James E. Novak
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Have you been stopped by a police officer and charged with a DUI? Are you looking to contest the test results that the State wants to use against you? In Arizona, there are several options for challenging DUI test results; depending on your set of circumstances, each strategy has a different likelihood of success. To learn more or to see which method(s) would work for you, contact a Phoenix DUI attorney as soon as possible to discuss next steps in your case.

What is the Difference Between Each Test?

A breathalyzer is a device that officers use to track your blood alcohol content (BAC) based on each breath you take. A blood test, similarly, can detect a person’s BAC. The blood test can find alcohol in a person’s blood for up to 12 hours after drinking. A field sobriety test occurs when a police officer asks an individual to complete physical and mental tasks to determine if the person is intoxicated (i.e., standing on one leg, walking and turning).

Method 1: Challenge the Testing Procedure

The first method you might be able to use to challenge the results of a breath, blood, or field sobriety test is challenging the actual testing procedure. Officers do not always follow the correct testing procedures when stopping individuals for a breath, blood, or field sobriety test. It might be the case, for example, that the officer’s testing kit had expired, that your blood sample was not labeled correctly, or that the officer failed to use the precise proportion of chemicals when compiling the test.

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Recently, a defendant in Arizona was found guilty of six counts of first-degree murder. He appealed his convictions, arguing in part that one of the jurors in his trial had external knowledge of a previous crime that he had committed. According to the defendant on appeal, this knowledge prejudiced the juror against him, and the trial court should have granted his request for a mistrial. The higher court reviewed the trial record and ultimately disagreed, finding that the juror credibly stated she did not remember that the defendant had been accused of another crime several years prior.

Arizona Rule of Criminal Procedure 24.1

Under Arizona Rule of Criminal Procedure Rule 24.1, a court may order a new trial either on the defendant’s motion or with the defendant’s consent. The defendant in this case moved for a new trial under this rule, arguing that one juror intentionally hid the fact that she knew the defendant was convicted of a previous murder. The trial court denied the defendant’s request, concluding that 1) the defendant did not show that the juror failed to disclose any knowledge and 2) regardless, the defendant failed to show any prejudice that resulted from the possible knowledge.

The defendant appealed. In the higher court’s opinion addressing the appeal, it noted that the juror testified that she knew about the previous murder, but she also indicated that she did not remember that the defendant in the case before her had been convicted of that murder. The court found this testimony to be credible; that is, it found it reasonable that the trial court relied on the juror’s testimony when deciding not to grant the defendant a mistrial.

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Sex crimes can be tough crimes to fight, but having an understanding of the different offenses can be helpful when you are up against the state of Arizona. Today, we review some basics of “luring,” which is a lesser known but severe criminal offense.

Definition of Luring

In Arizona, “luring a minor for sexual exploitation” means that a suspect offers sexual conduct when he or she knows or has reason to know that the other person is a minor. Luring is a class 3 felony, and there are harsher punishments if the minor is under fifteen years old.

Interestingly, a defendant in a luring case cannot offer the defense that the other person was not, in fact, a minor. For example, oftentimes, investigators suspect an individual of luring and pretend to be a minor on an internet platform. The investigators themselves are over 18 years of age, but the person committing the luring believes the investigators are different people, i.e. that they are minors themselves. Even though the investigators are not actually minors, this does not matter for the criminal offense: all that matters is that the suspect has reason to know that the second individual was a minor.

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In the U.S. generally and in Arizona specifically, every defendant has the right to be free from prosecution for the same offense multiple times. Sometimes, it is easy for a court to determine when a case violates this right. Other times, it is not so straightforward. In a recent case before the Arizona Supreme Court, it was unclear whether the defendant’s three separate convictions should have been prosecuted one conviction instead. The court ultimately used the nature of the offense to determine that the criminal activity should have been taken as one offense instead of three separate offenses. This was a victory for the defendant, whose sentence will be reduced as a result.

Facts of the Case

In the case before the Arizona Supreme Court, investigators began a conversation with the defendant after he posted ads on a website designed to facilitate sexual encounters. The investigators posed as a thirteen-year-old girl, and the defendant promptly began sending explicit messages to the “girl.” The two individuals arranged a meet up. During the three days between when the pair arranged the meet up and the date of the meet up, the defendant and the “girl” exchanged approximately 1,000 text messages, many of them very explicit in nature.

When the defendant arrived at the agreed-upon place, police officers arrested him. The State charged him with three counts of luring a minor under the age of fifteen for sexual exploitation. A jury found the defendant guilty, and the trial court sentenced him to thirty-one years in prison. This sentence was based on three distinct violations of Arizona law, given that the defendant sent explicit and luring messages on three separate days leading up to the supposed meet-up.

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Under Arizona law, a court is prohibited from reopening questions decided in the same case by the same court. Similarly, once a court issues a final judgment in a case, the same parties cannot re-litigate the issue in future proceedings. Essentially, this means that if a court finds you not guilty of a specific crime, the State cannot try you for the same offense down the road. The court’s ruling is final, and this law prohibits defendants from getting prosecuted multiple times for the same offense.

In a recent case, however, the court decided that the prosecution was entitled to reuse evidence from a 2012 case in its 2018 case. The case was centered on a defendant’s personal laptop, which contained photos of nude children. In 2012, when the defendant was first charged with sexual exploitation of a minor, he filed a motion to suppress the incriminating evidence, which the trial court granted. Because there was no incriminating evidence against the defendant, then, the court dismissed the charges.

Six years later, the State re-charged the defendant with the same crime, sexual exploitation of a minor. The defendant again filed a motion to suppress, but this time, the court denied the motion. The case went to trial, and a jury found the defendant guilty as charged. On appeal, the defendant took issue with the fact that the court allowed the prosecution to re-charge him using the same evidence, six years later.

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Under Arizona law, courts are required to explain certain sentencing decisions on the record and in the presence of parties. This explanation helps defendants understand the nature of their sentences, and it holds the court accountable for making fair decisions. A recent case before the Supreme Court of Arizona clarified what happens when courts fail to explain their sentencing decision on the record, creating a framework for cases moving forward.

The Sentencing Court’s Obligations Under Arizona Law

When a court decides the length and nature of a defendant’s sentence, that court has an obligation to explain its determination. Arizona law specifically says that the trial court must (1) state the factors it considered, and (2) articulate how those factors led to the sentencing decision. A judge will typically conduct this explanation orally, dictating the reasons in open court. If and when the defendant appeals the trial court’s decision, the appellate court then has a clear record of the decision and reasoning.

Consequences for the Sentencing Court’s Failure to Explain

In its May 2024 opinion, the Supreme Court of Arizona decided what must happen when a trial court fails to explain its sentencing decision. Once a party establishes that the trial court failed to meet its burden, the appellate court should put its subsequent decision on hold. The appellate court should then send the case back down to the trial court so that the judge can correct the error and explain the decision. Only after this explanation happens may the defendant’s appeal proceed.

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What happens when a jury has to consider inconsistent evidence during trial? Generally, it is up to the jury to determine which evidence is believable and which evidence is not. In a June 2024 case before the Arizona Court of Appeals, Division One, the higher court determined that even though there were inconsistencies in the trial court record, the inconsistencies were not enough to reverse a defendant’s conviction and resulting sentence for aggravated assault.

Inconsistencies in Question

The trial for this case related to an aggravated assault that happened at an outdoor birthday party. Two men at the party got into an altercation once one of the men made unwanted sexual advances toward the second man’s girlfriend. The second man attacked, and the first man sustained several injuries from the altercation. Police arrived at the party and arrested the person who became the defendant in this case.

There were several witnesses to the assault, and they testified during trial. The first witness said that the defendant kicked the victim while he was unconscious. Another said that she did not see the defendant kick or hit the victim after the victim was already on the ground. Whether the defendant assaulted the victim after he fell to the ground was important because this “continuous” conduct would take the crime from assault to aggravated assault.

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In general, when an officer puts a suspect under custodial interrogation, the officer must give the suspect Miranda warnings. That is, the officer is required by law to tell the suspect that he has the right to remain silent and the right to an attorney. In some limited exceptions, though, these warnings are not necessary.

A recent case out of the Arizona Court of Appeals, Division One, highlights such an exception. In this case, an officer stopped the defendant on an unrelated charge. He removed one firearm from the defendant’s car. Before the defendant left, the officer learned that the defendant was a suspect in an armed robbery and aggravated assault case. The officer then re-approached the defendant, asking if he had an additional weapon in the vehicle. At that point, the defendant replied that he did have a gun in the car.

Later, the State indicted the defendant on armed robbery, aggravated assault, and misconduct involving weapons. The defendant filed a motion to suppress the weaponry evidence, arguing that the officer asked about the second weapon before providing the necessary Miranda warnings.

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In a recent case coming out of an Arizona court, the defendant and the government agreed that the trial court should have granted the defendant certain rights that it unrightfully denied her. Both the defendant and the government indicated this error in their filings, and the appellate court reviewed the record to see if it, too, agreed that the trial court should have granted the defendant several rights that it denied her. The court ultimately granted the defendant’s request, giving her the right to own a firearm.

Overall, this case serves as a reminder that having thorough counsel for a criminal case can make all of the difference; by hiring an attorney that can catch mistakes like the one this defendant’s counsel caught, you can give yourself the best possible chance of retaining and restoring your freedoms that might otherwise be at risk.

Basis for the Appeal

The law in Arizona says that after a first-time felony offender finishes probation, he or she is entitled to the restoration of his or her civil rights. Here, the defendant was a first-time felony offender convicted of attempted aggravated assault and endangerment. She completed her required three years of probation. After the three years, the defend asked the court to restore her civil rights; the court granted one request by restoring her right to vote, which is traditionally taken away from incarcerated defendants.

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In a recent case before the Arizona Court of Appeals, Division One, the defendant asked the court to reconsider the trial court’s decision to deny his motion to suppress. The defendant was originally charged with transporting a narcotic drug for sale, and he filed a motion to suppress incriminating evidence that he felt a police officer unfairly obtained. On appeal, however, the higher court disagreed with the defendant and ended up affirming the lower court’s ruling.

Facts of the Case

In the opinion, the court recounted the following facts: a detective was on patrol early one morning on the interstate when he noticed a car in his vicinity drift across the white “fog line” two times. He initiated a traffic stop, and he approached the driver and his passenger, who ended up being the defendant in this case.

The detective noticed several things about the defendant. His hands were shaky, his body was trembling, and he continuously licked his lips during the conversation. Because of the detective’s 15 years of experience in the field, he suspected that the defendant was under the influence of drugs or alcohol. The detective conducted a field sobriety test and, soon after, found several boxes in the car with “bulk drugs” for transport.

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