James E. Novak
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Arizona is known for having some of the toughest laws and harshest penalties in the country. Most DUI convictions call for jail terms, and in some cases prison. If you plant to visit, reside, or drive through Arizona, you should be familiar with these laws.

Driving under the Influence A.R.S 28-1381: In Arizona it is unlawful for a person to drive or be in actual physical control of a vehicle while under the influence of drugs or intoxicating liquor, while:

  • They are under the influence of intoxicating liquor, any drug, or substance if impaired to the slightest degree;
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An Arizona Legislator introduced HB2574 last month, intending to protect 4th Amendment Constitutional Rights from unreasonable searches.

Passing of this Bill would have outlawed police drone use to collect evidence in criminal offenses. Arizona is one of at least 24 states considering passage of bills designed to address constitutionality of evidence obtained by police surveillance drones. Most of the legislation focuses on respecting a person’s privacy and constitutional rights by requiring police to obtain a lawful warrant before collecting information on a suspect.

But after the bill was met with heavy opposition by Law Enforcement Agencies, the bill was disbanded last week. In the alternative, the committee will review privacy and constitutional issues; economic factors; new technology; and business and government interests related to drone use.

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The question before the US Supreme Court is “When is a DNA search lawful?”

US Supreme Court Justice Alito called it “Perhaps the most important criminal procedure case that this Court has heard in decades.”

The state argued that DNA testing at the time of arrest would help solve cold cases and serious violent crimes. In response, one Justice Scalia pointed out that the fact that a DNA test may be useful does not make it constitutional.

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In 2012, Mesa Police reported 3,112 DUI arrests. Of those, 41.6 percent involved some type of drugs. This represented a slight increase over 2011 which was 41.2 percent. Many of these involved synthetic drugs, spice, bath salts, Marijuana, and prescription drugs.

To help address the rising drug DUI arrests, Mesa AZ Prosecutor’s Office was awarded a grant for $59,550 earlier this month by the DUI Abatement Council of the AZ GOHS, designed to improve drug DUI prosecution.

Approximately 80% of the grant will be used to design and post an official website which will include materials, arrest logs, and certifications involving DUI field tests for use by criminal defense attorneys in the discovery phase of a DUI case. This is designed to increase efficiency and save on expenses for police to comply with discovery requests by criminal defense attorneys. Currently, it takes police funding and time to produce information on each and every discovery request on paper and via mail.

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A recent ruling could mean that a motorist who last smoked Marijuana in a legal state a month prior to traveling to Arizona, may be arrested and prosecuted for Marijuana DUI.

An Arizona Court of Appeals marijuana DUI dismissal was overturned recently in favor of the prosecution, and returned the case to the Superior Court for continued prosecution proceedings.

The issue in question was whether or not a motorist could be prosecuted for driving under the influence of Marijuana, even if the only evidence was blood test results that revealed a chemical compound that does not cause impairment; but can remain in the blood stream for a month.

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News Story That Went Viral

Last week in the news, we learned of a suspect was arrested on minor drug charges: unlawful possession of a controlled substance, Xanax. When she appeared in Miami-Dade Circuit Court, the Judge questioned her about her assets, for purposes of a release bond. The suspect laughed in response to the Judge’s questions. He continued to remind her that the proceedings were to be taken seriously, and that they were not in a night club but a court of law. Unfortunately, she did not answer his questions seriously. As a result, the Judge then ordered bail of $10,000.00. At that point, the suspect made an inappropriate exit remark, and disrespectful gesture with her hand. The judge immediately demanded the suspect to return to the podium, and promptly sentenced her to 30 days in jail for contempt of court.

After serving 4 days in jail, the defendant retained a criminal defense attorney. He appealed the harsh 30 day jail sentence and $10,000.00 bond. The defendant formally apologized to the judge for her actions and explained she was under the influence of a controlled substance in her previous court appearance. The Judge remanded her sentence. She was released from jail, and the bond was dropped. She will participate instead in a substance abuse treatment program.

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The US 9th Circuit Court of Appeals Reversed a Drug Conviction recently based on the cumulative effect of violations resulting in error by the lower court.

The errors pertained to two denials of requests for discovery by the defendant and violations in Rules of Criminal Procedure for sentencing.

The panel found that although the lower court abused its discretion in denying certain discovery requests by the defendant because the record did not clearly establish what exculpatory evidence, if any, may have been produced if the request had been granted; and what effect it may  have had on the trial outcome. As a result, The 9th District court vacated the conviction and remanded for continued proceedings to include evidentiary hearings.

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“Describe the ‘young man’ who walked into the room earlier,” asked the teacher.

Later the student learns the man that the teacher referred to was in fact, 55 years old. So the question begs, “Was he a “man”; or was he a “young man”?

This is an illustration of when a person might be influenced by another. If the witness had not been fully attentive to the man who walked into a room, they may have remembered the man as a younger man, perhaps younger than he really was, simply because it was suggested. Many factors including other people may adversely impact the validity of a witness statement.

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In Arizona, a motorist can be arrested for DUI even if their blood alcohol content is below the legal limit of 0.08 percent or if they have had no spirituous liquor at all. Any DUI in Arizona is a criminal offense and subject to serious penalties including jail time, and suspension or loss of driver’s license. A conviction carries criminal and civil charges. Any DUI conviction in Arizona can potentially result in adverse collateral consequences for a person, including loss of their job, driving privileges, residency, and other freedoms they had prior to being convicted of a DUI.

Under Arizona Law A.R.S. 28 – 1381 it is unlawful to drive or be in actual physical control of a vehicle, if a person is “impaired to the slightest degree” due to any drugs, alcohol, or combination, thereof. This year, Drug DUI charges constituted 14 percent of the total annual impaired driving arrests. Arizona officials reported that many of those were the result of driving impairments caused by prescription drugs.

This law applies to any toxic drug and includes “prescription-only drugs”, as well as over-the- counter drugs, illegal drugs, narcotics, Medical Marijuana or dangerous drugs.

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Elements of a Valid Search Warrant

Under Arizona Laws, Constitution; and the Fourth Amendment of the United States Constitution, a person has protection from unreasonable search and seizures of themselves or their property.

In order for the warrant to be valid the following elements must exist:

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Contact Information
Law Office of James Novak, PLLC
4500 S Lakeshore Dr #352
Tempe, AZ 85282
Phone: (480) 413-1499Text: (602) 908-8123

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