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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Heroin: Fighting the Epidemic and Clearing its Path of Destruction – Part 2 of 2
After a fatal drug overdose, moments count. Call #911 first. Get emergency treatment. If you are arrested, or Criminal Charges are brought, they can be defended by an experienced drug defense attorney. But you only get once chance to save a life.
Twenty-year-old Stephen Cardiges of Lawrenceville, GA was a week from celebrating his 21st birthday. He was an Eagle Scout, excited about his plans to join the US Navy after turning 21. Stephan slipped into unconsciousness in the back of a Honda Civic, from a Heroin overdose, while his friends drove around town. His companions knew he was unconscious but didn’t want to call #911 or seeking help for him. Why? The reason was, they feared arrested for possession and use of Heroin. Perhaps they thought he would wake up on his own. Nonetheless, after a while, Stephen’s friends allegedly left Stephen there unconscious, in the back of the parked vehicle while they went their separate ways.
An observant officer noticed the youth in the Honda Civic parked in a driveway, with no one else in it, but Stephan. The observant officer approached the vehicle concerned that the youth was having a medical emergency. The officer immediately noticed the Heroin paraphernalia next to Stephen. The officer called for Emergency Paramedics and in the meantime tried to revive him. But it was too late. Stephan had already slipped into a coma. He was pronounced dead at the East Side Medical Center, which was a mere 2 miles away.
Would Stephen be alive today if someone had called #911 or taken him to the Emergency room for medical attention? With the proper medical care, I strongly suspect Stephan would have survived.
The Upward Trend in Heroin Use in the USA
The National Institute for Drug Abuse (NIDA) reports alarming statistics and trends in heroin.
Over 4.2 million people in the USA, in those among the ages of 12 or older, admitted to using heroin at least once. Of those, it is estimated that nearly 25% of those became addicted to it. In 2012, drug overdoses was the number 1 cause of deaths, exceeding motor vehicle accidents in 17 states in the USA.
In the last 7 years, use has been driven sharply upward, especially in young adults, ages 18 through 25. In 2012, a research study by nearly 670,000 Americans reported using it. Of those, ages 12 and over have doubled during that time. It’s been identified throughout the USA as being the most important drug issue plaguing out country, thus being called an epidemic by the NIDA Community Epidemiology Work Group (CEWG). he US Government, other national, and local agencies, including law enforcement agencies, the medical community, and parents seek desperately, for solutions toward prevention, intervention, and treatment.
More Police to Carry “Miracle Drug” for Emergency Fatal Overdose Treatment
Many drug overdose deaths, including heroin overdose fatalities are preventable. They may have been prevented, if victims, friends or family were not afraid of arrest or prosecution.
In our part 1 of 2 segment on this topic, we discussed the fact that the FDA recently approved a life- saving injection “Evizo”, that can be administered by trained first responders such as police officers, family, or other health care professionals. The injection contains the drug “Narcan” (Brand name) or Naloxone (Generic), which has proven effective in reversing a fatal overdose of heroin or other opioid in a patient. It is known to actually revive patients who would otherwise have not survived. This treatment is only temporary and immediate for use to revive the patient until specialized medical treatment can be administered. Also, it has not been effective in reversing other potentially fatal overdoes such as those on cocaine or other methamphetamines, for which other life-saving drugs exist. Nonetheless, it is being called a miracle drug for opioid overdoses. The key to its effectiveness is immediate use, as soon as possible following the over dose.
#911 Good Samarian Laws: Immunity for Seeking Overdose Help
A minority of states have what are known as #911 Good Samaritan Laws. If these are in place, and if people in those states were aware of them, they may be more inclined to seek emergency medical assistance for an overdose.
These Good Samaritan laws are intended to provide a certain amount of immunity from arrest and prosecution for themselves, when they seek emergency medical treatment for overdoses or call #911. But currently, just a handful of states have them. They exist in only 18 states including Alaska, California, Colorado, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Rhode Island, Vermont and Washington. This leaves 65% of the country without #911 criminal immunity laws for witnesses, or overdose victim to call for help.
Drug Good Samaritan #911 Laws vary by state, with regard to provisions and immunities to arrest or criminal charges. But most states extend immunity laws narrowly to drug possession and use crimes, and do not suppress evidence for other more serious charges such as sales, manufacturing, and distribution crimes.
Arizona does not Good Samaritan Laws such as this in place. This presents a great concern, in light of the fact that it is recognized as a 6th highest state in the country for heroin overdose fatalities according to the National Institute on Drug Abuse..
People often to call #911 or seek medical treatment for fear of arrest or prosecution since the use or possession was in violation of Arizona State Drug Laws. And currently there is no protection for those seeking emergency help for themselves or others in absence of these Good Samaritan Overdose laws. This decision, not to seek help, has unfortunately led to preventable fatalities.
It is recognized my many, that the state needs to adopt more of the 10 strategies for states with similarly high drug overdose fatality rates recommended b Trust for America’s Health. Thus far, only 4 of the 10 known strategies were adopted, and did not include immunity laws from arrest or prosecution by a person, or others seeking emergency medical treatment for overdoses.
Heroin Crimes, Laws, Classifications, Penalties
Heroin is an Opiate and is classified as a Narcotic. It is also considered “Controlled Substances” under Arizona Laws and classified as a Schedule I drug. Offenses are prosecuted pursuant to Arizona’s Narcotic Drug Laws.
With regard to Narcotic violations, a person may be found guilty under A.R.S. 13-3408 of Arizona drug law, if they “knowingly”:
- Possess or use a narcotic drug; (Class 4 Felony)
- Possess equipment or chemicals for manufacturing narcotic drugs (Class 3 Felony)
- Obtain a narcotic drug through use of a fraudulent prescription, deceit, or misrepresentation (Class 3 Felony)
- Possess narcotics with intent to sell; (Class 2 Felony)
- Manufacture narcotics (Class 2 Felony)
- Administer a narcotic drug to another person (Class 2 Felony)
- Transport for sale, import into this state, offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer a narcotic drug (Class 2 felony)
Narcotics violations in Arizona carry some of the toughest penalties of all illegal drug crimes. Narcotics charges are all classified as felonies. This exposes a person to prison sentencing, and steep fines, along with other harsh punishments in Arizona. Fines for felonies in Arizona can reach up to $150,000.00 per person, per charge; or $1,000,000.00 million per charge, per enterprise.
Arizona’s Statutory “Threshold Amount” under A.R.S. 13 – 3401.36 is one gram. The Threshold Amount refers to the market value, weight or measurement of a particular drug or substance as it relates to criminal drug laws.
Sentencing for convictions involving an amount of controlled substances that are under the statutory “Threshold Amount” may range from 3 years mitigated sentencing to 12.5 for aggravated sentencing for Class 2 felony charges.
Arizona punishments are harsh for repeat offenses, especially if they involve amounts that equal or exceed the “Threshold Amounts” for the given drugs. Sentencing is increased for these convictions can range from 10 to 12 years for maximum non-aggravated offenses; and 12.5 to 15 years for aggravated Class 2 felonies.
If a person is convicted of amounts that equal or exceed the Threshold Amount, more stringent penalties apply. They will not be eligible for sentence suspension, probation, pardon or release from prison until they have served the prison term ordered by the court. The exception to this earned credits, restoration or commutation pursuant to A.R.S.41-1604.07.
Probation is required for those convicted of use or possession of a controlled substance or drug paraphernalia. Participation in a substance abuse education or treatment program is also a required condition of probation for simple possession/use charges. Second offense possession or use penalties may require incarceration as a term of probation.
Drug Treatment Program Alternatives to Reduce or Avoid Incarceration in Arizona
Your criminal defense attorney will work with you, and the court system to determine if you qualify to participate in an educational drug counseling or treatment program in turn for a waiver of incarceration or mitigation of time for which a person is sentenced to incarceration. Certain criteria must be met to qualify, and a defendant must be invited to participate in the program by the prosecution and the courts. They are designed to provide the defendant with the medical counseling or treatment needed, and incentives to help reduce the person’s dependency on illicit drugs, so that they can avoid repeat offenses, and become healthy and constructive in society.
Successful Completion of the program can also lead to a reduction in charges for example, reducing a felony to a misdemeanor to avoid prison terms. If an inmate is incarcerated for drug crimes, they may be offered the option of participating in a substance abuse program voluntarily. If completed successfully, they may earn credits that can be applied to early release due to reform and rehabilitation program guidelines in place.
These programs may also be used as a conditional requirement during parole, or probation, following a term of incarceration. Failing to complete the program would institute the original jail or prison time to the longer term.
Recent legislation as has been introduced with similar provisions and incentives at the Federal Level to reduce prison overcrowding, the costs of incarceration, and the reduction of repeat offenses.
Criminal Defenses for Heroin or Opioid Charges
If you, a loved one, or someone you know experiences a life threatening overdose due to heroin or other opioid, you should call #911 and seek emergency medical attention immediately. Following a potentially fatal drug overdose, moments count. Get emergency medical treatment to save a life. Criminal Charges can later be defended with good legal representation.
If you are subsequently charged or arrested of any heroin or opioid crime, you should consult an experienced drug defense attorney who will defend your charges and protect your rights. James Novak, of the Law Office of James Novak, is an experienced criminal defense trial attorney, who defends drug charges on a regular basis, and provides a strong defense.
James Novak, Attorney at Law, is a former Maricopa County Prosecutor. He has extensive training, and litigation experience defending Heroin Drug Charges, and will fight for your freedom and future. The Law Office of James Novak, PLLC serves Tempe, Mesa, Chandler, Phoenix, Gilbert, and Scottsdale AZ. If you have been arrested or charged in these cities, call today for a confidential free consultation. James Novak, criminal defense attorney will discuss you matter with you or a loved one you have designated to speak on your behalf. He will provide information regarding the criminal justice process, and your defense options.
Additional Resources
Other Articles Related to this Topic
Often people don’t seek emergency medical treatment for themselves or others following a potentially fatal overdose of heroin, for fear of arrest or prosecution. But the greatest threat is not criminal charges, its fatality.
Combating the Heroin Epidemic: 7 Heroin Facts; Statistics; Prevention and Treatment
According to the National Centers for Disease Control (CDC), overdoses of drugs in the USA have tripled during the last 25 years and are now the Number 1 cause of deaths. In 2010, they reported 38,329 overdose deaths in the U.S.A, and according to other reports, these numbers continue to rise in epidemic proportions. Accidental overdoses now exceed auto accident fatalities, in adults aged 25 to 64.
According to a recent analysis reported by Trust for America’s Health (TFAH), drug overdose deaths have increased 100 percent in just the last 10 years. One main drug responsible for this increase includes the drug, Heroin.
According to a recent Arizona Department of Health Services (ADHS) Heroine remained the number one illegal drug responsible for overdoses that resulted in deaths in 2013.
FDA Approves Life Saving Proven to Reverse Potentially Fatal Overdoses
We are about to see more police being equipped with a Life Saving Drug for Heroin Overdose Treatment to save lives as first responders.
On April 3, 2014 the U.S. Food and Drug Administration (FDA) announced its approval of a hand-held auto-injector for treatment of overdoes. The injector rapidly delivers a lifesaving drug into a victim who is suffering from a potentially fatal overdose of heroin or other opioid. It’s been approved for use by trained family members and caregivers for emergency treatment.
Evizo (naloxone hydrochloride injection) is the injector. The drug it injects is known by its brand name “Narcan”, also known as “Naloxone” by its generic name, being used by Police Agencies throughout the country.
Narcan or Naloxone is a drug that has proved to reverse heroin or opiate overdose almost immediately. Some police agencies are allowing specially trained officers to carry and administer it in several states around the country to overdose victims. One pilot program conducted by police agencies in Quincy Massachusetts, report that its’ officers administered naloxone 221 times where needed, and it reversed the overdoses 210 times, giving it a 95% earning it 95 percent success rate.
First responder police recently began administering the drug in the field as a result of the soaring numbers overdose casualties. Generally, an opioid or heroin overdose causes a person’s breathing to stop. Narcan in many cases will revive the patient, if it’s administered early enough. The drug is said to keep the patient alive until paramedics arrive or until the patient can get the specialized medical assistance needed to treat the overdose symptoms.
Narcan has proven to be effective for heroin and other opiate overdoses only. It has not been effective t in reviving patients who have overdosed on other drugs such as cocaine or ecstasy.
Naloxone delivery system is through either inhalation, by inserting it into the nasal passage, or injection into the patient. The risks and adverse side effects are said to far outweigh the advantages or benefits of its use following a potentially fatal heroin or opioid overdose.
The FDA warns that Evizo is not a substitute for immediate medical care, it’s simply temporary until paramedics arrive, or until the patient can be taken to the Emergency Room or hospital for further care.
Common side effects include dizziness, weakness, skin flushing, and agitation. Reportedly rare and severe side effects include heart disturbances, neurological damage, lung fluid build-up, seizures, coma and death.
In response to the drug overdose fatality crisis, Evizo was granted “Priority Review” under the FDA’s Priority Review Program. This review is granted where the need is critical; and for those drugs that are proving to be effective, safe solutions, where no other alternatives exists. The benefits of the new drug should be far more significant than existing treatments in place. The product was granted a fast-track designation, and expedited processing by the FDA as they worked with closely with The White House White House’s Office of National Drug Control Policy’s National Drug Control Strategy since 2012.
The device is scheduled to be made available mid-June 2014 due to expedited processing, and will be available in pharmacies which will dispense by prescription.
7 Heroin Facts
(1) Classification
Heroin is classified by the Federal Drug Enforcement Administration (DEA) as a Schedule I drug, out of five distinct categories. Schedule I drugs carry the highest potential for mental and physical addiction. They are considered the most dangerous classification of drugs. Heroin is identified by the DEA as having no current legally accepted medicinal use, and possessing a high risk of substance abuse and addiction. The U.S. Department of Health and Human Services (HHS) classifies Heroin addiction as a chronic brain disease.
(2) Description
According to the National Institute on Drug Abuse (NIDA) Heroin is an “Opioid” and a depressant. It is made from Morphine alkaloid in opium, and is considered to be far more potent and addictive and dangerous than Morphine. The drug impacts portions of the brain and body that depress perceptions of pain, and which also impact vital life functioning such as blood pressure, alertness, and respiration. This is why overdosing frequently involves fatality. Overdoes of the drug can suppress or halt the critical breathing processes in body.
(3) How it’s used:
It may be needle injected, inhaled, or smoked. All 3 delivery methods of heroin to the brain are fast, which contribute to its addicting nature, which causes changes in the brain that result in an uncontrollable dependence.
(4) Impacts of heroin on the body
Users who inject heroin, users report feeling a rush at first. Then it is followed by dry mouth, skin flushing, a feeling of heaviness of the arms and legs, confusion, and an alternate wakeful to drowsy state. Habitual users experience brain function changes, which include tolerance. This causes more of the drug needed to experience the euphoric state, and to avoid adverse withdrawal symptoms. Effects associated with Heroin include fatal overdoes, infectious diseases such as HIV, and hepatitis, collapsed veins, heart lining infections, abscesses, GI problems, liver, and kidney diseases, pulmonary collapse, pneumonia, and other respiratory disorders, causing permanent damage or fatality.
(5) Appearance, consistency and street names
Pure Heroin is a white powder, but is often cut with other illicit substances giving it a brownish tint. Another form of Heroin is known as “black tar” which is of sticky or tar-like consistencies, and varies in color from dark to black. Street names include but are not limited to “brown sugar”, “Smack”, “black tar”, “smack” or “junk”.
(6) Signs and Police Drug Testing for Heroin
Detection of Heroin in the body can be revealed by a urinalysis, for up to 24 hours after use. It can be detected by a blood test for up to 72 hours following use of the drug.
Environmental signs of possible use include injection supplies, or paraphernalia such as needles, cotton, towels, spoons, matches, bottle caps other equipment or supplies to heat the drug.
Physical signs include but are not limited to restlessness, drowsiness, diarrhea, nausea, vomiting, chills, involuntary movements of extremities, behavior changes, hyperactivity, disorientation, weight loss, marks, bruising, or scarring of arms and legs, and continued respiratory symptom.
(7) Long Term Treatment for Heroin or Opioid Addiction
Specifically, heron and opioids require medication-assisted treatment (MAT) programs. One of those most effective MAT assisted drugs is buprenorphine used both in a specialty and noni-specialty treatment setting. Traditionally, effective treatment indicated for heroin or opioid addiction required in-patient specialty treatment and counseling.
But since 2011, years specialty in-patient hospital admissions had declined sharply due to a spike in increased outpatient treatment alternatives now available. Out-patient settings are less costly, and more convenient for patients. In 2012 it was reported that accredited physicians treated almost 900,000 patients on an out-patient basis with a combination of buprenorphine/naloxone therapy, in non-specialty treatment settings.
Substance Abuse and Mental Health Services (SAMHSA) oversees compliance of heroin and Opioid Treatment Programs (OTPs), provides certifications to operate. They work with state, local and federal agencies including the Drug Enforcement Administration (DEA) to accomplish their goals. There are currently 1,311 Specialty Opioid Treatment Centers (OTP) in operation in the USA.
Why More Users Do Not Seeking Long Term Treatment Options
U.S. Health and Human Services reported that in 2012 only 10.8 percent of individuals suffering from alcohol or drug abuse including heroin or opioid users, received specialty medical facility known to effectively treat their condition. Other studies showed that 94.6 percent of those who needed treatment did not receive because they refused it or denied their need for the substance abuse treatment. Another 3.7 percent felt they needed it, but did not seek it, due to affordability, lack of insurance or other barrier. Of some of the respondents who reported they needed it but did not seek it, 17.4 percent were worried about negative impacts such as fear of arrest and prosecution, negative impacts on their job, family, transportation, and the inconvenience.
Criminal Defense Attorney for Heroin or other Drug Charges in Phoenix East Valley AZ
Immediate medical attention is critical, and every moment counts. The number one priority following an overdose is to seek immediate medical attention, and to call #911 if you feel a person has taken a potentially fatal overdose. If criminal charges are brought against you, they can be dealt with after the ordeal.
Heroin and Narcotic charges carry some of the most severe penalties of all drug crimes under Arizona laws. All heroin charges are brought as felonies.
If drug charges are brought against you, or you are arrested, you can then consult an experienced criminal attorney to defend the charges and protect your rights. In some cases a person may qualify for a drug treatment program in order to reduce the charges from a felony to a misdemeanor or to avoid incarceration. Not everyone qualifies, and it is not automatic. Your attorney will assist in the process if you meet the criteria. If you do not qualify for the program, other defenses may apply to your case that you may not be aware of.
If your rights were violated, or if the evidence against you is weak or unjust, it may lead to a dismissal of charges. The Law Office of James Novak, PLLC defends Heroin and other serious drug charges on a regular basis. James Novak is an experienced drug defense attorney, and former prosecutor. If retained, he will tailor a defense that best fits your circumstances and that has the potential for the most favorable outcome. Call today for a free consultation. James Novak, DUI and Criminal Attorney to discuss you matter in confidence and to obtain your defense options, if you have active charges in Phoenix, Mesa, Tempe, Chandler, Scottsdale, or Gilbert AZ.
Additional Resources:
Arizona DUI Arrest Statistics
In looking back over the last six years of DUI arrest statistics released by the Arizona Governor’s Office on Highway Safety (AGOHS), we see an alarming trend in DUI arrests with Blood Alcohol Content (BAC) at the “Extreme” levels, which is 0.15 percent or higher. In 2008, 2009, 2010, 2011, 2012, and 2013 the average Blood Alcohol Content has been over 0.152 percent. Initial reports released for the first quarter of 2014 are showing relentlessness in this trend. Drinking in excess of the extreme impaired driving laws has evidently become the norm, rather than the exception.
The legal limit for driving under the influence of alcohol in Arizona is 0.08 percent. However, a motorist may still be arrested if they are driving under the influence with a BAC lower than 0.08 percent if they are found to be driving or in actual physical control of a vehicle while “impaired to the slightest degree”.Extreme DUI BAC in Arizona is .015 percent; and Super Extreme BAC is .020 percent or greater.
Causes of Extreme DUI
According to the National Centers for Disease Control and Prevention (CDC) binge drinking is the most common form of excessive alcohol consumption. In general, binge drinking is defined as a person drinking 4 to 5 spirituous alcoholic beverages on one occasion; usually during a short period of time. One drink is measured as a 12 ounce glass of beer or wine cooler 5 ounces of wine; or 1.5 ounces of 80 proof distilled spirits or liquor.
The practice of excessive or binge drinking increases a person’s chance of physical harm due to alcohol poisoning, being involved in a serious or fatal impaired driving crash, and being arrested for Extreme DUI.
Interestingly, the CDC reports that most people who engage in binge drinking are not alcoholics and are not alcoholic dependent. We seem surprised when we hear of police officers and judges being arrested for drunk driving. But the fact is that people in all walks of life may be the subject of an Extreme DUI arrest. This includes young adults as well as senior adults, teens, parents, teachers, nurses, pilots, celebrities, professional sports players, legislators, trucker drivers, doctors, lawyers, farmers, military personnel, or faith ministry leaders. Being aware of causes and what factors increase the risk of excessive BAC levels, can help prevent extreme or any other impaired driving arrests.
The National Highway Traffic and Safety Administration (NHTSA) identified other factors that contribute to higher BAC levels. These include but are not limited to the following:
- Increasing the number of drinks per hour
- Higher strength proofs of alcohol
- Lower body weights and builds
- Drinking on an empty stomach
- Low metabolic rate
- Alcohol combined with medications
- Female’s usually reach higher BAC levels than men, given the same amount of liquor during the same amount of time, due to stomach enzyme differences and lower water content in their bodies than males.
- Persons who are ill, under a great deal of stress, or drowsy will rise to a higher level of BAC than if those factors are not present, given the same amount of alcohol
Level of Driving Impairment for Extreme DUI levels
The degree of a driver’s impairment is usually judged by the investigating officer at the DUI stop. The police use a series of roadside tests in combination with questions and observations of the driver before, during, and after the stop.
NHTSA research has concluded that drivers with a 0.15 percent or higher BAC level will experience “substantial impairment in vehicle control”. This includes impairments in attention and tasks necessary to drive, including visual and auditory abilities.
At the extreme level, the driver will experience far less muscle control, major loss of balance, and vomiting if the BAC is reached within a short periods of time.
Extreme DUI Laws in Arizona
A person is in violation of A.R.S. §28-1383 and Extreme DUI laws if they are found to be driving or in actual physical control of a vehicle while under the influence of alcohol or spirituous liquor with:
- A Blood Alcohol Content of .15 percent through .1999 percent – Extreme Influence
- A Blood Alcohol Content of .020 percent or greater – Super Extreme Influence
Both Extreme and Super Extreme DUI offenses are Class 1 Misdemeanors, in absence of “Aggravated Factors”.
However, even though the charges are classified as misdemeanors, the criminal penalties are severe, and the higher the BAC, the more harsh the penalties.
Extreme DUI Penalties for first time conviction:
Penalties for first offense DUI 0.15%, but less than 0.199% or greater (Extreme):
- 30 consecutive days in jail;
- $2,500.00 in fines, fees, costs, and assessments;
- Ignition interlock device (IID) for 1 year;
- Alcohol or drug education, counseling, or treatment program;
- Driver’s License suspension for at least 90 days;
- Probation;
- Possible Community Service and/or restitution
Penalties for first offense DUI 0.20% or greater (Super Extreme):
- 45 consecutive days in jail;
- $2,750.00 in fines, fees, costs, and assessments;
- IID for 18 months;
- Substance abuse counseling, or treatment program;
- Driver’s License suspended for at least 90 days;
- Probation;
- Possible Community Service and/or restitution
Penalties for DUI BAC 0.015% to 0.199%- 2nd Extreme Violation within 7 years:
- 120 days jail with 60 consecutive;
- Fines, fees, costs, assessments up to $3,250.00
- Driver’s license revocation for at least 1 year;
- IID 1 year (after driver’s license is reinstated)
- At least 30 hours of community service
- Drug or Alcohol Education Classes or Counseling;
- Probation;
- Possible Community Service and or restitution
Penalties for DUI BAC 0.020% or greater – 2nd Super Extreme Violation within 7 years:
- 180 days jail with 90 consecutive;
- Fines, fees, costs, assessments up to $3,750.00
- Driver’s license revocation for at least 1 year;
- IID 2 year years (after driver’s license is reinstated)
- At least 30 hours of community service
- Substance abuse counseling or treatment;
- Probation;
- Possible Community Service and or restitution
Penalties for Third and Subsequent Impaired Driving Convictions (Extreme and Super Extreme)
Impaired driving offenses of any kind, including those under those under the extreme level, are considered “Aggravated DUI” felony charges. Penalties include but are not limited to at least:
- 4 month prison terms for the third offense;
- 8 month prison terms for any subsequent offense thereafter.
- $4,000.00 fines, fees, and assessments;
- License revocation one year;
- IID 2 years;
- Possible forfeiture of vehicle;
- Restitution or community service;
- Felony Criminal Record;
- Loss of some civil rights including right to vote and right to possess firearms.
Defenses for Extreme and Super Extreme Impaired Driving Charges in Arizona
Any kind of impaired driving charge in Arizona is serious. Higher BAC levels and repeat offenses carry the highest punishments. If you have been arrested, you have the right to hire an attorney to defend you against your charges.
Often people think that because their BAC was to the extreme there is nothing an attorney can do to help them. To the contrary, it is even more important to retain a qualified DUI lawyer to defend their charges and protect their rights.
Defenses are multifaceted for impaired driving charges. An experienced criminal defense attorney will protect your rights, evaluate your case and tailor a defense that has potential to obtain the most favorable outcome in your case.
Examples of some common impaired driving defenses include, but are not limited to the following:
- Constitutional Rights violations;
- Unlawful stops by police;
- Improper field sobriety test administration (FST);
- Unreliable or invalid FST results;
- Inaccurate breath tests results or readings;
- Lack of calibration, maintenance or maintenance records for breath machines;
- Breath results inaccurate due to contamination, other external, or medical factors;
- Discrepancies in police DUI chemical testing results to independent results;
- Mishandling, improper processing, or storage of chemical evidence
These are just a sample of some common areas where defenses may apply to a particular case. Successful challenges of weak evidence can lead to dismissal, reduction of charges, mitigation of penalties, and other favorable outcomes in DUI cases.
DUI Attorney in Tempe, Arizona
If you have been charged with any DUI in Tempe, Mesa, Phoenix, or other East Valley Cities, contact the Law Office of James Novak, for a free consultation to discuss your matter and defense options.
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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.
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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.
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Putting Statistics into Perspective; Arizona Felony Assault laws; Overview of City, State and Country-wide violent crime trends
On New Year’s Day two “Good Samaritans” stopped their vehicle in Arizona to help a victim being assaulted, after they reported it to the police. The Good Samaritan told the dispatcher that help could not wait. He jumped out of his vehicle to aid the victim of the assault. As soon as he did, the aggressor attacked him as well. The passenger of the Good Samaritan’s vehicle also got out. But during the attack, the assailant got behind the wheel of the Good Samaritan’s car; and used the vehicle as a deadly weapon to hit all three people. The initial victim being assaulted died at the scene. Both of the Good Samaritans were rushed to the hospital. One remains in critical condition with life threatening injuries.
I read of the events surrounding this tragic and disturbing incident, moments before I heard the good news about violent crimes statistics being down in Mesa AZ. I was still jarred by the first events, while I read the Mesa AZ media release. Suddenly I felt compelled to share it as illustration that even in light of lower crime rates, violence continues to exist and should “remain cause for vigilance” no matter where we live.
In this discussion we’ll cover the following topics:
- City of Mesa AZ’s recent announcement about decrease in violent crimes;
- Factors credited to the historic lows in violent crimes;
- Arizona Department of Public Safety (DPS) city and state violent crime statistics;
- FBI Uniform Crime Results (UCR) Overview of Violent Crimes in the USA;
- Arizona Aggravated Assault Laws, and Penalties
Factors credited to historic lows in crime rates in Mesa AZ
The City of Mesa AZ ranked the third lowest in violent offenses and property crimes in 2012 according to recent statistics released by the Federal Bureau of Investigations (FBI) of populated with 400,000 or more.
The City of Mesa hit the lowest violent crime rates they have seen in 50 years. Mesa Police attribute this largely to increased police efforts, technology, and active community partnerships. .
Violent Crimes Remain Cause for Vigilance in Arizona
While this announcement should be perceived as a good thing, at the same time, improved safety statistics, can often leave us with a false sense of security. Common sense tells us we still lock our doors, close our windows, and remain attentive to our surroundings as we return to our vehicles in a dark parking lot. No one is immune to being a victim of violent crime, matter where they may be. Prudence tells us to remain aware of their surroundings, and take safety and security measures to protect themselves, their loved ones and property.
Looking back on the Arizona Department of Public Safety (DPS) Statistics, the Mesa Police Department reported 1,804 violent crimes in 2012; while the 2013 statistics are apparently still being gathered.
The State of Arizona reported a total of 25,902 crimes statewide with 10.3 percent of them being categorized as violent crimes. Of the violent crimes Aggravated Assault crimes accounted for the largest number of all violent crimes with 16,579 incidents, representing 64 percent of all violent crimes. Statewide, this is just one percent higher than the national average of 65 percent.
FBI Uniform Crime Results Overview of Violent Crimes in the USA
The FBI Uniform Crime Report (UCR) classifies violent crimes as aggravated assault, sexual assault, murder, and robbery. Here some additional statistics revealed in the 2012 FBI UCR statistics:
- Over 1.2 million violent crimes occurred in the USA representing a 0.7 percent increase over the prior year;
- A review of the prior five year trend shows an actual decrease of 13 percent in violent crimes;
- A total of 760, 739 Aggravated Assaults were reported, constituting 63 percent of all violent crimes in the USA;
- Offenses described as aggravated assaults include unlawful attacks on a person with the intentional purpose of inflicting severe bodily injury upon them.
- Guns were used in 69 percent of the homicides; 41 percent of robberies; and 22 percent of aggravated assaults.
Violent Crime and Property Crime Laws in Arizona
Under Arizona Criminal Code A.R.S. 13-706 “Violent” felony crimes are “serious crimes”
against victims. These include but are not limited to murder, sexual assault, dangerous crimes against children, armed robbery, and aggravated assault involving a deadly weapon, drive-by shootings, first degree burglary, and other serious offenses.
Under Arizona Criminal Code A.R.S. 13- 105 Definitions, “Crimes” are defined as any Misdemeanor or Felony involving a victim’s Personal Property. “Persona Property” is defined as meaning anything of value owned by a person. This includes tangible or intangible property. It includes offenses such as theft of property including auto theft, and non-violent burglary. These are by nature more common in most cities in Arizona.
Aggravated Assault Laws in Arizona
Assaults that are not considered to have “Aggravated” circumstances are those described under A.R.S 13-1203 and are classified as Misdemeanors. They are loosely described as offenses that knowingly, intentionally or recklessly cause physical injury to another person; or cause a victim to be provoked or compelled to have a reasonable apprehension of physical injury;
Although classified as Misdemeanors assault charges are very serious and can expose a suspect to severe penalties including jail terms, victim restitution, anger management counseling, counseling, probation, fines, fees and a criminal record.
An Aggravated Assault is a Felony. It is an Assault Charge that has been raised to the level of a felony due to “aggravated factors” as described in the term itself. These are some of the most serious criminal charges a person can face, and offense is considered a violent crime. A person may face these charges under Arizona Criminal Code A.R.S. 13-1204. There are a number of circumstances that are named as aggravated factors under the code. Just a few include:
- Causing serious physical injury to the victim;
- Assault that causes substantial disfigurement, even if temporary;
- Assault that results in impairment to bodily organ or fracture of bones;
- Use of a lethal weapon or deadly instrument in the assault;
- Assault on a police officer, peace officers or other described individuals;
- Assault by person 18 or over against a person 15 years of age or under;
- Assault while a person is restrained, bound, or physically impaired against resisting an attack.
The Arizona law is comprehensive and covers these and additional factors to a great degree.
Felony Assaults are considered serious and violent crimes against victims. They may be charged as Class 5, Class 3 or Class 2 felonies depending on the nature of the charges. They may also be combined with the most serious of charges Class 1, reserved for homicide.
If convicted of an Aggravated Assault a person may face long term or life prisons sentences. In some cases, depending on the circumstances, they may not be eligible for parole until a term of 25 to 5 years has been completed. Other penalties include exorbitant fines which range up to $150,000.00 per charge or 1 million dollars per charge for enterprises; victim restitution; prison and other assessment fees; loss of civil rights including right to possess firearms, and right to vote. A felon criminal record follows a person for many years and often even after released from prison, impacts the person’s ability to obtain a job, credit, and adversely impacts many aspects of their lives, making the transition to back into society extremely difficult.
Being charged with a felony assault puts a person’s future at great risk. The laws can be complex and the penalties extremely harsh. It’s too important of a matter to go unrepresented by an experienced and highly qualified criminal defense attorney. No matter how grim the situation may appear, or how serious the charges, the constitution affords a suspect with the right to retain proper legal representation to defend their charges, protect their rights, and tell their side of the story through the criminal justice process. If you have active felony charges in Mesa AZ, or any Phoenix East Valley Cities, contact James Novak, DUI and Criminal Defense Attorney to discuss your matter and options for defense. He will provide you with a free consultation regarding your matter, and options for defense.
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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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