Facts of the Case

This case revolved around a 2011 incident in which the defendant and her husband mistreated a ten-year old girl that was living with them at the time. According to the opinion, the couple subjected the girl to cruel punishment by making her remain in a backbend position for at least one hour after she took a popsicle without permission. They then locked the girl inside a storage box in a room without any air conditioning, where she eventually died.

The defendant was convicted of many offenses, including first-degree murder, intentional child abuse, and negligent child abuse. She appealed the lower court’s sentencing decision on the negligent child abuse offense.

more The Decision

During trial, the jury found that the defendant had committed negligent child abuse when she forced the child to do backbends for hours. The behavior rose to the level of child abuse, given that it did not make sense for the couple to punish a ten-year-old girl in such a severe and specific way. On appeal, the defendant asked that the court review her sentence for this offense, to ensure the court had reached its decision fairly.

The court of appeals noted that in a lower court’s proceeding, the defendant had successfully argued that her sentence for negligent child abuse was inappropriate and that she should have been sentenced to 1.5 years for this offense, rather than 2 years. In the end, however, it did not matter, since the defendant was later sentenced much more harshly on the murder conviction. Because she would likely be in prison for life, the difference between the 1.5 and the 2 years did not constitute a grave error by the lower court.

With that, the defendant’s convictions and sentences were all affirmed.

Are You Facing Criminal Charges in Arizona?

If you or a loved one is facing criminal charges for in Arizona, give us a call at the Law Office of James E. Novak. We understand that many times, pleading guilty simply is not an option, and we will help you fight for your desired outcome every step of the way. Our clients trust us to deliver them the results they need, and we are proud to offer them the highest quality of legal representation. For a free and confidential consultation with a member of our team, call us today at 480-413-1499. You can also fill out our online form to have an attorney reach back out to you to discuss your case.

In the case of the right to a jury trial, the Sixth Amendment to the U.S. Constitution provides that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Since the ratification of the Bill of Rights, this has been interpreted to mean all defendants facing charges of “serious” crimes.

Many states have abolished the distinction between serious and non-serious crimes when it comes to the right to a jury trial, and they allow for all defendants to demand a jury trial, regardless of the seriousness of the charge that they are facing. However, while Arizona state law provides some additional protections for criminal defendants, state law does not allow jury trials for all defendants.

In Arizona, all defendants facing felony charges are entitled to a jury trial. However, defendants facing misdemeanor charges may be entitled to a jury trial, depending on the crime at issue. There are two ways in which a defendant charged with a misdemeanor crime is eligible for a jury trial. First, a jury trial is permitted if there is a state statute specifically allowing for a jury trial for that particular offense. For example, Arizona DUI offenses are specifically mentioned in A.R.S. 28-1381(f), stating “at the Arraignment, the court shall inform the defendant that the defendant may request a trial by jury and that the request, if made, shall be granted.”

The other way for a misdemeanor crime to be eligible for a jury trial is if the crime was eligible for a jury trial under the state’s common law back when Arizona became a state. These offenses are limited and, by the nature of their qualification, cannot be expanded.

For all jury-eligible offenses, Arizona law requires the jury to be unanimous in its decision. For misdemeanor crimes, the jury must be composed of at least six people. For felony crimes involving a potential sentence of death or more than 30 years of imprisonment, the jury must have at least 12 people. For all other felony offenses, a jury of at least six people is required.

Have You Been Charged with DUI in Arizona?

If you have recently been charged with an Arizona felony DUI or misdemeanor DUI, contact James E. Novak for immediate assistance. Attorney Novak is a veteran Phoenix criminal defense attorney with extensive experience handling all types of trials in front of judges and juries. Attorney Novak represents clients in Phoenix, as well as the surrounding areas, including Ahwatukee, Apache Junction, Chandler, Fort McDowell, Fountain Hills, Gilbert, Guadalupe, Mesa, and Tempe. To learn more, and to schedule a free consultation today, call 480-413-1499.

Additional Resources: A.R.S. section 28-1381 Arizona Constitution Article 2 Section 23

Field sobriety tests and poor weather are a bad combination, because weather plays a role in how well a driver performs a test. In Phoenix, AZ attorney James Novak examines all the factors involved in your arrest, and develops a defense that fits the specific facts of your case.

In cases with field sobriety tests and poor weather, credible arguments can be made that the test result is unreliable. If the test result is not reliable, the arrest itself is called into question.

What to Expect from a Field Sobriety Test

When a driver is pulled over and asked to take part in a field sobriety test, the officer is looking for evidence that the driver is impaired. This evidence typically comes in the form of stumbling while walking, failing to follow an object with eye movement only, or falling down while standing on one leg.

However, field sobriety tests are not an exact science and can be open to the officer’s interpretation. An attorney can challenge to the way the field sobriety test was administered.

How the Weather Impacts a Field Sobriety Test

Most field sobriety tests are not always administered in ideal conditions. Depending on the time of day and location of the traffic stop, it may be dark or poorly lit. Those conditions make it hard to see, which can lead to taking a misstep during a field test.

The weather can also play a role in how one performs in a field sobriety test. For example:

• Rain: Whether it is a light mist or a heavier rain, precipitation makes it hard to see the road and can also cause the roadway to become slippery.
• Wind: Excessive wind can stir up dirt and other debris, cause watery eyes, or knock a person off balance. Being able to perform a field sobriety test in windy conditions is difficult, and can lead to an end result where the officer mistakenly believes the driver is impaired.
• Extreme Temperatures: The number on the thermostat can play a role in how well a person does in a field sobriety test, with both extreme heat and extreme cold making it hard to focus and perform the test properly.

It is always important to keep in mind that the officer making the traffic stop for a suspected DUI may already have a conclusion in mind. Any slight deviation from what is expected during a field sobriety test can lead the officer to believe the driver is impaired.

It is up to attorneys to identify factors that can have an impact on the field sobriety test. Weather conditions are one of these factors, and should not be overlooked when defending a DUI case.

Effective DUI Defense

At the Law Offices of James E. Novak, P.C. we have experience helping people fight charges of DUI. Our experience includes examining the weather, the road conditions, and other factors that play a role in the ultimate decision to make an arrest for DUI. Let us review your case and offer our advice. Contact us online or call our office at (480) 413-1499.

Phoenix, AZ attorney James Novak offers effective DUI defense strategies for all types of DUI cases. If you are charged with DUI after having taken a field sobriety test on uneven ground, you should challenge the test results and the underlying charge of DUI.

Three Types of Tests

The National Highway Traffic Safety Administration defines a field sobriety test as a test given to a driver for the purpose of determining if the driver is impaired by drugs or alcohol. The tests are designed to assist an officer in making a call as to whether probable cause exists to make an arrest for DUI.

To establish probable cause by use of a field sobriety test, an officer may request a driver to participate in a horizontal gaze test, in which the driver is required to follow an object with his or her eyes.

Or, the arresting officer may ask a driver to perform the walk and turn test, where the driver walks a certain number of steps and then turns and makes a return walk.

A final type of field sobriety test is the stand on one leg test, where a suspect is asked to raise one leg just off the ground and remain stable while standing on just one leg for a period of time.

There are several ways to challenge a field sobriety test, but it can depend on the type of test given. If the test involves walking and turning or standing on one leg, a good challenge can be that the test was administered on uneven ground. When the ground is not level, many people have difficulty performing these field sobriety tests successfully, regardless of whether they are impaired.

Common Examples of Uneven Ground in Field Sobriety Tests

If you are charged with DUI and want to challenge the testing process or the test results, you should consider the testing environment. Uneven ground can play a role in your ability to take the test, but is not limited to simply an uneven surface.

Other components that contribute to an uneven ground include:

• Potholes
• Slippery and muddy roadways, which can exist just after a rain or even if the road is near a grassy area that has just been watered. Some spots in the street may also be more susceptible to water accumulation due to poor drainage, and those conditions can affect a field sobriety test.
• Chips in the pavement can also create an uneven surface, making it difficult to properly perform a field sobriety test.

Often a field sobriety test is nothing more than a method used to create the minimum doubt required for probable cause for an arrest. Unfortunately, many drivers fail to take into account the total environment and allow an officer to make demands that cannot reasonably be met.

This type of test is difficult to “pass,” and may result in an arrest for DUI. An aggressive defense will draw out these testing flaws, and provide the driver with a solid defense.

Where to Go for Help with DUI Defense

If you have been arrested for DUI, the Law Offices of James E. Novak, P.C. can help. Defending DUI and other criminal charges is at the core of our legal practice, and we have unique insight into how to develop defense strategies that work for you. Let us help you today. Contact us online or call our office at (480) 413-1499.

Phoenix, AZ attorney James Novak has a proven track record for successful defense of DUI cases. Drivers should include improper instructions given during a field sobriety test as part of their defense to the DUI charges.

Types of Field Sobriety Tests

There are many types of field sobriety tests, each with certain requirements for proper performance. In the horizontal gaze test, the officer initiating the traffic stop will ask the driver to follow an object with the eyes, while keeping the head still. If the officer does not properly instruct the driver on how to perform this test, the results are unreliable. For instance, if a driver is not advised to move only the eyes, an arresting officer can mistake bodily movement for impairment.

Another common field sobriety test is the stand on one leg test. In this test, a driver is asked to stand on one leg while holding the other leg off the ground. The key here is that the driver must be advised how far off the ground to elevate the other leg; mistakes in instruction in this regard may result in unsteadiness that is perceived as having had too much to drink.

Perhaps the most difficult test to provide instruction on is the walk and turn test, where the driver must walk a straight line by placing the feet heel to toe for a certain number of steps, and then turn around and execute a return walk. The officer should perform this test first, as an example of how it is to be completed. Failure to do so allows for errors that should not be given consideration when determining whether a suspect should be charged with DUI.

How to Challenge a Field Sobriety Test Effectively

The manner in which a field sobriety test is challenged depends on the type of test given:

• Horizontal Gaze: Effective challenges to this test include things like eliciting testimony from the officer as to whether the driver was asked if he or she wears contact lenses, whether the driver was advised that his or her eyes were being tested, whether the officer used the proper stimulus (a pen rather than a finger), and whether the officer moved the stimulus at the proper speed.
• Walk and Turn: Possible defenses of the walk and turn test are whether the defendant was told to walk nine steps and no more, and whether the officer properly demonstrated the heel to toe placement required during the walk.
• One Leg Stand: Requirements of the one leg stand test are that the defendant keeps his or her arms by their side and not outstretched, and that the test only last a certain amount of time and no longer. When testimony shows this test was not performed according to these requirements, the test results are not admissible.

A field sobriety test that is performed with improper instruction by the arresting officer should not be relied upon when charging a driver with DUI. To establish improper instruction, careful analysis is required, and thoughtful questioning of the arresting officer is critical. Once testimony is drawn out that the officer gave improper instruction for performance of the test, the test result should not be a part of the State’s case for DUI.

Who to Ask for Help with DUI Defense

If you have been charged with DUI, the Law Offices of James E. Novak, P.C. knows what to do to help. Our practice focuses on DUI and other criminal defense matters, and we have the experience you need for an effective defense. Let us help you today. Contact us online or call our office at (480) 413-1499.

There are several vulnerabilities regarding the collection and analysis of blood samples. These weaknesses can lead to the inaccuracy of the blood test results. Read on to learn more about DUI blood tests and improper storage of the sample.

Collection Tubes Used in DUI Blood Testing

To efficiently carry out this strategy of defense, you must track the blood sample all the way from collection to analysis to reporting. It is important to identify the materials used for collecting the blood sample.

For instance, most blood specimens are collected with the use of a partially evacuated vacutainer tube. A wide variety of additives are placed inside these tubes. The mixture in the tube will be different depending on the lab test that will be conducted. For blood ethanol analysis, the appropriate mixture will be comprised of sodium fluoride and potassium oxalate. Tubes containing this mixture are typically identifiable by a gray stopper. If the test result is derived from a tube containing a different mixture – one intended for another type of analysis – the result could be inaccurate due to chemical interference.

Expiration Dates and Contamination

In addition to checking the type of collection tube used, it is important to also note the expiration date. The tubes used in blood analysis have a shelf life. Once the expiration date has passed, the vacuum inside the tube can become depleted, resulting in contamination from room air. If this is the case, it can typically be recognized by the identification of a “short draw”. In other words, the tube contains less than the full amount of blood that was drawn. It is vitally important to check the expiration dates on the collection tubes.

Short Draws during Collection

A short draw may also occur if the technician pulls the collection tube off the needle before it has filled completely. Again, this can result in contamination of the sample due to microbe-contaminated air. Ultimately, this could lead to inaccurate results. When examining tubes for a blood test, the volume of blood collected should always be noted.

A short draw may also result in hemolysis. This occurs when blood cells rupture, possibly affecting the water content of the blood. This would be considered contamination, and would alter the test results.

Storage of the Blood Sample

Proper storage of the blood sample is essential for preserving integrity. However, there are many ways to compromise the sample. For instance, the blood sample should be stored in a sterile environment at the correct temperature. If glucose is present in the blood, yeast can develop and eventually convert the glucose into ethanol. Keeping a sample refrigerated can typically prevent the fermentation from developing. However, this can become an issue if the samples were stored at room temperature.

Learn More about Challenging DUI Test Results

If you or a loved one is facing drunk driving charges, be sure to contact an experienced criminal defense attorney. The Law Office of James Novak can help you defend your case and help you get your life back. To learn more, call our office at (480) 413-1499 or contact us online anytime.

James Novak is an experienced DUI defense attorney in the Phoenix, AZ area. He has successfully defended those who are facing serious charges of drunk driving. Often, he can get the charges lessened or dropped entirely. Understanding the fluctuations and unreliability of breathalyzer tests, he may be able to find highly convincing evidence to clear your name and restore justice on your behalf.

What Causes Faulty Breathalyzer Results?

There are a number of things that can leave residual alcohol in your mouth. Breathalyzer tests operate on the assumption that the air sample comes from your lungs. In fact, it may come from your stomach, throat, or mouth. Alcohol in these areas has not entered the blood stream and, therefore, would not impact your ability to drive.

However, a breathalyzer may indicate that you are intoxicated in any of the following cases:

• If you recently consumed alcohol, it will leave traces in your mouth – sometimes much more than is in the rest of your body.
• Burping will cause alcohol to rise from your stomach into your mouth and esophagus. This could lead to a much higher reading than is actually accurate.
• If you suffer from GERD (gastroesophageal reflux disease), there is a greater likelihood that a breath test will not be accurate. With this condition, the valve separating your stomach and your throat is herniated, causing acid – and alcohol – to rise up into your esophagus and mouth.
• Some speculate that dentures can throw off a breath test, since the false teeth can trap particles of alcohol. Periodontal disease causes pockets to develop in your gum tissue, so it may have a similar effect.
• Mouthwash is largely comprised of alcohol. On a DUI breath test, this type of alcohol will be indistinguishable from an intoxicating beverage. Some cough syrups, cold medications, and even lip balm can also result in an inaccurate reading.

Foods and Drinks that Leave Residual Alcohol

Along with mouthwash, there are also certain foods and beverages that contain some alcohol. These include:

• Sugar-free gum that uses alcohol as a sweetener
• Some protein bars
• Certain energy drinks
• Ripe fruit
• Kombucha and other drinks made with fermented products
• Fruit-flavored chewing tobacco

Your Legal Recourses

If you believe that you blew a false breathalyzer reading, a drunk driving conviction is not a forgone conclusion. You have a number of legal options, especially if you work with an experienced DUI attorney. First, law enforcement officers are required to observe you for 15 minutes before administering a breath test. If the officer who pulled you over did not do so, the DUI charge will likely not stand up in court.

Furthermore, an attorney like Mr. Novak can often assemble convincing evidence in your favor. For example, he may be able to find witnesses who observed you eating one of the foods described above. He could also call on the expertise of a doctor to prove that you suffer from GERD or a related condition. With compelling evidence and a well-crafted argument, you can often avoid a DUI charge and maintain your clean driving record.

Contact the Office of Jim Novak

Courts crack down on DUI charges, but the right lawyer may be able to get those charges dropped. Contact us online to schedule your case evaluation and let us get to work on your case as soon as possible.

A DUI blood test measures the concentration of alcohol in the blood to show how inebriated the subject is at the time of arrest. Chemical BAC tests are often the strongest piece of evidence in a DUI case. Blood tests are known to be the most accurate form of DUI testing. However, errors or inaccurate readings can occur. Here, we compare the two techniques for DUI blood tests – whole blood vs. serum testing, and discuss how our Phoenix, AZ clients’ results may be affected by the type of testing that was used during their arrest.

Whole Blood Testing

When a DUI blood test is performed, a small sample of blood will be drawn for testing. After the blood is removed, it will be tested to determine the concentration of alcohol that is present. Whole blood testing is the most accurate form of DUI blood testing. The whole blood contains cellular material, plasma, and a clotting agent called fibrinogen. This solution should be tested in its entirety to get a true measure of alcohol in the blood. Whole blood testing is known as the forensic form of blood testing, because it is concerned with the precise concentration of alcohol.

Serum Testing

When DUI blood testing is performed using a medical blood draw, it is likely that only the serum of the blood will be tested for alcohol. During this testing procedure, the blood is processed in a centrifuge. The centrifuge cleans the blood to remove any solid, cellular material, leaving just the “serum.”

The problem with serum testing is that it leaves the same amount of alcohol in a significantly smaller sample of blood. Serum testing can determine whether alcohol is present in the blood, but it does not provide a precise measure of blood alcohol concentration. In fact, studies have shown that, on average, serum testing results in blood alcohol content results that are about 16 percent higher than those of whole blood testing.

The Problem with Serum Testing

The inaccuracy of serum testing is a huge problem in DUI cases. In most states, a DUI arrest is based on blood alcohol content, with .08 being the average level at which a person is considered legally intoxicated. However, the issues with serum testing go beyond this.

Most states also penalize DUI drivers based on their BAC, with higher levels of BAC being subject to harsher criminal penalties. If there is no accurate measure of blood alcohol content, that is a great source of contention in a DUI defense case. Attorney James Novak understands the inaccuracies of serum testing and will use this defense strategy, when applicable, to protect the rights of his clients.

Contact Us

If you’ve been arrested for DUI, it is important to have an experienced attorney on your side that understands the intricacies of DUI criminal charges. Attorney James Novak has the experience and expertise to provide you with a strong DUI defense. Contact us at your earliest convenience to discuss the details of your case and find out how we can help you avoid serious criminal penalties.

Let’s take a moment to consider Breathalyzer results and the flow of breath in DUI cases. To learn more about your legal rights regarding Breathalyzer results and the flow of breath, contact the law offices of James Novak in Phoenix, AZ.

About Breath Alcohol Tests

Breath alcohol tests are used by police officers to test the levels of intoxication in people suspected of being under the influence of alcohol. There are different devices used for testing breath alcohol, one of the most common being a Breathalyzer.

Breath alcohol tests are based on the principle that alcohol can travel through the breath as a result of alcohol in the bloodstream moving across the lung’s air sacs, or alveoli, and into the air. Because the alcohol levels within the breath are passed from the blood stream, breath alcohol levels are theoretically very close to those within the bloodstream.

Breath alcohol tests are used to determine a person’s blood alcohol concentration (BAC), by measuring ethanol levels in the breath. However, even the best breath alcohol tests are only able to provide an estimate of blood alcohol levels. Because breath alcohol testing is only able to provide an estimate, the results can sometimes be inaccurate.

How Does the Flow of Breath Affect Breathalyzer Test Results?

There are a surprising number of factors that can affect the result a breath alcohol test. Health conditions, like diabetes and hypoglycemia, can cause acetone levels to be elevated.

Perhaps even more surprising is the fact that the flow of breath can impact the result of a Breathalyzer test. This is because exhaling can actually change the concentration of alcohol in the breath. In normal breathing, some amount of air stays within the lungs. When exhaling for a breath alcohol test, people are told to blow longer and with more force than is typical in normal breathing. This brings up air from the bottom of the lungs, where alcohol levels are more concentrated, which in turn can cause a breath alcohol test to be inaccurately elevated.

The Results of Breathalyzer Tests May Be Challenged

Although breath alcohol tests are seen as a reliable measure of alcohol concentration by law enforcement, the results of a breath alcohol test is not incontrovertible proof that a person had a certain blood alcohol level when driving.

Breath alcohol tests are only an estimate of blood alcohol concentration and can be affected by many different factors, most notably the flow of breath. Because breath alcohol tests can produce inaccurate results, it is important for those accused of driving under the influence to contact an attorney experienced in DUI and breath alcohol test cases.

The Law Offices of James Novak Can Help In Your DUI Case

If you are facing a charge of driving under the influence, the results of your breath alcohol test may successfully be challenged in court. The law offices of James Novak can help. Contact our law offices today to discuss the details of your case.

However, even DUI blood tests can be inaccurate. In fact, certain herbal supplements can affect the results of these tests. Find out more as we take a closer look at herbal supplements and DUI blood tests. If you have been charged with a DUI, contact our Phoenix, AZ office to learn more about your legal rights.

DUI Breath Test vs. DUI Blood Test

Police officers have breath-testing equipment in their vehicles to test the intoxication levels of people they suspect to be under the influence of alcohol. Breath testing devices, also known as Breathalyzers, are used to estimate blood alcohol levels by measuring ethanol in the breath.

Because breath-testing equipment is only an estimate of blood alcohol levels, it is possible for these readings to be inaccurate. When the results of a DUI breath test seem to be inaccurate, a blood test may be requested.

Blood alcohol tests measure the amount of alcohol in the blood and can measure a trace amount of alcohol within minutes of consuming an alcoholic drink. Blood alcohol levels are typically highest about an hour after drinking, but the amount of food in the stomach can increase this length of time.

Can Herbal Supplements Affect Blood Alcohol Levels?

Yes. Certain herbal supplements can affect the results of a DUI blood test. Any herbal supplement that contains alcohol may affect the results of your DUI blood test, causing blood alcohol levels to be inaccurate and not a true reflection of intoxication levels.

Alcohol is used as a preservative in many herbal supplements, which should be listed as either alcohol or ethanol in the list of ingredients. Herbal supplements most likely to contain alcohol are those taken in tincture form. Tinctures are made by dissolving or soaking an herbal supplement in alcohol to extract the beneficial properties from herbs. Two of the most common herbal supplements generally taken in tincture form are kava and ginseng.

Although tinctures and other herbal supplements containing alcohol only have a small amount, it may be enough to interfere with blood alcohol level results. Other factors that can affect DUI blood test results include taking cough syrup, using rubbing alcohol to clean the skin before inserting the needle to draw blood, or high levels of ketones in the blood associated with diabetic ketoacidosis.

Learn More about Your Legal Options

If you have been charged with drunk driving and believe the results of your DUI tests are inaccurate, it is important to contact an experienced DUI defense attorney. Our legal team will work on your behalf to ensure your rights are respected and you receive a fair trial.

From testing errors to the use of mouthwash, there are many reasons for DUI breath test false positives and elevated readings. Because a DUI conviction results in life-altering consequences, it is imperative to have quality legal representation. DUI attorney James Novak in Phoenix, AZ has an outstanding track record in successfully omitting inaccurate DUI breath test results to spare innocent clients of harsh penalties they do not deserve to face.

What Causes Inaccurate BAC Readings?

There are a myriad of factors that can cause false positive and high BAC readings. For one, low-carbohydrate diets have been known to trigger breathalyzers. When you limit the amount of carbohydrates your body intakes, the body produces “ketones” which are similar in composition to isopropyl alcohol. Many breathalyzers fail to reliably distinguish between ketones and ethyl alcohol, leading to false positives and inaccurately high readings. What are some other recurring causes?

• Residual Alcohol: When traces of alcohol are trapped in the mouth, inaccurate BAC readings can result. Residual alcohol can be absorbed in food that is stuck in your teeth. If you have just taken a sip of alcohol, you may have a higher reading than is accurate. For these reasons, it is recommended that officers wait for a period of time before conducting a test. Otherwise, the legitimacy of the results could be thrown into question.
• Dental Hygiene: On a related note, dental hygiene plays a role in false positives or high readings, and not exclusively in the way you might think. While it may come as a shock to some, good oral hygiene can actually contribute to a DUI arrest because mouthwash and other breath fresheners commonly contain ethanol.
• Uncalibrated Breath Analyzer: Perhaps the most frequent challenge put forth by DUI attorneys has to do with the working condition of the breathalyzer at the time of the test. The equipment must have been calibrated within a specific timeframe and must be regularly maintained. Since many makes and models exist, manufacturer guidelines must be followed precisely. Otherwise, results may be inadmissible.
• Acid Reflux: People with acid reflux are more prone than those without to false positives or elevated readings. Officers should constantly observe the suspect to monitor for common signs of acid reflux, including vomiting, belching, or hiccupping. When this happens, acids containing alcohol can make their way up through the esophagus and into the mouth. If any of these symptoms occur, there should be a wait period of at least 20 minutes before testing.

Why You Need an Expert DUI Attorney

With the right DUI attorney, an inaccurate breath test can be successfully challenged. If you have been charged with DUI, contact attorney James Novak to schedule a free consultation. He will be happy to review your case and devise an effective strategy for your defense. To learn more, visit us online or call (480) 413-1499 today.

Contrary to popular assumption, testing positive in a DUI blood test is not incontrovertible. While blood tests are considered to be more accurate than breathalyzers and urine tests, they fall short of 100 percent accuracy. DUI attorney James Novak and the skilled team at Law Office of James Novak in Phoenix, AZ, work on behalf of clients charged with driving under the influence. We examine arrest details to uncover potential errors that could lead to reduced or dismissed charges. We have helped clear falsely accused diabetic patients.

Diabetic Episode or Intoxication?

Differentiating between an intoxicated driver and a patient undergoing a diabetic emergency is not as easy as you may think. It is normal to assume that a driver weaving uncontrollably through traffic is under the influence of alcohol, especially if he or she acts combatively when pulled over. However, failing to differentiate between a drunk driver and a patient in danger can cause serious harm. So, how can you tell the difference?

• Diabetic patients often wear medical alert bracelets and necklaces
• Diabetic patients may have an insulin pump strapped on underneath their shirt
• Diabetic patients may have medical cards and prescriptions on them
• Diabetic patients may have scar tissue on their abdomen signaling repeated injections

How Blood Tests Can Get It Wrong

While it is true that blood tests are regarded as more accurate than other testing methods, they are nonetheless imperfect. The blood sample may not be kept in identical conditions to when it was drawn, therefore putting into question the integrity of the blood specimen. Collecting blood is an error-prone process, as is storing specimens. Laboratories must also account for uncertainty in their measurements. If they do not, the results may be ruled invalid by a judge.

How Can a DUI Lawyer Help?

At Law Office of James Novak, we understand that blood tests can result in false positives. We understand the difference between intoxication and a diabetic emergency and how law enforcement error can be used to your advantage. We are experts in reviewing DUI cases to find out if a blood test sample was at all mishandled. If it was, we will push to omit the evidence.

Speak with an Experienced DUI Attorney

Smelling the scent of alcohol can be misleading and does not rule out the possibility that a diabetic patient is in need of medical attention. It is estimated that 9.3 percent of the American population is diabetic – therefore ignoring the possibility is irresponsible. If you have taken a blood test that resulted in a false positive, the attorneys at Law Office of James Novak may be able to help. We are experienced in handling DUI blood test false positive cases. We offer free consultations and will be glad to examine your case. To learn more about your rights and how we can help, visit us online or call (480) 413-1499 today.

It is important for any immigrant facing DUI charges to build a strong DUI defense to avoid administrative and criminal penalties, as well as to protect his or her immigration status. Experienced DUI defense attorney James Novak discusses the potential penalties facing clients dealing with DUI and immigration issues in the Phoenix, AZ area, in addition to advice on how best to protect immigration status following a DUI arrest.

Can A DUI Affect Immigration Status?

Many immigrants who are arrested for DUI immediately worry about how the arrest will affect their immigration status. Will they be deported? Will their naturalization be denied? Will they be blocked reentry into the country? Unfortunately, the answer to these questions is not a simple “yes” or “no.”

Any time an immigrant is arrested for DUI, his or her photo and fingerprints will be taken. This information is saved in a national database that will be referenced anytime the individual applies for an immigration benefit. Beyond that, the specific effects that a DUI will have on immigration status are dependent on the details of each arrest.

Undocumented immigrants who are arrested for DUI may face immediate immigration proceedings, which could result in deportation. However, documented immigrants who are first-time offenders and are arrested for a simple DUI likely do not need to worry about deportation.

Unfortunately, DUI arrests often do involve additional charges. The following special circumstances can complicate a DUI arrest and the effect it may have on immigration status:

• Criminal charges
• History of DUI arrests
• A DUI involving drugs, as opposed to alcohol
• Driving on a suspended license
• Driving under the influence with a child in the car

If any of the above complications are present, a DUI arrest could result in consequences including deportation, denial of admissibility into the United States, and denial of citizenship.

Protect your Immigration Status

It is important for immigrants facing DUI charges to work with an experienced DUI defense attorney, such as James Novak. The best way to prevent changes in immigration status based on DUI charges is to avoid conviction or to reduce criminal charges and penalties. Mr. Novak has a great understanding of DUI laws and has helped countless clients avoid the harsh penalties of DUI conviction. Mr. Novak will explore defense options including inaccurate DUI testing and incorrect police protocol to ensure the best possible outcome for his clients.

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If you have been arrested for DUI, it is extremely important to contact an experienced DUI defense attorney as soon as possible. Contact us to learn more about your options regarding DUI defense and how attorney James Novak can assist you throughout your DUI proceedings.

If you have recently been charged with a DUI, you need an expert DUI defense attorney on your side. Attorney James Novak defends our Phoenix, AZ clients, working to reduce or eliminate their charges. He understands the impact of a DUI on child visitation rights and will fight to ensure the charges you face do not affect your relationship and time with your child.

How Will a DUI Affect Child Visitation?

The circumstances of the DUI, such as when it took place, whether you caused an accident, if injuries were involved, and more will all factor into a judge’s decision. In child custody cases, the judge’s primary job is to determine what is in the best interests of the child. In many cases, spending extended periods of time with a parent recently convicted of a DUI is not in the child’s best interests.

Timing

Timing is everything. If you were convicted of a DUI back in college and 10 years later you are going through a divorce and fighting for custody, a judge is less likely to consider that DUI when making a decision. If, however, you are arrested for a DUI while in the midst of your divorce, the judge may take that into account, even if you are not convicted. Any arrests or convictions for a DUI within the last five years, however, might be taken into account, especially if multiple DUIs occurred less than 12 months apart.

Accident and Injuries

When intoxicated driving results in an accident, the DUI is viewed more seriously. If extensive property damage or serious injuries were also involved, it could have a major impact on your visitation rights. Drunk driving incidents that involve accidents and injuries may lead to “aggravated” or felony charges, rather than a misdemeanor. A felony can have more serious consequences in all areas of your life, including your relationship with your child.

Who Was in the Car?

If you were arrested for a DUI while your child was in the car with you, a judge may completely revoke your visitation rights, even if you are not ultimately convicted. This may also apply for any other minor in your car – not just your own child – at the time of the incident.

What Can You Do?

If you were formerly charged and convicted of a DUI, make every effort to show the judge you have made vital changes in your life. If you are in the midst of a divorce or custody battle when you are charged with a DUI, hire an experienced attorney like Mr. Novak. He understands the complexities of these cases and he knows what’s at stake.

Schedule a Consultation Today

If you were charged with a DUI, you need the best lawyer possible to protect your visitation rights with your child. Contact our law firm today to set up a consultation.

Should I Include a DUI on My Citizenship Application?

The answer is a resounding yes. You never want to lie in any way on a citizenship application. Because background checks are conducted on all applicants, any past criminal activity, including a DUI, will show up on the report. Attempting to cover up a DUI conviction or any other criminal activity will only hurt your chances at becoming a naturalized U.S. citizen.

Will I Be Denied Citizenship Based on a DUI?

Unfortunately, this is a gray area. The UCIS officer handling your application uses his or her own best judgment when approving or denying applications. If you have been convicted of a DUI, they may not deny your application on that alone. Instead, they will probably ask for more details about the incident, such as:

• Was that your first/only DUI?
• What was your blood alcohol content (BAC)?
• Were there any passengers under 21 in the vehicle with you at the time?
• Did you cause an accident that resulted in injuries or property damage?

Answer all of the questions surrounding your DUI honestly. Remember, they can find the answers to these questions on their own through a simple background check. Your honesty could help you in this situation.

Additionally, you should focus on your good behavior since the incident, especially if you have only had one DUI conviction. Let the UCIS officer know about any community involvement or volunteering you have done and talk about your positive employment history.

Is There Someone Who Can Help?

Whether you have been convicted of a DUI in the last five years and are applying for citizenship or you are not a U.S. citizen and you are facing DUI charges, you need the assistance of a skilled attorney. If you have already been convicted of a DUI and you want to apply for citizenship, Mr. Novak can review your individual situation and provide you with sound legal advice. In some cases, you may have a good chance at getting your application approved in spite of the conviction. In others, he may recommend waiting until it has been more than five years since the conviction so the DUI cannot affect your application.

If you are currently facing DUI charges, Mr. Novak can provide you with the strong legal defense you need. He will work diligently, reviewing the facts of your case and gather evidence to build a strong defense. His legal representation can secure a reduced sentence or a dismissal of the charge so you can apply for citizenship.

Speak with Mr. Novak Today

Call our law office today to discuss your case with Mr. Novak.

What Is a Suspended License in Arizona?

In the state of Arizona, license suspension has specific start and end dates. At the end of the suspension, a driver can pay a reinstatement fee to get his or her license back. This is different from license revocation, which has no specific end date and requires a more intensive reinstatement process.

How Can a License Be Suspended?

Like many states, Arizona uses a point system. When points accrue on your license, it may eventually be suspended or revoked. Speeding and other “moving violations” accrue two to three points against a license. Hit and run accidents count for six points. A DUI adds eight points to a license. Drivers who accrue eight or more points within a single year may be subject to license suspension for up to 12 months.

What Are the Penalties for a DUI on a Suspended License?

Driving on a suspended license is considered a class 4 felony. The penalties of a DUI on a suspended license are worse. A DUI while your license is suspended may result in an aggravated DUI charge. The simple act of driving with a suspended license carries steep penalties.

The court may impound your vehicle for up to 30 days. You may also be required to spend a minimum of four months in prison, with no option to commute or pardon your sentence and no possibility of probation or release during that time.

With the addition of an aggravated DUI charge, you could spend up to three years in prison. The court may also revoke your license for up to three years, and you could face up to 10 years of probation. Your vehicle may be impounded and the court may require you to attend drug or alcohol treatment. Fines for an aggravated DUI can exceed $5,000.

How a Skilled DUI Attorney Can Help

If you were charged with aggravated DUI while driving on a suspended license, you need expert legal representation. Mr. Novak has successfully represented countless clients facing similar charges. He will argue a strong case to secure a reduced sentence so you can still obtain gainful employment and lead a fulfilling life in the future.

Call Attorney James E. Novak Today

Contact the Law Offices of James E. Novak today to speak with him about your case. He will review all the facts of the case and your unique situation to provide you with the best possible legal representation. He will make sure you receive fair treatment in court.

DUI vs. Aggravated DUI

A DUI charge occurs any time a person is found guilty of driving under the influence of drugs or alcohol with a BAC over .08. You can also be charged with a DUI if your BAC was below .08 but you still failed a field sobriety test. In general, a first time DUI offense like this is likely to result in a misdemeanor charge. You may face some fines, community service, and drug or alcohol counseling, but any jail time is likely kept to a minimum or waived.

Aggravated DUI involves not only committing the offense of driving under the influence but also committing another offense simultaneously. Conviction of an aggravated DUI will result in a felony charge that carries steep fines, jail time, revocation of your license, and more. It is important to understand Arizona’s laws surrounding aggravated DUI, as well as the potential consequences, before you get behind the wheel.

Types of Aggravated DUI

In Arizona, you can be charged with aggravated DUI for a number of reasons. These may include driving under the influence:

• While your driver’s license is suspended
• Within seven years of two previous DUIs
• With a person under the age of 15 in the vehicle

You are also likely to face aggravated DUI charges if you were involved in an accident that caused property damage, injury, or death to another person. Other types of aggravated DUI may include having a BAC more than twice the legal limit, driving under the influence through a school zone, and driving under the influence while uninsured.

Penalties for Aggravated DUI

With an aggravated DUI, you face a minimum of four to eight months in prison, without the potential for probation until that minimum has been served. For lesser aggravated DUI felony charges, you may serve as little as one day in jail. Other penalties include a revocation or suspension of your license, installation of an ignition interlocking device on your vehicle, and fines in excess of $750.

Aggravated DUI Defense

Aggravated DUIs are more complicated than misdemeanor DUI charges, so they require the expertise of a skilled and knowledgeable attorney. James Novak specializes in defending clients charged with DUI and can provide the strong and aggressive legal defense you need. He will work diligently to secure a reduced sentence in your favor whenever possible.

Contact The Law Office of James Novak

If you are facing charges of aggravated DUI, contact our law office right away to speak with James Novak about your case.

Arizona Marijuana DUI Laws

In the state of Arizona, it is illegal to drive while under the influence of any drug, including marijuana. This can include using marijuana and then driving, or driving while using the drug. It is also illegal to drive under the influence of a combination of marijuana (or other illegal drugs) and alcohol. You can be arrested for a marijuana DUI for even the slightest impairment.

It is also unlawful to operate a vehicle when there is any remnant of a drug or its metabolites in your system. Metabolites from marijuana can remain in your body for up to a full month after its use. So even if you have not used marijuana for a couple weeks or more, you could still face a marijuana DUI arrest and conviction.

Penalties for Marijuana DUI

The penalties in Arizona for a marijuana DUI are steep. A first offense alone can result in up to 180 days in jail and nearly $2,000 in fines. You will also face a suspended license for up to 90 days, followed by an ignition interlocking device for up to 12 months, as well as up to 5 years’ probation.

If your third offense occurs within seven years, you could face four months or more in jail as well as more than $100,000 in fines. You may also lose your car, and the state will revoke your license for three years. A third offense also carries five years’ probation.

What about Medicinal Marijuana?

The Arizona Medical Marijuana Act (AMMA) was passed back in 2010. It made the use of medicinal marijuana with a prescription card from a physician legal. The act still complies with state laws regarding DUI. This means that even if you have a card for medical marijuana use, you cannot drive while under the influence of the drug. If you do, you can be arrested and convicted.

However, the Arizona Supreme Court has ruled that you can use your medical marijuana prescription as part of your defense if metabolites are found in your system. This means that if you lawfully used medical marijuana last week, but were arrested this week for a DUI due to the presence of metabolites, it is unlikely you will face a conviction.

Contact DUI Attorney James Novak

James Novak is an expert DUI defense attorney. He can help build a strong defense to either get you a reduced sentence or have the charges dropped altogether. You have the right to contact your attorney before submitting to a blood test, so call us today.

Types of Drugs that Can Lead to DUI

Arizona law states that any person that is driving or otherwise has physical control of a motor vehicle while under the influence of any drug or combination of alcohol and drugs and are impaired even to a mild degree can be found guilty of a drug DUI. The law also states that any trace of a controlled substance found in the body can also lead to a drug DUI conviction. This means that even if the effects of a drug have worn off, if it is still in your system hours or even days later, you could be found guilty of a drug DUI.

This phenomenon is most common with marijuana, as the substance can remain in the body long after its effects have subsided. Other drugs that can lead to a DUI conviction include:

• Cocaine
• Methamphetamine
• Nitrous oxide
• Ecstasy
• Opiates such as hydrocodone, oxycodone, codeine, and heroin

Some of these substances, such as oxycodone and codeine, are used in prescription pain medications. Despite having a prescription for these medications, if you take them and then proceed to operate a vehicle, you could be found guilty of a drug DUI. This is because, just as with illegal drugs, these medications can impair your ability to drive and perform other functions.

Consequences of an Arizona Drug DUI

A drug DUI conviction in Arizona can lead to serious consequences. Convictions are classified as either misdemeanors or felonies. There is typically some leniency for first-time offenders, assuming there was no accident involved. Even so, a first-time offender could still end up spending up to six months in jail with fines exceeding $250. Those fines do not include court fees or the fees associated with drug education classes, which are typically required.

What to Do if You Are Suspected of a Drug DUI

If you are charged with a drug DUI, you should contact an experienced attorney such as James Novak immediately. If you are a first-time offender, he can help you receive a reduced sentence that may involve no jail time at all and fewer fees. If there is hard evidence that you were driving under the influence, usually due to finding traces of the substance in your body, it may not be possible to have the charges against you completely dropped. Mr. Novak will build a strong DUI defense on your behalf, though, and he will fight to ensure the best possible outcome for you.

Schedule a Case Evaluation Today

If you or a loved one has been charged with a drug DUI, it is critical that you seek legal advice from an experienced attorney. Contact our law offices today to schedule a case evaluation with Mr. James Novak.

To learn more about the reasons for inaccurate field sobriety test results, read on.

Officer Subjectivity

Nearly every aspect of a DUI is subjective. The officer must determine what he or she believes is probable cause to pull you over in the first place. Then, the officer may request a FST. The officer is then the sole judge as to how well you perform this test.

In a study at Clemson University, researchers found that police officers are wrong nearly 50 percent of the time when judging a FST, even when the suspects are completely sober. This means if you get pulled over and you have not had a drink all night, if the officer requests a FST, there is about a 50/50 chance you could still fail the test.

The Tests Themselves

Field sobriety tests have not changed much in the last 30 years. Most research indicates that FSTs actually lead police officers to over-estimate a suspect’s BAC rather than under-estimate. These tests allow an officer to check for balance and coordination, as well as your cognitive abilities. Most people struggle with FSTs, especially when under the pressure of a potential DUI, even if they are completely innocent.

Medical Conditions and Other Variables

Medical conditions are one of the top reasons a person might fail a FST. Conditions that affect balance and coordination, such as Multiple Sclerosis (MS), Parkinson’s disease, and others, could make a person appear intoxicated. Temporary illnesses such as an inner ear infection can also affect balance. Certain medications could also play a role in the ability to pass a FST.

In many cases, the only way to prove someone with a medical condition is not intoxicated is to take a breathalyzer or blood test. Unfortunately, certain medications can also affect your BAC.

Using an Inaccurate FST in Your DUI Defense

If you failed a FST and subsequently failed a breathalyzer or blood test even though you were sober, Attorney James Novak may be able to help. He can help you provide medical reports regarding a medical condition, or any further evidence to prove you were not intoxicated at the time of the FST. The sooner you contact James Novak for assistance with your case, the better chance he will have at assembling a strong defense for your case.