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Arizona’s War on Extreme DUI and High BAC: Causes, Prevention, Consequences, DUI Laws & Defense

New CDC statistics reveal 38 million Americans binge drink 4 times per month; six people die from alcohol poisoning every day.

How to Make Your Arizona Experience Sensational with Alcohol Safety

Arizona, the Valley of the Sun, sees an average 37 million people visit each year. Some visitors are here to enjoy the spectacular Grand Canyon, Sonora Desert, Hoover Dam, Monument Valley, majestic Sedona and Oak Creek Canyon, historic Jerome, Desert Botanical Gardens, other National Parks and Recreational Areas. Some are here on business, attending one of Arizona’s many colleges, universities, or trade schools.  Some are participating or here to watch live professional sporting events, popular concerts or other shows.  Others just simply want to get away from the ice, snow and freezing temperatures, to bask in the warm sun of in the fall and winter.

Alcohol surrounds many of these popular sports events, activities, and social gatherings. It is common to hear heavily sponsored beer and other liquor commercials, for retailers to advertise specials, for generous party hosts to offer, and people consuming alcoholic beverages.  Social drinking is the American way of life for many.

Whether your stay is short, long, or permanent, the chances are great that you will either find yourself behind the wheel of a vehicle, or a passenger in one. Many are unaware that Arizona has some of the toughest DUI laws and penalties in the USA. This is particularly true for higher Blood Alcohol Content (BAC) DUI convictions. Others, especially younger drinkers are unaware of the health risks of drinking in excess.

Unfortunately, in the midst of the celebrations, excitement, and fun, some lose track of how much alcohol they are actually drinking. This can result in deadly consequences.

Drinking in excesses hazards extend beyond the health of the person drinking, especially if that person gets behind the wheel of a vehicle. Other drivers and passengers should keep in mind that other motorists on the roadways may be driving impaired.

Article Overview – Featured Topics    

To raise awareness about the hazards of drinking in excess, and its consequences, we will discuss the following alcohol safety issues:

  • Legality verses Safety;
  • Arizona’s High BAC Trends;
  • Extreme and Super Extreme DUI Laws and Penalties;
  • Binge Drinking Defined;
  • Causes of Binge Drinking;
  • Non-DUI Related Crimes Involving Excessive Drinking;
  • Injuries Caused by Excessive Drinking;
  • New National Centers for Disease Control Repot: Alcohol Poisoning;
  • Emergency actions if you suspect someone has alcohol poisoning;
  • 7 DUI Safety Tips;
  • 10 Alcohol Consumption Safety Tips;
  • DUI arrest, rights, and criminal defense

Legal v. Safe

It’s important to make a distinction between safety and legality as it pertains to driving under the influence of alcohol.   In sum, though it may be legal to drive under the influence of alcohol that does not mean it is equally safe for all drivers.

If you are a juror on jury duty in an Arizona DUI case, you will likely hear this as part of the jury instructions. That is, that in Arizona, it is legal for a driver over the age of 21 to be under the influence of alcohol.

However, it is not legal to drive under the influence of alcohol if the motorist’s BAC is 0.08 percent or more, within two hours of driving or being in actual physical control of the vehicle under; and/or if their driving abilities are “impaired to the slightest degree” by alcohol or drugs.

In sum this means is that a person can be found guilty of an impaired driving charge under A.R.S. 28-1381, even if their BAC is below the legal limit, or by drugs, if they are found to be “impaired to the slightest degree.”

There is much controversy surrounding whether or not it is safe to drive under the influence of any alcohol at all. All DUI laws aside, the National Centers for Disease Control (CDC) warns that it is still not safe to drink and drive under the influence of any amount of alcohol.

According to the CDC, BAC levels below 0.08 percent can still slow reaction time, judgment and coordination, all of which are necessary for driving safety. Further, they warn, the higher the BAC, the greater the driving impairment.

Arizona’s War on Extreme DUI  

We’ve discussed the dangers of binge drinking in prior articles. But the new statistics for 2014 have been released for 2015, by the Arizona Governor’s Office of Highway Safety (AGOHS). They reveal an alarming trend in excessive drinking and Super Extreme DUI in the State. For the 7th consecutive year, the average BAC of driver’s stopped and arrested has been 0.152 percent, in violation of Extreme DUI laws A.R.S. 28-1382.

Extreme and Super Extreme DUI Laws

Binge drinking is the number one cause of high Blood Alcohol Content (BAC) in drivers arrested for of Extreme and Super Extreme DUI charges in Arizona. According to the CDC, drivers who engage in binge drinking are 14 times more likely to be arrested for impaired driving, than a motorist who has not engaged in binge drinking.

Arizona also has what are known as Extreme and Super Extreme DUI laws. They exist to provide increased and more severe penalties for those guilty of driving with higher BAC levels.

Extreme DUI laws are violated when a motorist is driving with a BAC level of 0.150 to 0.199, under A.R.S. 28-12382 A (1).

The Super Extreme laws are violated when a motorist is found guilty of driving with a BAC of 0.20 or higher A.R.S. 28-12382 A (2).

The primary cause of high BAC levels is Binge Drinking, which results leads to Extreme DUI and Super Extreme DUI arrests.

In Arizona, a breath test refusal will result in a one year loss of driver’s licenses, whether a person is driving impaired or not under the influence of alcohol or drugs. Also, there is a risk that if the driver refuses, the police may obtain a warrant to administer a DUI blood test in the alternative.

If a driver in Arizona consents to a breath or blood test, or police obtain a search warrant to perform a blood test, and the test returns a result of a BAC between 0.15 and 0.20, that driver may face charges of extreme DUI. While any charge for driving under the influence has far-reaching consequences, an extreme DUI or super can be especially severe. The general rule in penalties for impaired driving is, the higher the BAC, the more harsh the penalties will be. 

Extreme DUI Penalties in Arizona

A driver convicted of Extreme DUI for the first time will face:

  • A fines, fees, and assessments totaling $2,500.00;
  • Jail terms of 30 consecutive days;
  • Driver’s license suspension/revocation of at least 90 days
  • Mandatory installation of an ignition interlock device 1 year;
  • Completion of an approved alcohol or drug education program, a DUI course and counseling for alcohol or substance abuse;
  • Probation, and/or community service or restitution

However, it’s also very likely that consuming eight alcohol beverages in one sitting will lead to a BAC at or exceeding 0.20, and result in charges of super extreme DUI.

Super Extreme DUI Penalties in Arizona

A driver convicted of extreme DUI for the first time will face:

  • A fines, fees, and assessments totaling $2,750.00;
  • Jail terms of 45 consecutive days;
  • Driver’s license suspension of at least 90 days;
  • Mandatory installation of an ignition interlock device 18 months;
  • Completion of an approved alcohol or drug education program, a DUI course and counseling for alcohol or substance abuse;
  • Probation, and/or community service or restitution

Repeat DUI violations call for even more severe punishments. A third DUI of any kind within 84 months with any BAC is considered an Aggravated DUI which is a felony in Arizona. All felony charges expose a person to prison terms and other felony penalties.

What is Binge Drinking?

The National Institute on Alcoholism and Alcohol Abuse (NIAAA) defines binge drinking as a pattern of alcohol consumption that drives a person’s BAC to 0.08 percent and higher.

The amount consumed generally translates to 4 or more drinks within 2 hours for women, and 5 or more alcohol beverages for men during a 2 hour time span. The faster a person consumes the alcoholic beverages the more quickly and higher the resulting BAC level.  The NIAAA defines a standard drink of spirits as an equivalent of a 12-oz beer, 5-oz glass of wine, or 1.5-oz shot of distilled liquor.

Causes of Binge Drinking

While people of all ages engage in binge drinking, one of the most simplistic but resourceful  article on this topic was from the BACCHUS Network. BACCHUS stands for “Boosting Alcohol Consciousness Concerning the Health of University Students”, who for over 30 years have supported and promoted student leadership in health and safety education.  They list the following causes:

  • Lack of alcohol education and experience;
  • Misperception that binge drinking or drinking in excess is normal;
  • Drinking too much to fast
  • Participating in “drinking games” with peers or friends;
  • Doing “Shots”;
  • Pre-party drinking, also referred to as “front-loading” alcohol before going out

While these causes may have been identified in college students they can apply at any age.  Some additional causes noted by addiction psychologists and clinicians, and in other research studies, include low self-esteem, social anxiety, general anxiety, major or acute depression, stress, peer pressures, avoidance of problems, curiosity, rebellion, social euphoria, and alcoholism.

Non-DUI Crimes that Involve Excessive or Binge Drinking

The National Council on Alcoholism and Drug Dependence, Inc. (NCADD) reported that alcohol is a factor in our 40 percent of all crimes committed.    Based on statistics from the US Department of Justice, the NCADD reported that excess use of alcohol is a factor in approximately 3 million violent crimes each year.  Violent Crimes reported include assault, aggravated assault, domestic violence, and robbery.   Other crimes associated with excessive drinking are disorderly conduct or disturbing the peace, criminal trespassing, vandalism, and criminal damage to property.

Injury Risk Factors related to Excess or Binge Drinking

According to the National Centers for Disease Control reported that excessive drinking is the leading risk factor in the United States for Injuries and preventable deaths.  Causes of injury and fatalities include alcohol poisoning, burns, drowning, falls, auto crashes, cuts, eye injuries, head injuries, and other blunt trauma.   In many of these cases, persons involved in these incidents may be held criminally responsible for the victim’s injuries or death.

New National Centers for Disease Control Report: Alcohol Poisoning  

On January 9, 2015 the National Centers for Disease Control provided an early release a “Vital Signs: Alcohol Poisoning Deaths — United States, 2010–2012” from weekly Morbidity and Mortality Report.

The New CDC statistics reveal 38 million Americans binge drink 4 times per month; six people die from alcohol poisoning every day.   Alcohol dependence was a contributing factor in only 30 percent of the alcohol poisoning deaths. In a majority of these deaths alcohol dependence was not listed as a contributing factor.  This was consistence with other recent studies which concluded that 9 out of 10 adults who binge drink, were not alcohol dependent.

While binge drinking is defined as consuming four drinks on one occasion for women or five for men, the study found that the average number of drinks consumed per episode was eight.  Drinks served at bars or other special occasions can actually be much larger than this. A person consuming a 24 oz. beer, for example, would be consuming two drinks at once, according to the CDC’s metrics. A person who drinks two of these in one sitting has consumed four drinks and, therefore, is binge drinking according to the report’s standards. Only around 10 percent of those who died of alcohol poisoning were considered dependent on alcohol. Most victims were those who consumed too much alcohol on one occasion.

According to the NIAA, a division of the National Institute of Health, alcohol poisoning occurs when there is so much alcohol in the bloodstream that parts of the brain controlling basic bodily functions, including breathing, heart rate and temperature control, begin to shut down. When a person consumes an alcoholic beverage, the liver metabolizes the alcohol, eliminating it from the blood stream, at a rate of about one ounce per hour. Alcohol that has not yet been metabolized remains in the bloodstream, which is why people experience intoxication. As alcohol builds up in the system, it can lead to alcohol poisoning.

The amount of alcohol that could lead to poisoning may vary from person to person, and depend on a wide number of factors. These factors include weight, height, how much food the person has consumed and genetics. Sex is also a factor. However, while men are physiologically less susceptible to the effects of alcohol, the CDC study shows that around three quarters of alcohol poisoning deaths occur in men. The highest death rate was for men age 45-54.

It also varies greatly depending on the type of beverage consumed. Drinking 12 ounces of beer in one sitting would not even lead to legal intoxication for many people. Drinking 12 ounces of tequila, however, would be dangerous and, in some cases, deadly.

Research suggests certain impairments which can result given certain BAC levels. But numerous factors that can cause variances in how many drinks will cause an individual to suffer from alcohol poisoning. However, BAC levels of .37%-.40% or higher have been known to cause death.

According to the NIAAA, some symptoms of alcohol poisoning include:

  • Confusion, stupor, coma or inability to wake up
  • Vomiting
  • Seizures
  • Slow breathing (fewer than eight breaths per minute) or irregular breathing (10 seconds or more between breaths
  • Hypothermia
  • Blue or pale skin color

The number of deaths due to alcohol poisoning reported by the CDC may surprise many, poisoning is far from the leading cause of alcohol-related death. According to the National Highway Transportation Safety Administration (NHTSA) nearly four times as many — more than 32,000 nationwide in 2013 — die due to impaired driving accidents. Like alcohol poisoning, binge drinking plays a significant role in driving under the influence.

While effects vary from person to person according to factors like the ones listed above, consuming eight or more drinks in a relatively short period of time is, at the very least, likely to give most people a blood-alcohol content (BAC) of above 0.15. The BAC figure is a reflection of how many parts of a person’s blood are alcohol. A BAC of 0.15 means that a person has 1.5 parts alcohol for every 1,000 parts of blood.

What to do if You Suspect Someone Has Alcohol Poisoning

The NIAAA urges persons experiencing alcohol poisoning symptoms to seek immediate medical attention.   Below are some additional recommendations and warning by the NIAAA:

  • Witnesses, friends or family should recognize signs and symptoms early.  Either seek or call for professional emergency medical attention.
  • Do not wait for the person to show signs of all alcohol poisoning symptoms. A person does not need to have all of the signs if they have consumed a dangerous or potentially fatal dose of alcohol.
  • Unconsciousness can lead to fatality. Never leave an unconscious person unattended without seeking immediate medical attention for calling 911.   There are a number of reasons for this including asphyxiation from vomiting.  If the drinker survives, the  overdose may still result in long term brain damage
  • Do not try to convince a person to drink hot coffee, walk, or take a cold shower. These activities, do not reverse the effects of alcohol overdose, and could actually worsen the patient’s condition.

Qualified medical staff and doctors at the hospital will follow overdose protocol, manage breathing problems, administer fluids for dehydration and low blood sugar, and flush the stomach to help clear the body of toxins.

7 DUI Safety Tips

Below are some DUI safety tips, including those provided by the National Centers for Disease Control (CDC):

  • Plan for a designate a non-drinking driver in advance;
  • Download a taxi or ride share application to your cell phone before going out;
  • Take advantage of free ride programs available such as “AAA’s Tipsy Tow” Service
  • Don’t let your friends drive impaired;
  • Don’t get in a vehicle with a driver who has been drinking, especially if they have been drinking heavily;
  • Call a trusted friend, family non-drinking member for a ride home;
  • If you’re hosting a party be sure to offer alcohol-free beverages as alternative; and make sure your guests have a sober ride home.

10 Alcohol Consumption Safety Tips

The CDC warns people not to drink alcohol in the following situations:

  • A person is pregnant or plans to become pregnant;
  • If they are taking prescription, or over-the-counter drugs that may be harmful or cause drowsiness when combined with alcohol; If unsure, speak with the doctor who prescribed the drug;
  • If a person is under the age of 21 (in Arizona);
  • If a person is unable to control the amount of alcohol they drink;
  • If a person is a recovering alcoholic;
  • If a person suffers from seizures, black-outs, or other medical condition that may be aggravate their condition.

If you are going to drink, what you should do:

  • The CDC recommends moderate drinking, in the amount of no more than one per day for women, or two per day for men;
  • If you are going to drink more than the moderate amount, limit the speed of consumption to one per hour. Keep in mind, however, that you may still be at risk for DUI in this case;
  • Decide in advance what type of alcohol is safe for you and your limit in advance. Then stick to it;
  • Just say “no” to “shots” of liquor

What to do if You Face DUI or Criminal Charges in Phoenix – East Valley AZ

If you have been arrested for any impaired driving charges, by law you are entitled to defend your charges.  This is the case, no matter how high your BAC, Extreme, or Super Extreme Charges.

During a DUI investigation the police may have administer breath or blood testing.  They will also rely on their own observances as well as road side testing to determine if you were driving impaired.

DUI defenses for high BAC may include challenges to breath, blood or other chemical testing, including administration, processing, storage, and transport. Other challenges may exist for your charges including the reason for the stop, police procedures or instructions, or other constitutional rights violations.

It is important that you retain an experienced criminal defense attorney to represent you and defend your charges.  Your attorney will gather the evidence and conduct an investigation to determine if your rights were violated, examine the validity of any testing results, and gather any favorable evidence available on your behalf. An experienced DUI attorney will work to get the charges dismissed, evidence suppressed, charges or penalties reduced, or other favorable outcome in your case.

James Novak of The Law Office of James Novak is an experienced and highly skilled DUI and Criminal Defense Attorney.

James Novak, a former prosecutor in Maricopa County. He exclusively defends criminal and DUI charges in Phoenix East Valley cities including Mesa, Tempe, Mesa, Tempe, Chandler, Gilbert, and Phoenix-Metro, AZ.  The Law Office of James Novak provides free initial consultation for active charges, and will provide a strong defense if retained.


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Arizona’s “Drive Hammered, Get Nailed” DUI Enforcement Heats Up

Extreme & Aggravated DUI on Priority Arrest List; but all Impaired Drivers at Risk

The Arizona Department of Public Safety announced today that it expects heavy travel traffic in the state this week.  Officers will be looking out for motorists driving impaired due to drugs or alcohol, distracted, drowsy, and impatient driving. History reveals that these factors result in arrests, and have proven to cause serious injury and deadly crashes.

During the winter months, the state of Arizona draws many visitors for its warm sunny weather, to visit family and friends, and to enjoy the many outdoor activities and attractions our sunny state has to offer. This is particularly true around the holidays.

Arizona has earned a reputation for being a leader in DUI enforcement, and having some of the toughest impaired driving laws and punishments in the country.  What might be legal the state you have traveled from, might not be lawful in Arizona.

If you are a new driver to Arizona, visiting for the holidays, or in town for the 2015 Super Bowl, you should be aware of impaired driving laws, and increased DUI and Law enforcement

“Drive Hammered Get Nailed” – Campaign Apply to all Impaired Drivers  

The state is the midst of its 29th annual DUI enforcement Campaign for the end of year holidays.   So if you are driving in Arizona this holiday season you will see electronic billboards that read “Drive Hammered, Get Nailed”.  The signs and media announcements are warning drivers to stay off the road if they plan to drink as part of their holiday festivities.

The “Drive Hammered…Get Nailed” message used in the Arizona’s DUI enforcement campaigns, on signs, bill boards and in the media for over last two decades has often been misunderstood. Some motorists perceived it as applying only to those motorists who are “falling down drunk” or “hammered” are at risk of DUI arrest. But the fact is, that it applies to all impaired drivers. A person can be arrested for DUI even if their BAC is below the legal limit of 0.08 percent in Arizona.  That is the case if their driving abilities are “impaired to the slightest degree” by drugs or alcohol in violation of A.R.S. 28 – 1381 (1) of Arizona State Law.   Also, impaired driving arrests are not limited to driving under the influence of alcohol. A motorist can also be prosecuted if they are under the influence of drugs in violation of A.R.S. 28 – 1381 (1) (3).

Arizona Efforts for Increased DUI Enforcement during the Holidays

A few weeks ago, the Arizona Governor’s Office of Highway Safety (AGOHS) released the following DUI enforcement statistics that reflected an increase in over last year in DUI categories. They include Extreme DUI, Aggravated DUI (Felony), and the average Blood Alcohol Content (BAC) levels for drivers that were arrested for impaired driving.   The average BAC for an impaired driver arrested was .0152 percent, in violation of A.R.S. 28 -1382 Arizona’s Extreme DUI Laws.

Law enforcement officials generally respond to these statistics with vigilance and increased law enforcement efforts.  Consequently, drivers can expect heightened presence in police identification, arrests, and prosecution of Extreme DUI and Felony DUI charges.   Increased Police DUI enforcement generally includes DUI Safety Checkpoints. This is where drivers are stop randomly at a predetermined location to seek out motorists impaired due to alcohol or drugs.  Arizona has adopted many of the National Highway Traffic and Safety Administration NHTSA Guidelines for DUI checkpoints.  As part of these guidelines police are required to stop vehicles according to a mathematical formula that is decided in advance by police agency authorities and city officials.

For example, Police may stop every vehicle or use a regular interval such as every other vehicle or every fifth vehicle. Arizona conducts these checkpoints at least once per month, and the Arizona Department of Public Safety (DPS) states that the costs of conducting a checkpoint average about $8,900 although checkpoints reduce alcohol-related fatalities by at least 15 percent and save approximately $62,500 per checkpoint.

The Centers for Disease Control and Prevention (CDC) found that checkpoints reduced alcohol-related fatal, injury, and property damage crashes by about 20 percent each. Sobriety checkpoints are designed and publicized more to discourage impaired driving rather than result in increased DUI arrests.

Another police enforcement strategy you will likely see is a large number of police officers saturating a specific geographic area. This usually takes place in traffic routes where a larger number of impaired motorists are expected to be driving. The police officers usually patrol in higher numbers, than those found at safety checkpoints.

During come saturation patrols, DPS may provide additional resources to assist with the processing of motorists arrested for DUI so officers can return to patrol duty much more quickly after making an arrest.

All of these efforts are designed to have a deterrent effect of impaired driving due to drugs or alcohol, as well as violations of other criminal and traffic violations.

According to the Arizona Republic, roughly 4,000 drivers have been arrested for drunken driving in the holidays for the past several years.  If drivers know they will be consuming alcohol it’s important to plan ahead.  Drivers who plan to drink alcoholic beverages should make alternative arrangements beforehand for a designated driver or other alternative arrangements for transportation, to avoid driving while under the influence of alcohol.  If you didn’t plan to drink, but did, you should consider calling a taxi, or other trusted person to drive you home.

Arizona DUI Laws and Penalties

DUI convictions can result in serious adverse impacts on a person’s life, freedom and future. Criminal penalties for any impaired driving conviction are harsh.  All Misdemeanor impaired driving convictions call for jail terms.  All Aggravated DUI charges (Felonies) expose a person to prison terms.

Below are some of the specific penalties for various and common types of DUI:

  • First DUI — Driving “impaired to the slightest degree” below 0.08 percent; or 0.08 percent but less than 0.15;  call for 10 consecutive days in jail a driver’s license suspension of 90 days; one year installation of ignition interlock device, $1,250.00 in fines, fees, costs and assessments; alcohol/substance abuse education, screening or counseling; and probation.
  • Second DUI — A second DUI with a prior impaired driving conviction within 7 years calls for $3,000 in fines, fees, costs and assessments;  driver’s license revocation of one year;  one year installation of ignition interlock device: and up to 90 days in jail: alcohol/substance abuse education screening or counseling; and probation. 
  • Extreme DUI — A first offense violation of Extreme DUI laws with a BAC of at least 0.15 but less than 0.20 calls for a minimum of 30 days in jail;  $2,500 fines fee, and assessments;  driver’s license suspension of 90 days, one year installation of ignition interlock device, alcohol/substance abuse education screening or counseling; and probation.
  • Super Extreme DUI — A BAC of 0.20 or higher calls for calls for a minimum of 45 days in jail; $2,750.00 fines fee, and assessments; driver’s license suspension of 90 days, installation and use of ignition interlock device for 18 months after reinstatement, alcohol/substance abuse education screening or counseling; and probation. 
  • Aggravated DUI — An Aggravated DUI is a Felony.  It is an impaired driving offense that involves what the state considers to be “Aggravated factors”.  These factors include a third DUI or subsequent DUI or with two prior convictions within 84 months or 7 years; a DUI while on a suspended, revoked or cancelled license; a DUI while driving with a passenger under the of 15 in the vehicle; or an impaired driving incident that resulted in a serious injury or wrongful death of another; DUI while an ignition interlock device is installed in the vehicle, which may also result in a minimum fine of $750 plus surcharges.  Penalties expose a person to a minimum of 4 months in prison, $4,000.00 fines, fees, costs, and assessments, a driver’s license revocation of one year,   installation of ignition interlock device for two years, alcohol/substance abuse education screening or counseling, and possible vehicle forfeiture, and a felony criminal record. Other penalties may apply.
  • Under Age DUI – A person under the age of 21 driving with any alcohol in their system at all, regardless of whether or not they are driving impaired is in violation of Arizona’s Underage 21 Drinking laws.  Penalties for first time underage DUI conviction include two year driver’s license denial, or suspension; $500 fines, alcohol/substance abuse education, screening & counseling, and community service.

Other Consequences of DUI Convictions

In addition to criminal penalties, criminal offenses and impaired driving convictions result in civil consequences sometimes referred to as collateral consequences.  Spending time in jail or prison along with paying hefty fines is for most people, overwhelming and traumatic. Losing driving privileges at any age can be devastating as well.

But there are other adverse consequences that result from a conviction which include being suspended or terminated from job or school;  difficulty obtaining a job; inability to obtain credit , loans, or financial aid for school; adverse impacts on residency; inability to pay financial obligations or bills, lack of transportation, and adverse impacts on loved ones.

Criminal Rights for DUI Arrest

If you are arrested for DUI, keep in mind that this is only the beginning of the criminal process.

An arrest is not a conviction. Once the police have made a decision to arrest you or file a formal complaint, you are not going to change their mind. Attempting to do so will only make matters worse for you.  In fact, your stand the risk of being hit with additional charges such as resisting arrest,  aggravated assault on police, disorderly conduct or other charges. Resisting arrest can often cause bodily harm if the officer feels threatened by your actions in any way.

Here is the best way to handle the ordeal if you’ve been arrested:

  • Be cooperative during the arrest and booking process;  
  • Provide routine identification if requested at the arrest or police department;
  • Invoke your rights to remain silent, even if you have not been read your Miranda Rights;
  • Do not discuss details of your case with friends or family, or social media as they can be subpoenaed for statements that may incriminate you;
  • Consult a criminal defense attorney as soon as reasonably soon as possible

10 Common Defenses Used to Defend DUI Charges

People often wonder how an attorney can help them defend their DUI, particularly in the case of an Extreme BAC, Super Extreme, or Aggravated DUI charge. The fact is that there are many defenses that can be used to challenge evidence and defend DUI charges. If effective, they may lead to suppression of evidence, dismissal, acquittal or other favorable outcome.

Below are common defenses criminal defense attorneys may use to defend your charges:

  • No reasonable suspicion for the stop;
  • Stop was unlawful for other reasons such as Mistake of Law;
  • Challenging the validity and accuracy of Field Sobriety Tests;
  • Breathalyzer test challenges;
  • Blood Test or other Chemical Test Challenges;
  • Prior DUI charges not valid for use for increased sentencing or reclassification of current charges;
  • Miranda Warning not read;
  • Jurisdiction challenges
  • Trial Defenses
  • Other Constitutional Rights violations

The most effective way to defend your charges is have an experienced criminal defense attorney represent you.  If retained they will evaluate your case to determine the defenses strategy that will likely lead the most favorable outcome in your case.  Your defense case should be carefully tailored to the unique circumstances surrounding the incident and your arrest.

Experienced Criminal Defense for All Types of DUI Charges in Tempe, AZ

If you have been arrested for any type of DUI offense in Maricopa County, you should immediately seek the legal assistance of a highly experienced criminal defense attorney. You only have 15 days to dispute an administrative suspension of your license, and you will want to begin developing the best legal defense as soon as possible.  The most successful outcomes in cases are those that involve early and effective legal representation.

About the Author

With 17 years of DUI and criminal law experience, James has a vast amount of knowledge and litigation experience.  For the majority of his career he has exclusively defended DUI and criminal cases.  He is also a former prosecutor in Maricopa County.  He provides a free consultation, and if retained defends active clients who face active charges in Tempe, Mesa, Gilbert, Chandler, Scottsdale, Phoenix, and surrounding Phoenix-metro cities.

In addition to his profound legal acumen, James Novak has also written three books about winning DUI defense strategies.  He has a baccalaureate degree in engineering that provides him with in-depth knowledge of forensics, lab testing and possible inaccuracies or errors in this aspect of the criminal process.  He also has an advanced degree in psychology which assists brings to the case a great deal of knowledge in the areas of Drug DUI defense.

He is dedicated to protecting the constitutional rights of every person he represents, and will treat everyone case, large or small with priority, and labor intensive representation.

Additional Resources

Overview on Arizona DUI Laws

Arizona Strategic Highway Safety Plan

Arizona Motor Vehicle Crash Facts 2013

Arizona DUI Enforcement Statistics (2004-2013)

National Highway Traffic and Safety

Other Articles of Interest

Holidays busy for DUI Task Force

Officers cracking down on impaired drivers

Celebrating the holidays make sure to have a designated driver

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Grand Juries: A Look Behind the Curtain

An Overview of the Role, Purpose, and Processes of Grand Juries in the Criminal Justice System.

Police Involved in Deadly Shooting in Phoenix, AZ

Tragedy struck home in Phoenix AZ, last week, resulting in the eruption of protests here in the valley.  This, following reports of another fatal officer involved shooting of an unarmed suspect.

According to news reports the police officer approached a vehicle in an apartment complex after being given a tip that a drug deal was taking place in an SUV. After the officer saw a gun and drugs in the vehicle, he gave the suspect several commands.  The suspect failed to obey them, and fled on foot. The officer chased him, and a scuffle ensued.  During the scuffle the suspect reached into his left pocket, for what the police officer claimed he feared was a gun. The officer then fatally shot the suspect. What was later found in the suspect’s pocket was, not a gun.  It was a pill bottle of Oxycodone.  The officer was uninjured.

According to reports the officer is on paid leave, pending the outcome of an investigation in the fatal shooting.

News Update December 9, 2014:  The Medical Examiner’s autopsy revealed that the suspect died of a gunshot wound to the torso, ruling the cause of death homicide. That does not mean that a crime was committed or charges will be filed against the officer. It means that the the suspect died at the hand of another.

Protests continue in Phoenix, at and around the police department.  News reports indicate more protests are planned for tonight and this week.

Unrest in Arizona and around the Country

Meanwhile, around the country, protests continue in several other officer involved fatalities in which the suspects were unarmed.  Heightened discussions surround three key issues: police use of deadly force, racial profiling, and the practice of using Grand Juries to determine whether or not criminal charges will be brought against the officer(s) involved.

Though each of these elements is intertwined, they are fundamentally unique concepts.  All deserve extensive discussion time, and advocacy. Many have expressed a desire to learn more about the Grand Jury process of indictment.  So for now in this article, we will focus on gaining an understanding of the Grand Jury Processes, in Maricopa County and in the United States of America.

My goal is to provide clarity and information regarding the Grand Jury processes, for those who wish to learn more.  And my hope is that by doing so, those who read it will gain an enhanced ability to understand how the Grand Jury process may impact them, their families suspected of a crime. Further, for others my goal is to heighten awareness, and enhance their knowledge of the processes to enable them to formulate educated opinions in serious and deserving discussions.

Purpose of Grand Juries

Grand Juries have been a key element of the criminal justice system for centuries. However, they are perceived by many as being an obscure or hidden process.

There’s good reason for this.  That is because by design, Grand Juries are intended to be secret.  In fact, a suspect is often unaware that they are under investigation for a crime, which is one purpose of the secrecy.

Other reasons for secrecy are to preserve facts and evidence and to make sure it doesn’t disappear, get destroyed, or altered.  The secrecy is also intended to protect the potential suspect’s reputation, if they are not indicted in the charges.

Grand Juries and Jurisdiction over Cases

Grand Juries may be held at the County, State or Federal level.  The primary consideration for jurisdiction will be determined is the nature of the charges.

County Grand Juries consist of at least 12 but not more than 16 jurors.  They hear the evidence presented by the Maricopa County Prosecutor and witnesses they have called. The County Grand Jury decision is based on a simple majority as to whether or not probable cause exists to bring criminal charges.  County Grand Juries typically hear cases involving crimes against victims such as aggravated assault, sexual assault, burglaries; as well as some drug offenses.

State Grand Juries consist of at least 12 but not more than 16 jurors.  They typically hear criminal matters that pertain to the state, at the request of the Arizona Attorney General. These types of offenses generally involve white collar crimes, frauds and schemes, or forgery.

Federal Grand Juries hear evidence by a Federal Prosecutor at least 16 but not more than 23 jurors.  They primarily hear evidence in cases pertaining to serious felony cases for which the United States is a party.  These include cases involving US Constitutional or Federal violations, bank robberies, interstate drug trafficking and sales, violations of Constitution or Federal Laws, crimes on and land owned by the Government.

History of Grand Juries

Like most elements of American jurisprudence, the grand jury has origins in English law. The Magna Carta, signed by King John in 1215, says that four out of 25 barons selected by other barons will report transgressions.

The U.S. Constitution has a guarantee in the Fifth Amendment that no person will be held to answer for a capital or “infamous” crime outside of the presentment or indictment of a grand jury. However, this provision has not been incorporated to the states, meaning it only applies to alleged violations of federal law.

Most states utilize grand juries in some manner. Grand jury procedure at a state law is determined by state laws, which often differ.

One thing that is consistent across states, including Arizona, is that grand juries do not decide guilt. They do not return a “verdict.” They only decide whether probable cause exists to bring a person to trial for a crime.

Laws and the Grand Jury Process

Arizona does not require a grand jury to bring any type of charge against a person. There are two ways that a person in Maricopa County may face felony charges: 1) Through a formal complaint filed by the prosecutor; and 2) through an indictment by a Grand Jury.

A complaint, filed by the prosecutor, initiates a preliminary hearing, in which a judge hears witnesses and evidence to determine whether there is sufficient probable cause for a criminal trial. Complaints are the more common way that people are accused of felonies in Arizona.

A Grand Jury proceeding is, simply put, another tool at the disposal of the prosecutor.  Though it is the judge’s sole discretion to determine if public interest requires the need of a Grand Jury, it is the prosecutor who petitions it pursuant to A.R.S. 21-402 guidelines.    The grand jury hears witnesses and reviews evidence provided by the prosecution. If it determines probable cause exists, it issues an indictment.  

In Maricopa County, the presiding judge of the Superior Court to call a grand jury every four months. The Grand Jurors are randomly pre-selected individuals selected by the jury Commission or Jury Manager pursuant to A.R.S. 21-331 summons to serve on a grand jury panel for the term. The jury commissioner or manager determines the specific number of persons to be summoned for the court location and date.

The Jury commissioner under Arizona law is a clerk of the superior court for those counties, such as Maricopa County.  The Maricopa County Superior Court Judges appoints Jury Commissioners.  In Arizona law those who qualify to serve on Grand Juries must be 18 years or older; be a citizen of the USA; be a resident of the jurisdiction in which a grand jury has been summoned at the petition of the prosecution; whose name and address appeared on a master jury list pursuant to A.R.S. 21-30; has no criminal record of a felony conviction; and is mentally competent.

The term of the jurors is 120 days. A typical grand jury in Maricopa County has 16 members, but can have as few as 12 under law. Nine members must be present for the jurors to deliberate.

The county prosecuting attorney decides what evidence will be presented and what witnesses will be called, and then presents alleged criminal offenses to the grand jury. Unlike some other states, the grand jury in Arizona does not initiate investigations. If a grand juror believes a crime has been committed that has not been presented, they are to go to county attorney or the presiding judge.

The grand jury will review the evidence the prosecution has provided to them.  The evidence does not have to be admissible in court, and there is neither defense attorney nor any opportunity for the person under investigation to object to or challenge the evidence.

The Grand Jury may hear from witnesses, and can call any other witnesses they believe would be helpful to their decision. Both the jurors and the prosecuting attorney have the opportunity to question the witnesses. The person being investigated does not.

In a trial, the accused is not compelled to testify, and rarely does so. In a grand jury proceeding, though, the person may be called. He or she will be sworn under oath. He or she retains the right to remain silent (and must be reminded of that right).

Under Rule 12.5 of the Arizona Rules of Criminal Procedure, counsel for a witness may be present during a grand jury session if that witness is under investigation. However, that person’s lawyer may not speak during the session to anyone other than his or her client. The attorney may advise the person under investigation during his or her testimony.

If the person under investigation wishes to submit favorable evidence to the grand jury, he or she may request to do so. However, the grand jury is under no obligation to consider it.

An indictment requires at least nine of the grand jurors to agree to the charges. This is called a “true bill.” If the grand jury declines to indict the person, it is a “no bill.”

The grand jury will indict a person if they find probable cause that he or she committed a crime. Probable cause is an objective standard meaning that circumstances would strongly justify a prudent and cautious person’s belief that facts are true — in the case of a grand jury, that a crime had been committed.

Grand jury proceedings are secret. If a person is indicted, they do not have a right to know who testified, what they said or what evidence the grand jury considered. Secrecy is enforced to allow witnesses who would be reluctant to speak in a public hearing speak, to prevent a person from interfering with the investigation, to decrease the likelihood that a person being investigated will flee and to protect the identities of people investigated by a grand jury but not indicted.

Grand juries have been criticized for their secrecy.  Historically, they have also been criticized for the tendency of the juries to tilt decisions in favor prosecution. New York Judge Sol Wachtler once famously said a prosecutor could convince a grand jury to indict a “ham sandwich.”  This is because the grand jury is “fed” the evidence from a unilateral perspective, of the prosecution.   Grand juries are simply put, another tool for use by the prosecutor, whose job it is to get an indictment.

Depending on how the evidence or witness testimony is presented, the prosecution almost always has the advantage. So if they truly want to bring charges, it’s rare that they do not get the indictment.

The grand jury proceedings are informal, and the Prosecutor is the orchestrator, attendant, supervisor, and presenter of evidence.   It is inevitable that the Grand Jurors will tilt towards the prosecution, because there are no objections to the evidence made by the criminal defense, and no intervention by defense to have unjustified evidence suppressed.  There is no opportunity for a criminal defense attorney to present challenges to Constitutional Rights violations, or argue other defenses that may apply.

This is why in most cases a suspect ends up getting indicted on the charges.  The Prosecutor’s goal is to see that the Grand Jury finds probable cause to indict the suspect on charges.  Though the Judge is not present during the proceedings, the Judge acts upon the Grand Jury’s decision bring charges and proceed with indictment.

Why Double Jeopardy Rights Do Not Apply to Grand Jury Decisions

Another question that arose in recent weeks is whether protections under the 5th Amendment to the Constitution for Double Jeopardy apply to Grand Jury decisions.  The answer is no. This is because Double Jeopardy rights apply only to charges that have been legitimately prosecuted and resulted in a conviction, acquittal, dismissal, or resolved in pre-trial jury negotiations. The Grand Jury rulings merely provide an opinion as to whether or not there is probable cause for charges to be brought.

Further, even if the Grand Jury does not bring charges, it does not negate the Prosecutor’s authority to proceed with filing a complaint in the charges.  But it is extremely rare to see the prosecution impose this authority over the Grand Jury.

Why the Grand Juries became a Target of Controversy 

This brings us full circle to the current public unrest surrounding recent investigations of police involved fatalities.

Many feel that a trial would have been a more fair process to bring justice than utilizing the Grand Jury because of the due processes in trial, where both prosecution and criminal defense can present their case, where a judge can determine if certain evidence or testimony can be challenged, where constitutional rights violations, and other exculpatory evidence can be presented, and where a formal jury of peers, selected by both the prosecution and defense can decide if the suspect is guilty beyond a reasonable doubt.

This is a court of law young man, not a court of justice.

- Oliver W. Holmes, Jr

Some feel that the Grand Jury process used to hear cases involving police use of deadly force is a conflict of interest and unfair.  This perception is a product of the fact that the prosecution works closely with police to get convictions, so both parties are on the same team so to speak. As a result, in these cases people have expressed concerned about the lack of enthusiasm of a prosecutor when it comes to bringing charges against an officer.

However, the fact is that it has always been difficult to prosecute police officers, even if formal charges are brought. Police have a broad range of authority within their job to use deadly force when necessary.  With few exceptions, they have historically often prevailed in trial.  This is because juries often give law enforcement the benefit of the doubt, and rule in favor of police and public civil servants.

Grand juries were designed a certain way to best serve their purpose.  Its compelling however, that the USA is one of very few countries who use Grand Juries at all. Many either never adopted them to begin with, or have abolished them.

With the heightened controversy, I expect to see vigilance and prudence compel serious discussions about possible legislative proposals, and ballot initiatives for reform.  It’s not easy to change the constitution, so the other thing we can expect is that it will be sometime before we see changes either at state or federal levels.

Criminal Defense Representation for Pre-Indictment and Criminal Charges in Mesa, AZ

If you are under investigation by a grand jury in Maricopa County, it is important that you consult an experienced legal defense advocate or criminal defense attorney who can advise you of your options for defense including pre-indictment or pre-charge representation. This is a very important stage, and decisions you make now could determine whether you will face a criminal trial. The key to a successful resolution to your charges is early defense representation.

James Novak, Criminal and DUI defense attorney is a former prosecutor who can advise you during these proceedings. If the grand jury indicts you, he can provide legal representation for pre-trial and trial.  The indictment is only the beginning of the criminal justice process. It does not mean you are guilty of the charges for which you indicted. There may defenses that you are not aware of that can be used to get a favorable outcome in the charges. If your constitutional rights were violated, this often leads to suppression of evidence, dismissal or acquittal of charges.  If retained James Novak will conduct his own investigation of the facts to determine what defenses may apply, and formulate a defense strategy to obtain the best possible outcome in your case.

Additional Resources

Other Articles of Interest

I wish to extend a special thanks to Donald Petersen, Consumer Rights Attorney in Orlando, Florida, of Law Office of Donald Peterson for the inspiration and contributions for the content in this article. 

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“Blackout Wednesday” begins Heightened DUI Enforcement for the Holidays

Causes and Consequences of Extreme DUI and Super Extreme DUI Blood Alcohol Content (BAC) 

The Wednesday evening, before Thanksgiving, is sometimes referred to in pop culture as “Blackout Wednesday”. It earned this nickname, due to the popularity of binge drinking that night.

Though the term is used loosely, binge drinking and its consequences are very serious matters. According to the National Centers for Disease Control (CDC) Binge drinking can lead to loss of consciousness, coma, and death when alcohol is consumed rapidly in large amounts.

The CDC reports that excessive drinking was responsible for 88,000 deaths in 2013.   Binge drinking leads to extraordinarily high levels of Blood-Alcohol Content (BAC) at or above .08 percent BAC during a short period of time. It is defined by the National Institute on Alcohol Abuse and Alcoholism as drinking 4 or 5 alcoholic beverages within about 2 hours.

According to the CDC, most people who engage in binge drinking are not typically alcohol dependent. Most recent studies reported by the CDC which were conducted with combined efforts from the Substance Abuse and Mental Health Services revealed that 9 of 10 adults who indulge in alcohol excessively are not not considered physically dependent upon alcohol.  But the study also revealed that one out of every three adults did drink in excess, which includes the dangerous activity of binge drinking.

Those that binge drink, however, are often unaware of its hazards to their health, or the fact that it can result in impaired driving, serious injuries, fatal accidents and DUI arrests.

Arizona’s DUI Season Enforcement

The winter holidays bring many travelers to state to visit friends, family and to enjoy the warm weather in Phoenix, and throughout Maricopa County.   So for those who plan to visit or drive in Arizona, it is important to be familiar with the laws and the increased DUI law enforcement presence here in the valley, especially this time of the year.

The week of Thanksgiving traditionally marks the beginning of the holiday season, which law enforcement officials frequently refer to as “DUI season.” Until New Year’s Day, drivers in Arizona can expect to see increase patrols on streets and highways. Last year, law enforcement in Arizona made 3,042 arrests in this period for driving under the influence — more than 10 percent of all the DUI arrests made in the state in 2013.

There is usually a heightened presence with formal efforts from combined law enforcement agencies throughout the state.  Drivers can also expect DUI checkpoints in areas where there usually increased volumes of traffic.

Arizona has adopted many of the DUI checkpoint guidelines from the National Highway Traffic and Safety Administration (NHTSA).  The NHTSA guidelines for staging safety checkpoints also include polices that address public communications from law enforcement agencies or other officials about the checkpoints.  The NHTSA’s guidelines require that the locations of the checkpoints are to be widely publicized, with the purpose of producing a deterrent effect.    So a small number of motorists hear about then in the media or through word of mouth.  But the majority of drivers are unaware of these roadblocks until they find themselves in a DUI checkpoint line-up.

Arizona DUI Sentencing Considerations

Arizona has some of the toughest laws and penalties for impaired driving in the country.  A broad range of factors may apply in determining the specific charges a person might face, which will have an impact on the type of punishment received.

With regard to penalties, here are some fundamental Arizona rules:

  • The higher the BAC, the longer the jail or prison terms and more harsh the penalties;
  • Repeat offenses are treated harshly, and may raise a Misdemeanor to a Felony;
  • The more repeat offenses, the longer the incarceration or prison terms;
  • Aggravated factors surrounding a DUI will result in a Felony;
  • All Aggravated Impaired Driving (Felony) Charges expose a person to prison

Aggravated Factors

Under Arizona law A.R.S.  28-1383 a felony DUI is an impaired driving offense that is elevated to a felony due to one or more of the following Aggravated Factors:

  • 3 or more repeat DUI convictions within 84 months;
  • DUI while driving on an invalid, revoked, expired, or suspended license;
  • Impaired Driving with a passenger under 15 years of age in the vehicle;
  • DUI that resulted in a serious injury or fatal accident

Felony DUI charges expose a person to a minimum of 10 to 30 days, and up to 8 months or more in prison; $4,000 in fines, fees, and assessments; revocation of driving privileges for 1 year; installation and use of ignition interlock device (IID) in vehicle at the defendant’s expense for 2 years; possible forfeiture of vehicle; alcohol and substance abuse screening, counseling and treatment.

Arizona Impaired Driving, Extreme DUI, Super Extreme DUI Laws and Penalties  

The legal limit for driving under the influence of alcohol is .08 percent BAC.   Most people reach this level of intoxication after fewer than two drinks, or two ounces of liquor.

However, in Arizona it is also possible for a motorist to in violation of DUI laws if their BAC is below .08 percent if they are driving “impaired to the slightest degree” under A.R.S. 28-1381 (A) (1); or driving impaired due to drugs or their metabolite under A.R.S. 28-1381 (A) (3).

Penalties for a first time impaired driving with a BAC of .08 to .15 percent call for 10 day jail terms which may be reduced to one day with successful completion of an alcohol/substance program through DUI court; $1,250.00 in fines, fees, and assessments; Driving suspension for 90 days due to alcohol DUI; 1 year driver’s license revocation for Drug DUI; 6 months to 1 year IID; and probation.

Extreme DUI and Super Extreme DUI penalties are costly from the standpoint of the losses in freedom, driving privileges, finances, and other consequences.

An “extreme DUI,” under A.R.S. § 28-1382(A)(1), is an offense in which the accused drove or had actual physical control of a vehicle with a BAC between .15 and .20 percent.  A “super extreme DUI,” under A.R.S. § 28-1382(A)(2), means the driver had a BAC at or above .20.

While this may seem very high, when a person binge drinks, he or she may consume multiple “shots” of liquor in a relatively short period of time. This can cause an exponentially higher BAC. It also takes several hours for the liver to process the alcohol. Until that process is complete, the person will have alcohol in their system.

First time Extreme DUI penalties call for 30 day in jail, $2,750.00 in fines, fees, assessments, driver’s license suspension for 90 days;  IID for 1 year; participation in alcohol/substance abuse counseling and treatment program; and supervised probation. Other penalties may apply.

First time super extreme DUI  convictions call for 45-day jail terms, $2,750.00 fines, fees and assessments; driving suspension for 90 days; IID for 18 months, alcohol/substance abuse treatment program; and supervised probation. Other penalties may apply.

The most severe of DUI Extreme and Super Extreme convictions are reserved for 2nd violations within 84 months. Extreme DUI with a prior impaired driving conviction calls for 120 days in jail; 1 year driver’s license revocation; IID one year; fines fees and  for $3,250.00; probation or community restitution. Other penalties may apply.

Second Offense Super Extreme DUI with one prior within 84 months calls for 180 days in jail without eligibility of probation or suspension of sentence; $3750.00 fines, fees, and assessments; driving privileges revoked for 1 year; IID for 2 years; 30 hours of community restitution; and other penalties may apply.

Extreme DUI Defense in Tempe

A person who is arrested and charged with an extreme or super extreme DUI may believe they are in a hopeless situation and the consequences facing them are inevitable.  But by law, an arrest does not mean they will be found guilty.  They have the right to hire an effective DUI attorney to defend their charges.

In the criminal justice systems, a prosecutor’s job is to prove beyond a reasonable doubt that you are guilty, and get a conviction. They are paid by the jurisdiction or state, and work for them, not the defendant.  Judges and Prosecutors are not obligated to point out weaknesses in their case, unjustified charges, constitutional rights violations, or any other defenses that might lead to a dismissal, acquittal or favorable outcome in your case.

For these reasons it is important to retain your own skilled and experienced criminal defense attorney to be your legal advocate.  Your DUI defense attorney will make sure your rights are protected, and have not been violated.   If applicable, they will challenge the evidence brought forward. DUI tests are not infallible, and their results may be called into question. Your lawyer will investigate every step police took leading up to, during and after the arrest. Any mistakes made while cleaning or calibrating a device can result in test results being excluded by a motion to suppress.

Your lawyer will also examine the circumstances behind the traffic stop or how the checkpoint was set up. If the police lacked reasonable suspicion or failed to follow procedure, the arrest and any resulting evidence may be tossed out. This often leads to charges being dismissed.

15 Tips to keep Your Holidays Celebrations and Driving Safe

• Plan for a designated driver, or alternative ride home if you know you will be drinking;

• Take advantage of free ride programs such as Safe Ride Home by AAA;

• Call a taxi if you have not otherwise prepared an alternative ride home;

• Don’t let friends drink and drive;

• Be aware that other drivers on the street may be impaired, and drive defensively;

• When entertaining be sure to offer alternative non-alcoholic beverages;

• Do not engage in binge drinking

• Raise awareness to friends or family of the dangers, if you see them engaging in binge drinking;

• Get plenty of rest and say alert before traveling;

• If you are going to drink spirituous liquor, make sure you eat food with it;

• Try not to drink more than one spirituous beverage per hour;

• Know the age drinking laws in your state and do not offer, sell, or deliver liquor to underage drinkers;

• Never leave a friend or family member alone if they have drank excessively, engaged in binge drinking; or have become unconscious. Call or seek medical help for them;

• Obey the speed limit, and other traffic laws;

• Do not text or use any mobile devices while driving

The Law Office of James Novak would like to wish everyone as safe and joyful holiday season.  

Additional Resources

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Arizona Court of Appeals: Medical Marijuana Authorization Not Sufficient to Overcome DUI Charge

Qualified Medical Marijuana Users Remain at Risk of DUI Prosecution.

Authorized Medical Marijuana users in Arizona have legal authorization to use the substance, but could still be charged with DUI if considered driving under the influence of drugs, according to a recent Arizona Court of Appeals ruling.

The court ruled Tuesday in the case of Darrah v. Hon. McClennen/City of Mesa, that Arizona Medical Marijuana Act does not protect users from prosecution if there is an active marijuana metabolite or chemical compound in the body when the users get behind the wheel.

Arizona voters approved medical marijuana November 2010. The state law allows people with doctor approval to apply for a medical marijuana card. Patients must have at least one qualifying condition, such as cancer or glaucoma, to legally receive the substance.

The driver in Darrah v. Hon. McClennen/City of Mesa was an authorized medical marijuana user. He was charged with two counts of DUI in violation of Arizona Revised Statutes § 28-1381.

The Arizona law states it is illegal for any driver in Arizona to drive or be in actual physical control of a vehicle while under the influence of intoxicating liquor, any drug or the combination of any liquor or drug if the person is “impaired to the slightest degree.”

This means if a person who legally uses marijuana or ingests cannabis, and then is stopped while driving a vehicle, he or she could be charged with DUI.

This could be compared to the use of prescription drugs. A person who was injured could have a valid prescription for Vicodin, but if he or she took the substance and decided to drive, that person could be considered impaired, resulting in DUI charges.

The driver in the case submitted to a chemical test after the arrest. The test, according to the ruling, revealed his blood contained 4.0 ng/ml of delta-9-tetrahydrocannabinol, also known as THC.  THC is an active component of marijuana.

A jury acquitted the driver of one DUI charge which alleged he was under the influence of a drug. However, he was found guilty of one DUI under Arizona Revised Statutes § 28-1381(A)(3), which says a person cannot drive or be in actual physical control of a vehicle with any drug or its metabolite in his or her body. On appeal, the superior court affirmed.

The detection time for marijuana metabolites can vary based on several different factors. Frequency of marijuana use, timing of the test and body fat content all could affect the levels of THC in the blood and impairment.

In the cases of habitual or frequent users, such as those authorized for medical marijuana, THC can remain in the bloodstream and may be detectable for days after a single use, or weeks in chronic users.

The driver argued he was wrongfully charged and cited another Arizona statute that says, “Operating, navigating or being in actual physical control of any motor vehicle, aircraft or motorboat while under the influence of marijuana, except that a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.”

The court, however, disagreed. Judge Michael J. Brown wrote in his opinion that nothing in the voter-approved law supported the defendant’s claim. Arizona voters had not approved the law with the intent to bar the State from prosecuting authorized marijuana users, the judge wrote.

This case is critical when it comes to medical marijuana users and their right to get behind the wheel in Arizona. The rulings do not set any definite limits for how much marijuana has to be in a driver’s system before he or she would face DUI charges.

Discussion and Impact of the Ruling in Arizona

The Justices cited contrasting opinions as to the basis of their decision.  But in the end, they concurred that the conviction should stand.   The impact is that Qualified Medical Marijuana users are not  immune from Drug DUI prosecution and convictions, solely due to the fact that they are authorized users.

In the ruling the court cited a recent Supreme Court case which held that “non-impairing” metabolite of marijuana is not a “proscribed drug” listed in A.R.S. § 13-3401 and therefore, the mere presence of a trace substance in a person’s blood stream does not  support a DUI conviction.   But this case had differences, for one, an active Marijuana compound,  THC, was present in the defendant’s blood stream.

The defendant argued that the Marijuana DUI should be set aside because of the Medical Marijuana language in A.R.S.  § 36-2802(D) that serves as an exception to DUI prosecution when the sole presence of metabolites of marijuana exist that “appear in insufficient concentration to cause impairment.” 

Notably one Justice agreed that the exception applied in this case. However, the Justice opinioned that the defendant failed to show that the amount of THC found in his system was not sufficient to cause impairment.   The prosecution on the other hand, provided expert testimony to the fact that 4.0 ng/ml (nanograms per milliliter) could possibly cause impairment, based on some studies.

In several states where Marijuana has been legalized in some form, statues exists which all for a qualified user to driver with a specified amount in their system for example 5 ng/ml.  An amount  found that exceeds the specified limit, in the driver’s bloodstream will result in arrest and prosecution.

In contrast, Arizona laws to not specify an amount that is allowable for drivers; only that it must be an amount sufficient to cause impairment.

Consequently, unless the law changes, or there is a scientific and medical consensus that establishes an undisputed quantity that results in impairment,  this will continue to be an issue for the courts to decide in Arizona.   Litigation will likely continue in this area, and be determined on a case by case basis, and weighted heavily on the evidence presented in those cases.

DUI Penalties and Defense for Marijuana Cases

Marijuana DUI charges present complex issues, and are multifaceted in nature.  Especially in light of the Medical Marijuana laws and controversial issues surrounding the determination of driver impairment,  it is more important than ever, to retain a highly skilled and experienced drug DUI trial and defense attorney.

DUI allegations involving marijuana are just as serious as DUI allegations involving alcohol or any other intoxicating substance, regardless of whether or not the accused had authorization from a doctor. Like any other DUI offense or marijuana offense, you are entitled to legal counsel. An attorney can represent you in proceedings and advise you on your best options.

A person charged with a first offense Drug DUI can be convicted of a class 1 misdemeanor for a first conviction. This degree of DUI offense is punishable by a mandatory jail term of 10 consecutive days. Other possible penalties include:

  • 1 year driver’s license suspension for Drug DUI ;
  • Fines, fees, costs and assessments of $1,200.00;
  • Alcohol or drug education or treatment program, plus screening;
  • Probation; and/or Community restitution;
  • Installation of an ignition interlock device for 6 months to one year

Your lawyer will protect your rights and seek the best possible result for the charge you face. Contact a skilled DUI defense lawyer today if you face accusations involving DUI and marijuana.

Additional Resources

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Marijuana Mandatory Minimums: A Crime of Epic Proportions

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

Drug Conviction Results in Sentencing Typically Reserved for Murder

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Where Can You Purchase Recreational Marijuana in Arizona?

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

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

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

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

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

Marijuana Arrest Statistics in Arizona

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

Arizona Marijuana Laws

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

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

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

Arizona Drug Sentencing Factors in Convictions

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

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

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

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

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

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

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

Eligibility Guidelines for Participation in a Drug Diversion Programs

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

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

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

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

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

10 Criminal Defenses for Marijuana Possession/Use Charges

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

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

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

Marijuana Economics

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

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

Photo Credit: Donald Petersen, Law Office of Donald Petersen

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

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

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

Drug Defense Attorney for Marijuana Charges

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

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

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

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

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

On-Line Marijuana Purchase Turns Deadly

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

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

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

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

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

Where Can You Safely Purchase Medical Marijuana in Arizona?  

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

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

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

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

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

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

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

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

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

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

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

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

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

 AMMA Laws: Past, Present and Future    

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

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

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

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

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

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

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

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

Protections Not Afforded under Arizona Medical Marijuana Laws 

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

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

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

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

Out of State Card Holders

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

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

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

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

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

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

States v. Federal Laws in Legalizing Marijuana

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

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

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

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

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

Criminal Defense for Marijuana Crimes

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

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


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UNDERAGE DRINKING: Arming Youth Influencers with Safety and Prevention Resources

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

Resource Article – Part 2 of 2   

Underage Drinking: Subduing the Problem

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

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

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


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

Top Three Sources Arizona Teens Gained Access to Alcohol

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

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

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

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

Underage Alcohol Consumption:  National Statistics and Trends 

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

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

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

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

Consequences: Minor Consumption and Alcohol-Impaired Driving 

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

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

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

15 Causes of Youth Drinking

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

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

Seven Prevention Strategies for Parents 

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

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

10 Warning Signs That Your Son or Daughter May Be Drinking  

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

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

Four Main Treatment Options

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

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

National Prevention Efforts – Parental Influence is Key to Success    

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

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

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

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

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

Summary and Conclusions 

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

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

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

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

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

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

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

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

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

Maricopa County Mesa Arizona DUI Task Force Van

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

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

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

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

Youth Drinking Crisis: – Overview

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

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

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

Arizona’s Youth Drinking Reaches all Time High

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

7 of the Most Common Youth Drinking Crimes

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

Arizona Minor Consumption Laws (Excluding DUI)

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

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

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

Penalties for Possession or Consumption of Alcohol for Person Under 21

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

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

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

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

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

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

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

Penalties for Underage Drinking and Driving

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

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

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

Criminal Defense for Alcohol-Related Crimes

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

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

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

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


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

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AZ Court of Appeals Rules: Public Drunkenness Not a Crime

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

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

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

Criminal Court Proceedings Leading to the Appeals Court Ruling   

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

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

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

Analysis of the Appeals Court Ruling

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

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

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

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

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

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

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

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

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

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

Impacts of Ruling

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

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

Criminal Defense for Alcohol-Related Crimes in Arizona

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

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

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

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

Additional Resources:

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

Arizona Criminal Laws Limitations

Arizona Department of Health Services –Substance Abuse Treatment Facilities

Mothers Against Drunk Driving (MADD) Arizona

Scottsdale City Court Resources

Recent Blogs of Interest:

Scottsdale DUI Survival Guide

Arizona Supreme Court Ruling on Marijuana DUI

Risks and Consequences of Drug DUI

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