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Recent Blog Posts
COVID-19 Threatens the Right to a Fair Trial
When 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.
Can Police Enter Your Home In Pursuit Of A Misdemeanor Crime? The Supreme Court Will Decide
California 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
Is There a Time Limit For The Police To Draw My Blood As Evidence?
In 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.
My License Was Suspended For 1 Year. Can I Still Drive?
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:
- Your license suspension/revocation occurred on or after February 1, 2006.
- You have completed at least 90 days of the mandated suspension period.
Can I Refuse to Submit to Field Sobriety and Chemical Tests?
In 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 GET A DUI IF I WAS NOT DRIVING?
Many 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;
Can I Get a DUI if I Am Under the Age of 21?
From 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.
Arizona’s baby DUI law is a criminal misdemeanor charge. If underage and cited, you will typically be charged with both a regular DUI and a baby DUI. With baby DUI, the State only needs to prove that any alcohol was present in your body when you were pulled over. Any amount of alcohol in your system can result in guilt. The State does not need to prove any particular amount, or that you were actually impaired.
When Are Breath Test Results Admissible in Court Against Me?
Many 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.
Understanding Your Right to an Independent Blood Test When Facing a DUI Charge
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.
I Was Arrested for a DUI... What Happens to My Car?
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;
3. Was under the age of twenty-one with alcohol in his or her body;
4. Arrested for Extreme or Aggravated driving under the influence.
Arizona law allows you to challenge the impoundment of your car by requesting a hearing. Arizona Revised Statute §28-3514(6G) allows the owner of the car to request a hearing within 10 days of the impoundment. At this hearing, you may request that the car be released as the result of a bad arrest. Essentially if you can prove that the car was improperly impounded, then the car may be released to you.
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