September 2012 Archives

September 26, 2012

Gilbert DUI Lawyer.jpgEstablishing driver impairment is the most challenging element of a DUI

Elements of a DUI

There are three elements of a DUI charge in Arizona. Establishing impairment is the third, and most difficult to confirm. First, the facts need to establish that the motorist must be driving or in actual physical control of a vehicle. Second, the police must determine if a motorist is under the influence of alcohol or drugs. Third, the police must establish that a person's ability to drive was "Impaired to the slightest degree" or more as a result of drugs, alcohol or any combination of drugs and alcohol.

Driving "Impairment" Defined

The Arizona Department of Public Safety defines a "driver impairment" resulting from being under the influence of drugs or alcohol as:

"A reduction in the performance of critical driving tasks"

To determine if the motorist is experiencing a reduction of performance, the police are required to follow certain procedures and protocol. The officer will need to have "probable cause" to believe the driver is impaired due to drugs or alcohol.


Determining Driver Impairment

Determining an impairment of a driver is less fact oriented and less objective than determining their Blood Alcohol Content (BAC) level. BAC levels can be obtained through use of a breathalyzer test or a chemical test such as DUI blood test.

Here are some tools the police will use to determine if a driver is impaired:

1. The motorist driving behaviors prior to the stop;
2. Police observations of the motorist at the time of, and following the stop;
3. Mannerisms and responses of the motorist to questions asked by the officer;
4. Ability of the motorist to follow instructions;
5. Statements or admittance made by motorist to police;
6. Passenger or objective witness statements;
7. DUI Roadside Standard Field Sobriety Tests (SFSTs) developed by NHTSA:
a. Horizontal Gaze Nystagmus (HGN) Eye Test
b. On-Leg Stand Test;
c. Walk-and-Turn Test

These factors, particularly the DUI Roadside Testing FSTs are often challenged; considered biased and police opinionated, by the defense. This is because the police explain the test; provide instructions; administer the tests, and then grade the tests.


Arizona DUI Laws

Under Arizona law A.R.S. §28.1381, a motorist may be arrested for DUI, if they are driving below the legal limit of 0.08% Blood Alcohol Content (BAC); or if they are under the influence of drugs, and are "impaired to the slightest degree". Criminal Charges will be brought as a Class 1 Misdemeanor.


Criminal Defense Firm for DUI charges Tempe AZ

You should always consult a criminal defense attorney if you were arrested for any type of DUI charges. The penalties are harsh for convictions, even for firs time Drug DUI and DUI "Impaired to the slightest degree". Sentencing is the same as those for DUI in excess of the legal limit of 0.08% BAC, but before 0.15%. Penalties include jail term of 10 days; driver's license suspension for 90 days; use of Ignition Interlock Device (IID) on their vehicles; alcohol or drug screening and education; probation; fines, fees, and assessment costs. You will need a qualified and experienced legal advocate to defend your charges, make sure your rights are protected, and work to resolve the charges with a favorable outcome.


Additional Resources:


Arizona Department of Public Safety

Arizona State Legislature - Revised Statutes

Maricopa County Superior Court - Criminal Case Information


Continue reading "Establishing Driver "Impairment" in DUI Cases " »

September 24, 2012

Much controversy still surrounds the Arizona Medical Marijuana Act, even though the state law approved use for medicinal by qualified card-holders. Users driving who are patients that possess a medical marijuana card arrest for both possession, and Drug DUI.


Marijuana Possession Charges

Under current law qualified patients of the MM cards may purchase 2.5 ounces of Marijuana every two weeks. However, despite the fact that a person may be a qualified MM card holder they risk arrest for illegal drug possession. Some County prosecutors are not recognizing its' medicinal legality. This is because they feel it conflicts with Federal laws which prohibit the use of it for any reason. Some Maricopa County prosecutors have vowed to prosecute these charges. They will likely be convicted in lower court, and then be compelled to appeal a possession conviction to a higher court, until a ruling can be ordered by the Court of Appeals or the Arizona Supreme Court.


Drug DUI charges

Possession of a legal MM card will not prevent a motorist from getting a Drug DUI. The effects of Marijuana can stay in a person's system for days, weeks, and even months depending on how much and often they use it. So if a driver tests positive for Marijuana following a DUI stop, they may be arrested even if the Marijuana did not cause their driving to be impaired to the slightest degree.

If in fact, the driver was not impaired to the slightest degree due to the Marijuana found in their system, they will have a justifiable defense against the DUI drug charges under Arizona Law.


Arizona Drug DUI Laws

Under Arizona Drug DUI law A.R.S. 28-1381 it is unlawful for a person to drive or be in actual physical control of a vehicle if they are:

• Under the influence of any drugs or alcohol; and
• Impaired to the slightest degree;
• While there is any drug defined in section A.R.S. 13-3401 or its metabolite in the person's system

The law specifies that it is not a defense that a defendant was entitled to use the drug under Arizona Law. This will be charged as a Class 1 Misdemeanor.

Criminal Defense Attorney for Drug DUI and Possession Mesa, AZ

It is important that you consult an experienced criminal attorney to discuss your matter and options for defense following an arrest. You should never plead guilty to charges without first discussing the matter with your legal counsel or without their legal representation. The Arizona laws are very strict and the penalties are harsh. Sentencing includes jail time; fines; fees; drug or alcohol counseling and treatment; suspension of driver's license; use of interlock device on vehicle; probation, and other penalties ordered by the court. Defenses should be argued by a qualified criminal attorney under Arizona Rules of criminal procedure through proper court channels. Successful challenges may lead to evidence suppression, charge dismissal or other favorable outcome in your case.


Additional Resources:


Arizona Department of Health Services

Arizona Legislature Revised Statutes

Maricopa County Superior Drug Court


Continue reading "Marijuana DUI Laws: Users Driving with Medical Marijuana risk being arrested for illegal drug possession and drug DUI. " »

September 19, 2012

United States Supreme Court.jpgOn September 18, 2012, U.S. District Judge Susan Bolton released the temporary restraining order on the immigration provision in SB 1070 A.R.S. 11-1051 (B). The action was pursuant to the U.S. Supreme Court's ruling on the matter in June 2012.

At the center of a two year legal batter, is the provision in the law known as "Show me your papers", and was the most controversial of Arizona's SB1070. Under this provision a police stop must still be a lawful one. In other words, the "reasonable suspicion" that a violation of the law occurred in order to make a legal stop.

During the stop, the officer determines that there is reasonable suspicion that a person is unlawfully in the United States. If reasonable suspicion exists that the person may be in the country illegally, the officer must make a reasonable attempt to contact the USB Immigration and Customs Enforcement (ICE) Agency to confirm the immigration status of the detainee.

The law also requires police to verify immigration status of arrested or imprisoned persons prior to their release.


Lawful Documentation of US Residency

Under SB 1070 A.R.S. 11-1051 (B) a person is presumed to be in the United States legally if they can provide the following documentation:

• Valid Arizona Driver's License;

• Valid Arizona Nonoperation ID License;

• Valid Tribal Enrollment cared or alternative Tribal ID;

• Valid US Federal, State, or Local Government issued ID, if the entity requires proof of legal presence to issue any of the above documents.


U.S. Presidential Executive Order Amnesty Exceptions


There are exceptions to the rules, including those afforded under the U.S. President's Executive Order Decree on June15, 2012, which was also effective immediately. Eligible applicants will receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for a work or school permit to reside in the United States.

This applies to otherwise illegal immigrants. The US Department of Homeland Security (DHS) began accepting applications for "Deferred Actions" for the following persons:

• Those brought to the US before the age of 16; and

• Those who are under the age of 31; and

• Who have lived in the USA continuously from June 15, 2007 to June 15, 2012;

• Currently enrolled and attending school; or

• Graduated or obtained a certificate of completion from high school; or

• Earned a General Education Development (GED) Certificate; or

• An honorably discharged veteran of the US Coast Guard or US armed forces; or

• Have not been convicted of a felony; serious misdemeanor; three or more other misdemeanors; and

• They do not pose a threat to national security or public safety.


The immigration laws in Arizona and on a Federal level continue to change and face legal challenges. Police spokespersons extended their intent to "Treat all individuals with dignity and respect, which is the ethical foundation of policing". We will continue to follow up on changing legislation.


US Citizenship and Immigration Services

SB 1070 Arizona Legislature

Continue reading "Arizona's "Show me your papers" immigration provision starts now" »

September 14, 2012

Phoenx Criminal Defense Attorney.jpgIn Arizona laws are in place that will result in criminal charges imposed on a person or business who knowing buys or sells stolen property that they know or should have known were stolen.

Laws were enacted as recently as January and March of 2012 that impose strict guidelines on businesses, particularly copper and metal buyers to register, index, report, and obtain proof of the originating source of the goods.

Failure to comply with the laws or to make a reasonable effort to find out the rightful owner of property they purchase from an entity may result in theft offense prosecution of the business owner or buyer of the stolen property.

A.R.S. § 13-1802. Theft; classification; definitions

A. Theft defined: A person commits theft if they unlawfully and knowingly:

• Control property of another knowing or having reason to know that the property was stolen; or

• Control another's property with intent to deprive the other person of that property; or

• Gains control of property that was lost, misplaced, or delivered to the wrong addressee, belonging to another without making a reasonable effort to find or notify the real owner.

G. Classification:

Theft of property under $1,000.00 may be charged as a Misdemeanor. Theft of property with a value equal to $1,000.00 or are classified as Felonies. They range from Class 5 up to Class 2 depending on the value. The higher the monetary value the more serious the penalties.

If the item stolen is a firearm; or an animal stolen for the purpose of fighting, the charge will be classified as Class 6 Felonies even if the value is under $1,000.00


Theft Penalties

Convictions for first-time theft charges carry harsh penalties. The range from the low sentencing of six months in jail, and fines of up to $2,500.00 for a Class 1 Misdemeanor. Class 2 felony theft convictions expose a person to prison sentencing ranging from four to ten years.

All theft convictions may include court ordered counseling, community service, probation, restitution, costs, assessments; fees, and fines that can be exorbitant upwards to $150,000.

In the case of a Class 1 Misdemeanor theft first-offense, that involves a limited dollar value the offender may qualify to participate in a theft diversion program, in place of serving jail time.

Criminal Defense Theft Crimes Chandler AZ

If you were arrested for any type of theft crime you should consult a criminal defense attorney to discuss your matter and options for defense. If you have first offense Misdemeanor charges, with no criminal record, you may qualify for a diversion program. If you face felony theft charges or have been charged with a repeat offense, you should retain a private practice criminal attorney to defend you. They will protect your rights; defend your charges; and work to get a favorable resolution in your case.


Additional Theft Resources:

Arizona State Legislature - Theft Definition and Classification

Arizona State Legislature - Trafficking stolen property

Arizona Department of Public Safety - Vehicle Theft Task Force


Continue reading "Theft: Purchasing known stolen items, may result in criminal liability." »

September 5, 2012

Phoenx Criminal Defense Attorney.jpgMetal Theft Charges

Copper is an example of a high demand Non-Ferrous metal, with comprehensive uses, and is more resistant to rust and corrosion, than many other types of metals. As a result, thefts of copper and copper cable have become such a widespread problem in Arizona that many law enforcement agencies are offering rewards for information leading to arrests. In additional Arizona has passed legislation in an attempt to combat the crimes which place more restrictions on the businesses purchasing the copper, and more harsh sentencing and penalties for copper theft convictions.

Arizona Metal Theft Laws: HB 2396, A.R.S. §44-1642, A.R.S. §44-1644

Arizona Law HB 2396 was passed March 21, 2012. This Law intended to increase penalties by amending ARS § 13 - 1801, and ARS § 13 - 1802 to delete term "scrap metal" from the definition of value. This change redefines the average Fair Market Value of copper in the local area; together with the repair or replacement value of any property from which the metal was removed during the theft. For sentencing purposes, this serves to increase the penalties for a copper theft conviction, since the value of stolen property is a major factor considered in Sentencing Guidelines and penalties. For example, If a person were convicted of stealing copper in the amount of $3,000 or more may be charged with a Class 4 felony, exposing a person to prison terms of 18 months to 3 years, which is more severe than if it were "scrap metal" stolen.

A.R.S. § 44-1642: Effective January 1, 2012, requires that all scrap metal businesses register to report their purchases by reporting them to a Scrap Metal Theft Data Base that indexes purchase records; transaction limits; age of seller; and exceptions'.

A.R.S. § 44-16442: Effective January 1, 2012, requires that all scrap metal businesses register to report their purchases to the department of public safety; exemption; violation; classification.

Criminal Defense for Copper Theft or other Theft Crimes

If you have been arrested or charged with theft of copper metal, copper cord, or any other theft crime, you may be exposed to felony charges and prison sentencing. The prosecution will egregiously pursue convictions. Laws have been enacted to increase sentencing and penalties for those offenses. You should contact an experienced criminal defense attorney to discuss your matter and options for defense. With proper legal representation, and you will increase your chances of avoiding prison terms, and harsh penalties of a conviction. An experienced criminal attorney will protect your rights, defend your charges, and make every effort to get a favorable resolution in your case.

Additional Resources:

Theft Definitions
Theft Classifications
Arizona HB 2396


Continue reading "New Metal Theft Laws: Arizona calls for more severe penalties, and strict reporting for scrap metal buyers and sellers " »