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

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Throwback Thursday, DUI Style

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?

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Throwback Thursday, DUI Style

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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Out-of-State Prior Convictions and Arizona DUIs

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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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BREATH ALCOHOL TESTS ARE UNRELIABLE STUDY SHOWS

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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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