 2014 on the Fourth of July holiday.
The state agency attributed the increase in arrests to an increase in the number of officers on the road. Unstated was the fact that Fourth of July occurred on a Friday.
A typical weekend night will have more arrests that a typical weekday night. This year, the Fourth similarly falls on a Saturday.
In addition to an overall increase in the number of arrests, last year was also notable for a significant increase in two statistics: The number of underage DUIs and the number of drug-related DUIs. The former statistic went up 27 percent, and the latter went up a staggering 74 percent.
No Tolerance for Underage DUI
In Arizona, a person 21 or older who is not operating a commercial vehicle may face DUI charges if accused of being in actual physical control of a vehicle with a blood-alcohol content of 0.08 or higher, or if he or she is under the influence of an intoxicating substance, drug or vapor to even the slightest degree.
A person younger than 21, the legal age at which a person may purchase and consume alcohol, may face DUI charges if there is ANY alcohol in his or her blood or breath. A 20-year-old could be arrested and convicted if his or her BAC was 0.01, regardless of whether he or she was under the influence of the alcohol to the point that his or her faculties were impaired.
The law, Arizona Revised Statutes § 4-244, lowers the BAC at which a person is considered legally impaired for a person under 21, but it does not lower the punishment. An underage person convicted for the first time of a DUI with a BAC less than 0.10 may face penalties including:
- A $250 or more fine,
- Assessment of $500 to be deposited in the prison construction and operations fund,
- Assessment of $500 to be deposited in the public safety equipment fund,
- Court costs,
- Installation of an ignition interlock device for at least one year,
- Community restitution,
- Alcohol or drug screening,
- Alcohol or drug education or treatment program,
- A driver’s license suspension for 90 days, and/or
- A criminal record.
A BAC of 0.10 could result in a charge of extreme DUI, with heightened penalties. For a BAC at or above 0.15, the charges could be for super extreme DUI.
Subsequent offenses also carry increasing penalties. A third or subsequent drunk driving charge, for example, is a felony.
No Tolerance for Drugs in the System While Driving
Under Arizona Revised Statutes § 28-1381, a person may face criminal charges if accused of being in actual physical control of a vehicle while under the influence of a controlled substance or if there is any controlled substance or any metabolite of a controlled substance in their body.
This is a strict approach that means that any lingering metabolites could lead to a person being charged with DUI.
Controlled substances can take days or even weeks after use to disappear from blood or urine tests (DUI urine tests are rare, but blood tests are routinely given).
They can last long after the effects on a person’s faculties have worn off.
For example, a person who took a prescription painkiller – prescription drugs are controlled substances – in the morning may have stopped feeling its effects hours later.
However, the metabolite may still be in the system, and that person may be arrested when a blood test shows positive results.
This is particularly important for the many people who utilize Arizona’s medical marijuana law. Marijuana metabolites stay in the blood much longer than most other controlled substances.
Regular users commonly show positive drug test results for 10 days or more after last use.
It does not matter that the person is legally using the substance. He or she will still face DUI charges.
It is not clear why there was such a spike in drug-related DUIs last year. However, Arizona law enforcement has made strides in their Drug Recognition Expert (DRE) program.
An officer trained as a DRE will look for signs that a person is under the influence of a controlled substance.
He or she can testify in court as evidence of intoxication or as evidence for reasonable suspicion or probable cause.
A person convicted of a drug-related DUI will face the same penalties listed above for a person charged with a DUI with a BAC under 0.10.
New Studies Reveal Link between Adolescent Drinking and Long Term Brain Damage
The National Centers for Disease Control (CDC) reported that Alcohol is the number one drug of choice among teens in the USA, and considers alcohol a major health problem among persons under age 21.
Binge drinking is dangerous for adults but even more dangerous for teens. This is because generally their bodily functions and brains are still in a developmental stage.
New studies reveal the alcohol, especially binge drinking can delay maturity, and have life-long adverse impacts on parts of the brain that control learning, memory and cognitive functions.
Researchers say that the brain continues to refine, mature, and develop until a person reaches their mid-twenties.
So the brain abnormalities are the result of alcohol intruding on cells in parts of the brain that have not completed their development.
More independent studies are revealing that teenage binge drinkers are more prone to acquire psychiatric disorders including alcoholism later in life.
Underage non-experienced drinkers or do have not built up a tolerance to alcohol are more likely to consume more alcohol than adults during one session.
As non-experienced drinkers they are often not capable of recognizing when they’ve had enough, and need to stop drinking.
Other Consequences of Underage Drinking
We’ve discussed the criminal consequences of underage drinking, the auto accident risks.
New studies are now being reported that reveal a connection between alcohol use, and binge drinking on the brain, and cognitive functions.
According to the CDC youth drinking can also lead to or cause other adverse consequences including but not limited to the following:
- Alcohol poisoning in the case of binge drinking which can result in coma or death;
- Acute, or long term medical conditions;
- Increased risks of suicide;
- Propensity to commit other crimes such as physical assault, sexual assault, or other violent crimes including homicide;
- Suffer or cause other intentional injuries such as drowning, falling, burns;
- Use or abuse of other illegal drugs;
- Suffering from other acute and chronic illnesses due to alcohol;
- Unplanned pregnancies or acquisition of sexually transmitted diseases;
- Behavioral, educational, social problems at school and domestically;
- Anger, mood changes, confusion, irritability;
According to the CDC, the risks of experiencing these consequences increased when the youth engaged in binge drinking.
For men, binge drinking is defined as having 5 or more drinks within 2 hours. For women it is defined as have 4 alcohol beverages within 2 hours.
How Parents Can Help Prevent Underage Drinking – Safety and Prevention Tips
Below are some tips complied from a variety of resources including Substance Abuse and Mental Health Services Administration (SAMHSA) to help parents address underage alcohol use, and safety:
- Discuss medical hazards, underage drinking and DUI laws; penalties and consequences;
- Be a good role model- If you are going to drink, drink responsibly;
- Welcome discussions and be approachable, and make it easy for them to talk;
- Help your teens to find ways of having fun without alcohol;
- Encourage your teens to be involved in family life, and chores, including taking care of siblings;
- Don’t allow your teens to attend parties where alcohol is being served;
- Give them independence. But set, and enforce clear rules with consequences for violating them;
- Know where your teens are, who they are with, and whether or not alcohol will be served there; Make sure alcohol is not available to them in their home and do not offer it to them;
- Explain the hazards of riding as a passenger in a vehicle with someone who has been drinking, and provide them with alternative options for a sober ride home.
A Message from the Arizona Department of Public Safety to all Drivers
On July 2, 2015 the Arizona Department of Public Safety (DPS) issued a Press Release to announce their increased presence particularly on highways and high collision areas.
Their efforts will focus on highway safety to avoid fatalities, DUI enforcement, and seeking out distracted drivers of those who will be traveling on the roads this weekend.
The Arizona DPS offered these safety tips for those who will be traveling on the roadways:
- “Expect the Unexpected”;
- Keep emergency supplies in your vehicle in the event you find a highway is closed off while in route. The emergency pack should include extra drinking water, snack foods, fully charged cell phones and other emergency supplies;
- Choose someone to be a sober Designated Driver in advance;
- Call 911 to report dangerous driving or behavior to help avoid crashes;
- If your vehicle breaks down call 911 for assistance;
- If you are under age 21 and you plan to drink, plan ahead, and drink responsibly.
The Importance of Criminal Defense for Alcohol Related Charges Tempe AZ
If you are the parent of an underage drinker or driver, and you have never received the call in the middle of the night or early morning hours notifying you that they have been arrested, or worse involved in a DUI accident, you are one of the fortunate ones.
If you have received the call, then you know how traumatic it can be for parents and those arrested.
A criminal conviction can turn a person’s world upside down, jeopardizing the future and freedom.
It is particularly disruptive to underage drinkers who have a need to drive to get to school, work, to sport activities, scholastic activities or other extracurricular activities.
A conviction will adversely impact their eligibility to drive for an extended period. It may also prevent them from qualifying for schools, scholarships, student loans, or employment.
It can also result in loss of existing scholarships, job, driver’s license, active enrollment, or job if they had one at the time of the arrest or conviction.
This is why it is critical to retain a highly skilled and experienced DUI or minor consumption defense attorney to protect their rights and defend their charges.
Without an effective legal advocate a conviction will be swift and severe.
It is crucial that they retain a qualified attorney to protect their interests, and challenge any constitutional rights violations, or weak evidence in their case.
Officers may make mistakes in the cleaning and calibration of the devices, or may make errors in storing or transporting the evidence.
Even if your son or daughter has a DUI test showing alcohol in your system and they are under age or controlled substances if you are of any age, and were arrested in Maricopa County, there is no reason to give up hope.
A flawless process can be critical to prosecutors’ cases, particularly when the results involve a low BAC.
Mistakes in cleaning could easily lead to test result showing a low BAC, such as one used in the prosecution of a person younger than 21.
Likewise, the testimony of DREs can be effectively challenged by a lawyer. Any errors in their judgment can lead to charged being reduced or dismissed.
Generally when evidence is suppressed, it cannot be admitted in court. So suppression of material evidence or unlawful searches can lead to dismissal, or acquittal of charges.
James Novak is a former prosecutor, and dedicated exclusively to providing DUI and criminal defense. He is a highly skilled and effective and represents people of all ages charged with alcohol related crimes.
James Novak believes in second chances, making sure a person’s rights are protected, and that they get the strongest most effective defense available for their charges.
If a loved one or someone you know has been arrested for alcohol related crimes or other criminal offenses, contact James Novak, at The Law Office of James E. Novak today for a free consultation.
James Novak services clients who have received charges in Phoenix, Tempe, Mesa, Scottsdale, Chandler, or Gilbert, AZ.
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“Though non-criminal explanations for a driver’s conduct might exist, there is no additional requirement [under the Fourth Amendment] that the investigating officer expressly rule them out.”
Many criminal cases start with a traffic stop by police. However, police and law enforcement officers are not allowed to simply pull drivers over arbitrarily. To make a stop, police must have reasonable suspicion that a crime has occurred or is in progress. In a recent Arizona Supreme Court decision the Justices examined the reasonable suspicion standard. The ruling in the case, released June 4, 2015, found that “reasonable suspicion” does not entail officers being required to eliminate possible innocent explanations for suspicious behavior.
Overview and Case Summary
In this case, sheriff’s deputies testified that they encountered the suspect while he was in his truck. The truck was stopped at a stop sign at the intersection of an adjoining street where the deputies were approaching. As they passed the suspects vehicle, one of the deputies observed the suspect “flailing is arms” with closed fists at the passenger sitting in the front seat of the truck.
The Deputy alerted his partner that an assault appeared to be occurring. As a result they returned to the scene to conduct an investigative stop.
The resulting police traffic stop yielded arrests for possession of marijuana, possession of drug paraphernalia and aggravated driving under the influence.
During cross-examination the deputy testified, that although it appeared the suspect was punching the passenger, the deputy acknowledged that he did not actually see the contact or the passenger actually being struck.
The defense filed a motion to suppress the evidence of the “arm movements” that police reported was the reason for the stop.
The trial court denied the defendant’s motion to suppress the evidence. It found that although the defendant’s arm movements alone may not have constituted criminal activity, the facts clearly justified the Deputies’ need to stop and investigate.
On Appeal, the Arizona Appeals Court agreed with the trial court’s rejection to dismiss the evidence, and cited the lower court’s rulings, accepting the police officer’s demonstrated justification for the stop.
The Appeals Court also rejected the argument that the Fourth Amendment requires the police officer in every stop, to show that they took steps to rule out possibilities that the suspect’s conduct was innocent.
The Defendant appealed the denial of suppression of evidence to the Arizona Supreme Court, who agreed to hear the case since it involved recurring cases, and was of statewide importance.
In reviewing the case the AZ Supreme Court recognized that police can stop and detain a person briefly with reasonable suspicion, which requires only a minimal level of objective justification to suspect a crime or suspicious activity is in progress or has occurred.
The Court recognized that “reasonable suspicion’ is more of a “commonsense, nontechnical conception”.
To determine whether an officer has reasonable suspicion for the stop is based on the “totality of the circumstances” or the “whole picture.” And that from that from the whole picture, officers are required only to obtain a particularized and objective basis to stop someone because they suspect a crime is in progress.
The defendant in this case argued that the officers must consider all factors in a manner that would eliminate most innocent drivers – essentially that officers must take into account any reason for which the suspect may have been engaging in actions that could have been or were lawful.
The Court rejected that argument, and agreed with both the trial court and the court of appeals there is no “additional requirement” under the Fourth Amendment for police to testify that they went through processes that would serve to eliminate innocent conduct by the suspect.
The Supreme Court affirmed both the trial and Appeals court’s decision. They denied the defendant’s motion to suppress the evidence of the reason for the stop, concluding that the stop did not violate the suspects Fourth Amendment Rights.
Analysis of “Particularized Suspicion” and the Reasonableness Standard
To avoid arbitrary stops, higher courts have ruled that the suspicion justifying the stop must be sufficiently particularized – that is, that they be specific and distinct to that particular suspect.
Reasonable suspicion cannot be based on a “hunch” or generalizations. For instance, in State v. Gonzalez-Gutierrez, the Arizona Supreme Court ruled that the fact that a driver was glancing around, gripping his steering wheel tightly and scratching his head did not constitute reasonable suspicion to suspect an immigration violation.
Similarly, it is not enough for an officer to pull a driver over on suspicion of DUI because he or she was leaving an area of town with many bars at 2 a.m.
The officer must have witnessed something like weaving between lanes that would make a reasonable person believe drunk driving was afoot.
In this case, however, the AZ Supreme Court reasoned that if an officer sees activities that are atypical, the standard a court should use is whether the totality of the circumstances could indicate to a reasonable person that criminal activity was taking place.
The fact that most non-criminal activity does not appear suspicious and that the officer must meet this particularized suspicion standard, eliminates stops of too many innocent people.
The Court applied the standard of whether the particular observations of the officers in this case led to a reasonable suspicion that an assault was occurring.
The Court decided this reasonableness standard did not require that officers eliminate the possibility of innocent activity.
It therefore decided that police were within their powers when they pulled the vehicle over, and the officers were not in violation of the suspect’s Fourth Amendment Rights.
Impacts of the Ruling on Arizona Drivers
The impact on this case seemingly liberalizes or broadens law enforcement’s authority to make a stop for reasonable suspicion. However, in effect it does not grant police more power to make a stop.
It simply served to discharge police of the imposition of ruling out innocent conduct in defense of the suspect. A person’s Fourth Amendment Rights were not diminished.
However, drivers should be aware of their rights, in order to protect them. A driver can jeopardize their own rights and defenses by not being aware of them.
Therefore, it is important to at least be familiar with them, to avoid waiving them unintentionally. This will help protect defenses in the case of constitutional rights violations such as intrusive police actions.
Your Rights at a Police Stop in Arizona
You have a right to not answer an officer’s questions. While you should hand over your driver’s license and insurance information, you do not have to answer questions about where you’ve been, where you’re going, if you’d had anything to drink or any other questions.
Refusing to answer does not give officers probable cause to arrest you. A word of caution however, is that if you decline to answer questions, you should always let the officer know of your intentions invoke your rights.
Failure to do this may give the officer a perception that you are being uncooperative. Let them know that your intention is to cooperate by answering necessary information generally expected to be asked at a routine traffic stop. These might include answering routine questions about license plates, mechanical problems (for example, brake light out) related to vehicle registration, driver’s license, identity and residence. But that you wish to invoke your right to remain silent with regard to any other questions as a constitutional protection, without your attorney present.
You have a right to refuse requests to search your vehicle. Officers may ask to look in your trunk, in your locked glove compartment and other parts of the car in which you have a reasonable expectation of privacy. They may do so only with your consent or with probable cause. Refusing consent does not give them probable cause.
You have a right to refuse a DUI test, unless police properly obtain a warrant. This includes field sobriety tests, breath tests, blood tests and urine tests. As a result of your refusal, the state will suspend your license for 12 months to two years. However, you can fight the license suspension with the assistance of an attorney.
You also have a right against being stopped indefinitely. If allegedly pulling you over for a traffic violation, police can only detain you for long enough to handle the citation and run your information for warrants. It is your right to ask “Is this stop over?” once you have been handed the citation. If they answer no, they must be detaining you for some other reason.
You should be polite and respectful to law enforcement officers. However, that does not mean your rights can be trampled.
Mesa Defense Attorney for DUI, Drug Charges
Aside from traffic violations, the most common criminal charges that arise out of traffic stops are DUI offenses and drug charges, both of which resulted in this case study.
The defendant was charged with aggravated DUI. Aggravated DUI is a felony. It is charged when a person is alleged to be driving under the influence of alcohol or drugs and it is his or her third or subsequent DUI within seven years, his or her license was suspended, a child 15 or younger was in the vehicle or an ignition interlock is installed on the driver’s vehicle.
Aggravated DUI convictions result in:
- A minimum of four months in prison (eight months if the charge is the fourth or subsequent offense in seven years);
- Probation for up to 10 years;
- A fine of $750 or more;
- Additional assessment of $250;
- Assessment of $1,500 for the prison construction and operations fund;
- Assessment of $1,500 for the public safety equipment fund;
- Court costs;
- Community restitution;
- Vehicle impoundment;
- License revocation for three years;
- One year with an ignition interlock device installed;
- Mandatory alcohol or drug screening; and
- Mandatory alcohol or drug education or treatment program.
Drug charges often arise out of traffic stops when people are pulled over for other reasons, such as a traffic violation, and are accused of possessing drugs. In Evans, the defendant was charged with marijuana possession and paraphernalia possession. Possession of less than two pounds of marijuana is a class 6 felony, punishable by a presumptive sentence of one year in jail. Any more can result in significantly longer sentences.
The defendant was also charged with possession of paraphernalia. Paraphernalia is defined as anything that a person can use to plant, cultivate, ingest or manufacture drugs, among other activities. Possession is a class 6 felony, punishable by a presumptive jail term of one year.
If you have been arrested for any charge after being pulled over in Maricopa County, it is important that you contact a defense attorney right away. Your attorney can challenge whether police had reasonable suspicion among other issues and seek to get your charged reduced or dismissed.
James E. Novak is an experienced criminal defense lawyer and former Maricopa County prosecutor. Contact the Law Office of James E. Novak today for a free consultation to discuss your matter and defense options.
“Arizona DUI enforcement, Impaired Driving Facts and Statistics, Criminal Defense for DUI Charges”
Phoenix and East Valley DUI Enforcement over Memorial Day Weekend
The Arizona Department of Highway Safety (DPS) announced its plans to conduct a statewide highway-safety campaign.
The “Safety Team” is composed of Arizona DPS, the Governor’s Office of Highway Safety (GOHS), and Arizona Department of Transportation (ADOT).
They will combine resources this Memorial Day weekend to look for impaired, distracted, or other dangerous drivers.
The Campaign is scheduled to begin Friday May 22, at 12 p.m. and end Monday evening, May 25th.
Phoenix Metro and East Valley DUI Task Force have increased law enforcement staffing to target speeders, impaired, or other unsafe drivers.
Mesa AZ PD also announced its plans to participate in the East Valley DUI Task Force. Their plans include a combination of DUI Saturation Patrols and Sobriety Checkpoint both in the daytime and evening hours.
The Mesa PD vows to employ a zero-tolerance approach to drivers found to be impaired due to alcohol, or drugs as well as drivers and occupants under 21 years of age with alcohol in their system.
Increased Awareness of Alcohol and DUI Safety for Memorial Day Weekend
On Memorial Day Americans pay formal tribute to all military families, veterans, active duty military, and those who have given the ultimate sacrifice in service to our great country.
Many will drive distances, to visit cemeteries and place flags or flowers on the graves of our fallen heroes. There will be parades, USA flags flown at half-mast, and many other Memorial Services.
Often people see Memorial Day as a transition from the spring to summer season, and the beginning of summer holidays and celebrations.
Often these summer celebrations involve the use of alcohol, making it especially dangerous for students engaging in underage drinking, and all drivers on the roads.
Most people are aware that it is illegal to drive under the influence of alcohol or drugs. And they have at least a basic idea of what it means to be legally intoxicated and how to avoid driving while drunk (i.e. no driving after more than two drinks, a belief that is often incorrect). However, there are many things people often do not understand about the laws against drinking and driving.
These misunderstandings can be highlighted on weekends such as Memorial Day. Combining day trips to local hotspots and consuming alcohol without proper planning can result in arrest, injury, and even death. Understanding these misconceptions is the best way to avoid these problems.
Myths #1: Impaired driving arrests don’t happen during the day.
Fact: A common misconception many have is that drunk driving arrests only happen at night – that police only pull people over after the bars close. This misconception is particularly relevant during Memorial Day weekend. Many people in Maricopa County and the surrounding area take advantage of the extra day off to spend time outdoors. For many, that involves drinking, sometimes in long bouts throughout the day, especially if they are spending the day floating on an inner tube on Salt River. For many of these Tempe, Mesa and Phoenix-area residents, the trip home on Bush Highway may result in a DUI arrest – or, worse, an accident.
On any given day, people drive intoxicated during daylight hours. According to statistics published by the National Highway Traffic Safety Administration, most fatal DUI-related crashes do happen between the hours of 6 p.m. and 6 a.m. However, a very significant share – 38.6 percent – happen during the day, between 6 a.m. and 6 p.m. During daylight hours, there is a fatal DUI-related crash somewhere in the nation every 139.5 minutes.
Drinking during a holiday like Memorial Day tends to be more common. Law enforcement in Maricopa County are well aware of people’s Memorial Days habits and can anticipate where high volumes of traffic and impaired drivers might be.
Officers are likely to be well-prepared for the fact that people will be intoxicated earlier in the day than normal, and will be out of the road. If a driver is pulled over or stopped at a checkpoint, the time of day does not matter. The offense becomes worse if the driver was on a family trip and had children in the car. Driving under the influence with a passenger younger than 15 years old is an aggravated DWI, punishable by a minimum jail sentence of 10, 30 or 45 days.
Myths #2: You can drink and drive as long as your BAC is .08% the Legal Limit in Arizona
Fact: It is legal to drive over the age of 21 in Arizona, if your Blood Alcohol Content is under .08%, only if you are not found to be driving “impaired to the slightest degree.” This means you could be well below the legal limit of .08 percent, and still be arrested and prosecuted for DUI or Drug DUI in violation of A.R.S. 28-1381.
Myths #3: Drinking a couple beers an hour won’t lead to a high BAC.
Fact: Another misconception people have is that they will be OK to drive because they believe they are “taking it slow;” drinking beers throughout the day while floating on the river instead of pounding shots. However, a person who has been drinking all day while tubing, rafting or fishing is in danger of having high blood alcohol content (BAC) levels, resulting in greater penalties for an extreme DUI conviction.
An adult can typically process about one drink (12 ounces of beer, three ounces of wine, one ounce of liquor) per hour. In most circumstances, a person will be per se intoxicated with a BAC at or above .08 after consuming about two drinks within an hour. However, when a person drinks alcohol continually over a period of several hours at a rate faster than the body can process – usually about one drink an hour – the alcohol builds up in the body, and the person’s BAC rises.
A person drinking more than one drink per hour over a long period of time can very easily have a BAC exceeding .15, or even .20. A person found guilty of operating a motor vehicle with a BAC at or above .15 but less than .20 is convicted of what is called “extreme DUI.” The average BAC for a person convicted of driving under the influence is .152, placing it in extreme DUI range.
A first-time offender faces at least 30 days in jail. Additional penalties for a first-time extreme DUI offense are a fine of up to $250, and assessment of $250, an assessment of up to $1,000 for the state prison construction fund, an assessment of up to $1,000 for the public safety equipment fund, court costs, completion of a DUI course, community service or restitution, completion of an approved alcohol or drug education program, a 90-day driver’s license suspension, installation of an interlock ignition device for a year.
If the BAC was at or above .20, it is called a “super extreme DUI.” A person convicted of super extreme DUI faces a mandatory 45 consecutive days in jail, along with increased fines and an 18-month ignition interlock installation period.
Myth 4: You are not at risk for DUI if you have a Medical Marijuana Card, and are driving under the influence.
Fact: Though, in some states it is lawful to drive with a certain amount of Marijuana in your system, Arizona law does not include such provisions. In Arizona, a person can be arrested and prosecuted for Drug DUI, even if they are qualified Medical Marijuana card holders, if they are under the influence of Marijuana and driving impaired under A.R.S. 28-1381.
Myth #5: Memorial Day is a time for young people to run wild.
Fact: Many underage people have the misconception that Memorial Day is their day to run wild. Memorial Day weekend for many students marks the end of the school year and start of summer for high school, Junior High, and college students. Unfortunately, many suffer great consequences as a result of poor decisions: According to a study by the Drug Abuse Warning Network, visits by young people to the emergency room due to alcohol use rise 11 percent during Memorial Day weekend, and rise 27 percent for those mixing drugs and alcohol.
Laws against underage drinking are often vigorously enforced during holidays like Memorial Day. Underage consumption is a Class 2 misdemeanor, punishable by fines up to $750, up to four months in jail and a criminal record. Many young people cited for underage drinking are eligible for a diversion program to avoid conviction; an attorney can help the accused be admitted to the program if that is the best option.
As mentioned above, heavy DUI patrols and checkpoints are likely, both day and night during the holiday weekend. A person younger than 21 may face DUI charges if tests detect any alcohol at all in his or her system. Conviction results in a two-year suspension of that underage person’s license.
DUI Defense Lawyer for Mesa AZ
If you have been arrested or a loved one has been arrested for driving under the influence in Tempe, Mesa, Phoenix, Chandler or anywhere in Maricopa County, the best decision you can make is to immediately contact an attorney. Defense attorney defend the rights of the accused and seek the best possible result for their client, including getting charges reduced or dismissed.
It is likely law enforcement will have checkpoints along major roads in and out of recreational areas, such as the Salt River area. A person arrested at a DUI checkpoint may feel their case is hopeless. However, there are strict laws and regulations that govern how these checkpoints may be set up. The failure of police to follow these guidelines can lead to a person’s arrest being thrown out. An attorney will review every step police took to determine any and all mistakes they may have made.
Even if you failed a DUI test, there are still defenses that may exist. Police need reasonable suspicion to pull a person over, and the mere fact that a person is leaving an area where people were consuming alcohol is not sufficient. Additionally, there are significant flaws in DUI tests, and results can be challenged.
If you are arrested you have the right to be represented by an effective attorney, to defend your charges. An arrest is not a conviction. The burden of proof rests on the prosecution to prove beyond a reasonable doubt that you are guilty. If retained, James Novak, DUI defense attorney can protect your rights and defend your charges. James Novak is a former Maricopa County Prosecutor with a deep knowledge of criminal law and criminal procedure. His experience on both sides of the criminal courtroom is a valuable asset he always puts to work for his clients. He offers a free consultation to anyone accused of a crime, including DUI, in Tempe, Mesa, Scottsdale, Chandler, Gilbert, Phoenix and the surrounding area.
Additional Articles of Interest:
“Probation is a privilege that cannot be denied under AMMA; Penalties & criminal defense for probation violations.”
Nearly 5 years after the passing of Arizona Medical Marijuana Act (AMMA) the Arizona Supreme Court heard two cases involving denial of the privilege of qualified patients to use marijuana.
The Arizona Supreme Court held that a condition included in terms of their probation that denies Registered Qualified Patients the right to use medical marijuana is invalid and unenforceable.
They agreed to hear the cases on the basis that they involved recurring immunity under AMMA as they applied to plea agreements, and probation terms, had repetitive statewide impacts.
In an effort to narrow this discussion, we will focus on one of those cases.
Arizona Supreme Court Case and Ruling
The defendant pled guilty to marijuana and narcotic charges and sentenced to serve 1.5 years in prison, and three years of probation. In 2010, while the petitioner was still in prison, Arizona voters passed a ballot initiative in the Arizona Medical Marijuana Act (AMMA).
Among other terms included in the probation conditions, set forth in the plea agreement, at the time of signing, the defendant agreed to obey all laws, and refrain from using or possessing illegal drugs, toxic vapors, or controlled substances, or use or possess any prescription drugs without a valid prescription.”
After the AMMA became law, the petitioner applied for a medical marijuana card, to enable him to use medical marijuana to relieve pain from a “debilitating medical condition” he suffered.
Subsequently he qualified for the program, and obtained a registry card by the Arizona Department of Health (ADHS) for of Medical Marijuana.
While on probation, the petitioner’s probation officer added a new condition to the probation terms. This new condition specified that the probationer could not “possessing or use marijuana for any reason.”
The probationer asked the court to delete the new term due to his immunity under the new AMMA law. The court denied the motion.
The probationer then sought relief filing special action in the AZ Court of Appeals, due to the immunity protections under A.R.S. 36-2811 (B), which state:
“A registered qualifying patient or registered designated caregiver is not subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege.”
The Court of Appeals granted relief and agreed that a qualifying patient cannot be deprived of the privilege of probation, based solely qualified use of Medial Marijuana when it is being used in compliance with the AMMA.
The Arizona Supreme Court affirmed the Appeals Court Decision.
No Imposition of Penalties on Probationers using Marijuana Compliant with AMMA
The State opposed the Appeals Court to remove the condition that prohibited the use of Marijuana in any form by the probationer.
The state argued that imposing this prohibition on one convicted of a drug crime should be allowed, because it was a reasonable and necessary condition.
The court advised that the question before the court was not whether the condition was appropriate, but whether or not it was lawful.
The court agreed that while it the state and can and should be including reasonable and necessary probationary terms, the state is prohibited from including unlawful terms and unenforceable terms citing Coy v. Fields (State) 2001.
The AZ Supreme Court concurred that the AMMA possessed broad immunity provisions, and recognized that there were a few narrow exceptions, but that being a “probationer” was not one of this exceptions. Thus, it was their opinion that immunity applied to the probationer rather than excluding him from it.
“Probation is a privilege; Revoking Probation is a Penalty.”
The court held that probation is a privilege in Arizona, citing State v. Montgomery; and that revoking probation resulting from violations of those terms is a penalty, citing State v. Lyons.
Probation is a privilege because it allows a defendant to elect probation in exchange for a suspension or the imposing of incarceration for a specified term. However, crimes or convictions are eligible for probation.
If probation terms are violated the court may revoke the probation, and reinstate the order for the maximum sentence to be served in jail or prison, therefore, resulting in a penalty.
The Court found that revoking probation after having granted it is a penalty. Imposing this condition, therefore, was in violation of Arizona’s law, the Court ruled, because it would enact a penalty (revoking probation) for using medical marijuana.
The AMMA allows for marijuana use and possession within the confines of the law may not result in a penalty. The Court has found that granting probation to those convicted of crimes is a “privilege.”
If the probationer violated this condition in accordance with his qualified right to use Medical Marijuana under the AMMA, he faced certain consequences of having his probation revoked and likely returning to prison.
The Court also established of course, that use of medical marijuana does not violate Arizona drug law, A.R.S. 13-3408(g) because that statute specifies that narcotic and prescription drugs are prohibited unless “lawfully administered by a health care practitioner,” which implies that the legislation’s intent was to make a distinction between illegal drug use, vs. medicinal use.
The Federal Preemption Debate: The AMMA Does Not Conflict with Federal Law
The Arizona Supreme court ruling addresses the ongoing debate that continues to arise with regard to potential conflict of the legalization of Medical Marijuana in Arizona in light of the Federal prohibition.
The high court acknowledged that Marijuana in any form remains prohibited under the Federal Controlled Substances Act. However, ruled that it does not conflict with Arizona’s AMMA because the federal law does not contain an exception that allows medicinal use of Marijuana.
The State argued that the probation conditions required the probationer to follow all laws, and that “all laws” included Federal Laws. The Arizona Supreme Court rejected this argument, related to the State’s AMMA and Federal Controlled Substances Act.
In response to the State’s challenge, the Court advised that the State would otherwise be correct if the Federal Controlled Substances Act preempted the Arizona Medical Marijuana Act.
The Court provided further clarification of its position by advising that the Federal Controlled Substances Act would preempt or override the AMMA if:
- The Controlled Substances Act explicitly preempted state law; or
- Congress had determined it must exclusively govern the field; or
- The two laws conflict to the extent that it is physically impossible to comply; or
- The state law stands in the way of Congress’s ability to accomplish its intent.
The Court declared that none of those conditions applied here. Further, it cited the fact that:
“Congress itself has specified that the Federal CSA does not expressly preempt state drug laws or exclusively govern the field…There is no such conflict here.”
The court also cited a Michigan case that they felt was persuasive, Ter Beek v. City of Wyoming, (Mich. 2014). In that case, it was ruled that the Medical Marijuana statute “does not prevent federal authorities from enforcing federal law—it merely provides “a limited state-law immunity.”
In that case, the Court opinioned that Congress’s intent was to “to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances.” Michigan’s medical marijuana law had a narrow scope applying only medicinal use, and did not conflict with the federal law to the extent that they negated Congress’s purpose in passing the law. The Arizona Supreme Court ruled that the same applied in this state, and therefore the CSA did not preempt the AMMA and a probationer could comply with both.
The State’s Waiver Argument to the Arizona Supreme Court
The State’s final argument was that by entering the plea agreement that stated while the defendant was on probation he agreed to “obey all laws”; it implied that he waived his right to use marijuana under the AMMA.
The Court rejected this argument, on the basis that the defendant could not have knowingly waived a right under the AMMA since it did not exist at the time he entered the plea agreement. The Court also added that even if it did exist at the time, such waiver was not enforceable, because it was unlawful and invalid citing State v. Ferrell, Arizona, 2015.
The Arizona Supreme Court affirmed the opinion of the Arizona Court of Appeals granting relief to the petitioner in the special action.
The Importance of Understanding Your Probation Conditions
We discussed the fact that probation was a privilege. Despite that, you may find that certain terms are unduly burdensome for you to accept in return for suspension of incarceration. It is important that when offered a plea agreement, that you fully understand all the terms of the plea agreement. This applies to both the incarceration terms, but all other conditions, such as payment of fees, restitution, probation, parole, substance abuse counseling and treatment, and all other terms. You should review it carefully. Make sure you understand any waivers, and what they mean, and discuss any concerns or objections you have with your attorney.
Penalties for Probation Violations
“In some cases, the penalties for violating the probation may be more severe than the penalties called for by the underlying offense.”
Probation is one of the most common conditions in a plea agreement and in sentencing for convictions. Penalties for violating probation terms can result in serious consequences.
Judges generally have broad discretion over the penalties. When determining the punishment, they will consider multiple factors. This includes factors such as the nature and severity of the offense as well as whether or not it was a repeat violation of probation terms.
In some cases, the penalties for probation violations may be more severe than the penalties called for by the underlying offense. If it is a first time violation of a less serious nature, your probation officer may hand down a warning only. More severe and repeat violations may include one or more of the following, but are not limited to:
- Reinstatement or original jail or prison sentencing;
- Revocation of probation;
- Imposing additional incarceration, or extension of probation:
- Random alcohol or drug screening;
- Mandatory alcohol or substance abuse counseling and treatment;
- Economic fines;
- Civil or community service;
- New criminal charges:
- Attendance of other rehabilitation programs designed to correct criminal behaviors;
- Adding more stringent terms and conditions known as “intensive probation”.
Generally, the penalty is more serious if the probation violation is similar to the criminal activity for which they were originally convicted. This list is not all encompassing. Penalties may vary based on the nature of the violation of probation.
Criminal Defense for Probation Violations in Mesa AZ
The most important thing you can do following an arrest is to hire an experienced criminal defense attorney to represent you in the matter, to defend the violation or new charges, and make sure your rights are protected.
Your attorney will build a defense strategy heavily based on the condition and circumstances surrounding the violation for which you have been charged. Your attorney may be able to file a motion to have the charges dismissed if your rights were violated, if the evidence is weak, or if other circumstances exist, that do not warrant the charges. They will present your side of the story to the prosecution and the court, and make every effort to have the charges dropped.
If the state refuses to drop the charges, in some case your criminal defense attorney may be able to negotiate more favorable terms that would otherwise have been ordered in the event of a conviction. For example if repeat random blood tests are positive for illicit drugs, your attorney will work closely with the prosecution and court to qualify you for participation in a substance abuse rehabilitation program as an alternative to returning to incarceration.
The burden of proof held by the prosecutor to get a conviction is guilt by “preponderance of the evidence” which is lower than “beyond a reasonable doubt” which makes it easier for the state to get a conviction. This is one reason that it is critical to retain an experienced and competent criminal defense attorney representing you in the charges.
James Novak of the Law Office of James Novak is a former Maricopa County Prosecutor, with a vast amount of experience in litigation and criminal defense. James Novak will protect your rights, defend your charges, and fight for the best possible outcome in your case. DUI and Criminal Defense Attorney James Novak, provides a free consultation for those who have been charged with a crime in Tempe, Mesa, Chandler, Phoenix, Gilbert and Scottsdale Arizona.
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How to identify signs and symptoms of use and abuse; New National CDC statistics; Narcan lifesaving drug legislation; Arizona heroin laws, penalties, and criminal defense.
Tragedy Strikes Home: “This Drug Wants to Kill You”
23-year-old suspect stood before a district court judge after his first arrest the night before, on heroin possession charges.
The young man made an impression on the judge that he would not soon forget.
The suspect was a respectful, polite, and receptive to the judges orders. The judge looked at him and said firmly, “This drug wants to kill you”. He told the suspect that his desk was stacked with death certificates of defendants who died as a result of heroin or other opiates. The youth stood there listening intently with tears in his eyes. The judge assigned him an attorney, ordered random drug testing. The suspect thanked the judge on the way out.
Two days later, the suspect died of a heroin overdose.
When the judge was notified of the defendant’s death, he was badly shaken. “It’s an incredible feeling of powerlessness. We have no mechanism to identify who’s going to keep using. Nothing would indicate this kid had a heroin problem. The new opiate addict is virtually undetectable, until he dies. We’re all frustrated by this and we want people to know what we’re up against. This is the new breed of people afflicted with opiate addiction…I liked this kid. He was a good kid with a bad problem.”
The suspect’s father wanted other parents to hear his family’s grieved message: “Words can’t describe our pain. He was a beautiful, beautiful kid…with everything in the world going for him. No one wants to be a drug addict. So many other families we know have children struggling with the same thing. It’s an epidemic right now. We made a conscious decision that we weren’t going to hide from it. The reality is, someone died yesterday and someone is going to die today. There are parents out there who have no idea…Talk to your kids. Just talk to your kids.”
Today, the parents hope their story would spare other families with such anguish and heartbreak.
Third Heroin Epidemic
The National Centers for Disease Control (CDC) released their most recent national statistics in March 2015. They reported that drug poisoning is still the number one cause of injury-related deaths in the United States. Of those, heroin deaths have tripled, illustrating a spike in use, abuse and addiction of the drug, and a marked resurgence of heroin use.
The new CDC statistics revealed that the death rate from heroin overdose nearly quadrupled over 2000 to 2013, from 0.7 deaths for every 100,000 people to 2.7 deaths. According to the report, persons of non-Hispanic white origin between the ages of 18 and 44, are the most vulnerable, with the highest death rate: 7 deaths per 100,000, nearly three times the rate for the population at large. While the Midwest United States had the largest increase in death rate, the West, which includes Arizona, began in 2000 tied with the Northeast for the highest death rate, a number that doubled by the time the study ended in 2013.
Examining the CDC data reveals the possibility that we may be in another epidemic. Many believe that the current spike in heroin deaths may be related to an earlier dramatic increase in the abuse of prescription drugs. Another contributing factor to the drug’s increased popularity and use is that the cost of heroin has decreased, while its potency has increased.
Heroin is classified as a narcotic. It is an opium derivative which is closely related to many prescription painkillers, called opioid analgesics. This category includes morphine, codeine, oxycodone, fentanyl and hydromorphone. According to the CDC, unintentional overdose deaths from opioid analgesics increased dramatically in the early 2000s. From 1999, the number of deaths had doubled by 2004 and tripled by 2007.
A 2011 study by Drexel University found that four out of five users of injected drugs – heroin being the most popular – has abused some form of prescription opioid before turning to an illegal substance. One of four injected drug users reported a prescription opioid as the first controlled substance they ever used.
The recent CDC data also supports the notion that prescription drug abuse has led to increases in the amount of heroin abuse. The same report includes information on overdose deaths from opioid analgesics. The death rate for these substances increased, as well, though at a more rapid pace. In 2000, the death rate was 1.5 per 100,000. By 2006, it had tripled, while the heroin death rate remained the same as it was in 2000.
However, while the death rate for opioid analgesics increased slightly and then even dropped in 2012, the heroin death rate soon took off. Between 2006 and 2011, the rate from heroin doubled, and by 2013 it had nearly doubled from that.
Immediate Adverse Effects of Heroin Use and Overdose
According to the National Institute on Drug Abuse users reported, immediately effects including a “rush”; then dry mouth, skin flushing, heaviness of extremities, nausea vomiting, delirium, severe itching, drowsiness and cloudiness in mental function.
The primary risk of danger on the bodily systems with heroin use is the respiratory system. Opioids depress breathing functions by altering the brain’s neurochemical activity in the area of the brain that controls automatic bodily functions like breathing and heart rate. It can depress the heart rate and reduce oxygen enough to cause fluid in the lungs, deprivation of oxygen to the body, seizures, coma, brain damage, or death.
Long –Term and Other Effects of Heroin
The long term effects of heroin use solely from a medical stand point, can include, but are not limited to: addiction, withdrawal, deterioration of teeth, periodontal disease, and weakened immune system, breathing problems, liver disease, loss of memory, reduction in mental capacity, facial pustules, gastrointestinal problems, depression, sleep dysfunctions and other mental disturbances. Chronic use and shared needles can also lead to AIDS, hepatitis, and other infectious diseases.
Related Dangers: Heroin Laced with Fentanyl Overdose Warnings
Last week the Federal Drug Enforcement Agency issued a nationwide warning about a surge in overdoses resulting from Fentanyl-Laced Heroin. It is being described as a “significant threat to public health and safety”. Drug overdoses due to heroin laced with Fentanyl are occurring at an alarming rate. Fentanyl is said to be 100 times stronger than morphine, and is the most powerful opioid available to doctors. It’s a drug intended to be used to suppress extreme pain due to advanced staged disease such as bone cancer. But it’s being sold on the streets as heroin. Most users have no idea what’s in the heroin they are buying or using, making it far more lethal, than it’s already inherent risks.
Arizona’s Heroin Arrests Statistics
Recently it was reported Arizona ranks as being the sixth highest state in the nation experiencing an increase of heroin use and abuse among teens, and that officials have seen a disturbing trend of increased use. Officials of the Drug Enforcement Agency Phoenix division reported that that drug seizures at the border increased by 300 percent in recent years.
It was reported that in Gilbert, AZ, alone arrests had also increased by 300 percent, with the rise in teen use being a significant contributing factor. Cities across the state are struggling with the rise of its use. Deaths have reportedly doubled in the last decade in Arizona. In Tempe Arizona it was reported that the DEA and Attorney General recently completed a 2.5 year investigation which resulted in dismantling an extensive drug trafficking network that covered three states, as well as Mexico.
Narcan the Life Saving Drug for Heroin Overdose Reversal
In our prior discussion we explored the uses, and trends of an injectable lifesaving drug called Narcan (Trade name) or Naloxone. This is an opiate antagonist, meaning it has the capability of preventing death if administered to a person suffering from an overdose of opiates, including heroin. It is administered with a hand-held auto-injector “Evizo” (Naloxone hydrochloride injection), approved by the U.S. Food and Drug Administration (FDA) in April 2014.
The injector provides an emergency lifesaving dose of Narcan for potentially fatal overdoses of heroin. The drug had proven highly effective in reversing otherwise fatal effects of heroin overdoses.
The Federal Drug Enforcement Agency reported that since 2001, Narcan has been credited with reducing over 10,000 otherwise fatal heroin overdoses.
Narcan was traditionally used in Emergency Rooms and by first response paramedics. However, since first responders to the scene were an overdose is often the police or immediate care givers, many states have passed laws allowing police and other qualified first responders to be trained to administer the drug and equipped with it. As a result, police and care givers in some states are now allowed to carry lifesaving drug Narcan which is proving to save more lives.
Administration of Narcan
Lori Combs, BS, RN, Clinical Nurse Consultant an experienced clinician in ER, Trauma, Cardiology Forensic Nursing, and Death Investigations training, had this insight to share about the actual administration of Narcan:
Naloxone or Narcan (Trade Name) is an opioid antagonist which means the Narcan molecules compete for the opioid receptor sites in the central nervous system. Narcan is usually given by medical personnel such as Paramedics, Physicians and Registered Nurses via an intravenous access site. The reversal effects of the Narcan can occur within a couple of minute given in this method. If intravenous access is not available this drug can be given in the deep muscle of the buttock, upper arm or outer thigh area. Or it can be given into the fat of the abdomen or the back of the upper arms. If given in the deep muscle or fat, the mechanism of action will be slower compared to the intravenous access. One word of caution, these patients that experience the reversal effects of Narcan can then exhibit withdrawal symptoms from the opioid within minutes and need to be medically treated immediately.
Expansion of Laws for Police to be Trained and Equipped to Administer Narcan
Last March 2014, the United States Attorney General publically urged all law enforcement agencies in the US to train and equip their officers to administer Narcan. A total of 17 states currently have laws that allow for police to administer Narcan as first responders.
The state and government’s response to Narcan has been favorable, and many states have either passed laws or are in the process of expanding laws to allow other first responders to be equipped and trained to administer Narcan.
The Arizona Legislature is currently poised to pass new laws aimed to curb deaths from heroin overdose.
Under House Bill 2489, a police officer or emergency medical technician would be permitted to administer Narcan.
If passed, Arizona’s police and other eligible first responders would join at least 18 states that have passed laws nationwide allowing police to be trained, and equipped to use Narcan for an otherwise fatal heroin overdose.
HB 2489 passed the House of Representatives by a vote of 59-1, and is currently awaiting a vote in the Senate.
Signs and Symptoms of Heroin Use
All too often after tragedy strikes, a loved one including parents are stunned due to the fact they were unaware their child or loved one was using or abusing heroin. Early detection and intervention is crucial. Here are some signs and symptoms that may reveal someone is using or abusing heroin:
- Frequent nausea or vomiting;
- Chronic drowsiness;
- Scratches on skin due to uncontrollable itching;
- Flushed face, tiny pupils and no response of pupils to light;
- Slow breathing; coughing, runny nose, respiratory disturbance;
- Remnants of brown powder , dark sticky residue or crumbling substances;
- Syringes, glass or metal pipes;
- Belts or rubber tubing for injections;
- Baggies, burnt spoons,
- Loss of appetite;
- Sweating, twitching or tremors;
- Fully covering skin, especially on arms to hide needle marks
What to do if you Suspect a Loved one is using or abusing Heroin
According to HelpGuide.org, it is natural for parents to feel angry, and sometimes blame themselves. Parents and guardians are urged to resist the urge to punish, preach, or threaten the youth.
Instead it is recommended that the parent or loved one try their best to do the following:
- Speak up, and reach out to the person about their concerns;
- Remain calm; and only discuss the concerns under sobriety of both parties;
- Be prepared for denials with a list of behavior problems and concerns noted:
- Take care of yourself, and your health needs;
- Let the person accept responsibility for their actions;
- Institute rules and be prepared to execute the consequences if the rules are broken;
- Monitor your teens, or loved one’s activities, including knowing with whom they are with;
- Encourage healthy interests and participation of extracurricular activities;
- Explore underlying issues such as pain, stress, or other causes;
- Seek professional help, education, counseling and treatment
Why Heroin Use and Arrests are on the Rise in Arizona and throughout the United States
The most recent statistics reported for heroin and other opiate arrests in Arizona by the Arizona Department of Highway Safety were in 2013. Heroin and other opium related crimes include possession, trafficking and sales. The total arrest related to these crimes were 3,549, a 7 percent increase over 2012, totaling 3,315.
On a national level the Drug Enforcement Agency reported in its 2014 National Drug Threat Assessment Summary that the greatest increasing threat facing our country in 2014 was posed by heroin. Heroin seizures at borders were 4 times higher in 2013 over 2009. Increase in use was second only to methamphetamine. Reasons cited included the following:
- Increased demand;
- Controlled prescription drug users who switched from prescription drugs to heroin.
- Controlled prescription drug users switched to heroin due to the decreased availability of prescriptions resulting from law enforcement and legislative efforts to thwart operation of illicit pill mills, doctor shopping, and unethical physician practices.
- Price of heroin is relatively low as compared to the cost of prescription drugs.
Arizona Laws and Criminal Penalties for Heroin Convictions
In addition to the highly dangerous health and medical risks of use and abuse of heroin are the criminal consequences of use, possession, transport, sale or distribution.
Narcotics crimes including heroin, carry some of the most serious penalties under Arizona Drug Law. Under both the federal Controlled Substances Act and the Arizona Uniform Controlled Substance Acts, it is listed as a Schedule I substance, meaning it has no accepted medical use and a high potential for abuse. It is classified as a “narcotic drug” in Arizona Revised Statutes 13-3401(21).
Under Arizona Revised Statutes 13-3408, heroin charges can include:
- Possession or use, a class 4 felony, with a range of punishment from four to eight years in prison;
- Possession with intent to sell, a class 2 felony, with a sentence ranging from seven to 21 years in prison;
- Possession of equipment or chemicals for the manufacture of heroin, a class 3 felony, punishable by five to 15 years in prison;
- Manufacturing heroin, a class 2 felony, with a seven to 21 year range of imprisonment;
- Administering heroin to another person, a class 2 felony, with a seven to 21 year range of imprisonment; and
- Transporting or importing, or offering to transport or import, heroin into the state, a class 2 felony, with a seven to 21 year range of imprisonment.
All heroin charges result in felony convictions, which have broad implications. Penalties for convictions include expensive fines, fees, and costs of assessments; participation in a substance abuse counseling and treatment programs; loss of some civil rights associated with felony records which include loss of the privilege of possessing a firearm; and loss of voting rights.
Criminal Defense Attorney, Mesa, AZ, Heroin Drug Possession and Use Charges
A majority of the heroin charges that are brought relate to use and possession in Arizona, which are aggressively prosecuted.
Many overdoses go unreported because the users or witnesses fear criminal repercussions. But the decision not to seek emergency help can be fatal for the user. It is far more important to call #911 or seek immediate medical help. If a criminal arrest follows as a result, your criminal defense attorney can help defend your rights and the charges.
Heroin is a highly addictive substance, and many people accused of these crimes suffer from the disease of addiction. If a person is accused of mere possession of heroin, he or she may be eligible for drug court if he or she pleads guilty. Maricopa County Drug Court is a court-supervised treatment program. Upon successful completion, the person admitted may have their felony charge reduced to a misdemeanor. A person must seek admission from the Maricopa County Attorney’s Office, and not all are accepted. Your defense attorney can help negotiate acceptance and qualification for participation in the program.
Not all of those charged will qualify for the drug treatment program due to eligibility factors. So it is critical that you retain a highly skilled and experienced drug crimes defense attorney to defend your charges and protect your rights.
Because a person is charged or arrested for a heroin crime, that does not necessarily mean they will be convicted or found guilty of that crimes, or receive the maximum statutory penalties. With drug crimes, there are often defenses that a skilled criminal defense attorney can use to get a favorable outcome in your case. Those outcomes might include suppression of key evidence, reduction of charges or penalties, alternative penalties to incarceration, and in some cases dismissal of charges.
As a former prosecutor and experienced Mesa AZ drug defense lawyer, James E. Novak can assist you by explaining all your options to you, helping your choose the best one and zealously fighting for your best interests. If you choose to fight the charges, he will seek every available defense and to have your charges reduced or dismissed. Contact the Law Office of James E. Novak today to schedule a free confidential consultation, to discuss your matter and options for defense.
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Posted in Drug Crimes
Ongoing Efforts by States and Federal Officials to ban synthetic drugs; Trends; Dangers of synthetic drugs; Arizona imitation drug laws, penalties and consequences.
“Molly” isn’t the new kid on the block. She’s been reigning terror on high school, college campuses, nightclubs, concerts, streets and the social scene for decades. “Molly” is simply “Ecstasy” in disguise and more dangerous. She can be deadly even in her purest form. But with the age of new synthetic drugs and their combinations, she has become more lethal than ever before.
Recently, we learned of 11 people that required hospitalization at a Northwest college for an overdose of synthetic drug “Molly,” a more refined version of MDMA (3,4-methylenedioxy-methamphetamine).
So far there have been four arrests of other students on campus, for synthetic drug possession and intent to sell, by police as authorities attempt to find the source of the drugs in this incident.
The hospitalizations and medical incidents resulting from use of “Molly” were reportedly not first of their kind this year. Health officials reported last fall, a campus-wide email was sent to students alerting them that other students had recently been hospitalized as a result of synthetic drug use.
In this article we will discuss important topics related to imitation drugs; their dangers, drugs; state and federal efforts to ban synthetic drugs; trends; other injuries caused as a result of their use; and Arizona synthetic drug laws, penalties, and other consequences.
One such consequence is the need for criminal defense. A majority of this article has been dedicated to raising awareness, providing education and resources particularly with regard to the deadly health dangers of “Molly”, “bath salts”, imitation Marijuana and other synthetic drugs. In addition to the health dangers of synthetic drugs, is the high risk of criminal liability that exists as a result of using them. Continue reading
New CDC statistics reveal 38 million Americans binge drink 4 times per month; six people die from alcohol poisoning every day.
How to Make Your Arizona Experience Sensational with Alcohol Safety
Arizona, the Valley of the Sun, sees an average 37 million people visit each year. Some visitors are here to enjoy the spectacular Grand Canyon, Sonora Desert, Hoover Dam, Monument Valley, majestic Sedona and Oak Creek Canyon, historic Jerome, Desert Botanical Gardens, other National Parks and Recreational Areas. Some are here on business, attending one of Arizona’s many colleges, universities, or trade schools. Some are participating or here to watch live professional sporting events, popular concerts or other shows. Others just simply want to get away from the ice, snow and freezing temperatures, to bask in the warm sun of in the fall and winter.
Alcohol surrounds many of these popular sports events, activities, and social gatherings. It is common to hear heavily sponsored beer and other liquor commercials, for retailers to advertise specials, for generous party hosts to offer, and people consuming alcoholic beverages. Social drinking is the American way of life for many.
Whether your stay is short, long, or permanent, the chances are great that you will either find yourself behind the wheel of a vehicle, or a passenger in one. Many are unaware that Arizona has some of the toughest DUI laws and penalties in the USA. This is particularly true for higher Blood Alcohol Content (BAC) DUI convictions. Others, especially younger drinkers are unaware of the health risks of drinking in excess.
Unfortunately, in the midst of the celebrations, excitement, and fun, some lose track of how much alcohol they are actually drinking. This can result in deadly consequences.
Drinking in excesses hazards extend beyond the health of the person drinking, especially if that person gets behind the wheel of a vehicle. Other drivers and passengers should keep in mind that other motorists on the roadways may be driving impaired.
Article Overview – Featured Topics
To raise awareness about the hazards of drinking in excess, and its consequences, we will discuss the following alcohol safety issues:
- Legality verses Safety;
- Arizona’s High BAC Trends;
- Extreme and Super Extreme DUI Laws and Penalties;
- Binge Drinking Defined;
- Causes of Binge Drinking;
- Non-DUI Related Crimes Involving Excessive Drinking;
- Injuries Caused by Excessive Drinking;
- New National Centers for Disease Control Repot: Alcohol Poisoning;
- Emergency actions if you suspect someone has alcohol poisoning;
- 7 DUI Safety Tips;
- 10 Alcohol Consumption Safety Tips;
- DUI arrest, rights, and criminal defense
Legal v. Safe
It’s important to make a distinction between safety and legality as it pertains to driving under the influence of alcohol. In sum, though it may be legal to drive under the influence of alcohol that does not mean it is equally safe for all drivers.
If you are a juror on jury duty in an Arizona DUI case, you will likely hear this as part of the jury instructions. That is, that in Arizona, it is legal for a driver over the age of 21 to be under the influence of alcohol.
However, it is not legal to drive under the influence of alcohol if the motorist’s BAC is 0.08 percent or more, within two hours of driving or being in actual physical control of the vehicle under; and/or if their driving abilities are “impaired to the slightest degree” by alcohol or drugs.
In sum this means is that a person can be found guilty of an impaired driving charge under A.R.S. 28-1381, even if their BAC is below the legal limit, or by drugs, if they are found to be “impaired to the slightest degree.”
There is much controversy surrounding whether or not it is safe to drive under the influence of any alcohol at all. All DUI laws aside, the National Centers for Disease Control (CDC) warns that it is still not safe to drink and drive under the influence of any amount of alcohol.
According to the CDC, BAC levels below 0.08 percent can still slow reaction time, judgment and coordination, all of which are necessary for driving safety. Further, they warn, the higher the BAC, the greater the driving impairment.
Arizona’s War on Extreme DUI
We’ve discussed the dangers of binge drinking in prior articles. But the new statistics for 2014 have been released for 2015, by the Arizona Governor’s Office of Highway Safety (AGOHS). They reveal an alarming trend in excessive drinking and Super Extreme DUI in the State. For the 7th consecutive year, the average BAC of driver’s stopped and arrested has been 0.152 percent, in violation of Extreme DUI laws A.R.S. 28-1382.
Extreme and Super Extreme DUI Laws
Binge drinking is the number one cause of high Blood Alcohol Content (BAC) in drivers arrested for of Extreme and Super Extreme DUI charges in Arizona. According to the CDC, drivers who engage in binge drinking are 14 times more likely to be arrested for impaired driving, than a motorist who has not engaged in binge drinking.
Arizona also has what are known as Extreme and Super Extreme DUI laws. They exist to provide increased and more severe penalties for those guilty of driving with higher BAC levels.
Extreme DUI laws are violated when a motorist is driving with a BAC level of 0.150 to 0.199, under A.R.S. 28-12382 A (1).
The Super Extreme laws are violated when a motorist is found guilty of driving with a BAC of 0.20 or higher A.R.S. 28-12382 A (2).
The primary cause of high BAC levels is Binge Drinking, which results leads to Extreme DUI and Super Extreme DUI arrests.
In Arizona, a breath test refusal will result in a one year loss of driver’s licenses, whether a person is driving impaired or not under the influence of alcohol or drugs. Also, there is a risk that if the driver refuses, the police may obtain a warrant to administer a DUI blood test in the alternative.
If a driver in Arizona consents to a breath or blood test, or police obtain a search warrant to perform a blood test, and the test returns a result of a BAC between 0.15 and 0.20, that driver may face charges of extreme DUI. While any charge for driving under the influence has far-reaching consequences, an extreme DUI or super can be especially severe. The general rule in penalties for impaired driving is, the higher the BAC, the more harsh the penalties will be.
Extreme DUI Penalties in Arizona
A driver convicted of Extreme DUI for the first time will face:
- A fines, fees, and assessments totaling $2,500.00;
- Jail terms of 30 consecutive days;
- Driver’s license suspension/revocation of at least 90 days
- Mandatory installation of an ignition interlock device 1 year;
- Completion of an approved alcohol or drug education program, a DUI course and counseling for alcohol or substance abuse;
- Probation, and/or community service or restitution
However, it’s also very likely that consuming eight alcohol beverages in one sitting will lead to a BAC at or exceeding 0.20, and result in charges of super extreme DUI.
Super Extreme DUI Penalties in Arizona
A driver convicted of extreme DUI for the first time will face:
- A fines, fees, and assessments totaling $2,750.00;
- Jail terms of 45 consecutive days;
- Driver’s license suspension of at least 90 days;
- Mandatory installation of an ignition interlock device 18 months;
- Completion of an approved alcohol or drug education program, a DUI course and counseling for alcohol or substance abuse;
- Probation, and/or community service or restitution
Repeat DUI violations call for even more severe punishments. A third DUI of any kind within 84 months with any BAC is considered an Aggravated DUI which is a felony in Arizona. All felony charges expose a person to prison terms and other felony penalties.
What is Binge Drinking?
The National Institute on Alcoholism and Alcohol Abuse (NIAAA) defines binge drinking as a pattern of alcohol consumption that drives a person’s BAC to 0.08 percent and higher.
The amount consumed generally translates to 4 or more drinks within 2 hours for women, and 5 or more alcohol beverages for men during a 2 hour time span. The faster a person consumes the alcoholic beverages the more quickly and higher the resulting BAC level. The NIAAA defines a standard drink of spirits as an equivalent of a 12-oz beer, 5-oz glass of wine, or 1.5-oz shot of distilled liquor.
Causes of Binge Drinking
While people of all ages engage in binge drinking, one of the most simplistic but resourceful article on this topic was from the BACCHUS Network. BACCHUS stands for “Boosting Alcohol Consciousness Concerning the Health of University Students”, who for over 30 years have supported and promoted student leadership in health and safety education. They list the following causes:
- Lack of alcohol education and experience;
- Misperception that binge drinking or drinking in excess is normal;
- Drinking too much to fast
- Participating in “drinking games” with peers or friends;
- Doing “Shots”;
- Pre-party drinking, also referred to as “front-loading” alcohol before going out
While these causes may have been identified in college students they can apply at any age. Some additional causes noted by addiction psychologists and clinicians, and in other research studies, include low self-esteem, social anxiety, general anxiety, major or acute depression, stress, peer pressures, avoidance of problems, curiosity, rebellion, social euphoria, and alcoholism.
Non-DUI Crimes that Involve Excessive or Binge Drinking
The National Council on Alcoholism and Drug Dependence, Inc. (NCADD) reported that alcohol is a factor in our 40 percent of all crimes committed. Based on statistics from the US Department of Justice, the NCADD reported that excess use of alcohol is a factor in approximately 3 million violent crimes each year. Violent Crimes reported include assault, aggravated assault, domestic violence, and robbery. Other crimes associated with excessive drinking are disorderly conduct or disturbing the peace, criminal trespassing, vandalism, and criminal damage to property.
Injury Risk Factors related to Excess or Binge Drinking
According to the National Centers for Disease Control reported that excessive drinking is the leading risk factor in the United States for Injuries and preventable deaths. Causes of injury and fatalities include alcohol poisoning, burns, drowning, falls, auto crashes, cuts, eye injuries, head injuries, and other blunt trauma. In many of these cases, persons involved in these incidents may be held criminally responsible for the victim’s injuries or death.
New National Centers for Disease Control Report: Alcohol Poisoning
On January 9, 2015 the National Centers for Disease Control provided an early release a “Vital Signs: Alcohol Poisoning Deaths — United States, 2010–2012” from weekly Morbidity and Mortality Report.
The New CDC statistics reveal 38 million Americans binge drink 4 times per month; six people die from alcohol poisoning every day. Alcohol dependence was a contributing factor in only 30 percent of the alcohol poisoning deaths. In a majority of these deaths alcohol dependence was not listed as a contributing factor. This was consistence with other recent studies which concluded that 9 out of 10 adults who binge drink, were not alcohol dependent.
While binge drinking is defined as consuming four drinks on one occasion for women or five for men, the study found that the average number of drinks consumed per episode was eight. Drinks served at bars or other special occasions can actually be much larger than this. A person consuming a 24 oz. beer, for example, would be consuming two drinks at once, according to the CDC’s metrics. A person who drinks two of these in one sitting has consumed four drinks and, therefore, is binge drinking according to the report’s standards. Only around 10 percent of those who died of alcohol poisoning were considered dependent on alcohol. Most victims were those who consumed too much alcohol on one occasion.
According to the NIAA, a division of the National Institute of Health, alcohol poisoning occurs when there is so much alcohol in the bloodstream that parts of the brain controlling basic bodily functions, including breathing, heart rate and temperature control, begin to shut down. When a person consumes an alcoholic beverage, the liver metabolizes the alcohol, eliminating it from the blood stream, at a rate of about one ounce per hour. Alcohol that has not yet been metabolized remains in the bloodstream, which is why people experience intoxication. As alcohol builds up in the system, it can lead to alcohol poisoning.
The amount of alcohol that could lead to poisoning may vary from person to person, and depend on a wide number of factors. These factors include weight, height, how much food the person has consumed and genetics. Sex is also a factor. However, while men are physiologically less susceptible to the effects of alcohol, the CDC study shows that around three quarters of alcohol poisoning deaths occur in men. The highest death rate was for men age 45-54.
It also varies greatly depending on the type of beverage consumed. Drinking 12 ounces of beer in one sitting would not even lead to legal intoxication for many people. Drinking 12 ounces of tequila, however, would be dangerous and, in some cases, deadly.
Research suggests certain impairments which can result given certain BAC levels. But numerous factors that can cause variances in how many drinks will cause an individual to suffer from alcohol poisoning. However, BAC levels of .37%-.40% or higher have been known to cause death.
According to the NIAAA, some symptoms of alcohol poisoning include:
- Confusion, stupor, coma or inability to wake up
- Slow breathing (fewer than eight breaths per minute) or irregular breathing (10 seconds or more between breaths
- Blue or pale skin color
The number of deaths due to alcohol poisoning reported by the CDC may surprise many, poisoning is far from the leading cause of alcohol-related death. According to the National Highway Transportation Safety Administration (NHTSA) nearly four times as many — more than 32,000 nationwide in 2013 — die due to impaired driving accidents. Like alcohol poisoning, binge drinking plays a significant role in driving under the influence.
While effects vary from person to person according to factors like the ones listed above, consuming eight or more drinks in a relatively short period of time is, at the very least, likely to give most people a blood-alcohol content (BAC) of above 0.15. The BAC figure is a reflection of how many parts of a person’s blood are alcohol. A BAC of 0.15 means that a person has 1.5 parts alcohol for every 1,000 parts of blood.
What to do if You Suspect Someone Has Alcohol Poisoning
The NIAAA urges persons experiencing alcohol poisoning symptoms to seek immediate medical attention. Below are some additional recommendations and warning by the NIAAA:
- Witnesses, friends or family should recognize signs and symptoms early. Either seek or call for professional emergency medical attention.
- Do not wait for the person to show signs of all alcohol poisoning symptoms. A person does not need to have all of the signs if they have consumed a dangerous or potentially fatal dose of alcohol.
- Unconsciousness can lead to fatality. Never leave an unconscious person unattended without seeking immediate medical attention for calling 911. There are a number of reasons for this including asphyxiation from vomiting. If the drinker survives, the overdose may still result in long term brain damage
- Do not try to convince a person to drink hot coffee, walk, or take a cold shower. These activities, do not reverse the effects of alcohol overdose, and could actually worsen the patient’s condition.
Qualified medical staff and doctors at the hospital will follow overdose protocol, manage breathing problems, administer fluids for dehydration and low blood sugar, and flush the stomach to help clear the body of toxins.
7 DUI Safety Tips
Below are some DUI safety tips, including those provided by the National Centers for Disease Control (CDC):
- Plan for a designate a non-drinking driver in advance;
- Download a taxi or ride share application to your cell phone before going out;
- Take advantage of free ride programs available such as “AAA’s Tipsy Tow” Service
- Don’t let your friends drive impaired;
- Don’t get in a vehicle with a driver who has been drinking, especially if they have been drinking heavily;
- Call a trusted friend, family non-drinking member for a ride home;
- If you’re hosting a party be sure to offer alcohol-free beverages as alternative; and make sure your guests have a sober ride home.
10 Alcohol Consumption Safety Tips
The CDC warns people not to drink alcohol in the following situations:
- A person is pregnant or plans to become pregnant;
- If they are taking prescription, or over-the-counter drugs that may be harmful or cause drowsiness when combined with alcohol; If unsure, speak with the doctor who prescribed the drug;
- If a person is under the age of 21 (in Arizona);
- If a person is unable to control the amount of alcohol they drink;
- If a person is a recovering alcoholic;
- If a person suffers from seizures, black-outs, or other medical condition that may be aggravate their condition.
If you are going to drink, what you should do:
- The CDC recommends moderate drinking, in the amount of no more than one per day for women, or two per day for men;
- If you are going to drink more than the moderate amount, limit the speed of consumption to one per hour. Keep in mind, however, that you may still be at risk for DUI in this case;
- Decide in advance what type of alcohol is safe for you and your limit in advance. Then stick to it;
- Just say “no” to “shots” of liquor
What to do if You Face DUI or Criminal Charges in Phoenix – East Valley AZ
If you have been arrested for any impaired driving charges, by law you are entitled to defend your charges. This is the case, no matter how high your BAC, Extreme, or Super Extreme Charges.
During a DUI investigation the police may have administer breath or blood testing. They will also rely on their own observances as well as road side testing to determine if you were driving impaired.
DUI defenses for high BAC may include challenges to breath, blood or other chemical testing, including administration, processing, storage, and transport. Other challenges may exist for your charges including the reason for the stop, police procedures or instructions, or other constitutional rights violations.
It is important that you retain an experienced criminal defense attorney to represent you and defend your charges. Your attorney will gather the evidence and conduct an investigation to determine if your rights were violated, examine the validity of any testing results, and gather any favorable evidence available on your behalf. An experienced DUI attorney will work to get the charges dismissed, evidence suppressed, charges or penalties reduced, or other favorable outcome in your case.
James Novak of The Law Office of James Novak is an experienced and highly skilled DUI and Criminal Defense Attorney.
James Novak, a former prosecutor in Maricopa County. He exclusively defends criminal and DUI charges in Phoenix East Valley cities including Mesa, Tempe, Mesa, Tempe, Chandler, Gilbert, and Phoenix-Metro, AZ. The Law Office of James Novak provides free initial consultation for active charges, and will provide a strong defense if retained.
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Extreme & Aggravated DUI on Priority Arrest List; but all Impaired Drivers at Risk
The Arizona Department of Public Safety announced today that it expects heavy travel traffic in the state this week. Officers will be looking out for motorists driving impaired due to drugs or alcohol, distracted, drowsy, and impatient driving. History reveals that these factors result in arrests, and have proven to cause serious injury and deadly crashes.
During the winter months, the state of Arizona draws many visitors for its warm sunny weather, to visit family and friends, and to enjoy the many outdoor activities and attractions our sunny state has to offer. This is particularly true around the holidays.
Arizona has earned a reputation for being a leader in DUI enforcement, and having some of the toughest impaired driving laws and punishments in the country. What might be legal the state you have traveled from, might not be lawful in Arizona.
If you are a new driver to Arizona, visiting for the holidays, or in town for the 2015 Super Bowl, you should be aware of impaired driving laws, and increased DUI and Law enforcement
“Drive Hammered Get Nailed” – Campaign Apply to all Impaired Drivers
The state is the midst of its 29th annual DUI enforcement Campaign for the end of year holidays. So if you are driving in Arizona this holiday season you will see electronic billboards that read “Drive Hammered, Get Nailed”. The signs and media announcements are warning drivers to stay off the road if they plan to drink as part of their holiday festivities.
The “Drive Hammered…Get Nailed” message used in the Arizona’s DUI enforcement campaigns, on signs, bill boards and in the media for over last two decades has often been misunderstood. Some motorists perceived it as applying only to those motorists who are “falling down drunk” or “hammered” are at risk of DUI arrest. But the fact is, that it applies to all impaired drivers. A person can be arrested for DUI even if their BAC is below the legal limit of 0.08 percent in Arizona. That is the case if their driving abilities are “impaired to the slightest degree” by drugs or alcohol in violation of A.R.S. 28 – 1381 (1) of Arizona State Law. Also, impaired driving arrests are not limited to driving under the influence of alcohol. A motorist can also be prosecuted if they are under the influence of drugs in violation of A.R.S. 28 – 1381 (1) (3).
Arizona Efforts for Increased DUI Enforcement during the Holidays
A few weeks ago, the Arizona Governor’s Office of Highway Safety (AGOHS) released the following DUI enforcement statistics that reflected an increase in over last year in DUI categories. They include Extreme DUI, Aggravated DUI (Felony), and the average Blood Alcohol Content (BAC) levels for drivers that were arrested for impaired driving. The average BAC for an impaired driver arrested was .0152 percent, in violation of A.R.S. 28 -1382 Arizona’s Extreme DUI Laws.
Law enforcement officials generally respond to these statistics with vigilance and increased law enforcement efforts. Consequently, drivers can expect heightened presence in police identification, arrests, and prosecution of Extreme DUI and Felony DUI charges. Increased Police DUI enforcement generally includes DUI Safety Checkpoints. This is where drivers are stop randomly at a predetermined location to seek out motorists impaired due to alcohol or drugs. Arizona has adopted many of the National Highway Traffic and Safety Administration NHTSA Guidelines for DUI checkpoints. As part of these guidelines police are required to stop vehicles according to a mathematical formula that is decided in advance by police agency authorities and city officials.
For example, Police may stop every vehicle or use a regular interval such as every other vehicle or every fifth vehicle. Arizona conducts these checkpoints at least once per month, and the Arizona Department of Public Safety (DPS) states that the costs of conducting a checkpoint average about $8,900 although checkpoints reduce alcohol-related fatalities by at least 15 percent and save approximately $62,500 per checkpoint.
The Centers for Disease Control and Prevention (CDC) found that checkpoints reduced alcohol-related fatal, injury, and property damage crashes by about 20 percent each. Sobriety checkpoints are designed and publicized more to discourage impaired driving rather than result in increased DUI arrests.
Another police enforcement strategy you will likely see is a large number of police officers saturating a specific geographic area. This usually takes place in traffic routes where a larger number of impaired motorists are expected to be driving. The police officers usually patrol in higher numbers, than those found at safety checkpoints.
During come saturation patrols, DPS may provide additional resources to assist with the processing of motorists arrested for DUI so officers can return to patrol duty much more quickly after making an arrest.
All of these efforts are designed to have a deterrent effect of impaired driving due to drugs or alcohol, as well as violations of other criminal and traffic violations.
According to the Arizona Republic, roughly 4,000 drivers have been arrested for drunken driving in the holidays for the past several years. If drivers know they will be consuming alcohol it’s important to plan ahead. Drivers who plan to drink alcoholic beverages should make alternative arrangements beforehand for a designated driver or other alternative arrangements for transportation, to avoid driving while under the influence of alcohol. If you didn’t plan to drink, but did, you should consider calling a taxi, or other trusted person to drive you home.
Arizona DUI Laws and Penalties
DUI convictions can result in serious adverse impacts on a person’s life, freedom and future. Criminal penalties for any impaired driving conviction are harsh. All Misdemeanor impaired driving convictions call for jail terms. All Aggravated DUI charges (Felonies) expose a person to prison terms.
Below are some of the specific penalties for various and common types of DUI:
- First DUI — Driving “impaired to the slightest degree” below 0.08 percent; or 0.08 percent but less than 0.15; call for 10 consecutive days in jail a driver’s license suspension of 90 days; one year installation of ignition interlock device, $1,250.00 in fines, fees, costs and assessments; alcohol/substance abuse education, screening or counseling; and probation.
- Second DUI — A second DUI with a prior impaired driving conviction within 7 years calls for $3,000 in fines, fees, costs and assessments; driver’s license revocation of one year; one year installation of ignition interlock device: and up to 90 days in jail: alcohol/substance abuse education screening or counseling; and probation.
- Extreme DUI — A first offense violation of Extreme DUI laws with a BAC of at least 0.15 but less than 0.20 calls for a minimum of 30 days in jail; $2,500 fines fee, and assessments; driver’s license suspension of 90 days, one year installation of ignition interlock device, alcohol/substance abuse education screening or counseling; and probation.
- Super Extreme DUI — A BAC of 0.20 or higher calls for calls for a minimum of 45 days in jail; $2,750.00 fines fee, and assessments; driver’s license suspension of 90 days, installation and use of ignition interlock device for 18 months after reinstatement, alcohol/substance abuse education screening or counseling; and probation.
- Aggravated DUI — An Aggravated DUI is a Felony. It is an impaired driving offense that involves what the state considers to be “Aggravated factors”. These factors include a third DUI or subsequent DUI or with two prior convictions within 84 months or 7 years; a DUI while on a suspended, revoked or cancelled license; a DUI while driving with a passenger under the of 15 in the vehicle; or an impaired driving incident that resulted in a serious injury or wrongful death of another; DUI while an ignition interlock device is installed in the vehicle, which may also result in a minimum fine of $750 plus surcharges. Penalties expose a person to a minimum of 4 months in prison, $4,000.00 fines, fees, costs, and assessments, a driver’s license revocation of one year, installation of ignition interlock device for two years, alcohol/substance abuse education screening or counseling, and possible vehicle forfeiture, and a felony criminal record. Other penalties may apply.
- Under Age DUI – A person under the age of 21 driving with any alcohol in their system at all, regardless of whether or not they are driving impaired is in violation of Arizona’s Underage 21 Drinking laws. Penalties for first time underage DUI conviction include two year driver’s license denial, or suspension; $500 fines, alcohol/substance abuse education, screening & counseling, and community service.
Other Consequences of DUI Convictions
In addition to criminal penalties, criminal offenses and impaired driving convictions result in civil consequences sometimes referred to as collateral consequences. Spending time in jail or prison along with paying hefty fines is for most people, overwhelming and traumatic. Losing driving privileges at any age can be devastating as well.
But there are other adverse consequences that result from a conviction which include being suspended or terminated from job or school; difficulty obtaining a job; inability to obtain credit , loans, or financial aid for school; adverse impacts on residency; inability to pay financial obligations or bills, lack of transportation, and adverse impacts on loved ones.
Criminal Rights for DUI Arrest
If you are arrested for DUI, keep in mind that this is only the beginning of the criminal process.
An arrest is not a conviction. Once the police have made a decision to arrest you or file a formal complaint, you are not going to change their mind. Attempting to do so will only make matters worse for you. In fact, your stand the risk of being hit with additional charges such as resisting arrest, aggravated assault on police, disorderly conduct or other charges. Resisting arrest can often cause bodily harm if the officer feels threatened by your actions in any way.
Here is the best way to handle the ordeal if you’ve been arrested:
- Be cooperative during the arrest and booking process;
- Provide routine identification if requested at the arrest or police department;
- Invoke your rights to remain silent, even if you have not been read your Miranda Rights;
- Do not discuss details of your case with friends or family, or social media as they can be subpoenaed for statements that may incriminate you;
- Consult a criminal defense attorney as soon as reasonably soon as possible
10 Common Defenses Used to Defend DUI Charges
People often wonder how an attorney can help them defend their DUI, particularly in the case of an Extreme BAC, Super Extreme, or Aggravated DUI charge. The fact is that there are many defenses that can be used to challenge evidence and defend DUI charges. If effective, they may lead to suppression of evidence, dismissal, acquittal or other favorable outcome.
Below are common defenses criminal defense attorneys may use to defend your charges:
- No reasonable suspicion for the stop;
- Stop was unlawful for other reasons such as Mistake of Law;
- Challenging the validity and accuracy of Field Sobriety Tests;
- Breathalyzer test challenges;
- Blood Test or other Chemical Test Challenges;
- Prior DUI charges not valid for use for increased sentencing or reclassification of current charges;
- Miranda Warning not read;
- Jurisdiction challenges
- Trial Defenses
- Other Constitutional Rights violations
The most effective way to defend your charges is have an experienced criminal defense attorney represent you. If retained they will evaluate your case to determine the defenses strategy that will likely lead the most favorable outcome in your case. Your defense case should be carefully tailored to the unique circumstances surrounding the incident and your arrest.
Experienced Criminal Defense for All Types of DUI Charges in Tempe, AZ
If you have been arrested for any type of DUI offense in Maricopa County, you should immediately seek the legal assistance of a highly experienced criminal defense attorney. You only have 15 days to dispute an administrative suspension of your license, and you will want to begin developing the best legal defense as soon as possible. The most successful outcomes in cases are those that involve early and effective legal representation.
About the Author
With 17 years of DUI and criminal law experience, James has a vast amount of knowledge and litigation experience. For the majority of his career he has exclusively defended DUI and criminal cases. He is also a former prosecutor in Maricopa County. He provides a free consultation, and if retained defends active clients who face active charges in Tempe, Mesa, Gilbert, Chandler, Scottsdale, Phoenix, and surrounding Phoenix-metro cities.
In addition to his profound legal acumen, James Novak has also written three books about winning DUI defense strategies. He has a baccalaureate degree in engineering that provides him with in-depth knowledge of forensics, lab testing and possible inaccuracies or errors in this aspect of the criminal process. He also has an advanced degree in psychology which assists brings to the case a great deal of knowledge in the areas of Drug DUI defense.
He is dedicated to protecting the constitutional rights of every person he represents, and will treat everyone case, large or small with priority, and labor intensive representation.
Overview on Arizona DUI Laws
Arizona Strategic Highway Safety Plan
Arizona Motor Vehicle Crash Facts 2013
Arizona DUI Enforcement Statistics (2004-2013)
National Highway Traffic and Safety
Other Articles of Interest
Holidays busy for DUI Task Force
Officers cracking down on impaired drivers
Celebrating the holidays make sure to have a designated driver