The Arizona Supreme Court has issued a new opinion on the proper use of prior convictions in sentence enhancement in Arizona felony cases.
On first read, this opinion appears to be favorable to the rights of those accused of felony charges in AZ who have prior convictions from other jurisdictions.
Do a Google serach for “DUI” in the news and you will see that the results are dominated by news of DUI task-forces from nearly every major jurisdiction you can imagine.
This is an election year, and no task-force holiday is closer to voting day than Halloween. Therefore, I predict record numbers of arrests, and record numbers of headlines. Expect this to be highly concentrated in jurisdictions where the local county attorneys and sheriffs are up for re-election. Nothing satisfies the average voter more than oodles of drunk driving arrests, and those who make the arrests are seen as noble heros by the average voter.
But the zeal to arrest must be tempered by law enforcement discretion. It is possible to make a taskforce event look very successful by arresting many people for DUI who shouldn’t have been arrested. Their cases won’t come up for review until after the elections, and then each wrongful arrest should go silently away with no politial fallout. Just as drunk driving is wrong, arresting innocent people for DUI is also wrong.
This Halloween holiday, the only way to make sure you are absolutely safe from a false DUI arrest is to not drive at all if you have had anything to drink. Any alcohol in your system, and the police may pull the trick of your lifetime on you by arresting you. Your late treat should be dismissal of the bogus DWI charge, but by then your Halloween will already have been ruined.
Have a fun and safe holiday.
A Judge in Tucson, Arizona has ordered the prosecution to get the Intoxilyzer source code from CMI, and produce it in electronic form so that it may be tested. The Tucson Citizen reported as follows:
In a recent blog post at DUI Blog, Lawrence Taylor discusses “black and white fever.” In my experience, both personally and professionally, it is true.
I often use the argument that it is natural to weave and commit other traffic violations when an officer in a marked patrol vehicle is behind my client. Anybody who denies that the presence of a police vehicle on their tail makes them nervous is a liar. In fact, nervousness in that situation, even if the person has done nothing wrong and has not been drinking, is so axiomatic that it should go without saying.
What causes this nervousness?
We have all been accused of something that we didn’t do at some point in our lives. We are also all aware that not all police officers are good cops or good people. I would like to hear from anybody who has had this experience, and also from anybody who denies nervousness when an officer in a marked police car is following.
The Phoenix New Times is reporting that a judge has ruled against Sheriff Joe Apraio in the latest suit about the treatment of his inmates in the county jails.
Hill represented the “class” of all pretrial detainees awaiting court trials in Arpaio’s jails. The ACLU also worked closely with Hill on the case. Margaret Winter, associate director of the American Civil Liberties Union’s National Prison Project, said the ruling is a big win.
“Sheriff Arpaio’s horrendous treatment of detainees, especially those with severe medical and mental-health problems, has caused terrible suffering for years,” Winter said. “Judge Wake’s decision should serve as a reminder that even a man who brags about being the ‘toughest sheriff in America’ has to abide by the Constitution.”
“Sheriff Arpaio’s actions have gone unchecked for too long, and this ruling is a significant step toward much-needed accountability,” said Daniel Pochoda, attorney with the ACLU of Arizona. “It’s time that the Maricopa County Board of Supervisors and all of the residents of Maricopa County take action to end his abusive practices.”
Could it finally be that there is change in the air in Maricopa County? The Sheriff is up for reelection in less than two weeks. While up to this point he has seemed politically insulated based on his popularity with voters, it may be that the tide is shifting. Only time will tell.
The LA Times is reporting that the LA Crime Lab’s fingerprint analysis is responsible for implicating innocent people in crime due to faulty “science.”
They describe a messy crime lab where evidence sits around in piles, is disorganized, or worse.
Think that can’t happen elsewhere? If it can happen in one of the largest metro crime labs in the world, it can happen anywhere. And the fact is that flawed science and process in crime labs is not limited to fingerprints. It stretches to drug identification, alcohol analysis in DUI cases, DNA analysis and more.
Even worse than the sloppy procedures that result in flawed “evidence,” is the fact that the crime lab technicians regularly come to court and testify that their process is flawless. There is no testimony more powerful than the State’s experts’, and none more trusted by juries in criminal cases.
Like every other report of mismanagement and sloppiness in crime labs, this one will fade in our memories, and we will be right back to allowing junk science to convict innocent people. The only way to effectively combat it is for juries and prosecutors to exercise a healthy skepticism. Defense attorneys generally already have it.
Proponents of the Phoenix light rail system that is deep into construction claim that the project will reduct DUI cases by offering people an alternative mode of transportation to and from downtown for cultural and sporting events. I’m not so certain.
In Phoenix, I would estimate that at least half of the DUI cases that come through my office resulted from an officer pulling over a vehicle shortly after it left a non-downtown bar.
While the light rail project may result in a redistribution of Phoenix Police Officers from the light rail area to other areas, my prediction is that they increase enforcement around the bars with the extra manpower (if the budget cuts don’t get the manpower first).
The other argument against light rail as the cure to DUI is that alternative modes of transportation already exist and have for years. Cabs. Buses. Designated drivers. They are all available in the Phoenix area (although buses with some effort). DUI is often about a bad last minute choice. The 2 am judgment call. Will the availability of light raid alter the way people think? I doubt it.
In DUI cases the state wants everybody to believe that the Intoxilyzer machine has been tested. Because it has been tested with known standards of alcohol, they want us to assume that it can also analyze an unknown. They also want us to assume that the software has no flaws or bugs that could render a false high under various conditions.
The source code of the Intoxilyzer matters because we need transparancy in the justice system. In Arizona, a first time extreme DUI (read as about average DUI of .150) requires 30 consecutive days in jail. This is serious. It also creates a permanent record. Very serious.
I believe that the constitutional rights of people accused of drunk driving are more important than a corporation’s “interest” in the work product of their software.
If CMI continues to refuse to divulge the source code without conditions or exceptions, then law enforcement agencies and prosecutors should do the right thing and stop using them. Our government wastes a vast amount of taxpayer money. If we took all the Intoxilyzers in Arizona and threw them out (or recycled them), the amount of money lost on those machines would probably be less than the cost of convicting innocent people (they lose their jobs, stop paying taxes, etc), and the cost of litigating the cases combined.
If they don’t let it out, then we should throw it out.
There is an interesting post on Lawrence Taylor’s DUI Blog about linking previous DUI convictions to a future murder charge. According to Mr. Taylor, upon conviction for DUI in California, the judges make defendants sign a statement saying that they understand that DUI is dangerous. That statement is then used to predicate murder charges (rather than manslaughter) if the person later kills somebody while driving drunk.
Prosecutors have been trying to make DUI murder for years. But this new strategy is the first that I’ve heard of the courts becoming involved. It seems to me that there would be a coercion argument. In other words, yes the person signed the statement, but did they understand it, and did they sign it willingly? Later, in a murder prosecution, the state would still have to prove the mens rea (mental element), which I believe would be difficult or impossible based only on the previously signed in-court statement. The prosecution would likely have to prove that the defendant not only understood it at the time it was signed, but also at the time of the accident that forms the basis for the murder charge.
The quote below is attributed to Tucson DUI Attorney James Nesci as reported by the Citizen. Mr. Nesci is talking about how the company that manufactures the Intoxilyzer breath test machine (that is used to convict people of DUI
in Arizona) plays fast and loose with the law in Arizona. They allegedly dodge subpoenas, ignore court orders and are not registered to do business in Arizona.
In CMI’s mind, this may all amount to a hill of beans since they have been given essentially “sweetheart” contracts by Arizona, and enjoy a monopoly here. CMI has every right to feel that it can operate above the law in Arizona, because for years they, essentially, have.
But as more and more town and cities in Arizona switch to blood testing, CMI’s flawed products are starting to collect dust. My prediction is that at the end of the product life-cycle for the latest version, the Intoxilyzer 8000, bureaucrat and politicians will think twice before subscribing to this company’s next incarnation of machinery.
Quoted from http://www.tucsoncitizen.com/daily/local/99046.php:
“It bespeaks an astonishing degree of hubris for a Kentucky corporation that designs and markets a device specifically designed to produce evidence for use against Arizona citizens, in Arizona’s courts, to believe that it can escape the reach of Arizona’s courts by operating in violation of Arizona state law,” Nesci wrote in his motion.
A special thanks to Frank Wilson for pointing this artlice out to me.
The average citizen of Arizona is given the information contained in the article below. The information is false for most people.
We are constantly told that you can be arrested (and presumably convicted) for having one drink and then driving.
While this is theoretically true, the reality is that a jury instruction, commonly referred to as the "presumptions instruction" lets jurors know that they can presume a person completely sober if they are under .05. For all but the extremely light of body weight, it takes more than one standard drink to get there.
Quoted from http://www.paysonroundup.com/news/2008/sep/26/getting_arrested_dui_costly/:
Arizona statute 28-1381 A1 bars driving under the influence to the slightest degree, including being under the limit. Meaning you could have one drink, drive and be arrested.
For example, a person can be pulled over for expired tags and if an officer smells alcohol on their breath can arrest them based on probable cause they are under the influence.
Despite the fact that the one drink equals guilty is a myth, my recommendation is to never drive any motor vehicle after consuming anything to drink. I see every day the high cost paid by those who drink and drive. In Arizona, it’s simply not worth it.
What most prosecutors don’t seem to understand or want to acknowledge is that breath testing in DUI cases can be extremely inaccurate. It has been scientifically proven that the Intoxilyzer machine has the following accuracy rates when it comes to reporting an alcohol content that corresponds(in approximates) to the actual concentration in a person’s blood:
How is it that a machine that is that prone to getting it wrong is used in the justice system in DUI cases? That is an excellent question and one that many jurisdictions are now seeking to remedy by providing blood tests instead of breath tests.
There is no good breath test machine. Breath testing for alcohol is a crude enterprise hardly worthy of the label “science.” Until breath testing is eliminated or improved from its current state, there will be people wrongly accused and convicted of DUI, and there will be people wrongly exonerated of DUI.
Until organizations such as MADD and prosecutors offices open their eyes and demand a stop to this injustice, innocent people will face the ordeal of a DUI trial in courtrooms across the country daily.
I admin that I have not followed the latest OJ circus closely. But from the beginning I knew that he would be convicted. In high profile celebrity cases a defendant may get one free pass through the system, but it would be highly unusual to get two major passes. I can’t think of a single example off the top of my head where an individual has twice stood trial for crimes that could result in a life-sentence, and twice been acquitted of all charges. Given Simpson’s notoriety, the chances seemed even more remote, given that there is not one adult human being in the United States that isn’t at least vaguely familiar with OJ’s legal history.
His attorneys promise appeal. They promise a motion for a new trial. The chances are remote. I predict that Simpson will do at least 15 years in prison, maybe longer.
NHTSA, the National Highway Traffic Safety Administration publishes clues for nighttime driving behaviors that are indicative of DUI driving. They do so for both four-wheeled vehicles and motorcycles. Here are their clues for motorcycles:
Use of this site is subject to our disclaimer and terms of use.
Copyright 1999-2009 - DUIAttorney.com LLC
