James Novak Banner
Justia Lawyer Rating
LC Lead Counsel Rated
AVVO
AVVO
AVVO
AVVO
National College for DUI Defense

When a police officer pulls someone over for suspicion of driving under the influence of alcohol or drugs, the officer may perform field sobriety tests (FSTs) on the driver before administering a breath or blood test. Officers use field sobriety tests to determine, in their opinion, whether someone is intoxicated. If the officer believes that a driver is impaired, they will then likely conduct a blood or breath test. However, blood and breath tests require that the officer have probable cause to believe that the motorist is intoxicated. Thus, FSTs are a tool police officers use to develop probable cause. There are three common types of Arizona field sobriety tests, described below:

The One-Legged Stand Test: In this FST, an officer will instruct a driver to stand up straight while raising one foot about six inches off the ground. After a few seconds, the officer will then tell the motorist to place their foot back on the ground. The officer is looking for whether the driver loses their balance, uses their arms to keep themselves up, or fluctuates the height of their raised foot.

The Walk-and-Turn Test: For this FST, the officer asks the driver to take nine steps forward, heel-to-toe, before turning around and coming back the same way. This FST tests a motorist’s ability to follow instructions, as well as their balance. Aside from signs of imbalance, cues of intoxication include when drivers take the incorrect number of steps, are unable to negotiate the turn, or otherwise fail to follow the instructions.

The admissibility of blood-test evidence is currently a hot topic in DUI law, with the United States Supreme Court deciding three cases on the subject in the past few years. Often, the issue that comes up in these cases is whether the police officers were able to legally obtain a blood sample based on the surrounding circumstances. Earlier this month, a state appellate court issued a written opinion illustrating police officers’ ability to obtain a blood sample that a nurse took from the defendant for medical purposes.

According to the court’s opinion, a state trooper stopped the defendant for following too closely and failing to stay within his lane. While the trooper was interacting with the defendant, he noticed a smell of alcohol on the defendant’s breath, and that the defendant’s eyes were bloodshot. When asked, the defendant admitted to having two drinks, and also that his license was in suspension.

The trooper asked the defendant to get out of the car and performed a series of field sobriety tests. Ultimately, the trooper concluded that the defendant was under the influence of alcohol and arrested him for DUI. Another trooper arrived on the scene, and the two discussed bringing the defendant into the station for a breath test. During this conversation, the defendant called for medical assistance because he was having a heart attack and a seizure.

In a recent decision from an Arizona appeals court, the court upheld a DUI conviction for an individual after the arresting officer’s death. The defendant was convicted of two counts of aggravated driving under the influence, two counts of aggravated driving with an illegal drug in his body, and possession of drug paraphernalia and possession of marijuana. He was sentenced to four months in prison and probation. The defendant argued that his Sixth Amendment rights were violated when the arresting officer could not testify against him after the officer’s death.

According to the court’s opinion, before the defendant was arrested, two sheriff’s officers, Deputy Davis and Deputy Gil, responded to a 911 call in Tucson and found the defendant in a stopped vehicle in the middle of the road, with the engine still running. The defendant was sleeping in the driver’s seat. Deputy Davis administered field sobriety tests, arrested the defendant, and obtained a telephonic search warrant to draw his blood. Testing showed that marijuana and oxycodone were present in the defendant’s blood.

Deputy Davis died before the defendant’s case went to trial, and Deputy Gil was the only officer to testify at the trial. While Deputy Gil was being questioned at trial, the prosecution asked her how she would administer the field sobriety tests (FSTs). Because Deputy Davis had administered the tests in this case, the defendant objected as to the relevance of Gil’s administration of FSTs. The court allowed her to demonstrate the walk-and-turn and one-leg stand FSTs despite the objection.

An Arizona appeals court recently affirmed a defendant’s DUI convictions in a DUI case involving the use of prescription drugs, that the defendant claimed were used as prescribed. According to the evidence presented at trial, the defendant was driving down a two-lane road one evening while speeding and passing other vehicles. At some point, the defendant lost control while passing two cars, and crashed into two motorcycles. At the scene, an officer asked the defendant to submit to a blood draw, and he agreed. His blood tested positive for lorazepam and methadone. The level of both drugs in the defendant’s blood were within the therapeutic range.

Lorazepam is a prescription drug, often used to treat anxiety. It can impair driving, by making a driver drowsy and slowing the driver’s reaction time, even when taken as prescribed. The defendant testified that he was prescribed lorazepam, and had taken it two days before the crash. Methadone is a narcotic, generally used to treat heroin addiction. It also can cause sleepiness and can slow reaction time, even when taken within the therapeutic range. The defendant took a dose of methadone at a clinic on the morning of the crash. There is also evidence that the combination of the two drugs can also compound their effects.

At the conclusion of the trial, the defendant was convicted of three counts of aggravated assault, two counts of criminal damage and two counts of driving under the influence. The defendant appealed his convictions and sentences. On appeal, the defendant argued that the evidence at trial did not support the DUI convictions, because, while he had both lorazepam and methadone in his body, he was using the drugs as prescribed.

The opinions of the United States Supreme Court are the law of the land and generally must be followed by all states. Often, the Supreme Court decides which cases to choose based on the issues that are presented in the case. Typically, the Court will select cases that raise legal questions that are unclear or not entirely settled due to incremental advancements in the law made by lower courts.

Recently, the U.S. Supreme Court issued an opinion in the case, Mitchell v. Wisconsin, which discusses blood-draws from unconscious motorists who are suspected of being under the influence. The case is the third U.S. Supreme Court case in recent years to touch on this topic. However, because no five Justices could agree on a single basis for the opinion, technically, the decision is not binding on the lower courts and only impacts the defendant in this case. However, in reality, courts across the country will look to the plurality opinion for guidance.

The facts as the Court described them are as follows: police officers arrested the defendant under suspicion of driving under the influence. Officers took the defendant to the police station to administer a breath test; however, the defendant was too lethargic to complete the test. Because Wisconsin law provides that an unconscious motorist is not capable of withdrawing implied consent, an officer drove the defendant to a hospital for a blood draw. The results of the test indicated the defendant’s blood-alcohol content was over the legal limit, and he was arrested and charged with DUI.

In the vast majority of Arizona DUI cases, the applicable law that governs the case is that of the jurisdiction where the offense occurred. However, in very rare circumstances, another state’s laws may apply. This puts state courts in the difficult position of applying a foreign jurisdiction’s law. In a recent Arizona DUI case, the court explained why the defendant’s motion was properly denied under Nevada law by the trial court.

According to the court’s opinion, the defendant’s vehicle swerved into oncoming traffic, colliding with another vehicle. The defendant suffered serious injuries in the accident. While police were investigating the accident, they noticed that the defendant smelled of alcohol. A helicopter took the defendant to a hospital in Nevada.

While in the hospital, Arizona law enforcement called the Nevada hospital and requested they draw the defendant’s blood. The requesting officer did not discuss whether a warrant was necessary, but later testified that he did not believe it was his responsibility to obtain a warrant. The hospital complied with the request without obtaining a warrant. At the time, the defendant was unconscious. The sample was given to a Nevada law enforcement officer. The test results revealed that the defendant had a blood-alcohol content of .21, well over the legal limit of .08.

Law enforcement officers frequently focus their DUI enforcement efforts on long weekends and holidays under the assumption that people are more likely to drink and drive when they are out celebrating with friends and family. According to a recent news report, there were a total of 503 Arizona DUI arrests over Memorial Day weekend. Of those, 70 people were arrested for aggravated DUI and the remaining 433 were misdemeanor DUI arrests.

The article lists a few other interesting facts:

  • 109 motorists were arrested for extreme DUI, with a blood-alcohol content (BAC) in excess of .15

In April 2019, the U.S. Supreme Court heard oral argument in a case that may call into question the constitutionality of a significant part of Arizona’s implied consent statute. The specific question posed by the case is whether a law that allows a blood test from an unconscious driver provides an exception to the Fourth Amendment’s warrant requirement.

Arizona’s implied consent statute provides that “a person who operates a motor vehicle in this state gives consent … to a test or tests of the person’s blood, breath, urine or other bodily substance.” The statute also states that “a person who is dead, unconscious or otherwise in a condition rendering the person incapable of refusal is deemed not to have withdrawn the consent … and the test or tests may be administered.”

The area of implied consent has always been controversial, but especially since 2013, when the Supreme Court issued an opinion in the case Missouri v. McNeely. In that case, the court held that the dissipation of alcohol in a DUI suspect’s blood is not an “exigent circumstance” that allows for a warrantless blood draw. Since then, the Court decided another landmark case, Birchfield v. North Dakota, in which the court held that warrantless breath tests are constitutionally permissible, but that blood draws require a warrant.

Expert testimony is often necessary in Arizona DUI cases. Therefore, understanding the use and limits of expert testimony is essential. In a recent Arizona DUI case, an appellate court considered whether the trial court exceeded its authority in limiting expert testimony.

According to the court’s decision, the defendant was driving in Tucson, when his car crossed into the median, which was lined with palm trees. The defendant’s car crashed into a tree, and three passengers died, one of whom was pregnant. The defendant was also taken to the hospital, and a blood test showed that he had a blood-alcohol content (BAC) of .180. The defendant was charged with multiple counts of DUI, manslaughter, and negligent homicide.

At trial, the defendant argued that the roadway was defective, and that the roadway’s design caused the crash. The jury found him guilty, and he was sentenced to a total of 16.5 years in prison. On appeal, the defendant argued that he did not receive a fair trial, in part because the court excluded testimony from his expert witnesses. He argued that most of his expert’s testimony was improperly precluded.

In a recent case, an Arizona court of appeals held that an Arizona DUI sentence should stand because the court’s correction of the unlawful sentence was made too late. According to the court’s opinion, in 2016, the defendant was convicted of aggravated driving under the influence and aggravated driving with a Blood Alcohol Content (BAC) of .08 or higher. The case was reset for sentencing, but before the defendant was sentenced, he moved to designate a prior conviction as a misdemeanor, which the state granted. The state then moved for reconsideration, and the court denied reconsideration. On September 15, 2017, the court sentenced the defendant. It imposed a sentence of one year in prison.

The state then moved to correct the defendant’s sentence under Rule 24.3 of the Arizona Rules of Criminal Procedure (“Rule 24.3). It argued that the defendant’s prior conviction was a felony at the time he committed the DUI, and therefore, the court should have sentenced him more harshly. In On December 1, 2017, the court granted the state’s motion, finding that the original sentence was inappropriate under an applicable statute, and re-sentenced the defendant to a presumptive term of imprisonment of 2.5 years. On appeal, the defendant argued that the trial court could not re-sentence him under Rule 24.3.

Under the current version of Arizona Rules of Criminal Procedure 24.3, a court can correct an unlawful sentence or a sentence imposed in an unlawful manner within 60 days of the entry of judgment of the sentence, or within 15 days of the appellate clerk distributing a notice under Rule 31.9(e) that a record on appeal has been filed. At the time of the defendant’s sentence, the rule stated simply that a court could “correct any unlawful sentence or one imposed in an unlawful manner within 60 days of the entry of judgment and sentence but before the defendant’s appeal, if any, is perfected.”

Contact Information