Posted on April 22, 2020 in DUI

 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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 Posted on April 20, 2020 in DUI

 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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 Posted on April 16, 2020 in DUI

Arizona 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 April 14, 2020 in DUI

It 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).

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 Posted on March 27, 2020 in DUI

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?

See Answer

5.What kind of tests do they have for marijuana DUI?

See Answer

6.Are the tests for marijuana DUI reliable?

See Answer

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 Posted on March 26, 2020 in DUI

State 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:

"Because the officer had reasonable suspicion that the defendant was driving under the influence, the search by conducting field sobriety tests was lawful, and   therefore properly admitted."

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 Posted on December 20, 2019 in DUI

By 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 November 07, 2019 in DUI

A 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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 Posted on August 22, 2019 in DUI

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.

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 Posted on August 08, 2019 in DUI

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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