The Behan Law Group, P.L.L.C.

520-220-5047

1-877-MISS-DUI / 1-877-647-7384

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945 N. Stone Ave, Tucson, AZ 85705
Recent blog posts

Arizona Marijuana DUI LawyerArizona voters made history this November when they approved legalizing recreational marijuana. Beginning November 30, 2020, adults 21 years or older can legally possess up to an ounce of marijuana, with no more than five grams in a concentrated form, and can grow up to six marijuana plants at home, as long as the plants are within a lockable enclosed area and out of public view.

This ballot initiative, called Proposition 207, will give the Arizona Department of Health Services (AZDHS) responsibility for regulating marijuana retail stores and cultivation facilities. According to Ballotpedia, the passage of Prop. 207 also allows Arizonans who have been convicted of certain marijuana-related crimes such as possession, consumption, cultivation, and transportation to petition for the expungement of their criminal record beginning July 12, 2021.

Although the law has officially been passed, the rules regarding marijuana DUI prosecution are still undecided. In other states that have legalized the plant, the legal limit for driving while high is 5 nanograms of THC per milliliter of blood.

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Posted on in Legal

Pima County criminal defense lawyerWhen accused of a crime, everyone deserves a fair trial in court. That truth is embedded in the Constitution under the Sixth Amendment. But the COVID-19 pandemic has threatened the integrity of those trials, leaving defendants at risk. With jury trials slowly beginning again in Pima County, it’s important to understand the ways COVID-19 can impact your right to due process.

The widespread use of face masks has emerged as one of the most effective ways to stop the spread of coronavirus, though it can have a troubling impact in trial proceedings. Each state has its own policy on wearing face masks in courthouses, and Arizona’s is relatively lenient. The Arizona Supreme Court mandated face masks for court employees, visitors and participants, but a judicial officer can let a testifying witness remove or pull down their mask while testifying—if it’s deemed necessary and appropriate physical distancing measures are followed.

When trial participants wear face masks, it can infringe on a defendant’s rights because obstructing someone’s face makes it impossible to assess their demeanor, which is one of the four key elements in the Confrontation Clause. The Confrontation Clause within the Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.”

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Tucson criminal defense lawyerCalifornia resident Arthur Lange was driving home one day in 2016 when he caught the attention of a California highway patrol officer, who pursued him with the intention of giving a citation for playing music loudly and honking his car horn.

Instead of conducting a regular traffic stop, the officer followed Lange to his home where Lange parked his car in the garage and headed for the door. Without getting a search warrant or consent to enter the residence, the officer entered Lange’s garage by putting his foot under the garage door to block it from closing.

Upon talking to Lange, the officer believed he could smell alcohol on his breath and charged Lange with a DUI. In court, Lange argued that the officer’s entry into his garage without a warrant violated his Fourth Amendment right to be protected against unreasonable searches and seizures.  When the police seize evidence illegally, the exclusionary rule usually operates to bar the government from using that evidence at trial

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Arizona DUI Attorney Michelle BehanIn Arizona, officers must draw your blood within two hours of you being pulled over for suspicion of DUI if they wish to use the blood results as evidence against you. That’s because the law says you cannot have a prohibited alcohol concentration within two hours of driving or being in actual physical control of a car. The police are aware of this short window and will try to draw your blood as quickly as they can. However, in some cases, a driver’s blood is not taken until 2 hours after the stop. In fact, it is not unusual for testing to occur outside the 2-hour window.

Even if the police miss the two-hour window on drawing your blood, they can still try to use the results as evidence against you by relying on something called retrograde extrapolation. This scientific process determines if you had a BAC of .08 or higher within two hours of driving. Usually, the State will have a chemist testify using the blood result and guess backwards as to what your BAC would have been within two hours of driving.

However, retrograde extrapolation has been criticized by many experts in the field. Some argue that this method requires a chemist to make several assumptions. For example, chemists often assume that the alcohol was completely absorbed at the time of testing, or that the alcohol curve was charted correctly, or that the alcohol in your system was eliminated at an average rate. These are major assumptions that may be wrong and affect the results of the chemist’s BAC estimation.

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Arizona DUI Attorney If you refuse to take a chemical test from an officer who suspects you are driving under the influence, your license may be suspended for 1 year.  The lawyers at The Behan Law Group will fight to keep your driving privileges in tact.  However, even if your license suspension is upheld for one year, there are still ways to be able to get you back on the road. 

Arizona allows drivers facing a one-year suspension to obtain a restricted driving permit, called a Special Ignition Interlock Restricted Driver’s License (SIIRDL) for the last 9 months of the 1 year suspension. This license is separate from an ignition interlock device and is voluntary.

Requirements:

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Arizona DUI AttorneyIn a state where the penalties for driving under the influence are severe, it is easy to become confused on your rights when being pulled over for a DUI. The Behan Law Group wants you to understand your rights if you are stopped and investigated for a DUI. 

What is a Field Sobriety Test and a Chemical Test?  In Arizona, officers use two different types of tests to check a driver for DUI: field sobriety tests and chemical tests. Field sobriety tests are subjective tests that an officer might ask you to perform on the side of the road, such as the Horizontal Gaze Nystagmus Test, the Walk and Turn Test, the One-Leg Stand Test etc. On the other hand, chemical tests check your blood alcohol concentration (BAC) level by testing your blood, breath, or urine. Breathalyzers, urine samples, and blood draws are all types of chemical tests.

Can I refuse to take sobriety tests?  Yes and no.  While it’s true that you cannot be forced to take a sobriety test, there are some consequences for refusing.  The fact that refused can be used against you in court in some cases.

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Posted on in DUI

Arizona DUI AttorneyMany drivers in Arizona mistakenly believe that you must physically be driving a car to be charged with a DUI. However, simply sitting in the driver’s seat and smelling like alcohol may be enough to get arrested for DUI.

Arizona law prohibits driving or being in actual physical control of a car while impaired. While actual physical control is not greatly defined, Arizona courts will often use several factors to determine whether a person had the intent to drive while intoxicated. These factors often include:

  • Whether the vehicle was running or whether the ignition was on;
  • Where the driver was found, and in what position;
  • Where the keys were located;
  • The weather conditions and time of day;
  • Whether the driver voluntarily pulled over;
  • Whether the driver was awake or asleep;
  • Whether the windows were up or down;
  • If the heater or air conditioner was on;
  • Where the vehicle was stopped;
  • Whether the headlights were on

The Court applies these factors to determine if the driver had the immediate ability to drive away. If the Court believes that the driver had the ability to immediately drive off, then the Court often finds that the driver had actual physical control.

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Arizona DUI AttorneyFrom recent high school graduates to college students, many underage drivers in Arizona are finding out that, while DUI consequences are certainly severe, it can be even worse if you receive an underage DUI.

If you have been charged with a DUI while under the age of 21, the following information is important for you to understand.

What are the Laws for Underage Drinking and Driving?  A.R.S. §4-244 (34) makes driving under the influence as a minor illegal. This underage DUI statute, which is titled “Minor Driving with Liquor in Body,”  is often called “Baby DUI” [insert link to statute] by police, prosecutors, and defense attorneys in Arizona.  

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Arizona DUI AttorneyMany drivers facing a DUI charge in Arizona ask the same question: when are breath test results admissible as evidence against me? If you have been charged with a DUI, it is important to know the difference between the Portable Breath Test (PBT) and an Intoxilyzer:

Portable Breath Test (PBT).  This handheld device is often used by officer during the initial DUI investigation. However, because these tests are widely considered unreliable and inaccurate, the PBT test is not admissible to be used against you as evidence. Remember, you are not required to submit to a PBT test under any circumstances.  [internal link to pbt blog]

Intoxilyzer.  The second form of breath testing is through the Intoxilyzer 8000, which Arizona uses as its breath test device. However, unlike the PBT, the results from the Intoxilyzer 8000 can be admissible as evidence against you in court.

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Tucson DUI Charge Attorney If you have been pulled over on a suspicion of drinking and driving in Arizona, an officer may perform a blood draw on you to test for either alcohol or drugs. If your blood has been drawn, the officer will obtain two vials to test by the State’s crime lab. However, whether your blood was drawn or a sample of your breath was captured, you have a right to have your blood independently tested.

 Both the Constitution and Arizona Law discuss that a DUI suspect has the right to obtain an independent blood alcohol test. A driver must be allowed to counter the state’s scientific evidence of intoxication with the defendant’s own scientific evidence.

 There are many challenges to a blood draw. For example, blood contamination, improper storing, incorrect labeling, improper collection, and a break in the police’s chain of custody are all ways to show that the blood evidence against you may have been compromised.

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Tucson DUI Defense Law Firm In Arizona, the police can impound your car up to 30 days in some DUI cases. This applies even if the owner of the car was not present when the driver was cited for the DUI. Arizona Revised Statute §28-3511 is the law that allows the police to take your car. The law allows the police to impound the car if the driver:

1.     Did not possess a valid driver license;

2.     Had a revoked, suspended or canceled driver license;

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Tucson DUI Defense AttorneysArizona has harsh DUI penalties, even for first offenders. Arizona was also one of the first states to require a driver convicted of a DUI to install an ignition interlock device. If convicted with a DUI, a driver will be required to install and maintain an ignition interlock device at his or her own expense, in addition to paying fines and undergoing mandatory driving education and counseling. If you are facing a DUI charge, you should be aware of how Arizona’s ignition interlock devices may apply to you.

Determining Whether Interlocks Apply.  Ignition interlock devices only apply if the driver was convicted of an alcohol-related DUI, and do not apply if the driver was under the influence of another substance, such as marijuana or prescription drugs.

How the Device Works.  An interlock device requires a driver to blow into the device before the vehicle can start. If the device detects a prohibited level of alcohol, usually .02 or higher, the device registers a failure, and .the car will not start.

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Posted on in DUI

Tucson DUI Defense AttorneysIt may seem like there’s no hope for your DUI case:  the police officers have a breath test result and its over the legal limit.  However, the reality of both preliminary breath test devices and other breathalyzers is that they are often inaccurate, improperly calibrated, and, in certain circumstances,  cannot be used in Court against you. This Q&A gives a quick guide on preliminary breath tests, where officers will obtain a single breath sample using a handheld breath testing device.

What is a PBT Test? In Arizona, officers can capture a sample of your breath for measurement using a handheld device, commonly called a preliminary or portable breath testing device.  During the DUI investigation, officers may ask you to blow into the PBT. The device analyzes your breath for alcohol and returns an estimating number of that person’s blood-alcohol content (BAC).

When can officers ask me to submit to a PBT test? Only when officers have reason to believe that you are driving under the influence can they ask you to take a PBT test. Both the 4th Amendment and the case of Verberg v. Jones states that officers can administer the PBT test only if they have reasonable suspicion that the driver is DUI. 121 P.3d 1283, 211 Ari. 413 (App., Div. 1, 2005). In other words, an officer needs an articulable basis that you are driving impaired to request a breath test.

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Posted on in DUI

Tucson DUI Attorneys            State of Arizona ex rel. Hamilton v. City Court of Mesa, and Real Party in Interest Lopresti, 799 P.2d 855, 165 Ariz. 514 (1990) – How the State Gets it Wrong and What Happens When the Courts Believe Them

Michelle L. Behan

            In 1990, the Supreme Court of Arizona took up a case to determine if it was lawful for the State of Arizona to use field sobriety test results as proof a citizen had an alcohol concentration over the legal limit.  A few years earlier, the Supreme Court had decided a case[1] called Blake, where they held it was not permissible for the State to use Horizontal Gaze Nystagmus test results as direct evidence of a driver’s alcohol concentration.  In the Lopresti decision, the Court reaffirmed its prior holding, and then provided direct guidance limiting the testimony of a police officer regarding HGN test results:

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1.     Is it illegal to drive with marijuana in my system?

See Answer

2.      Do I need a lawyer if I am arrested for DUI marijuana?

See Answer

3.      What if I have a medical marijuana card?

See Answer

4.      Do I have to be high in order to be guilty of Marijuana DUI?

Posted on in DUI

Arizona DUI AttorneysState ex.rel. Verburg v. Jones, 121 P.3d 1283, 211 Ariz. 413 (App., Div. 1, 2005)

In this case, the Division One Court of Appeals was considering a special action filed by the State, challenging the reversal of a DUI conviction where a trial court had allowed the State to present evidence at trial that a DUI driver had refused to conduct field sobriety tests. Division One overturned the reversal, and held that the refusal to submit to field sobriety tests was admissible at a DUI trial. 

The holding is premised on the assumption that the field sobriety tests are a lawful search when supported by reasonable suspicion that a DUI offense has been committed. The Court of Appeals wrote:

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Posted on in DUI

Arizona DUI Law FirmBy Michelle Behan, The Behan Law Group

            In Arizona, the penalties for a DUI increase if the driver has previously been convicted of a DUI.  Penalty-enhancing prior convictions are not limited to DUIs that occurred in Arizona.  Under certain circumstances, an out-of-state conviction for DUI can enhance an Arizona DUI.  The penalties for second offense DUIs in Arizona that occur within seven years are harsh, and range from 30-180 days in jail, fines and fees in excess of $3,500, and supervised probation.  A third DUI within seven years is a felony, and will carry a sentence of 4 months -2.5 years in the state prison. 

            Statutory Elements

            In order for a court to determine whether an out-of-state DUI conviction can constitute a prior in Arizona, the court takes a look at the elements of the out-of-state statute the driver was convicted of violating.  If those elements are the same as the elements of the Arizona statute, then the out-of-state prior counts as a penalty enhancing Arizona prior.  In State v. Ault, the Arizona Supreme Court established that the reviewing court must conclude that the foreign conviction includes, “every element that would be required to prove an enumerated Arizona offense.”  157 Ariz. 516, 521, 759 P.2d 1320, 1325 (1988). 

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Posted on in DUI

Arizona DUI Alcohol Defense AttorneyA year-long investigation by the New York Times determined that breath alcohol tests are untrustworthy. The Times published an article revealing that tens of thousands of breath alcohol tests are scientifically unreliable. In an article titled These Machines Can Put You in Jail. Don’t Trust Them the Times wrote, “Alcohol breath tests, a linchpin of the criminal justice system, are often unreliable.”

The investigation included interviews of forensic scientists, industry representatives, independent experts, defense attorneys, court orders, and internal documents related to breath alcohol devices across the country.  As part of the investigation, the Times determined that there were several reasons why alcohol breath tests were unreliable.

The first reason that the test results are incorrect is due to the design flaws in the machines themselves.  The investigation uncovered that the basic programming of these breath alcohol machines, called ‘source code’ often contained mathematical errors that should have been discovered by even the most simple verification. Manufacturers fought tooth and nail to prevent defense attorneys and courts from gaining access to the source code.

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Arizona DUI Alcohol Defense

DUI Arrest in Tucson? Breath Alcohol Test? For a long time, the Tucson Crime Lab has known that the breath testing device they use, called an Intoxilyzer 8000, can be off by as much as 11.7%.  The state tried to stop this information from being used in court.  But Tucson DUI Lawyer Michelle Behan, known nationwide as Miss DUI Arizona, together with other defense attorneys just won a three-hearing when a judge ruled to allow this evidence to be used in court to defend someone charged with DUI. This information could radically change your case.

DUI Arrest in Arizona? Blood Alcohol Test? Your test may be challenged if there was an insufficient amount of preservative in the blood tubes. Tucson DUI Lawyer Michelle Behan, known nationwide as Miss DUI Arizona, has learned through her sources that a lot of tubes that were used to draw blood for DUI alcohol tests failed to contain the proper amount of preservatives. There is a recall in effect right now for many of these blood alcohol vials (made by Becton Dickenson). This could render the test results false or invalid. 

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