James E. Novak participates in several legal organizations including The Arizona Attorneys For Criminal Justice, The Association of Trial Lawyers of America, and others. As well as:
National Assoc. of Criminal Defense Lawyers
National College for DUI Defense
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Arizona DUI Drug Laws; first-time, repeat offenses penalties; high risk arrest factors
East Valley Arizona Teen with aspiring dreams of going to college, was returning home from a gathering, and arrested for DUI. The youth had not been drinking, nor was he under the influence of any illegal drugs. A DUI blood test turned up negative for any alcohol or drugs in his system. Task Force Police originally stopped the young man after his vehicle swerved when he leaned over to pick something up while driving. The driver reportedly didn’t do well on the Field Sobriety Tests, and had apparently admitted to being around some people earlier that evening who had been smoking Marijuana. The police apparently felt they had probable cause to make an arrest, and did so.
The case was eventually dismissed, after blood tests results proved negative for any alcohol, drugs, or other illegal substances, and the State’s evidence thrown out. Despite the dismissal, the young man had to deal with the entirety of the ordeal. This includes the traumatic experience of being arrested and booked into jail; needing to hire an attorney to defend his charges; fighting to get his record cleared from the arrest.
On the upside, this case may not have ended well for this driver had he not retained his own DUI lawyer to defend the charges on his behalf. Though many police officers are training in Drug recognition, mistakes still happen; and can happen to anyone.
DUI Drug Laws in Arizona
Arizona has some of the toughest Drug DUI laws in the Country, and that faced much scrutiny in recent years, especially following the passing of Arizona’s Medical Marijuana Law (AMMA), and its implementation.
The language in the law distinguishes between alcohol and drug DUI charges, though the penalties are largely the same. For purposes of this discussion, we have outlined the areas of Arizona law that refers to when a person may be in violation of driving under the influence of drugs. A person can be found guilty of violating Arizona’s Drug DUI Laws A.R.S. 28-1382 under one or both of the following circumstances:
1) If they are found to be driving or in actual physical control of a vehicle while “impaired to the slightest degree” due to drugs, vapor releasing, or toxic substances; or any combination of these with spirituous liquor: and/or
2) While there is any drug defined in section A.R.S. 13-3401 “or its metabolite” in the person’s body.
So basically, under the first provision, the motorist ability to driving must have been “impaired to the slightest degree” due to any, or any combination of the substances in its definition.
The second provision refers to the Arizona Legislatures Statute A.R.S. 13-3401 which pertain to definitions under the Drug Offenses category. It is quite comprehensive and includes descriptions of dangerous drugs, Cannabis, narcotics, and many other drugs and substances that may apply in criminal drug laws. Marijuana and its metabolites are included in this definition.
This brings us to the contrast, between the first and second provision above. In sum, if the motorist is found driving with any of the substances “or their metabolites” in their bodily system that are defined under statutory law, they may be arrested. But this provision falls short or stating the motorist’s ability to drive must have been impaired even in the slightest degree.
This second provision has raised national controversy and criticism directed at the law, particularly when it comes to Marijuana, following Drug DUI convictions such as in “Arizona v. Shilgevorkyan” where trace metabolites existed but the driver was not impaired.
This is because an inactive ingredient in Marijuana called Carboxy-THC is a trace substance that is so slowly metabolized by the body. It is a race substance can remain in a person’s bloodstream, days, weeks, and even months after using Marijuana. Most interesting is the fact that this trace, inactive substance does not cause impairment to judgment, cognitive, or driving functions required by a driver.
Several cases for Marijuana DUI where only trace substances of Marijuana were found in the driver’s system are pending appeal ruling by the Arizona Supreme Court.
Arizona DUI – First, Second, Third, and Subsequent DUI Penalties
- First time impaired driving charges that do not involve aggravated factors, are brought as Class 1 Misdemeanors, which are the most serious of Misdemeanor charges. If the teen had been convicted of Drug DUI charges, his penalties would have included 10 days in jail, $1250.00 in fines, fees, and assessments; installation of an Ignition Interlock Device for a year, after reinstatement of his driver’s licenses; probation; mandatory substance abuse screening, education, or treatment; and a criminal record that will follow you for a long time. The drug DUI convictions call for 1 year driver’s license revocation, in contrast to Alcohol DUI offenses, which call for 90 day driver’s license suspensions.
- Repeat DUI convictions are more serious, and carry more severe penalties including longer incarceration. A second DUI conviction in 84 months calls for 90 day jail terms with 30 consecutive days to be served; $3000.00 in court costs, fines, fees, and assessments; loss of driver’s license for one year; one year use of Ignition Interlock device once the license been reinstated; substance abuse counseling and treat; and possible community service. If a person is arrested for a third impaired driving offense within 7 years, after being convicted of two prior impaired driving charges, they will be brought as Aggravated DUI charges. Aggravated DUI offenses are classified as Felonies.
- A third DUI within 84 months is charged as a Class 4 Felony in Arizona. Penalties call for 4 months in prison for the third offense within 84 months; and 8 months prison for subsequent offenses; fines, fees, and assessments of $4,000.00; 1 year revocation of driver’s license; 2 years use of Ignition Interlock Device after restoration of driving privileges; court ordered substance abuse counseling and treatment; probation and/or community service; and possible forfeiture of vehicle; and felony criminal record.
These are just the criminal penalties for a first time drug DUI defense. There are other consequences that result from an impaired driving conviction as well. It can adversely impact your job or ability to get a job; obtain financial aid for school, scholarships, or even be accepted into school; ability to obtain other credit; cause distress for both you and your family due to inability to drive resulting from loss of license and many other aspects of life. Felony Convictions related to impaired driving will also result in loss of some civil rights a person currently has such voting and gun carry rights.
7 High Risk Drug DUI Arrest Factors
In Arizona, there are some obvious factors and some not so common factors that can place a person at a higher risk of being arrested for drug related impaired driving charges in Ar. Knowing what they are, may help you avoid or eliminate the risk of being arrested. They include but are not limited to driving under the influence, or while in actual physical control of a vehicle while:
- Under the influence of Marijuana or illegal drugs;
- Under the influence of prescription or over-the-counter drugs that cause driver impairment;
- Under the influence of a combination of spirituous liquor and illegal or impairing drugs;
- Impaired to the slightest degree by any drug, vapor, or substance;
- Driving fatigued or drowsy
- Failure to allow adequate time to rest or “sleep off” the adverse impairing impacts of drugs;
- Being unaware of the impairing effects of a drug you may have taken.
Also, it is a good idea to limit the amount of driving you do, while carrying your Medical Marijuana Card with you. As unfair as it sounds, there is a good chance that police may pursue a DUI investigation at a traffic violation or safety check-point stop, if they see that you are a qualified Medical Marijuana user.
What to do if you are stopped and arrested for Drug DUI Charges
If the police suspect you are under the influence of drugs, they will likely order a blood or urine test. Usually they will collect a second sample for your defense. If not, you have the right to ask that a second sample be collected for your defense case. Once the police have made a decision to arrest a driver for DUI-DWI, they generally will not change their mind. Even if you are innocent of the charges, you should try to stay calm and obey the orders the officer gives to you. Resisting arrest will only result in more criminal charges, and also increase the potential of physical harm to you as a result of the officer’s continued attempts to restrain you and make the arrest. Remember the arrest is only the first step of the criminal judicial process. You should invoke your right to remain silent if you are questioned about details surrounding the charges; and you have the right to retain an attorney to defend them.
Why You Should Retain a Criminal Defense Attorney to Defend the Charges
An experienced criminal defense lawyer will protect your constitutional rights and defend your charges. They will have the blood or urine sample independently tested, to explore if there are any discrepancies between the crime lab results and the independent results. If material discrepancies exist, you attorney will file a motion to suppress the evidence so that it cannot be used against you. Often, suppression of primary evidence, can lead to dismissal of charges. If your rights were violated, this many also lead to a dismissal, in that any evidence gathered after the violation of your rights occurred may not be used against you.
If the evidence the prosecution plans to use against you is weak, or other factors exist in your defense, your attorney will tailor a defense to present on your behalf. Hiring a qualified and experienced DUI defense lawyer will increase your chance of obtaining a favorable outcome in your case. If you have been arrested and have active charges in the Phoenix, or East Valley cities, contact the Law Office of James Novak, PLLC for your free consultation. James Novak, Attorney will speak with you directly to discuss your matter in confidence and provide you with defense options today at (480) 413-1499.
Additional Resources:
Safety Messages; and Overview of Impaired Driving Laws and Penalties in Arizona
One of America’s most popular days of the year for sports, Super Bowl Sunday, is also one of the most dangerous. This is due to the incidents of impaired driving, and other crimes that historically increase on game day including under age 21 drinking, assaults, disorderly conduct and domestic violence.
Advertising for liquor specials, great places to eat, have fun, and watch the game are everywhere. But as a criminal defense attorney, dealing with the aftermath of a DUI and criminal arrests every day, I see the consequences it has on those who have been arrested and their families, as well as victims and their families. To make sure you have fun, and your event or celebration ends safely, I urge everyone not to let the excitement and festivities distract you from making wise judgment decisions. You can do this by planning ahead for a ride home; knowing your limits even if you are not driving; and looking out for others safety as well as your own.
In the spirit of safety, I’m sharing formal messages from National Centers for Disease Control, Arizona Department of Public Safety, The National Highway Traffic Safety Administration, and Mothers Against Drunk Driving; as well as providing information on Arizona DUI laws, and penalties.
The Arizona Department of Public Safety (ADPS) just announced its plan to increase DUI enforcement for Super Bowl Sunday. Saturation patrols are scheduled to begin Sunday February 2, 2014 and continue through February and continue through Monday, Feb, 3, 2014. A large number of officers are expected to participate in the saturation patrols. A command post will be set up in Phoenix and mobile patrols will be present on freeways and other high traffic areas. Their message was simple but clear, “Drivers have a choice to not drink and drive” and reminded people that there are usually always alternatives.
The Center for Disease Control (CDC) reports that most alcohol impaired driving charges are the result of binge drinking, which is the result of having 4 or more drinks within a short time period. Binge drinking may result in alcohol poisoning and in some cases can be fatal. The CDC urges everyone this year to “Call a time-out on alcohol”. This includes selecting a designated sober driver; not drinking and driving or allowing others to drive impaired; and for hosts to remind their guests of the same as well as offering alcohol-free beverages as an alternative.
Mothers against Drunk Driving (MADD) organization encourages party goers to arrange for a designated sober driver to take you home as part of your plan preparations, and well before the game and festivities begin. MADD encourages football fans “to play the most important position in the NFL: the designated driver.”
The National Highway Traffic Safety Administration (NHTSA) reports that 43 percent of all auto collision fatalities occurred on Super Bowl Sunday the morning hours that followed on the following Monday last year, as a result of impaired driving. Their theme in a Consumer Advisory released January 31, 2014, was my This was my personal favorite “Fans Don’t Let Fans Drive Drunk. Before choosing to drink, choose your team’s MVP”. Of course, when they refer to MVP, they are referring to the section of your designated driver.
Last year there were over 525 impaired driving arrests in Southern Arizona alone. Violations of Impaired Driving under Arizona law includes driving impaired to the slightest degree due to alcohol, or driving under the influence of drugs or their metabolites under A.R.S. 28-1381.
A Car Accident alone involving a serious injury is traumatic on everyone involved. Being arrested for DUI charges is a serious crime. An impaired driving arrest involving a serious injury or fatal crash is overwhelmingly tragic ordeal. It can take lives, and forever change the lives of the survivors.
A few days ago a young Tempe woman was reportedly arrested on six counts of endangerment, aggravated assault, leaving the scene of an accident, and DUI charges in violation of Arizona’s Super Extreme DUI Laws which is .20 Blood Alcohol Content (BAC). In the incident 5 vehicles were damaged, and a pedestrian taken to the hospital, after the driver allegedly damaged two vehicles at a Tempe intersection, left the scene, and ended up slamming into vehicles in a crowded parking lot.
These are very serious criminal charges. Even a first time conviction for Super Extreme DUI in violation of A.R.S. 28 – 1382 calls for a 45 day jail term; fines, fees, and assessments of $,750.00; license revocation for one year; use of Ignition Interlock Device (IID) for two years after driving privileges are restored; substance abuse counseling and treatment; probation, and community service.
In Arizona, when a serious injury results from a DUI, the charges are elevated to a Felony DUI in violation of A.R.S. 28 – 1383, Aggravated Assault, and Endangerment A.R.S. 13- 1204. These felony charges expose a person to harsh punishments including prison terms of at least 1.5 years to 15 years or more in prison depending on mitigating, and aggravated factors that surrounding the incident; large fines, fees, and restitution; and other severe punishments. A Serious Injury caused by an impaired driver, or wrongful death of a victim, will also expose a driver to civil litigation against them by the victim or their surviving families.
Most impaired driving crashes and arrests can be prevented by planning ahead. But mistakes and error in judgment can easily happen. If you are arrested for drunk driving, impaired driving or any felony charges, your future and freedom are at stake. Being arrested does not necessarily mean you will be found guilty. By law you are entitled to retain an attorney to defend your charges, and protect your constitutional rights. A person facing drugged or alcohol impaired driving charges, should always consult an experienced criminal defense attorney before pleading guilty to Drunk or Impaired Driving charges. James Novak provides a free consultation, and a strong defense for those arrested in Phoenix, Mesa, Tempe, Chandler, Gilbert, or Scottsdale Arizona.
Additional Resources:
Other Articles of Interest:
Putting Statistics into Perspective; Arizona Felony Assault laws; Overview of City, State and Country-wide violent crime trends
On New Year’s Day two “Good Samaritans” stopped their vehicle in Arizona to help a victim being assaulted, after they reported it to the police. The Good Samaritan told the dispatcher that help could not wait. He jumped out of his vehicle to aid the victim of the assault. As soon as he did, the aggressor attacked him as well. The passenger of the Good Samaritan’s vehicle also got out. But during the attack, the assailant got behind the wheel of the Good Samaritan’s car; and used the vehicle as a deadly weapon to hit all three people. The initial victim being assaulted died at the scene. Both of the Good Samaritans were rushed to the hospital. One remains in critical condition with life threatening injuries.
I read of the events surrounding this tragic and disturbing incident, moments before I heard the good news about violent crimes statistics being down in Mesa AZ. I was still jarred by the first events, while I read the Mesa AZ media release. Suddenly I felt compelled to share it as illustration that even in light of lower crime rates, violence continues to exist and should “remain cause for vigilance” no matter where we live.
In this discussion we’ll cover the following topics:
- City of Mesa AZ’s recent announcement about decrease in violent crimes;
- Factors credited to the historic lows in violent crimes;
- Arizona Department of Public Safety (DPS) city and state violent crime statistics;
- FBI Uniform Crime Results (UCR) Overview of Violent Crimes in the USA;
- Arizona Aggravated Assault Laws, and Penalties
Factors credited to historic lows in crime rates in Mesa AZ
The City of Mesa AZ ranked the third lowest in violent offenses and property crimes in 2012 according to recent statistics released by the Federal Bureau of Investigations (FBI) of populated with 400,000 or more.
The City of Mesa hit the lowest violent crime rates they have seen in 50 years. Mesa Police attribute this largely to increased police efforts, technology, and active community partnerships. .
Violent Crimes Remain Cause for Vigilance in Arizona
While this announcement should be perceived as a good thing, at the same time, improved safety statistics, can often leave us with a false sense of security. Common sense tells us we still lock our doors, close our windows, and remain attentive to our surroundings as we return to our vehicles in a dark parking lot. No one is immune to being a victim of violent crime, matter where they may be. Prudence tells us to remain aware of their surroundings, and take safety and security measures to protect themselves, their loved ones and property.
Looking back on the Arizona Department of Public Safety (DPS) Statistics, the Mesa Police Department reported 1,804 violent crimes in 2012; while the 2013 statistics are apparently still being gathered.
The State of Arizona reported a total of 25,902 crimes statewide with 10.3 percent of them being categorized as violent crimes. Of the violent crimes Aggravated Assault crimes accounted for the largest number of all violent crimes with 16,579 incidents, representing 64 percent of all violent crimes. Statewide, this is just one percent higher than the national average of 65 percent.
FBI Uniform Crime Results Overview of Violent Crimes in the USA
The FBI Uniform Crime Report (UCR) classifies violent crimes as aggravated assault, sexual assault, murder, and robbery. Here some additional statistics revealed in the 2012 FBI UCR statistics:
- Over 1.2 million violent crimes occurred in the USA representing a 0.7 percent increase over the prior year;
- A review of the prior five year trend shows an actual decrease of 13 percent in violent crimes;
- A total of 760, 739 Aggravated Assaults were reported, constituting 63 percent of all violent crimes in the USA;
- Offenses described as aggravated assaults include unlawful attacks on a person with the intentional purpose of inflicting severe bodily injury upon them.
- Guns were used in 69 percent of the homicides; 41 percent of robberies; and 22 percent of aggravated assaults.
Violent Crime and Property Crime Laws in Arizona
Under Arizona Criminal Code A.R.S. 13-706 “Violent” felony crimes are “serious crimes”
against victims. These include but are not limited to murder, sexual assault, dangerous crimes against children, armed robbery, and aggravated assault involving a deadly weapon, drive-by shootings, first degree burglary, and other serious offenses.
Under Arizona Criminal Code A.R.S. 13- 105 Definitions, “Crimes” are defined as any Misdemeanor or Felony involving a victim’s Personal Property. “Persona Property” is defined as meaning anything of value owned by a person. This includes tangible or intangible property. It includes offenses such as theft of property including auto theft, and non-violent burglary. These are by nature more common in most cities in Arizona.
Aggravated Assault Laws in Arizona
Assaults that are not considered to have “Aggravated” circumstances are those described under A.R.S 13-1203 and are classified as Misdemeanors. They are loosely described as offenses that knowingly, intentionally or recklessly cause physical injury to another person; or cause a victim to be provoked or compelled to have a reasonable apprehension of physical injury;
Although classified as Misdemeanors assault charges are very serious and can expose a suspect to severe penalties including jail terms, victim restitution, anger management counseling, counseling, probation, fines, fees and a criminal record.
An Aggravated Assault is a Felony. It is an Assault Charge that has been raised to the level of a felony due to “aggravated factors” as described in the term itself. These are some of the most serious criminal charges a person can face, and offense is considered a violent crime. A person may face these charges under Arizona Criminal Code A.R.S. 13-1204. There are a number of circumstances that are named as aggravated factors under the code. Just a few include:
- Causing serious physical injury to the victim;
- Assault that causes substantial disfigurement, even if temporary;
- Assault that results in impairment to bodily organ or fracture of bones;
- Use of a lethal weapon or deadly instrument in the assault;
- Assault on a police officer, peace officers or other described individuals;
- Assault by person 18 or over against a person 15 years of age or under;
- Assault while a person is restrained, bound, or physically impaired against resisting an attack.
The Arizona law is comprehensive and covers these and additional factors to a great degree.
Felony Assaults are considered serious and violent crimes against victims. They may be charged as Class 5, Class 3 or Class 2 felonies depending on the nature of the charges. They may also be combined with the most serious of charges Class 1, reserved for homicide.
If convicted of an Aggravated Assault a person may face long term or life prisons sentences. In some cases, depending on the circumstances, they may not be eligible for parole until a term of 25 to 5 years has been completed. Other penalties include exorbitant fines which range up to $150,000.00 per charge or 1 million dollars per charge for enterprises; victim restitution; prison and other assessment fees; loss of civil rights including right to possess firearms, and right to vote. A felon criminal record follows a person for many years and often even after released from prison, impacts the person’s ability to obtain a job, credit, and adversely impacts many aspects of their lives, making the transition to back into society extremely difficult.
Being charged with a felony assault puts a person’s future at great risk. The laws can be complex and the penalties extremely harsh. It’s too important of a matter to go unrepresented by an experienced and highly qualified criminal defense attorney. No matter how grim the situation may appear, or how serious the charges, the constitution affords a suspect with the right to retain proper legal representation to defend their charges, protect their rights, and tell their side of the story through the criminal justice process. If you have active felony charges in Mesa AZ, or any Phoenix East Valley Cities, contact James Novak, DUI and Criminal Defense Attorney to discuss your matter and options for defense. He will provide you with a free consultation regarding your matter, and options for defense.
Additional Resources:
Other Articles or Blogs by Attorney James Novak, Law Office of James Novak, PLLC on this Topic:
A Comparison of Two Drug DUI Laws; Common and Uncommon Defenses Used to Challenge Them in Arizona.
Marijuana DUI without Impairment – Recent Case
Tad Zaccard’s leg was reconstructed. He suffers in pain daily due to serious injuries sustained in a motorcycle crash he has 12 screws in the femur bone in his leg, and hardware holding his knee joint together. Tad discovered that the only way to endure his pain was through use of Medical Marijuana. He was able to qualify as a Medical Marijuana user under the Arizona Medical Marijuana Act (AMMA) and is one of 36,000 qualified users in this state.
But the worst was not over for Tad. Shortly after he was able to find some relief for his physical pain from the motorcycle injuries, his world was turned upside down again. One day, immediately after pulling out of his driveway, he was stopped by police. The officer told him the reason for the stop was that he was taking too long to cross over to another lane. The police decided to conduct a DUI investigation. Tad took a DUI breath test which proved negative for alcohol. Further Tad displayed no impairments in the field sobriety roadside testing the police administered. The police then requested he take a DUI drug test. The test results revealed an inactive trace substance in Marijuana known as Carboxy-THC. This inactive substance can stay in a user’s bloodstream or days, weeks, or even months until the body fully metabolizes it. But it is not an impairing substance, and does not impair a person’s ability to drive. Despite this, Tad was convicted of a Drug DUI in Maricopa County. An Arizona appeals court affirmed that conviction.
Tad Zaccard has appealed his case to the Arizona Supreme Court. He is challenging the fact that he was not driving impaired, and was not under the influence of any impairing substances, but only inactive trace compounds of Marijuana, is pending a decision. A ruling is expected in early 2014. The ruling could change that way Arizona the police, courts and criminal justice system interpret this provision, as DUI laws impact the ability to prosecute impaired v. unimpaired drivers.
Arizona DUI Laws – A comparison of two Arizona Drug DUI Laws
The Arizona Governor’s office of Highway Safety reported total of 3,647 Drug DUI Arrests were made last year.
Arizona’s drug DUI laws are very strict and punished harshly. Drug DUI charges are treated much the same in law and penalties as alcohol DUI charges.
Drug DUI Laws are currently in controversy in the court systems. Here we’ll compare two of Arizona’s laws that apply to Drug DUI arrests, and some additional discussion of each. One or Either one or a combination of both may apply in a DUI arrest:
- A.R.S. 28 – 1381 (A) (1) - A person may be prosecuted for DUI if they are found to be driving or being in actual physical control of a vehicle, while under the influence of intoxicating liquor, or drug and the person is found “impaired to the slightest degree”; or
In order to be prosecuted under this provision, a person must be found to be both driving impaired to the slightest degree, and be under impaired to the slightest degree. A DUI Drug blood or other chemical test is given to reveal the presence of an intoxicating drug that is capable of impairing a person. If a person admits to being under the influence of a drug, this may also be used to prosecute them. The police determine through a roadside DUI investigation if a person is impaired to the slightest degree. They do this with a variety of investigative tools including Standard Field Sobriety Tests; admittance by the driver; observations of cues including the driver’s behavior, cognitive, motor, and other investigate roadside testing tools generally endorsed by NHTSA.
- A.R.S. 28-1381 (A) (3) a person may be prosecuted for DUI if they are found to be driving or in actual physical control of a vehicle while here is any drug, or it’s metabolite found a person’s blood stream. In order to prosecute under this provision the drug or its metabolite must be defined under Arizona the criminal code drug definitions included in A.R.S. 13-3401.
Note the second provision stops short of requiring that a motorist’s ability to driver be impaired. Currently the law is being interpreted very narrowly due to current case law. Currently Arizona has “Zero Tolerance” for driving under the Influence of Marijuana, even if the motorist is not driving impaired. In one case, Arizona v. Shilgevorkyan, the driver, was convicted of DUI, because of an inactive trace ingredient found in his blood stream, Carboxy-Tetrahydrocannabinol (Carboxy-THC), a non-impairing substance that can remain in a Marijuana user’s blood stream for days, weeks, and even months.
Drug DUI Defenses
Driver impairment, especially in the areas of Field Sobriety Test (FST) Results is often a target for defense since the police unilaterally do the investigation, make observations, administer the Field Sobriety Tests and then grade the tests. A number of areas are challenged including their validity; human error risk for administration of the test; possible bias; and other issues that adversely impact their accuracy. Although courts in Arizona, in general admit Standard Field Sobriety Tests (SFSTs), the evidence is often suppressed due to specific circumstances that led to the probability of inaccurate conclusions as argued by the defendant’s DUI attorney.
Sometimes what appears to be a driving impairment may be the result of drowsy driving, fatigue, or a medical condition, which are currently not in violation of the law. So a criminal defense attorney will further investigation the DUI stop. In order to conduct a lawful DUI stop the officer must have “reasonable suspicion” that a violation of the law occurred or is in progress. In absence of reasonable suspicion for a stop, the stop is unconstitutional. Reasonable Suspicion is not required for DUI Checkpoint, or Roadblock Safety Stops. When an impaired driving arrest involves an unlawful stop, it is considered to be unconstitutional. In that event, any evidence regarding the DUI gathered after the stop may be suppressed or not used against the defendant.
The relevant statutes in argument surrounding Marijuana DUI charges is the language of A.R.S. 28-1381 (A) (3). It does not specifically indicate that a person must be driving impaired to make an arrest and prosecute the driver. DUI Law 28-1381 (A) (3) stops short of requiring driver impairment to exist in order to be in violation of that law. With regard to Marijuana (cannabis) the controversy surrounds A.R.S. § 13-3401(4)(b), specifically “cannabis” to include broadly every compound, derivative, salt, preparation, resin or tetrahydrocannabinol.
Another defense involving Drug DUI involves a provision known as Arizona’s “Safe Harbor Law.” This defense is provided for under law by A.R.S. 28 – 1381 (D), as it applies to A.R.S. 28-1381 (A) (3). In brief summary, it prohibits prosecution of drug DUI if it is determined that the driver was taking a prescription drug under the orders of a physician and as prescribed. This is what is known as an Affirmative Defense. When utilizing this defense, the defendant is basically admitting to driving under the influence of a drug, but that they should be excused from prosecution because they were taking it correctly as prescribed by their physician.
Generally, in order to prosecute a defendant, the burden of proof is held by the state to prove “beyond a reasonable doubt” that the person is guilty of a crime for which they are accused. But when using an Affirmative Defense for protection under the “Safe Harbor” law, in a Prescription Drug DUI situation, the burden shifts to the defendant to build their case and mount a defense which proves they were taking the drug as prescribed by their physician.
As you can see, these can be very complex issues with many facets. If you wish to challenge the charges them, you will need to retain a qualified criminal defense attorney to protect your rights and defend the charges. Without proper legal advocacy the prosecution generally gets a fast conviction, with harsh penalties ordered by the court. DUI Attorney, James Novak of The Law Office of James Novak, is an experienced DUI trial defense attorney who defends these cases on a regular basis in Phoenix, Tempe, Mesa, and other East Valley Cities. If you face active DUI charges, call today (480) 413-1499 and he will provide you with a free consultation regarding your matter to include options for your defense.
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Other Related Articles by James Novak
“One out of every eight Americans or 40 million people in the USA has a Xanax or Alprazolam Prescription. What you need to know before you get behind the wheel.”
Recently the Arizona Department of Public Safety (DPS) issued a media release about a motorist in Maricopa County, being sentenced to 16 years in prison, as a result of a fatal DUI crash. The accident killed a 13 year-old, and critically injuring four others in Phoenix AZ last year. The driver was convicted of second degree murder, endangerment, aggravated assault and other serious criminal charges. The driver was found to be impaired, under the influence of a prescription drug, Alprazolam (Brand name Xanax).
Cause of the Driver’s Impairment in this DUI Case
Prior to the deadly crash witnesses reported that the motorist was driving erratically and at a high rate of speed. The driver lost control of the vehicle and rear-ended another vehicle. The vehicle he hit was carrying a family of six. The collision caused the vehicle he hit to crash into a median and then rolled over. The driver was taken to the hospital for minor injuries where his blood was taken and analyzed for DUI. The blood test revealed the prescription drug “Alprazolam”, generic for “Xanax” in his blood stream, and an amount well in access of a therapeutic limit. The driver also admitted to taking it, and 10 pills were missing from the bottle of the prescription issued the same day, and prior to the fatal crash.
Xanax/Alprazolam and other Benzodiazepines
The National Centers for Disease and Control (NCDC), revealed a spike in the sales of Xanax or Alprazolam in recent years. They estimate that one out of every eight Americans or 40 million people in the USA have Xanax or Alprazolam Prescriptions. These statistics were reported by A local news which also reported that Arizona has one of the highest death rates in the country for prescription drug overdoses, according to a new study by the Trust for America’s Health.
Alprazolam or Xanax is a prescription medication used to treat anxiety and panic disorders. Xanax or Alprazolam belongs to a classification of drugs known as Benzodiazepines. Put simply this family of drugs work through the central nervous system to help reduce or slow down over-active brain cells that cause numerous serious medical conditions including Generalized Anxiety disorder, panic attacks, seizures, and insomnia. They may be prescribed on for acute episodes or chronic medical conditions.
Pfizer, the manufacture of the drug report the most common adverse side effects of the drug even if used as prescribed, can result in drowsiness, dizziness, and lightheadedness.
Although the drug is legal, it is strictly regulated and can only be prescribed by a physician. It is highly addictive. Overdose is not uncommon, even in teenagers. The risk of overdose is higher when ingested while under the influence of alcohol, or other drugs.
Ingesting an amount the exceeds the prescribed dosage can impair thinking and reaction time; cause extreme drowsiness, confusion, behavior changes, loss of coordination, seizures, consciousness, and even death.
Impaired Driving Due to Legal or Illegal Drugs in the USA
Statistics, Trends and Research
According to statistics reported by the National Institute on Drug Abuse a 2012 national survey revealed an estimated 10.3 million people admitted to driving while under the influence of illegal drugs or abuse of drugs taken legally.
Abuse of Prescription drugs has become one of the nation’s fastest growing drugs problems. One result of this is an increase in Drug Impaired Driving charges as well.
Since the study was released last year, many some states have legalized Marijuana, in some fashion either on a Medical or Recreational level in 2013. So the number of motorists driving under the influence of drugs has likely increased since this survey.
Alcohol or drug impaired driving poses serious risks at a national wide level as well as local for drivers to potentially be arrested for DUI as well as putting other drivers and passengers at risk for Alcohol or Drug DUI related crashes. Granted, there are some drivers who know they are driving impaired. But issues being addressed currently by the National Highway Safety Administration include:
- Making sure drivers are aware the over the counter or prescription drugs they are taking put them at risk for driving impairments;
- Quantifying what dosages of the drug cause driving impairments;
- The *behavior domains, that may be result in being impaired.
Often drivers are not aware that the drugs they have taken may result in driving impairments. However, an interesting study by the National Highway Safety Administration resulted in some very interesting conclusions to the contrary. Recently, NHTSA’s Drugged Driving Expert Panel conducted a study that identified “*5 behavior domains” essential to driving and driving safety. In simple terms these included
- Alertness or consciousness level; - fully alert, drowsy, unconscious
- Processing speed and attentiveness;
- Reaction time;
- Sensory functions – seeing, hearing, ability to understand consequences of driving decisions and movements; and
- Executive functions- which relate to the driver’s ability to maintain control over their driving behaviors.
If any drug had the impact of causing impairment to one or more of these “domains”, they were considered a driving safety risk. Interestingly, however, after completing a comprehensive research study, the panel concluded that currently inadequate information existed to classify drugs into value related levels of driving risk. In other words, there was not sufficient enough information to create a “safe for driving” list of drugs.
The NHTSA panel’s conclusions were compelling, but not surprising. The researchers concluded that the general public and drivers are currently at a disadvantage, because they are deprived of information that could reduce their risk of driving impaired due the drugs they have ingested. The panel acknowledged that some prescription labels have general warnings such as “this medication may cause drowsiness”; they do not identify the degree of risk that may result in a drug impaired accident; how long after ingesting it that a person can safely drive; resistant impacts of tolerance levels in long term use; the extent to which a driver may be impaired due to “drowsiness” or other side effects; and impacts of using other substances with it.
Your Rights and Criminal Defense for Drug DUI Arrests
Last year the Arizona Governor’s Office of Highway Safety (AGOHS) reported nearly 3700 drug related DUI arrests. The trend in Arizona is swinging upward for two reasons: More patients have access to prescription drugs than in the past; and qualified users of Medical Marijuana increase. In many cases, a person does not realize they are driving impaired or that the drug they are using can cause impairment either of itself, or in combination with other drugs, or liquor. If you are taking drugs of any type with the potential to cause driving impairment, your chances getting a DUI arrest increase drastically. The drug DUI laws are so strict in Arizona, that a person can even be prosecuted for DUI if they are driving with Marijuana in their system, and non-impairing trace substances are found in their bloodstream, following a DUI stop.
Drug DUI charges are treated the same or similar under Arizona law with regard to criminal penalties. This means a first time, non-aggravated, conviction will result in Jail time of at least 10 days; installation of an Ignition Interlock Device (IID) on the vehicle you drive. This is the case even though currently the IID does not have capability to check for drug substances, only alcohol. Other penalties include fines, fees, assessments, probation, suspension of driver’s license, and participation in screening/education/counseling for alcohol and substance abuse classes.
An arrest does not mean a person is guilty, and is not a conviction. However, it is the beginning of the criminal justice process. If arrested you have constitutional rights to invoke your silence, and to retain a qualified criminal defense attorney to represent you and defend the charges. These are very important rights that you should invoke as soon as possible. If you face an charges in Phoenix, or surrounding East Valley Cities, call experienced Attorney James Novak. He will provide you with a free consultation by phone (480) 413-1499 concerning your matter, and provide you with defense options available to resolve your matter.
Don’t miss our next segment which will include an in-depth discussion and analysis of two controversial Arizona Drug Laws.
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Why the decrease in number of DUI arrests; and what you should know about DUI laws and penalties if you’ll be driving in Arizona.
The Arizona Governor’s Office of Highway Safety (AGOHS) released their DUI enforcement statistics, reported by State-wide agencies from January 1m 2013 through October 22, 2013. The revealed 41% less DUI arrests made over 2012.
At first I was startled at the decline, until I reviewed the rest of the statistics. It appears there were a total of 552,950 total DUI stops or contacts made by police that represented a 37% decrease over the prior year. In addition there were a total of 27,441 officers and deputies that participated which represented a decrease of 47% law enforcement officers conducting stops.
The reasons for the reduction in stops is unclear, but it begs the questions: Are fewer motorists driving impaired due to alcohol and drugs? Or are fewer motorists being stopped for driving impaired?
Arizona Statewide DUI Enforcement Statistics through October 22, 2013
The decreases in all DUI related categories seemed to be commensurate with lows of 37% decreases to high 43% decreases in the different impaired driving categories. The exception was the Blood Alcohol Content (BAC) average level category, which remained the same or slightly higher than last year.
Here is a brief of summary of decrease:
- Total DUI Arrests 19,077 - 41 percent decrease;
- Aggravated DUI (Felony) - 37 percent decrease;
- Misdemeanor DUI 11,718 - 41 percent decrease
- Extreme DUI or BAC of 0.15% or higher 3,853 – 43 percent decrease;
- Underage 21 DUI 614 – 40 percent decrease;
- Drug DUI Arrests 4,622 – 42 percent decrease;
- Average BAC was Extreme (0.15 .3) – 0.002 point increase
Arizona DUI Crackdown Planned for the Remainder of 2013
On December 6, 2013 the AGOHS announced to the media its’ intent to crackdown on impaired driving during the holiday season and through year end. Enhanced patrol unties include police and law enforcement from 70 agencies strong. The heightened patrols and DUI checkpoints began December 3, 2013 and are scheduled to end January 1, 2014.
Marijuana DUI – What you should know if you plan to drive in Arizona this Holiday Season
Motorists planning to drive within the state of Arizona or through it to another state should know that Arizona is known for having some of the toughest laws and penalties in the country. In Arizona, any DUI is a crime, not just a traffic violation as in some states.
With the legalization of Marijuana, either broadly or narrowly, you should know that it is illegal to driving in Arizona under the influence of any Marijuana in your system, and may result in DUI arrest and conviction. This is the case even if you are a Qualified Medical Marijuana card holder. Further, currently in Arizona you can be charged with Drug DUI charges in Arizona, even if you are not driving impaired, but trace inactive compounds of Marijuana are found in your system. A case involving this issue is currently being heard in the Arizona Supreme Court. So current, a motorist can be convicted for a Marijuana DUI charge even if they are driving unimpaired, but were driving weeks after using Marijuana. This is the case when a DUI blood test reveals a trace compound known as Carboxy-THC, which remains in the blood stream for days, weeks, or longer after use of Marijuana.
DUI Laws and Penalties – Overview
In general there are three primary circumstances that can cause DUI penalties to increase:
- The higher the Blood Alcohol Content (BAC), the higher the penalties;
- The more repeat DUI offenses, the more severe the penalties;
- Aggravated factors will raise a DUI to a Felony, exposing a person to prison terms and more severe penalties.
A person can be charged with a Misdemeanor DUI in violation of A.R.S. 28-1381. (A. 1 , 2, 3) if they driving under the influence of drugs; impaired to the slightest degree with drugs or alcohol; or are found to be driving with a BAC of 0.08% or higher.
Any first time DUI charge in absence of aggravated circumstances, or drug whether drug or alcohol related will expose a person to jail terms of at least 10 days; suspension or loss of driver’s license, probation, drug/alcohol screening, education, counseling; fines, fees, assessments; and other consequences.
Any first offense DUI with an Extreme BAC of 0.15% or more under A.R.S. 28 – 1381 (A 1) while still a misdemeanor calls for longer jail terms of 30 days, and higher fines, fees, and assessments, and longer terms of driver’s license suspension.
First-time DUI with Super Extreme BAC of 0.20% or more under A.R.S. 28 – 1381 (A2) calls for 45 days in jail, higher fines and longer or more severe penalties in all call categories both criminal and civil related to loss of driving privileges.
Felony DUI charges under A.R.S. 28-1383 are far more serious. Any DUI with Aggravated circumstances expose a person to prison terms and revocation of driving privileges. Aggravated penalties may call for a minimum of 4 months in prison and increase from there depending on the aggravated circumstances. Aggravated factors include 3rd DUI within 7 years; DUI on suspended driver’s license; DUI on invalid, suspended, or revoked driver’s license; Driving with passenger (s) under 15 in the vehicle; DUI that causes a serious injury accident.
Even one DUI can have a serious impact and lifelong consequences. It can adversely impact your family, employment, school, athletic participation, scholarships, driving privileges, residency, credit, and result in a criminal record. If you have been charged, cited, or arrested, but not convicted, you are still considered “not guilty” of the Tempe DUI charge. You have a constitutional right to defend your charges and retain an attorney to protect your rights and defend the charges on your behalf. If your rights were violated, or other defenses that apply to your charges, they may be used to dismiss the charges, earn an acquittal, mitigate the penalties, or gain another favorable outcome in your case.
James Novak, of The Law Office of James Novak is an experienced, highly qualified DUI trial and defense attorney in Tempe serving Greater Phoenix and East Valley Cites in Maricopa County. He will fight to defend your charges and work towards a favorable resolution. If you face DUI charges, contact him today for a free consultation to discuss your charges and defense options at (480) 413-1499.
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”It’s not about giving up, or giving in. It’s about making sure the punishment fits the crime”.
Cases in Point
In April 2013, 46-year-old John Horner, a restaurant worker, and father of three children, was convicted of selling pain killers worth $1,800.00. He was sentenced to 25 years in prison due to the mandatory minimum sentencing for drug offenses. The question that begs answer is whether he deserved to be sentenced to life in prison.
One of the most controversial cases is that of Clarence Aaron, who is serving three life sentences for his role in a cocaine drug deal he witnessed. Clarence, age 24 at the time, was a football player, and college student, with no prior criminal record. His role did not involving using, possessing, trafficking, or distribution. It was to introduce a buyer and seller in return for $1,500.00. He was present at the sale. He was convicted and sentenced to what is being called on the on the longest prison sentences ever ordered for his role, and for refusing to cooperate with law enforcement authorities. That was in 1993. Clarence Aaron is still serving time, and hoping for Presidential Clemency. Did the punishment fit the crime?
Each year, thousands of similar applications for pardons are being made to the US Justice Department, but very few are granted. A large number of applications are from offenders serving 10 years to life terms in prison due to low-level, non-violent drug offenses.
Prison Facts
United States of America has the highest incarceration rate in the world, which continues to be the fastest growing as well. Last week, The Business Insider reported recent statistics from the United States Bureau of Prisons (BOP).
The BOP reported an alarming 48 percent the United States of America Federal prison population is serving time due to drug offenses. This is mostly the result of the current Mandatory Minimum sentencing.
Mandatory Minimums are harsh sentencing laws that require automatic prison terms for those convicted of certain crimes. Judges have little to no discretion with regard to sentencing in certain crimes with regard to mitigation of the penalties or prison term. This is the case, even if the punishment does not fit the crime.
History, Trending, News
In 1986 President Ronald Reagan declared “War on drugs”. Since that time the practice of incarcerating low level drug dealers and non-dangerous, non-violent drug offenders has snowballed out of control.
The Washington Post reported that US Justice Department statistics indicated the cost of incarceration in 2010 in the USA was over $80 billion dollars, and the Federal Prison population has grown by 800 percent since 1980. This has taxed prisons to operate at over 40 percent over maximum capacity resources. Many believe one primary cause of the soaring prison overpopulation problem is the existence of mandatory minimums, particularly for lower-level drug crime convictions.
Recently The United States Attorney General Eric Holder announced that low-level, non-violent drug offenders with no involvement in gang activity, and no ties to large-scale drug organizations, will cease to be charged with crimes that call for severe mandatory prison sentencing. This announcement was part of a larger prison reform package unveiled that also serves to require alternatives to prison for non-violent inmate and criminals. The reform guidelines call for a change in policy in the US Justice Department that will serve to reserve the harshest sentencing and penalties for drug offenses for serious, high-level, dangerous, violent drug offenders.
This prison reform proposal is a response to overpopulated and over-burdened prison system. Holder expressed the need for the United States to recognize not only the need to punish crimes, but to “deter and rehabilitate”. This change not only serves to reduce financial burdens of over-crowded prisons. But it is also a strong signal of the recognition that punishment alone has proven ineffective in reducing repeat offenses or recidivism in low-level drug offenses, in absence of other inmate reform efforts, which could include occupational rehabilitation, mental health, and substance abuse counseling or treatment.
Other provisions in the prison reform proposal will require some legislative changes including the granting of discretionary authority to federal judges with regard to not applying mandatory minimum sentences to those low-level, non-violent drug convictions.
Pros and Cons
Opponents for elimination of mandatory minimum sentencing, argue that softening the sentences do not serve justice, nor do they make society safer. They feel it simply encourages potential offenders to commit drug crimes, and that the US is giving in and giving up to the “war on crime” declared by former President Ronald Reagan in 1986.
Supporters of the reform feel that the Federal Government is “late for the party” so to speak as a number of states have already addressed these issues, and have in some way reformed, or eliminated mandatory minimums so low-level drug offenses.
Advocates also feel that such offenders, although disliked by society, are at the same time, non-dangerous, non-violent, or not to be feared. Proponents feel it’s not about giving up or giving in. Rather, it’s about making sure the punishment fits the crime, instead of “one size fits all”.
They feel that giving judges more discretion and eliminating mandatory minimums for low-level offenders will serve to reduce overcrowding in prisons; help rehabilitate and reform drug offenders, enable the justice system to focus on prosecution and incarceration of more serious, violent, and dangerous offenders.
Arizona Mandatory Sentencing Laws and Trends
Arizona judges have more discretion in sentencing of drug crimes involving quantities of illegal drugs that do not exceed the statutory “Threshold Amounts”. Quantities exceeding the Threshold Amounts are generally viewed as amounts in possession for sale, or intended sale or distribution, which are subject to mandatory prison terms. Mandatory Minimum sentences apply to drug trafficking and other serious drug offenses or felony violations under A.R.S. 13-3410, including unlawful drug offenses that involve a weight of the drug that exceeds the statutory Threshold Amount A.R.S. 13-3401.36 specified by law for dangerous drugs, Marijuana and narcotics.
Arizona sentencing laws have undergone many changes since the 1970s. Current reforms in place involve what is known as the “three –strikes-statute”. Under criminal code A.R.S. 13-706 the statute calls for mandatory extended prison sentencing for third-time violent, dangerous, felony (aggravated) offenders. However, offenders of serious, violent, dangerous and aggravated offense against a victim, are also exposed to mandatory minimum prison sentencing guidelines up to life in prison, and are also exposed to the death penalties.
Aggravated or felony DUI, for example third-time DUI conviction within 7 years, under A.R.S. 28-1383 call for mandatory minimum prison sentencing.
The trend in Arizona is to reduce or eliminate incarceration in jail or prison of non-dangerous or non-violent illegal drug possession or use crimes. The state seeks to address drug abuse as a treatable illness, thereby offering counseling, and treatment for substance abuse as an alternative to incarcerations. Under A.R.S. 13-901 which is sentencing for convictions of personal possession or use of drugs, non-dangerous drug offenders may be eligible for probation and substance abuse treatment program for first-time offenses. However, persons convicted of a second offense are generally not eligible for participation in the drug treatment program as an alternative to incarceration.
Criminal Defense for Maricopa County DUI Arrests
Any drug offense arrest is potentially serious. Persons charged with drug crimes in Chandler, or Gilbert AZ or other Phoenix-East valley cities should always consult an experienced criminal drug defense attorney before pleading guilty to any charges. Even if they think they may be eligible for a drug diversion program, a qualified criminal defense attorney should be consulted. Without proper legal representation a person can get swift convictions and be subject to harsh penalties which include jail or prison terms. If retained, an experienced criminal attorney will be able to protect your rights, defend your charges, and help secure the best possible outcome on your behalf.
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Rippling Impacts Arizona v. Zaragoza: DUI arrests for being in “actual physical control” of a vehicle
This weekend in the news we heard a popular motorcycle sports celebrity Robbie Knievel was allegedly arrested for DUI. Reports indicate the Police were called to Mr. Knievel’s parked motor home, near a famous Motor Cycle Rally. When they arrived on the scene, they found Mr. Knievel’s motor home parked; with Robbie Knievel patiently texting on his mobile device, while sitting in the driver’s seat of his parked vehicle.
Police reported that when they arrived they smelled a strong odor of alcohol, and asked him if he had been drinking. He admitted that he had been drinking a few beers, but DUI test results allegedly indicated his Blood Alcohol Content (BAC) tested 0.228 percent which was 3 times the legal limit in South Dakota. But there is more to this story. It was reported that the reason police were called to the scene, was that witnesses reported seeing him allegedly driving into two other motorhomes, causing damage, without stopping.
This recent news illustration leads us to our discussion of similar DUI arrests that occur in the State of Arizona. Here a person can also be in violation of A.R.S. 28-1381 DUI law if they were impaired due to drugs or alcohol, but not actually driving. This is the case if they are found to be in “actual physical control” of a vehicle.
Over 60 Years ago, the Arizona State Legislature expanded the DUI statutes to prohibit being “in actual physical control” of a vehicle while under the influence of spirituous liquor. However, they stopped short of defining what constituted “actual physical control” of a vehicle. This has resulted in many legal challenges, which have resulted in evolutions and interpretations of its meaning.
One landmark case of involving this issue was State of Arizona v. Zaragoza which was heard in the Arizona Supreme Court. The Superior Court initially found the defendant guilty and convicted him of Aggravated DUI. The charges were elevated to a felony due to Aggravated circumstances in that the defendant possessed a revoked driver’s license at the time of the DUI charges
In this case, the police officer responded to an emergency service call at an apartment complex. There the officer found the Defendant Vincent Zaragoza, balancing himself from vehicle to vehicle, staggering toward his own. As the officer approached nearer he found Zaragoza sitting in the driver’s seat of his vehicle. Zaragoza had one hand on the steering wheel, and the other hand holding the key to the vehicle’s ignition starter. At that point the officer stopped and questioned him on suspicion of DUI.
The officer arrested him following his DUI investigation for probable cause. The defendant’s Blood Alcohol Content (BAC) was later found to be 0.357 percent which was over 4 times the legal limit.
At trial, Zaragoza testified at trial that he did not intend to drive the vehicle; but only to sleep in it following an argument he had with a woman in the apartment complex. He testified that he wanted to start the vehicle’s ignition only to open the window of the vehicle and turn on the radio.
The lower trial court’s jury instructions included language that asked the jury to consider the totality of the circumstances shown by evidence as well as whether or not the defendant’s “potential use” of the vehicle presented a real danger to himself or others” at that time.
The key element at appeal was the question of whether or not the trial court erred by confusing the jury when it provided it’s jury instructions to enable them to determine if the defendant’s conduct and evidence fell within its meaning.
The State Prosecution appealed, and The Arizona Court of Appeals overturned the conviction, finding that the jury instruction language “potential use” misled the jury. The court held that the instructions could have been interpreted as requiring to jurors to find the defendant, Zaragoza, guilty based on control of his vehicle that he might have hypothetically exercised but did not, was in error.
The defendant appealed to the Arizona Supreme Court reversed the Court of Appeals decision, vacating the Appeals court ruling, and affirming the “guilty” conviction.
The Arizona Supreme Court that jury instructions should read: “In determining whether the defendant was in actual physical control of the vehicle, you should consider the totality of the circumstances shown by the evidence and whether the defendant’s current or imminent control of the vehicle presented a real danger to [himself] [herself] or others at the time alleged. Factors to be considered might include, but are not limited to…”
The Arizona Supreme Court went on to recommend 13 factors to consider including, but not limited to whether or not:
- The vehicle was running;
- The vehicle’s ignition was turned on or off;
- The location of the vehicle’s ignition key;
- The person was sleeping or awake;
- Headlights on or off;
- There was a conspicuous location of the vehicle;
- The vehicle was in operation, moving or stopped;
- The driver pulled off the road voluntarily;
- It was morning, noon, or night, or other specified time;
- The weather was good or poor, and weather conditions;
- Heater or air conditioner was on or off;
- Windows were opened or closed;
- Other explanation of circumstances presented as evidence.
In their opinion, the Arizona Supreme Court reminded that the list was not meant to be all inclusive. But rather it was up to the courts and jury to examine all available evidence and weigh the credibility of the facts and evidence, based on the “totality of the circumstances”, and that this was just part of what needed to be determined.
The Justices relied on prior court rulings that held the process of determining “actual physical control” under the statute, should be a “fact finding” mission. In that not only should they consider totality of the circumstances and evidence under that statute, but one other very important element. The AZ Supreme Court held that the jury should also weigh the evidence to determine if a person “actually posed a threat to the public by the exercise of present or imminent control over the vehicle while impaired.”
Criminal Defense for Maricopa County DUI Arrests
As the Arizona Supreme Court reasoned, cases involving “actual physical control” of a vehicle can be very complex and involve much fact finking and gathering. A qualified criminal defense attorney will need to be retained in order to protect your rights, defend your charges, and gather evidence on behalf of our defense to present in your case. Experienced DUI Attorney, James Novak, of the Law Office of James Novak, PLLC provides a strong defense for these types of DUI cases. If you or someone you know has active DUI charges in Chandler AZ, Tempe, AZ or other Phoenix East Valley cities, consult The Law Office of James Novak for a free consultation regarding your matter, and options for defense.
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Recent Amendment expands protections under Arizona’s “Stand Your Ground” Laws; not only to their homes, business, but anywhere else in Arizona “they have the right to be”.
Amidst heated debates over “Stand Your Ground” laws Arizona, businesses and homeowners continue to do what they must, to protect their home and property from intruders. For centuries, “Stand Your Ground” laws have existed and also referred to as the “Castle Doctrine” influenced by the age old adage “One’s home is their castle.”
Most states have some form of “Stand Your Ground” laws. These laws pertain to defenses that justify one’s actions, in what would otherwise be considered criminal conduct. Arizona has some of the broadest, most liberal “Stand-Your-Ground” laws in the country. One such provision is that a person can be protected under the laws if an incident where deadly physical force is reasonably necessary outside their home. In fact, it applies anywhere in Arizona where they “have the right to be”.
Under Arizona criminal code, these laws fall under the category of “Justification Defenses”. These afford protection to the use of deadly force against another person, which if applicable may be considered justified under law. Criminal Laws that govern Justification Defenses may apply when a person finds it necessary to use lethal force in self-defense under A.R.S. 13-404, or to prevent a dangerous crimes such as kidnapping, armed robbery, sexual assault, molestation or dangerous victim crimes under A.R.S. 13-411.
Another one of the state’s broad provisions under “Castle laws” under A.R.S. 13-411 is that there is “no duty to retreat” by a homeowner, or other person before the use or threaten to use deadly physical force in the event one of the specified dangerous crimes is in progress, or attempted.
In Phoenix, late last week, a homeowner woke up to find an intruder in his home, and allegedly shot him in the early hours of the morning. The intruder suffered serious facial wounds after the homeowner shot him after the intruder attempted to enter the homeowner’s bedroom in the early morning hours. It was reported that the intruder was found by police with one foot in the homeowner’s bedroom doorway. The intruder is expected to survive at this point. During the scene investigation, police allegedly learned that the homeowner was a qualified Arizona Medical Marijuana Cardholder Holder, and that he was cultivating twice the amount of Marijuana than is legal under the Medical Marijuana Law.
Since this is a developing story, it is unknown what criminal charges have been or will be brought against the homeowner or the intruder. With regard to the homeowner, he could be potentially exposed to drug charges for possessing at least 24 Marijuana plants, an amount that exceeds the Medical Marijuana limit of 12 plants. But in the unlikely event charges are brought by against the homeowner, in absence of provocation, by the homeowner would have a strong argument for use of force with a deadly weapon under the Justification Defense Laws of Arizona, resulting from the home invasion.
In absence of such circumstances a person using a deadly weapon or shooting another would result have resulted in serious criminal charges such as aggravated assault Under A.R.S. 13-1204. A person may be guilty of aggravated assault if the person commits assault with a deadly or dangerous weapon or instrument against another. Charges in the given circumstance might have otherwise been brought as a Class 3 felony.
A closer look at Justification Laws in Arizona
When the Justification Defense offense is under to defend criminal charges, it means that the defendant doesn’t deny that an act was committed; but that they were justified in defending themselves, their families, or property in self-defense or prevention of a serious crime against them.
Arizona’s A.R.S.13-404 Justification for use of physical or deadly force is applicable for in an incident involving “self-defense”. This defense applies when a person uses threatening or physical force against another when a person reasonably believes it is necessary to protect themselves against another’s use or attempt to use unlawful physical force. However, this defense is unjustified if:
- It is a response to verbal provocation only;
- Resisting arrest by police, unless police use more force than required by law to restrain a suspect;
- The intruder, or aggressor clearly communicates their wishes to or safely withdraw from the unlawful encounter
Arizona’s A.R.S.13-411 (A). This Justification defense is used as a result of someone trying to “prevent a crime”. It is applicable when a person reasonably believes reasonable or deadly force immediately needs to prevent a dangerous victim crime against a victim such as burglary, armed robbery, kidnapping, manslaughter, murder, sexual misconduct or assault involving a minor, armed robbery, or aggravated assault. There is no duty to retreat before threatening or using physical force or deadly physical force in this section.
This applies if the threatened, attempted crime or crime in progress occurs in a person’s home or other residence, their business, land they owned or rent, a vehicle or conveyance, or anywhere in this state where a person has the right to be.
Note the last phrase “anywhere in this state where a person as the right to be”. This language stems from a 2010 Arizona amendment to the “Stand Your Ground” law which passed in 2010, making the ability to stand one’s ground even broader. This means under A.R.S 13-4011 a person is allowed to use such physical or deadly force for preventing a crime described above, in any location in Arizona, where a person lawfully “has the right to be”. This may be a countless number of locations throughout the state including public streets, highways, occupied public places, and anywhere the resident is lawfully located at the time of an encounter.
In light of recent controversial court decisions, state legislators are requesting a formal review of Arizona’s broad “Stand Your Ground” laws, and the 2010 Amendment. Their fear is that people who would otherwise avoid a violent confrontation may be compelled to engage in it, assuming that their actions will be protected regardless of circumstances.
Criminal Defense in Maricopa County
It is important to consult a criminal defense attorney if you face any type of aggravated assault, or any type of charges involving use of a lethal weapon or deadly instrument. Convictions for these types of felony crimes are aggravated, and call for long term prison sentencing, restitution, and a number of other serious penalties. If arrested for any crime you have the right to defend your charges, and to hire a qualified criminal defense lawyer to represent you. If you have active charges, in the Phoenix or East Valley areas, including Mesa, Tempe, Chandler, Scottsdale, and Gilbert, call the Law Office of James Novak, PLLC at (480) 413-1499 for a free consultation.
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State Marijuana Laws Pass Another Test of Strength.
Some see the Arizona Supreme Court’s refusal to disturb an Appeals Court ruling in favor of a Medical Marijuana Defendant’s rights, as win in the test of strength of the Arizona Medical Marijuana Law (AMMA). This is because the issues inherent in the case, extended well beyond the matter of returning a defendant’s Marijuana following dismissal of charges. They compel the state courts to address the conflicting federal laws on the prohibition of Marijuana.
Last week the Arizona Supreme Court, held the lower court’s ruling that Medical Marijuana Patients, who have not violated the law, are entitled to the return of the Marijuana seized from them in an arrests. The AZ Supreme Court Justices provided only a brief order, which in essence simply outlined their refusal to overturn the lower Appeals Court’s Ruling.
The case involved an out of state driver who was qualified to use Medical Marijuana the state where she resided, California. After police found and seized her Marijuana, she was arrested. The charges were later dismissed after the defendant produced her Medical Marijuana Card, and proof of residency in California. The residual issue, however, was the fact that her Marijuana was never returned to her. An Arizona Superior Court ordered the police to return to her, the Medical Marijuana amounting to nearly an ounce, initially seized in the drug stop.
Here’s where it gets more interesting. The State of Arizona appealed that decision arguing that Marijuana seized by police could not be returned to the defendant. They argued that under A.R.S. 13-3413 of criminal code, the law requires forfeiture of Marijuana seized in an arrest; and that the Arizona Medical Marijuana Act did not expressly require them to return the Medical Marijuana to the defendant. Further the prosecution argued that the Sheriff would be in violation of the Federal Controlled Substances Act, and subject to prosecution, if they returned the defendant’s Marijuana, since federal law prohibits the drug in all forms.
The Arizona Appeals Court rejected the State’s arguments on the grounds that the driver was a qualified Medical Marijuana user, and not in violation of the law. So since the driver did not commit a crime, then the state was not justified in keeping her Marijuana in holding as part of a criminal offense. The Court ruled that in the alternative, if they wished to continue to keep the drugs they seized in the process of arrest, they could do so only upon prevailing in civil forfeiture proceedings. The AZ Supreme Court determined that that no penalties could be imposed upon the Arizona Sheriff’s Department or their personnel since Federal Law grants immunity to law enforcement officials who are acting under court orders.
The Appeals Court’s declined to address the argument that Federal Controlled Substances Act prohibition preempted, thereby invalidates AMMA. The court acknowledged the known general principal that when Federal law conflicts with state law, federal law prevails, and the state will be bound to the Federal law. However, in this case, the court recognized that there was no actual or imminent threat of prosecution by the Government in violation of the Federal Control Substances Act of the defendant, only the State of Arizona. The court found the facts of this case similar to Thomas v. Anchorage Equal Rights, 9th Cir. 2000 holding that “If no enforcement action or prosecution is threatened or imminent, the dispute is premature”. In conclusion they affirmed the Arizona Superior Court’s order for law enforcement to return the Marijuana, in favor of the defendant. The State Appealed to the Arizona Supreme Court; the Justices rejected the State Prosecutor’s arguments; and left the lower court’s decision undisturbed.
This is just one of numerous cases making their way through the criminal justice system, since Arizona passed its Medical Marijuana Law in 2010. Arizona is one of numerous states that have adopted Marijuana laws legalizing it in some fashion, either narrowly or liberally. The legal conflicts stem largely from the differences between state laws the Federal Control Substances Act which still prohibits Marijuana in all forms. Thus far, the Arizona State Courts have managed to circumvent a specific ruling in the matter, holding that their courts will not overturn the will of the people under AMMA, or that Federal Prosecution is not imminent in their presiding case.
Meanwhile, the Government has taken no action to prosecute people or entities using, possessing, selling, or cultivating, or distributing Marijuana, in compliance with Marijuana and Drug Laws of their State. But several Arizona County Attorneys and those who oppose the AMMA Law continue to contest the law, in look to obtain a specific ruling at the US Supreme Court level that will invalidate the law, in violation of the Federal Controlled Substances Act.
Until such conflicts are resolved between the Federal and State laws, qualified users of Medical Marijuana are still at risk for arrest, and prosecution, even if they are in compliance with the State Laws, and forced to defend themselves in criminal court. Drivers using Medical Marijuana, as qualified users face the highest risk of arrest for DUI in violation of A.R.S. 28 – 1381. This is because of strict case law that exists in Arizona which prohibits motorists from driving under the influence of Marijuana to any extent, even if they are not impaired to the slightest degree.
Maricopa County Marijuana Defense
Even Qualified Medical Marijuana users are at potential risk of being arrested for DUI, or other violations related to Marijuana, in violations of DUI and drug laws. If charges have been brought, you will need to need them in court, and through the criminal justice system. You have the right to retain a qualified attorney to defend you, and make sure your rights are protected. If you have active charges in Maricopa County, you can consult the Law Office of James Novak, in Tempe AZ. James Novak, Experienced Criminal and DUI defense attorney provides a free consultation. Call (480) 413-1499 before pleading guilty to DUI or criminal charges
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