“Probation is a privilege that cannot be denied under AMMA; Penalties & criminal defense for probation violations.”
Nearly 5 years after the passing of Arizona Medical Marijuana Act (AMMA) the Arizona Supreme Court heard two cases involving denial of the privilege of qualified patients to use marijuana.
The Arizona Supreme Court held that a condition included in terms of their probation that denies Registered Qualified Patients the right to use medical marijuana is invalid and unenforceable.
They agreed to hear the cases on the basis that they involved recurring immunity under AMMA as they applied to plea agreements, and probation terms, had repetitive statewide impacts.
In an effort to narrow this discussion, we will focus on one of those cases.
Arizona Supreme Court Case and Ruling
The defendant pled guilty to marijuana and narcotic charges and sentenced to serve 1.5 years in prison, and three years of probation. In 2010, while the petitioner was still in prison, Arizona voters passed a ballot initiative in the Arizona Medical Marijuana Act (AMMA).
Among other terms included in the probation conditions, set forth in the plea agreement, at the time of signing, the defendant agreed to obey all laws, and refrain from using or possessing illegal drugs, toxic vapors, or controlled substances, or use or possess any prescription drugs without a valid prescription.”
After the AMMA became law, the petitioner applied for a medical marijuana card, to enable him to use medical marijuana to relieve pain from a “debilitating medical condition” he suffered.
Subsequently he qualified for the program, and obtained a registry card by the Arizona Department of Health (ADHS) for of Medical Marijuana.
While on probation, the petitioner’s probation officer added a new condition to the probation terms. This new condition specified that the probationer could not “possessing or use marijuana for any reason.”
The probationer asked the court to delete the new term due to his immunity under the new AMMA law. The court denied the motion.
The probationer then sought relief filing special action in the AZ Court of Appeals, due to the immunity protections under A.R.S. 36-2811 (B), which state:
“A registered qualifying patient or registered designated caregiver is not subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege.”
The Court of Appeals granted relief and agreed that a qualifying patient cannot be deprived of the privilege of probation, based solely qualified use of Medial Marijuana when it is being used in compliance with the AMMA.
The Arizona Supreme Court affirmed the Appeals Court Decision.
No Imposition of Penalties on Probationers using Marijuana Compliant with AMMA
The State opposed the Appeals Court to remove the condition that prohibited the use of Marijuana in any form by the probationer.
The state argued that imposing this prohibition on one convicted of a drug crime should be allowed, because it was a reasonable and necessary condition.
The court advised that the question before the court was not whether the condition was appropriate, but whether or not it was lawful.
The court agreed that while it the state and can and should be including reasonable and necessary probationary terms, the state is prohibited from including unlawful terms and unenforceable terms citing Coy v. Fields (State) 2001.
The AZ Supreme Court concurred that the AMMA possessed broad immunity provisions, and recognized that there were a few narrow exceptions, but that being a “probationer” was not one of this exceptions. Thus, it was their opinion that immunity applied to the probationer rather than excluding him from it.
“Probation is a privilege; Revoking Probation is a Penalty.”
The court held that probation is a privilege in Arizona, citing State v. Montgomery; and that revoking probation resulting from violations of those terms is a penalty, citing State v. Lyons.
Probation is a privilege because it allows a defendant to elect probation in exchange for a suspension or the imposing of incarceration for a specified term. However, crimes or convictions are eligible for probation.
If probation terms are violated the court may revoke the probation, and reinstate the order for the maximum sentence to be served in jail or prison, therefore, resulting in a penalty.
The Court found that revoking probation after having granted it is a penalty. Imposing this condition, therefore, was in violation of Arizona’s law, the Court ruled, because it would enact a penalty (revoking probation) for using medical marijuana.
The AMMA allows for marijuana use and possession within the confines of the law may not result in a penalty. The Court has found that granting probation to those convicted of crimes is a “privilege.”
If the probationer violated this condition in accordance with his qualified right to use Medical Marijuana under the AMMA, he faced certain consequences of having his probation revoked and likely returning to prison.
The Court also established of course, that use of medical marijuana does not violate Arizona drug law, A.R.S. 13-3408(g) because that statute specifies that narcotic and prescription drugs are prohibited unless “lawfully administered by a health care practitioner,” which implies that the legislation’s intent was to make a distinction between illegal drug use, vs. medicinal use.
The Federal Preemption Debate: The AMMA Does Not Conflict with Federal Law
The Arizona Supreme court ruling addresses the ongoing debate that continues to arise with regard to potential conflict of the legalization of Medical Marijuana in Arizona in light of the Federal prohibition.
The high court acknowledged that Marijuana in any form remains prohibited under the Federal Controlled Substances Act. However, ruled that it does not conflict with Arizona’s AMMA because the federal law does not contain an exception that allows medicinal use of Marijuana.
The State argued that the probation conditions required the probationer to follow all laws, and that “all laws” included Federal Laws. The Arizona Supreme Court rejected this argument, related to the State’s AMMA and Federal Controlled Substances Act.
In response to the State’s challenge, the Court advised that the State would otherwise be correct if the Federal Controlled Substances Act preempted the Arizona Medical Marijuana Act.
The Court provided further clarification of its position by advising that the Federal Controlled Substances Act would preempt or override the AMMA if:
- The Controlled Substances Act explicitly preempted state law; or
- Congress had determined it must exclusively govern the field; or
- The two laws conflict to the extent that it is physically impossible to comply; or
- The state law stands in the way of Congress’s ability to accomplish its intent.
The Court declared that none of those conditions applied here. Further, it cited the fact that:
“Congress itself has specified that the Federal CSA does not expressly preempt state drug laws or exclusively govern the field…There is no such conflict here.”
The court also cited a Michigan case that they felt was persuasive, Ter Beek v. City of Wyoming, (Mich. 2014). In that case, it was ruled that the Medical Marijuana statute “does not prevent federal authorities from enforcing federal law—it merely provides “a limited state-law immunity.”
In that case, the Court opinioned that Congress’s intent was to “to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances.” Michigan’s medical marijuana law had a narrow scope applying only medicinal use, and did not conflict with the federal law to the extent that they negated Congress’s purpose in passing the law. The Arizona Supreme Court ruled that the same applied in this state, and therefore the CSA did not preempt the AMMA and a probationer could comply with both.
The State’s Waiver Argument to the Arizona Supreme Court
The State’s final argument was that by entering the plea agreement that stated while the defendant was on probation he agreed to “obey all laws”; it implied that he waived his right to use marijuana under the AMMA.
The Court rejected this argument, on the basis that the defendant could not have knowingly waived a right under the AMMA since it did not exist at the time he entered the plea agreement. The Court also added that even if it did exist at the time, such waiver was not enforceable, because it was unlawful and invalid citing State v. Ferrell, Arizona, 2015.
The Arizona Supreme Court affirmed the opinion of the Arizona Court of Appeals granting relief to the petitioner in the special action.
The Importance of Understanding Your Probation Conditions
We discussed the fact that probation was a privilege. Despite that, you may find that certain terms are unduly burdensome for you to accept in return for suspension of incarceration. It is important that when offered a plea agreement, that you fully understand all the terms of the plea agreement. This applies to both the incarceration terms, but all other conditions, such as payment of fees, restitution, probation, parole, substance abuse counseling and treatment, and all other terms. You should review it carefully. Make sure you understand any waivers, and what they mean, and discuss any concerns or objections you have with your attorney.
Penalties for Probation Violations
“In some cases, the penalties for violating the probation may be more severe than the penalties called for by the underlying offense.”
Probation is one of the most common conditions in a plea agreement and in sentencing for convictions. Penalties for violating probation terms can result in serious consequences.
Judges generally have broad discretion over the penalties. When determining the punishment, they will consider multiple factors. This includes factors such as the nature and severity of the offense as well as whether or not it was a repeat violation of probation terms.
In some cases, the penalties for probation violations may be more severe than the penalties called for by the underlying offense. If it is a first time violation of a less serious nature, your probation officer may hand down a warning only. More severe and repeat violations may include one or more of the following, but are not limited to:
- Reinstatement or original jail or prison sentencing;
- Revocation of probation;
- Imposing additional incarceration, or extension of probation:
- Random alcohol or drug screening;
- Mandatory alcohol or substance abuse counseling and treatment;
- Economic fines;
- Civil or community service;
- New criminal charges:
- Attendance of other rehabilitation programs designed to correct criminal behaviors;
- Adding more stringent terms and conditions known as “intensive probation”.
Generally, the penalty is more serious if the probation violation is similar to the criminal activity for which they were originally convicted. This list is not all encompassing. Penalties may vary based on the nature of the violation of probation.
Criminal Defense for Probation Violations in Mesa AZ
The most important thing you can do following an arrest is to hire an experienced criminal defense attorney to represent you in the matter, to defend the violation or new charges, and make sure your rights are protected.
Your attorney will build a defense strategy heavily based on the condition and circumstances surrounding the violation for which you have been charged. Your attorney may be able to file a motion to have the charges dismissed if your rights were violated, if the evidence is weak, or if other circumstances exist, that do not warrant the charges. They will present your side of the story to the prosecution and the court, and make every effort to have the charges dropped.
If the state refuses to drop the charges, in some case your criminal defense attorney may be able to negotiate more favorable terms that would otherwise have been ordered in the event of a conviction. For example if repeat random blood tests are positive for illicit drugs, your attorney will work closely with the prosecution and court to qualify you for participation in a substance abuse rehabilitation program as an alternative to returning to incarceration.
The burden of proof held by the prosecutor to get a conviction is guilt by “preponderance of the evidence” which is lower than “beyond a reasonable doubt” which makes it easier for the state to get a conviction. This is one reason that it is critical to retain an experienced and competent criminal defense attorney representing you in the charges.
James Novak of the Law Office of James Novak is a former Maricopa County Prosecutor, with a vast amount of experience in litigation and criminal defense. James Novak will protect your rights, defend your charges, and fight for the best possible outcome in your case. DUI and Criminal Defense Attorney James Novak, provides a free consultation for those who have been charged with a crime in Tempe, Mesa, Chandler, Phoenix, Gilbert and Scottsdale Arizona.
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How to identify signs and symptoms of use and abuse; New National CDC statistics; Narcan lifesaving drug legislation; Arizona heroin laws, penalties, and criminal defense.
Tragedy Strikes Home: “This Drug Wants to Kill You”
A 23-year-old suspect stood before a district court judge after his first arrest the night before, on heroin possession charges.
The young man made an impression on the judge that he would not soon forget.
The suspect was a respectful, polite, and receptive to the judges orders. The judge looked at him and said firmly, “This drug wants to kill you”. He told the suspect that his desk was stacked with death certificates of defendants who died as a result of heroin or other opiates. The youth stood there listening intently with tears in his eyes. The judge assigned him an attorney, ordered random drug testing. The suspect thanked the judge on the way out.
Two days later, the suspect died of a heroin overdose.
When the judge was notified of the defendant’s death, he was badly shaken. “It’s an incredible feeling of powerlessness. We have no mechanism to identify who’s going to keep using. Nothing would indicate this kid had a heroin problem. The new opiate addict is virtually undetectable, until he dies. We’re all frustrated by this and we want people to know what we’re up against. This is the new breed of people afflicted with opiate addiction…I liked this kid. He was a good kid with a bad problem.”
The suspect’s father wanted other parents to hear his family’s grieved message: “Words can’t describe our pain. He was a beautiful, beautiful kid…with everything in the world going for him. No one wants to be a drug addict. So many other families we know have children struggling with the same thing. It’s an epidemic right now. We made a conscious decision that we weren’t going to hide from it. The reality is, someone died yesterday and someone is going to die today. There are parents out there who have no idea…Talk to your kids. Just talk to your kids.”
Today, the parents hope their story would spare other families with such anguish and heartbreak.
Third Heroin Epidemic
The National Centers for Disease Control (CDC) released their most recent national statistics in March 2015. They reported that drug poisoning is still the number one cause of injury-related deaths in the United States. Of those, heroin deaths have tripled, illustrating a spike in use, abuse and addiction of the drug, and a marked resurgence of heroin use.
The new CDC statistics revealed that the death rate from heroin overdose nearly quadrupled over 2000 to 2013, from 0.7 deaths for every 100,000 people to 2.7 deaths. According to the report, persons of non-Hispanic white origin between the ages of 18 and 44, are the most vulnerable, with the highest death rate: 7 deaths per 100,000, nearly three times the rate for the population at large. While the Midwest United States had the largest increase in death rate, the West, which includes Arizona, began in 2000 tied with the Northeast for the highest death rate, a number that doubled by the time the study ended in 2013.
Examining the CDC data reveals the possibility that we may be in another epidemic. Many believe that the current spike in heroin deaths may be related to an earlier dramatic increase in the abuse of prescription drugs. Another contributing factor to the drug’s increased popularity and use is that the cost of heroin has decreased, while its potency has increased.
Heroin is classified as a narcotic. It is an opium derivative which is closely related to many prescription painkillers, called opioid analgesics. This category includes morphine, codeine, oxycodone, fentanyl and hydromorphone. According to the CDC, unintentional overdose deaths from opioid analgesics increased dramatically in the early 2000s. From 1999, the number of deaths had doubled by 2004 and tripled by 2007.
A 2011 study by Drexel University found that four out of five users of injected drugs – heroin being the most popular – has abused some form of prescription opioid before turning to an illegal substance. One of four injected drug users reported a prescription opioid as the first controlled substance they ever used.
The recent CDC data also supports the notion that prescription drug abuse has led to increases in the amount of heroin abuse. The same report includes information on overdose deaths from opioid analgesics. The death rate for these substances increased, as well, though at a more rapid pace. In 2000, the death rate was 1.5 per 100,000. By 2006, it had tripled, while the heroin death rate remained the same as it was in 2000.
However, while the death rate for opioid analgesics increased slightly and then even dropped in 2012, the heroin death rate soon took off. Between 2006 and 2011, the rate from heroin doubled, and by 2013 it had nearly doubled from that.
Immediate Adverse Effects of Heroin Use and Overdose
According to the National Institute on Drug Abuse users reported, immediately effects including a “rush”; then dry mouth, skin flushing, heaviness of extremities, nausea vomiting, delirium, severe itching, drowsiness and cloudiness in mental function.
The primary risk of danger on the bodily systems with heroin use is the respiratory system. Opioids depress breathing functions by altering the brain’s neurochemical activity in the area of the brain that controls automatic bodily functions like breathing and heart rate. It can depress the heart rate and reduce oxygen enough to cause fluid in the lungs, deprivation of oxygen to the body, seizures, coma, brain damage, or death.
Long –Term and Other Effects of Heroin
The long term effects of heroin use solely from a medical stand point, can include, but are not limited to: addiction, withdrawal, deterioration of teeth, periodontal disease, and weakened immune system, breathing problems, liver disease, loss of memory, reduction in mental capacity, facial pustules, gastrointestinal problems, depression, sleep dysfunctions and other mental disturbances. Chronic use and shared needles can also lead to AIDS, hepatitis, and other infectious diseases.
Related Dangers: Heroin Laced with Fentanyl Overdose Warnings
Last week the Federal Drug Enforcement Agency issued a nationwide warning about a surge in overdoses resulting from Fentanyl-Laced Heroin. It is being described as a “significant threat to public health and safety”. Drug overdoses due to heroin laced with Fentanyl are occurring at an alarming rate. Fentanyl is said to be 100 times stronger than morphine, and is the most powerful opioid available to doctors. It’s a drug intended to be used to suppress extreme pain due to advanced staged disease such as bone cancer. But it’s being sold on the streets as heroin. Most users have no idea what’s in the heroin they are buying or using, making it far more lethal, than it’s already inherent risks.
Arizona’s Heroin Arrests Statistics
Recently it was reported Arizona ranks as being the sixth highest state in the nation experiencing an increase of heroin use and abuse among teens, and that officials have seen a disturbing trend of increased use. Officials of the Drug Enforcement Agency Phoenix division reported that that drug seizures at the border increased by 300 percent in recent years.
It was reported that in Gilbert, AZ, alone arrests had also increased by 300 percent, with the rise in teen use being a significant contributing factor. Cities across the state are struggling with the rise of its use. Deaths have reportedly doubled in the last decade in Arizona. In Tempe Arizona it was reported that the DEA and Attorney General recently completed a 2.5 year investigation which resulted in dismantling an extensive drug trafficking network that covered three states, as well as Mexico.
Narcan the Life Saving Drug for Heroin Overdose Reversal
In our prior discussion we explored the uses, and trends of an injectable lifesaving drug called Narcan (Trade name) or Naloxone. This is an opiate antagonist, meaning it has the capability of preventing death if administered to a person suffering from an overdose of opiates, including heroin. It is administered with a hand-held auto-injector “Evizo” (Naloxone hydrochloride injection), approved by the U.S. Food and Drug Administration (FDA) in April 2014.
The injector provides an emergency lifesaving dose of Narcan for potentially fatal overdoses of heroin. The drug had proven highly effective in reversing otherwise fatal effects of heroin overdoses.
The Federal Drug Enforcement Agency reported that since 2001, Narcan has been credited with reducing over 10,000 otherwise fatal heroin overdoses.
Narcan was traditionally used in Emergency Rooms and by first response paramedics. However, since first responders to the scene were an overdose is often the police or immediate care givers, many states have passed laws allowing police and other qualified first responders to be trained to administer the drug and equipped with it. As a result, police and care givers in some states are now allowed to carry lifesaving drug Narcan which is proving to save more lives.
Administration of Narcan
Lori Combs, BS, RN, Clinical Nurse Consultant an experienced clinician in ER, Trauma, Cardiology Forensic Nursing, and Death Investigations training, had this insight to share about the actual administration of Narcan:
Naloxone or Narcan (Trade Name) is an opioid antagonist which means the Narcan molecules compete for the opioid receptor sites in the central nervous system. Narcan is usually given by medical personnel such as Paramedics, Physicians and Registered Nurses via an intravenous access site. The reversal effects of the Narcan can occur within a couple of minute given in this method. If intravenous access is not available this drug can be given in the deep muscle of the buttock, upper arm or outer thigh area. Or it can be given into the fat of the abdomen or the back of the upper arms. If given in the deep muscle or fat, the mechanism of action will be slower compared to the intravenous access. One word of caution, these patients that experience the reversal effects of Narcan can then exhibit withdrawal symptoms from the opioid within minutes and need to be medically treated immediately.
Expansion of Laws for Police to be Trained and Equipped to Administer Narcan
Last March 2014, the United States Attorney General publically urged all law enforcement agencies in the US to train and equip their officers to administer Narcan. A total of 17 states currently have laws that allow for police to administer Narcan as first responders.
The state and government’s response to Narcan has been favorable, and many states have either passed laws or are in the process of expanding laws to allow other first responders to be equipped and trained to administer Narcan.
The Arizona Legislature is currently poised to pass new laws aimed to curb deaths from heroin overdose.
Under House Bill 2489, a police officer or emergency medical technician would be permitted to administer Narcan.
If passed, Arizona’s police and other eligible first responders would join at least 18 states that have passed laws nationwide allowing police to be trained, and equipped to use Narcan for an otherwise fatal heroin overdose.
HB 2489 passed the House of Representatives by a vote of 59-1, and is currently awaiting a vote in the Senate.
Signs and Symptoms of Heroin Use
All too often after tragedy strikes, a loved one including parents are stunned due to the fact they were unaware their child or loved one was using or abusing heroin. Early detection and intervention is crucial. Here are some signs and symptoms that may reveal someone is using or abusing heroin:
- Frequent nausea or vomiting;
- Chronic drowsiness;
- Scratches on skin due to uncontrollable itching;
- Flushed face, tiny pupils and no response of pupils to light;
- Slow breathing; coughing, runny nose, respiratory disturbance;
- Remnants of brown powder , dark sticky residue or crumbling substances;
- Syringes, glass or metal pipes;
- Belts or rubber tubing for injections;
- Baggies, burnt spoons,
- Loss of appetite;
- Sweating, twitching or tremors;
- Fully covering skin, especially on arms to hide needle marks
What to do if you Suspect a Loved one is using or abusing Heroin
According to HelpGuide.org, it is natural for parents to feel angry, and sometimes blame themselves. Parents and guardians are urged to resist the urge to punish, preach, or threaten the youth.
Instead it is recommended that the parent or loved one try their best to do the following:
- Speak up, and reach out to the person about their concerns;
- Remain calm; and only discuss the concerns under sobriety of both parties;
- Be prepared for denials with a list of behavior problems and concerns noted:
- Take care of yourself, and your health needs;
- Let the person accept responsibility for their actions;
- Institute rules and be prepared to execute the consequences if the rules are broken;
- Monitor your teens, or loved one’s activities, including knowing with whom they are with;
- Encourage healthy interests and participation of extracurricular activities;
- Explore underlying issues such as pain, stress, or other causes;
- Seek professional help, education, counseling and treatment
Why Heroin Use and Arrests are on the Rise in Arizona and throughout the United States
The most recent statistics reported for heroin and other opiate arrests in Arizona by the Arizona Department of Highway Safety were in 2013. Heroin and other opium related crimes include possession, trafficking and sales. The total arrest related to these crimes were 3,549, a 7 percent increase over 2012, totaling 3,315.
On a national level the Drug Enforcement Agency reported in its 2014 National Drug Threat Assessment Summary that the greatest increasing threat facing our country in 2014 was posed by heroin. Heroin seizures at borders were 4 times higher in 2013 over 2009. Increase in use was second only to methamphetamine. Reasons cited included the following:
- Increased demand;
- Controlled prescription drug users who switched from prescription drugs to heroin.
- Controlled prescription drug users switched to heroin due to the decreased availability of prescriptions resulting from law enforcement and legislative efforts to thwart operation of illicit pill mills, doctor shopping, and unethical physician practices.
- Price of heroin is relatively low as compared to the cost of prescription drugs.
Arizona Laws and Criminal Penalties for Heroin Convictions
In addition to the highly dangerous health and medical risks of use and abuse of heroin are the criminal consequences of use, possession, transport, sale or distribution.
Narcotics crimes including heroin, carry some of the most serious penalties under Arizona Drug Law. Under both the federal Controlled Substances Act and the Arizona Uniform Controlled Substance Acts, it is listed as a Schedule I substance, meaning it has no accepted medical use and a high potential for abuse. It is classified as a “narcotic drug” in Arizona Revised Statutes 13-3401(21).
Under Arizona Revised Statutes 13-3408, heroin charges can include:
- Possession or use, a class 4 felony, with a range of punishment from four to eight years in prison;
- Possession with intent to sell, a class 2 felony, with a sentence ranging from seven to 21 years in prison;
- Possession of equipment or chemicals for the manufacture of heroin, a class 3 felony, punishable by five to 15 years in prison;
- Manufacturing heroin, a class 2 felony, with a seven to 21 year range of imprisonment;
- Administering heroin to another person, a class 2 felony, with a seven to 21 year range of imprisonment; and
- Transporting or importing, or offering to transport or import, heroin into the state, a class 2 felony, with a seven to 21 year range of imprisonment.
All heroin charges result in felony convictions, which have broad implications. Penalties for convictions include expensive fines, fees, and costs of assessments; participation in a substance abuse counseling and treatment programs; loss of some civil rights associated with felony records which include loss of the privilege of possessing a firearm; and loss of voting rights.
Criminal Defense Attorney, Mesa, AZ, Heroin Drug Possession and Use Charges
A majority of the heroin charges that are brought relate to use and possession in Arizona, which are aggressively prosecuted.
Many overdoses go unreported because the users or witnesses fear criminal repercussions. But the decision not to seek emergency help can be fatal for the user. It is far more important to call #911 or seek immediate medical help. If a criminal arrest follows as a result, your criminal defense attorney can help defend your rights and the charges.
Heroin is a highly addictive substance, and many people accused of these crimes suffer from the disease of addiction. If a person is accused of mere possession of heroin, he or she may be eligible for drug court if he or she pleads guilty. Maricopa County Drug Court is a court-supervised treatment program. Upon successful completion, the person admitted may have their felony charge reduced to a misdemeanor. A person must seek admission from the Maricopa County Attorney’s Office, and not all are accepted. Your defense attorney can help negotiate acceptance and qualification for participation in the program.
Not all of those charged will qualify for the drug treatment program due to eligibility factors. So it is critical that you retain a highly skilled and experienced drug crimes defense attorney to defend your charges and protect your rights.
Because a person is charged or arrested for a heroin crime, that does not necessarily mean they will be convicted or found guilty of that crimes, or receive the maximum statutory penalties. With drug crimes, there are often defenses that a skilled criminal defense attorney can use to get a favorable outcome in your case. Those outcomes might include suppression of key evidence, reduction of charges or penalties, alternative penalties to incarceration, and in some cases dismissal of charges.
As a former prosecutor and experienced Mesa AZ drug defense lawyer, James E. Novak can assist you by explaining all your options to you, helping your choose the best one and zealously fighting for your best interests. If you choose to fight the charges, he will seek every available defense and to have your charges reduced or dismissed. Contact the Law Office of James E. Novak today to schedule a free confidential consultation, to discuss your matter and options for defense.
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Posted in Drug Crimes
Ongoing Efforts by States and Federal Officials to ban synthetic drugs; Trends; Dangers of synthetic drugs; Arizona imitation drug laws, penalties and consequences.
“Molly” isn’t the new kid on the block. She’s been reigning terror on high school, college campuses, nightclubs, concerts, streets and the social scene for decades. “Molly” is simply “Ecstasy” in disguise and more dangerous. She can be deadly even in her purest form. But with the age of new synthetic drugs and their combinations, she has become more lethal than ever before.
Recently, we learned of 11 people that required hospitalization at a Northwest college for an overdose of synthetic drug “Molly,” a more refined version of MDMA (3,4-methylenedioxy-methamphetamine).
So far there have been four arrests of other students on campus, for synthetic drug possession and intent to sell, by police as authorities attempt to find the source of the drugs in this incident.
The hospitalizations and medical incidents resulting from use of “Molly” were reportedly not first of their kind this year. Health officials reported last fall, a campus-wide email was sent to students alerting them that other students had recently been hospitalized as a result of synthetic drug use.
In this article we will discuss important topics related to imitation drugs; their dangers, drugs; state and federal efforts to ban synthetic drugs; trends; other injuries caused as a result of their use; and Arizona synthetic drug laws, penalties, and other consequences.
One such consequence is the need for criminal defense. A majority of this article has been dedicated to raising awareness, providing education and resources particularly with regard to the deadly health dangers of “Molly”, “bath salts”, imitation Marijuana and other synthetic drugs. In addition to the health dangers of synthetic drugs, is the high risk of criminal liability that exists as a result of using them. Continue reading
New CDC statistics reveal 38 million Americans binge drink 4 times per month; six people die from alcohol poisoning every day.
How to Make Your Arizona Experience Sensational with Alcohol Safety
Arizona, the Valley of the Sun, sees an average 37 million people visit each year. Some visitors are here to enjoy the spectacular Grand Canyon, Sonora Desert, Hoover Dam, Monument Valley, majestic Sedona and Oak Creek Canyon, historic Jerome, Desert Botanical Gardens, other National Parks and Recreational Areas. Some are here on business, attending one of Arizona’s many colleges, universities, or trade schools. Some are participating or here to watch live professional sporting events, popular concerts or other shows. Others just simply want to get away from the ice, snow and freezing temperatures, to bask in the warm sun of in the fall and winter.
Alcohol surrounds many of these popular sports events, activities, and social gatherings. It is common to hear heavily sponsored beer and other liquor commercials, for retailers to advertise specials, for generous party hosts to offer, and people consuming alcoholic beverages. Social drinking is the American way of life for many.
Whether your stay is short, long, or permanent, the chances are great that you will either find yourself behind the wheel of a vehicle, or a passenger in one. Many are unaware that Arizona has some of the toughest DUI laws and penalties in the USA. This is particularly true for higher Blood Alcohol Content (BAC) DUI convictions. Others, especially younger drinkers are unaware of the health risks of drinking in excess.
Unfortunately, in the midst of the celebrations, excitement, and fun, some lose track of how much alcohol they are actually drinking. This can result in deadly consequences.
Drinking in excesses hazards extend beyond the health of the person drinking, especially if that person gets behind the wheel of a vehicle. Other drivers and passengers should keep in mind that other motorists on the roadways may be driving impaired.
Article Overview – Featured Topics
To raise awareness about the hazards of drinking in excess, and its consequences, we will discuss the following alcohol safety issues:
- Legality verses Safety;
- Arizona’s High BAC Trends;
- Extreme and Super Extreme DUI Laws and Penalties;
- Binge Drinking Defined;
- Causes of Binge Drinking;
- Non-DUI Related Crimes Involving Excessive Drinking;
- Injuries Caused by Excessive Drinking;
- New National Centers for Disease Control Repot: Alcohol Poisoning;
- Emergency actions if you suspect someone has alcohol poisoning;
- 7 DUI Safety Tips;
- 10 Alcohol Consumption Safety Tips;
- DUI arrest, rights, and criminal defense
Legal v. Safe
It’s important to make a distinction between safety and legality as it pertains to driving under the influence of alcohol. In sum, though it may be legal to drive under the influence of alcohol that does not mean it is equally safe for all drivers.
If you are a juror on jury duty in an Arizona DUI case, you will likely hear this as part of the jury instructions. That is, that in Arizona, it is legal for a driver over the age of 21 to be under the influence of alcohol.
However, it is not legal to drive under the influence of alcohol if the motorist’s BAC is 0.08 percent or more, within two hours of driving or being in actual physical control of the vehicle under; and/or if their driving abilities are “impaired to the slightest degree” by alcohol or drugs.
In sum this means is that a person can be found guilty of an impaired driving charge under A.R.S. 28-1381, even if their BAC is below the legal limit, or by drugs, if they are found to be “impaired to the slightest degree.”
There is much controversy surrounding whether or not it is safe to drive under the influence of any alcohol at all. All DUI laws aside, the National Centers for Disease Control (CDC) warns that it is still not safe to drink and drive under the influence of any amount of alcohol.
According to the CDC, BAC levels below 0.08 percent can still slow reaction time, judgment and coordination, all of which are necessary for driving safety. Further, they warn, the higher the BAC, the greater the driving impairment.
Arizona’s War on Extreme DUI
We’ve discussed the dangers of binge drinking in prior articles. But the new statistics for 2014 have been released for 2015, by the Arizona Governor’s Office of Highway Safety (AGOHS). They reveal an alarming trend in excessive drinking and Super Extreme DUI in the State. For the 7th consecutive year, the average BAC of driver’s stopped and arrested has been 0.152 percent, in violation of Extreme DUI laws A.R.S. 28-1382.
Extreme and Super Extreme DUI Laws
Binge drinking is the number one cause of high Blood Alcohol Content (BAC) in drivers arrested for of Extreme and Super Extreme DUI charges in Arizona. According to the CDC, drivers who engage in binge drinking are 14 times more likely to be arrested for impaired driving, than a motorist who has not engaged in binge drinking.
Arizona also has what are known as Extreme and Super Extreme DUI laws. They exist to provide increased and more severe penalties for those guilty of driving with higher BAC levels.
Extreme DUI laws are violated when a motorist is driving with a BAC level of 0.150 to 0.199, under A.R.S. 28-12382 A (1).
The Super Extreme laws are violated when a motorist is found guilty of driving with a BAC of 0.20 or higher A.R.S. 28-12382 A (2).
The primary cause of high BAC levels is Binge Drinking, which results leads to Extreme DUI and Super Extreme DUI arrests.
In Arizona, a breath test refusal will result in a one year loss of driver’s licenses, whether a person is driving impaired or not under the influence of alcohol or drugs. Also, there is a risk that if the driver refuses, the police may obtain a warrant to administer a DUI blood test in the alternative.
If a driver in Arizona consents to a breath or blood test, or police obtain a search warrant to perform a blood test, and the test returns a result of a BAC between 0.15 and 0.20, that driver may face charges of extreme DUI. While any charge for driving under the influence has far-reaching consequences, an extreme DUI or super can be especially severe. The general rule in penalties for impaired driving is, the higher the BAC, the more harsh the penalties will be.
Extreme DUI Penalties in Arizona
A driver convicted of Extreme DUI for the first time will face:
- A fines, fees, and assessments totaling $2,500.00;
- Jail terms of 30 consecutive days;
- Driver’s license suspension/revocation of at least 90 days
- Mandatory installation of an ignition interlock device 1 year;
- Completion of an approved alcohol or drug education program, a DUI course and counseling for alcohol or substance abuse;
- Probation, and/or community service or restitution
However, it’s also very likely that consuming eight alcohol beverages in one sitting will lead to a BAC at or exceeding 0.20, and result in charges of super extreme DUI.
Super Extreme DUI Penalties in Arizona
A driver convicted of extreme DUI for the first time will face:
- A fines, fees, and assessments totaling $2,750.00;
- Jail terms of 45 consecutive days;
- Driver’s license suspension of at least 90 days;
- Mandatory installation of an ignition interlock device 18 months;
- Completion of an approved alcohol or drug education program, a DUI course and counseling for alcohol or substance abuse;
- Probation, and/or community service or restitution
Repeat DUI violations call for even more severe punishments. A third DUI of any kind within 84 months with any BAC is considered an Aggravated DUI which is a felony in Arizona. All felony charges expose a person to prison terms and other felony penalties.
What is Binge Drinking?
The National Institute on Alcoholism and Alcohol Abuse (NIAAA) defines binge drinking as a pattern of alcohol consumption that drives a person’s BAC to 0.08 percent and higher.
The amount consumed generally translates to 4 or more drinks within 2 hours for women, and 5 or more alcohol beverages for men during a 2 hour time span. The faster a person consumes the alcoholic beverages the more quickly and higher the resulting BAC level. The NIAAA defines a standard drink of spirits as an equivalent of a 12-oz beer, 5-oz glass of wine, or 1.5-oz shot of distilled liquor.
Causes of Binge Drinking
While people of all ages engage in binge drinking, one of the most simplistic but resourceful article on this topic was from the BACCHUS Network. BACCHUS stands for “Boosting Alcohol Consciousness Concerning the Health of University Students”, who for over 30 years have supported and promoted student leadership in health and safety education. They list the following causes:
- Lack of alcohol education and experience;
- Misperception that binge drinking or drinking in excess is normal;
- Drinking too much to fast
- Participating in “drinking games” with peers or friends;
- Doing “Shots”;
- Pre-party drinking, also referred to as “front-loading” alcohol before going out
While these causes may have been identified in college students they can apply at any age. Some additional causes noted by addiction psychologists and clinicians, and in other research studies, include low self-esteem, social anxiety, general anxiety, major or acute depression, stress, peer pressures, avoidance of problems, curiosity, rebellion, social euphoria, and alcoholism.
Non-DUI Crimes that Involve Excessive or Binge Drinking
The National Council on Alcoholism and Drug Dependence, Inc. (NCADD) reported that alcohol is a factor in our 40 percent of all crimes committed. Based on statistics from the US Department of Justice, the NCADD reported that excess use of alcohol is a factor in approximately 3 million violent crimes each year. Violent Crimes reported include assault, aggravated assault, domestic violence, and robbery. Other crimes associated with excessive drinking are disorderly conduct or disturbing the peace, criminal trespassing, vandalism, and criminal damage to property.
Injury Risk Factors related to Excess or Binge Drinking
According to the National Centers for Disease Control reported that excessive drinking is the leading risk factor in the United States for Injuries and preventable deaths. Causes of injury and fatalities include alcohol poisoning, burns, drowning, falls, auto crashes, cuts, eye injuries, head injuries, and other blunt trauma. In many of these cases, persons involved in these incidents may be held criminally responsible for the victim’s injuries or death.
New National Centers for Disease Control Report: Alcohol Poisoning
On January 9, 2015 the National Centers for Disease Control provided an early release a “Vital Signs: Alcohol Poisoning Deaths — United States, 2010–2012” from weekly Morbidity and Mortality Report.
The New CDC statistics reveal 38 million Americans binge drink 4 times per month; six people die from alcohol poisoning every day. Alcohol dependence was a contributing factor in only 30 percent of the alcohol poisoning deaths. In a majority of these deaths alcohol dependence was not listed as a contributing factor. This was consistence with other recent studies which concluded that 9 out of 10 adults who binge drink, were not alcohol dependent.
While binge drinking is defined as consuming four drinks on one occasion for women or five for men, the study found that the average number of drinks consumed per episode was eight. Drinks served at bars or other special occasions can actually be much larger than this. A person consuming a 24 oz. beer, for example, would be consuming two drinks at once, according to the CDC’s metrics. A person who drinks two of these in one sitting has consumed four drinks and, therefore, is binge drinking according to the report’s standards. Only around 10 percent of those who died of alcohol poisoning were considered dependent on alcohol. Most victims were those who consumed too much alcohol on one occasion.
According to the NIAA, a division of the National Institute of Health, alcohol poisoning occurs when there is so much alcohol in the bloodstream that parts of the brain controlling basic bodily functions, including breathing, heart rate and temperature control, begin to shut down. When a person consumes an alcoholic beverage, the liver metabolizes the alcohol, eliminating it from the blood stream, at a rate of about one ounce per hour. Alcohol that has not yet been metabolized remains in the bloodstream, which is why people experience intoxication. As alcohol builds up in the system, it can lead to alcohol poisoning.
The amount of alcohol that could lead to poisoning may vary from person to person, and depend on a wide number of factors. These factors include weight, height, how much food the person has consumed and genetics. Sex is also a factor. However, while men are physiologically less susceptible to the effects of alcohol, the CDC study shows that around three quarters of alcohol poisoning deaths occur in men. The highest death rate was for men age 45-54.
It also varies greatly depending on the type of beverage consumed. Drinking 12 ounces of beer in one sitting would not even lead to legal intoxication for many people. Drinking 12 ounces of tequila, however, would be dangerous and, in some cases, deadly.
Research suggests certain impairments which can result given certain BAC levels. But numerous factors that can cause variances in how many drinks will cause an individual to suffer from alcohol poisoning. However, BAC levels of .37%-.40% or higher have been known to cause death.
According to the NIAAA, some symptoms of alcohol poisoning include:
- Confusion, stupor, coma or inability to wake up
- Slow breathing (fewer than eight breaths per minute) or irregular breathing (10 seconds or more between breaths
- Blue or pale skin color
The number of deaths due to alcohol poisoning reported by the CDC may surprise many, poisoning is far from the leading cause of alcohol-related death. According to the National Highway Transportation Safety Administration (NHTSA) nearly four times as many — more than 32,000 nationwide in 2013 — die due to impaired driving accidents. Like alcohol poisoning, binge drinking plays a significant role in driving under the influence.
While effects vary from person to person according to factors like the ones listed above, consuming eight or more drinks in a relatively short period of time is, at the very least, likely to give most people a blood-alcohol content (BAC) of above 0.15. The BAC figure is a reflection of how many parts of a person’s blood are alcohol. A BAC of 0.15 means that a person has 1.5 parts alcohol for every 1,000 parts of blood.
What to do if You Suspect Someone Has Alcohol Poisoning
The NIAAA urges persons experiencing alcohol poisoning symptoms to seek immediate medical attention. Below are some additional recommendations and warning by the NIAAA:
- Witnesses, friends or family should recognize signs and symptoms early. Either seek or call for professional emergency medical attention.
- Do not wait for the person to show signs of all alcohol poisoning symptoms. A person does not need to have all of the signs if they have consumed a dangerous or potentially fatal dose of alcohol.
- Unconsciousness can lead to fatality. Never leave an unconscious person unattended without seeking immediate medical attention for calling 911. There are a number of reasons for this including asphyxiation from vomiting. If the drinker survives, the overdose may still result in long term brain damage
- Do not try to convince a person to drink hot coffee, walk, or take a cold shower. These activities, do not reverse the effects of alcohol overdose, and could actually worsen the patient’s condition.
Qualified medical staff and doctors at the hospital will follow overdose protocol, manage breathing problems, administer fluids for dehydration and low blood sugar, and flush the stomach to help clear the body of toxins.
7 DUI Safety Tips
Below are some DUI safety tips, including those provided by the National Centers for Disease Control (CDC):
- Plan for a designate a non-drinking driver in advance;
- Download a taxi or ride share application to your cell phone before going out;
- Take advantage of free ride programs available such as “AAA’s Tipsy Tow” Service
- Don’t let your friends drive impaired;
- Don’t get in a vehicle with a driver who has been drinking, especially if they have been drinking heavily;
- Call a trusted friend, family non-drinking member for a ride home;
- If you’re hosting a party be sure to offer alcohol-free beverages as alternative; and make sure your guests have a sober ride home.
10 Alcohol Consumption Safety Tips
The CDC warns people not to drink alcohol in the following situations:
- A person is pregnant or plans to become pregnant;
- If they are taking prescription, or over-the-counter drugs that may be harmful or cause drowsiness when combined with alcohol; If unsure, speak with the doctor who prescribed the drug;
- If a person is under the age of 21 (in Arizona);
- If a person is unable to control the amount of alcohol they drink;
- If a person is a recovering alcoholic;
- If a person suffers from seizures, black-outs, or other medical condition that may be aggravate their condition.
If you are going to drink, what you should do:
- The CDC recommends moderate drinking, in the amount of no more than one per day for women, or two per day for men;
- If you are going to drink more than the moderate amount, limit the speed of consumption to one per hour. Keep in mind, however, that you may still be at risk for DUI in this case;
- Decide in advance what type of alcohol is safe for you and your limit in advance. Then stick to it;
- Just say “no” to “shots” of liquor
What to do if You Face DUI or Criminal Charges in Phoenix – East Valley AZ
If you have been arrested for any impaired driving charges, by law you are entitled to defend your charges. This is the case, no matter how high your BAC, Extreme, or Super Extreme Charges.
During a DUI investigation the police may have administer breath or blood testing. They will also rely on their own observances as well as road side testing to determine if you were driving impaired.
DUI defenses for high BAC may include challenges to breath, blood or other chemical testing, including administration, processing, storage, and transport. Other challenges may exist for your charges including the reason for the stop, police procedures or instructions, or other constitutional rights violations.
It is important that you retain an experienced criminal defense attorney to represent you and defend your charges. Your attorney will gather the evidence and conduct an investigation to determine if your rights were violated, examine the validity of any testing results, and gather any favorable evidence available on your behalf. An experienced DUI attorney will work to get the charges dismissed, evidence suppressed, charges or penalties reduced, or other favorable outcome in your case.
James Novak of The Law Office of James Novak is an experienced and highly skilled DUI and Criminal Defense Attorney.
James Novak, a former prosecutor in Maricopa County. He exclusively defends criminal and DUI charges in Phoenix East Valley cities including Mesa, Tempe, Mesa, Tempe, Chandler, Gilbert, and Phoenix-Metro, AZ. The Law Office of James Novak provides free initial consultation for active charges, and will provide a strong defense if retained.
You might be interested in these additional articles:
Extreme & Aggravated DUI on Priority Arrest List; but all Impaired Drivers at Risk
The Arizona Department of Public Safety announced today that it expects heavy travel traffic in the state this week. Officers will be looking out for motorists driving impaired due to drugs or alcohol, distracted, drowsy, and impatient driving. History reveals that these factors result in arrests, and have proven to cause serious injury and deadly crashes.
During the winter months, the state of Arizona draws many visitors for its warm sunny weather, to visit family and friends, and to enjoy the many outdoor activities and attractions our sunny state has to offer. This is particularly true around the holidays.
Arizona has earned a reputation for being a leader in DUI enforcement, and having some of the toughest impaired driving laws and punishments in the country. What might be legal the state you have traveled from, might not be lawful in Arizona.
If you are a new driver to Arizona, visiting for the holidays, or in town for the 2015 Super Bowl, you should be aware of impaired driving laws, and increased DUI and Law enforcement
“Drive Hammered Get Nailed” – Campaign Apply to all Impaired Drivers
The state is the midst of its 29th annual DUI enforcement Campaign for the end of year holidays. So if you are driving in Arizona this holiday season you will see electronic billboards that read “Drive Hammered, Get Nailed”. The signs and media announcements are warning drivers to stay off the road if they plan to drink as part of their holiday festivities.
The “Drive Hammered…Get Nailed” message used in the Arizona’s DUI enforcement campaigns, on signs, bill boards and in the media for over last two decades has often been misunderstood. Some motorists perceived it as applying only to those motorists who are “falling down drunk” or “hammered” are at risk of DUI arrest. But the fact is, that it applies to all impaired drivers. A person can be arrested for DUI even if their BAC is below the legal limit of 0.08 percent in Arizona. That is the case if their driving abilities are “impaired to the slightest degree” by drugs or alcohol in violation of A.R.S. 28 – 1381 (1) of Arizona State Law. Also, impaired driving arrests are not limited to driving under the influence of alcohol. A motorist can also be prosecuted if they are under the influence of drugs in violation of A.R.S. 28 – 1381 (1) (3).
Arizona Efforts for Increased DUI Enforcement during the Holidays
A few weeks ago, the Arizona Governor’s Office of Highway Safety (AGOHS) released the following DUI enforcement statistics that reflected an increase in over last year in DUI categories. They include Extreme DUI, Aggravated DUI (Felony), and the average Blood Alcohol Content (BAC) levels for drivers that were arrested for impaired driving. The average BAC for an impaired driver arrested was .0152 percent, in violation of A.R.S. 28 -1382 Arizona’s Extreme DUI Laws.
Law enforcement officials generally respond to these statistics with vigilance and increased law enforcement efforts. Consequently, drivers can expect heightened presence in police identification, arrests, and prosecution of Extreme DUI and Felony DUI charges. Increased Police DUI enforcement generally includes DUI Safety Checkpoints. This is where drivers are stop randomly at a predetermined location to seek out motorists impaired due to alcohol or drugs. Arizona has adopted many of the National Highway Traffic and Safety Administration NHTSA Guidelines for DUI checkpoints. As part of these guidelines police are required to stop vehicles according to a mathematical formula that is decided in advance by police agency authorities and city officials.
For example, Police may stop every vehicle or use a regular interval such as every other vehicle or every fifth vehicle. Arizona conducts these checkpoints at least once per month, and the Arizona Department of Public Safety (DPS) states that the costs of conducting a checkpoint average about $8,900 although checkpoints reduce alcohol-related fatalities by at least 15 percent and save approximately $62,500 per checkpoint.
The Centers for Disease Control and Prevention (CDC) found that checkpoints reduced alcohol-related fatal, injury, and property damage crashes by about 20 percent each. Sobriety checkpoints are designed and publicized more to discourage impaired driving rather than result in increased DUI arrests.
Another police enforcement strategy you will likely see is a large number of police officers saturating a specific geographic area. This usually takes place in traffic routes where a larger number of impaired motorists are expected to be driving. The police officers usually patrol in higher numbers, than those found at safety checkpoints.
During come saturation patrols, DPS may provide additional resources to assist with the processing of motorists arrested for DUI so officers can return to patrol duty much more quickly after making an arrest.
All of these efforts are designed to have a deterrent effect of impaired driving due to drugs or alcohol, as well as violations of other criminal and traffic violations.
According to the Arizona Republic, roughly 4,000 drivers have been arrested for drunken driving in the holidays for the past several years. If drivers know they will be consuming alcohol it’s important to plan ahead. Drivers who plan to drink alcoholic beverages should make alternative arrangements beforehand for a designated driver or other alternative arrangements for transportation, to avoid driving while under the influence of alcohol. If you didn’t plan to drink, but did, you should consider calling a taxi, or other trusted person to drive you home.
Arizona DUI Laws and Penalties
DUI convictions can result in serious adverse impacts on a person’s life, freedom and future. Criminal penalties for any impaired driving conviction are harsh. All Misdemeanor impaired driving convictions call for jail terms. All Aggravated DUI charges (Felonies) expose a person to prison terms.
Below are some of the specific penalties for various and common types of DUI:
- First DUI — Driving “impaired to the slightest degree” below 0.08 percent; or 0.08 percent but less than 0.15; call for 10 consecutive days in jail a driver’s license suspension of 90 days; one year installation of ignition interlock device, $1,250.00 in fines, fees, costs and assessments; alcohol/substance abuse education, screening or counseling; and probation.
- Second DUI — A second DUI with a prior impaired driving conviction within 7 years calls for $3,000 in fines, fees, costs and assessments; driver’s license revocation of one year; one year installation of ignition interlock device: and up to 90 days in jail: alcohol/substance abuse education screening or counseling; and probation.
- Extreme DUI — A first offense violation of Extreme DUI laws with a BAC of at least 0.15 but less than 0.20 calls for a minimum of 30 days in jail; $2,500 fines fee, and assessments; driver’s license suspension of 90 days, one year installation of ignition interlock device, alcohol/substance abuse education screening or counseling; and probation.
- Super Extreme DUI — A BAC of 0.20 or higher calls for calls for a minimum of 45 days in jail; $2,750.00 fines fee, and assessments; driver’s license suspension of 90 days, installation and use of ignition interlock device for 18 months after reinstatement, alcohol/substance abuse education screening or counseling; and probation.
- Aggravated DUI — An Aggravated DUI is a Felony. It is an impaired driving offense that involves what the state considers to be “Aggravated factors”. These factors include a third DUI or subsequent DUI or with two prior convictions within 84 months or 7 years; a DUI while on a suspended, revoked or cancelled license; a DUI while driving with a passenger under the of 15 in the vehicle; or an impaired driving incident that resulted in a serious injury or wrongful death of another; DUI while an ignition interlock device is installed in the vehicle, which may also result in a minimum fine of $750 plus surcharges. Penalties expose a person to a minimum of 4 months in prison, $4,000.00 fines, fees, costs, and assessments, a driver’s license revocation of one year, installation of ignition interlock device for two years, alcohol/substance abuse education screening or counseling, and possible vehicle forfeiture, and a felony criminal record. Other penalties may apply.
- Under Age DUI – A person under the age of 21 driving with any alcohol in their system at all, regardless of whether or not they are driving impaired is in violation of Arizona’s Underage 21 Drinking laws. Penalties for first time underage DUI conviction include two year driver’s license denial, or suspension; $500 fines, alcohol/substance abuse education, screening & counseling, and community service.
Other Consequences of DUI Convictions
In addition to criminal penalties, criminal offenses and impaired driving convictions result in civil consequences sometimes referred to as collateral consequences. Spending time in jail or prison along with paying hefty fines is for most people, overwhelming and traumatic. Losing driving privileges at any age can be devastating as well.
But there are other adverse consequences that result from a conviction which include being suspended or terminated from job or school; difficulty obtaining a job; inability to obtain credit , loans, or financial aid for school; adverse impacts on residency; inability to pay financial obligations or bills, lack of transportation, and adverse impacts on loved ones.
Criminal Rights for DUI Arrest
If you are arrested for DUI, keep in mind that this is only the beginning of the criminal process.
An arrest is not a conviction. Once the police have made a decision to arrest you or file a formal complaint, you are not going to change their mind. Attempting to do so will only make matters worse for you. In fact, your stand the risk of being hit with additional charges such as resisting arrest, aggravated assault on police, disorderly conduct or other charges. Resisting arrest can often cause bodily harm if the officer feels threatened by your actions in any way.
Here is the best way to handle the ordeal if you’ve been arrested:
- Be cooperative during the arrest and booking process;
- Provide routine identification if requested at the arrest or police department;
- Invoke your rights to remain silent, even if you have not been read your Miranda Rights;
- Do not discuss details of your case with friends or family, or social media as they can be subpoenaed for statements that may incriminate you;
- Consult a criminal defense attorney as soon as reasonably soon as possible
10 Common Defenses Used to Defend DUI Charges
People often wonder how an attorney can help them defend their DUI, particularly in the case of an Extreme BAC, Super Extreme, or Aggravated DUI charge. The fact is that there are many defenses that can be used to challenge evidence and defend DUI charges. If effective, they may lead to suppression of evidence, dismissal, acquittal or other favorable outcome.
Below are common defenses criminal defense attorneys may use to defend your charges:
- No reasonable suspicion for the stop;
- Stop was unlawful for other reasons such as Mistake of Law;
- Challenging the validity and accuracy of Field Sobriety Tests;
- Breathalyzer test challenges;
- Blood Test or other Chemical Test Challenges;
- Prior DUI charges not valid for use for increased sentencing or reclassification of current charges;
- Miranda Warning not read;
- Jurisdiction challenges
- Trial Defenses
- Other Constitutional Rights violations
The most effective way to defend your charges is have an experienced criminal defense attorney represent you. If retained they will evaluate your case to determine the defenses strategy that will likely lead the most favorable outcome in your case. Your defense case should be carefully tailored to the unique circumstances surrounding the incident and your arrest.
Experienced Criminal Defense for All Types of DUI Charges in Tempe, AZ
If you have been arrested for any type of DUI offense in Maricopa County, you should immediately seek the legal assistance of a highly experienced criminal defense attorney. You only have 15 days to dispute an administrative suspension of your license, and you will want to begin developing the best legal defense as soon as possible. The most successful outcomes in cases are those that involve early and effective legal representation.
About the Author
With 17 years of DUI and criminal law experience, James has a vast amount of knowledge and litigation experience. For the majority of his career he has exclusively defended DUI and criminal cases. He is also a former prosecutor in Maricopa County. He provides a free consultation, and if retained defends active clients who face active charges in Tempe, Mesa, Gilbert, Chandler, Scottsdale, Phoenix, and surrounding Phoenix-metro cities.
In addition to his profound legal acumen, James Novak has also written three books about winning DUI defense strategies. He has a baccalaureate degree in engineering that provides him with in-depth knowledge of forensics, lab testing and possible inaccuracies or errors in this aspect of the criminal process. He also has an advanced degree in psychology which assists brings to the case a great deal of knowledge in the areas of Drug DUI defense.
He is dedicated to protecting the constitutional rights of every person he represents, and will treat everyone case, large or small with priority, and labor intensive representation.
Overview on Arizona DUI Laws
Arizona Strategic Highway Safety Plan
Arizona Motor Vehicle Crash Facts 2013
Arizona DUI Enforcement Statistics (2004-2013)
National Highway Traffic and Safety
Other Articles of Interest
Holidays busy for DUI Task Force
Officers cracking down on impaired drivers
Celebrating the holidays make sure to have a designated driver
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.
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.
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
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.
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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.
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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.
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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“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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