New Arizona DUI Law would not prevent drunk driving

We are both aware that the judges seldom if ever give a sentence above the minimum mandated by law. If judges would actually exercise their discression, throw out plea bargains, and actually try cases and sentence based on driving record and driving behavior as observed prior to and up to the time of the DUI arrest, I would agree with you. However since judges have shown they are willing to exercise their discression and just "rubber stamp" a minimun sentence, the legislature feels compelled to step in.

The above should read:

However since judges have shown they are "unwilling to exercise their discression".

The above should read:

"unwilling" to exercise their discression…..

Frank, I respect your opinion, but my experience everyday in the courts of Arizona (at least in the Phoenix area) is that Judges don't always give the mandatory minimum when they have discretion not to. There are certain judges who regularly reject plea agreements as not being tough enough, and it drives both prosecutors and defense attorneys crazy. In that scenario, it is usually possible to find another judge who will accept the plea agreement. The reality is that if more judges did reject plea agreements, the defense would enjoy an even greater overall acquittal rate becuase the prosecutors would be even more overwhelmed by the volume of cases set for trial.

I don't know if you are aware of it, but many judges live in constant fear of letting a DUI case go longer than 6 months, which is the timeframe mandated by the Arizona Supreme Court to conclude misdemeanor DUI cases. So if judges started routinely rejecting plea agreements they would do so at the peril of thwarting the Supreme Court and endanger their jobs. I'm not kidding.

So if more judges started rejecting sensible plea agreements, then their only other option would be to rush cases to trial. Might they be more inclined to grant sensible motions to dismiss and suppress as their case loads and backlogs thicken?

I perception of the legislature's actions is regards to DUI laws is that it is more reactive to public opinion and politics than a response to the real issues and needs of those who spend their careers in court.

We can all agree that DUI is a problem, but the legislature, if they keep ramping up the DUI laws in Arizona without long-term study, will eventually find that their efforts have either backfired or are ineffective.

I appreciate your input and welcome further comments.

Mr. Jaffee;

You certainly do bring up some excellent points. I think that your point about the courts being on the verge of being overwhelmed by the DUI case load and being under mandates to complete DUI cases in a set time and that defense attorneys could and do take advantage of this fact to obtain the best deal possible for their clients very valid. After all, it is the defense attorney's job to get the decision most favorable to their client.

Another fact that works in favor of sentences that involve minimum jail time is the fact that city jails can only hold a individual for 24 hours, so that any sentence that involves more than 24 hours incarceration time must be served, at least in part, in the county jail. In such cases the sentencing jurisdiction must, in the case of misdemeanors, pay a inmate incarceration fee per inmate day for the days served in the county jail. This has a negitive financial impact on the court and town budgets, and thus are fees they desire to avoid having to pay. I believe that the avoiding the payment of these fees are the primary reason that some jurisdictions substitute "electronic home incarceration" for legislatively mandated jail time.

I agree that there is a lack of studies of the impact current statues actually have on sentencing and jail time, and that more studies are badly needed. In fact I have started such a study on the area of felony (ARS 28-1383)DUIs. When results are available in a few months I will make them available if you are interested.

I think I should introduce myself. I retired to the Phoenix area from Northern Virginia a few years ago. In Northern Virginia I worked for a number of years in conducting studies on the area of DUI laws and sentencing. These studies were performed for various organizations. I have now decided to start doing some similar studies here in Arizona.

My own interest is in determining in what is the most effective way that DUI laws can decrease drunk driving, and have a positive effect on the safety of the general public and how these laws can help reduce alcohol related crashes. While I do act as a volunteer Court Monitor with Mothers Against Drunk Driving, I try to keep a open mind on the subject and am always open to new ideas and suggestions and willing to discuss the subject objectively with all individuals.

I hope we can keep this discussion going.

F. Wilson

Thanks for the introduction Frank. I certainly welcome your comments and contributions.

In response to your most recent post, it is actually my experience that most, if not all, of the Phoenix area cities who send their DUI convicts to Tent City (the Maricopa County Jail) make the defendant pay for the jail time. It runs something like $180 for day 1 and about $80 per day thereafter. Some judges will, upon a showing of financial need, reduce or waive the jail costs. Others reason that the city didn't commit the crime, the defendant did, and even if it takes years for them to pay it off, they, rather than they city should bear the cost.

That begs the question of WHY the jail time is so expensive. Didn't Sheriff Joe recently brag that he feeds his inmates for what amounts to pennies a day, while it costs him roughly twice as much to feed his dogs? Isn't it also documented that the cost of construction of Tent City was next to nothing?

The provision for electronic home detention (EHD) allows for a person to do home detention after serving 15 days in jail if they are sentenced to more than 15 days. To my knowledge, currently only Chandler, Phoenix, Tempe and Mesa have this available, and in all other cities the judge must impose at least the minimum term of acutal jail time. I don't believe the judges allow it as a costs savings method, but rather because, in the indivicual cases in which it is allowed, it is just to do so.

Do you think that putting somebody in jail for 45 days straight versus 15 days in jail followed by 30 days of EHD with alcohol monitoring is more likely to prevent that person from drinking and driving again? I don't see how a nexus could possibly be drawn, so if you do I am curious to know your reasoning.

If you compare the DUI laws and penalties in Arizona to every other state, I would challenge anybody to find a state that jails DUI convicts longer on average than AZ.

As a contrast, Washington State just passed legislation whereby a person can avoid prosecution once in a lifetime for DUI without even having to be diagnosed with an alcohol problem or go through treatment.

I don't know the answers to reducing drunk driving, and it is not my job to know. My job is to advocate for my clients, most of whom have made a mistake or are being charged with questionable evidence. I do, however, see that the system is not working the way our politicians would like citizens to believe it should work when the go to the polls.

I wear the black hat in may peoples view because of the side of the "v" I am on in DUI litigation. I am comfortable with that role. Our justice system, in its hurry to extract as much pain from DUI defendants as possible misses the larger picture that stopping DUI is the goal, not exacting retribution.

Someday there will be more answers. But for now, the system needs fighters on all sides of the DUI issues to make sure that a lively debate continues until our system finally finds a way to get it right.

Again I see your points as well taken. I agree that Arizona's DUI laws are some of the most severe in the United States. As to whether 45 days straignt jail vs 15 days and 30 days acts as more of a deterent I dont think at this point,that enough statistical evidence has been gathered and analyzed to draw any meaningful conclusions. This is especially true as the charge of which the individual was convicted would have to be a second DUI in 84 months or a extreme DUI with a BAC over .20. for a sentence of 45 days to be imposed. So far as I know to date no one has tracked any significent numbers of such individuals for a period of 84 months or more to be able to determine if the law has had a deterent efect.

As you point out there is a gap between public preception of what penalties the law imposes and the actual penalties the courts impose.

I agree none of us know the answers to reducing drunk driving, but I do see some areas that need to be analyzed that might help provide some answers. I will pass a list these on to you at a later date if you like.

I have no problem with you as a defense attorny challenging any and all DUI evidence presented against your clients. After all, as you point out, that is your job. Personally I believe that if law enforcement cannot present a good complete case, they deserve to have the case thrown out. It is law enforcements job to do a proper legal job of gathering and presenting evidence just as it is your job to challenge it. I respect you for your position and your willingness to discuss it.

While I very likely might disagree with you as to what constitutes "questionable evidence" especially in the area of "probable cause to stop" and Intoxilyzer 8000 readings and their meanings, I do respect your right to challenge them on behalf of your clients. For instance I believe I can show statistically that the BAC error level for the Intoxilyzer 8000 is about .005 rather than the .020 that most courts allow. No! I am not about to introduce this data in any court in the near future! Personally I would prefer to see blood BACs in all cases, as it constitues the "Gold Standard" for BAC measurement.

At present I am attempting to gather as much information and data as possible on DUI cases so that some meaningfull opinions that are backed by statistics can be developed.