DUI Case Law

August 26, 2020

When Is Someone “Operating” a Vehicle Under Arizona DUI Law?

One of the elements that the prosecution must prove in an Arizona DUI charge is that the driver was in actual physical control of a vehicle. If the prosecution cannot establish this fact, then the defendant must be found not guilty. However, courts define “actual physical control” quite broadly, as illustrated in a recent appellate decision.

According to the court’s opinion, the defendant’s parents called police after they noticed that their new truck was missing. They told the police that their son, the defendant, had been drunk earlier in the day, and that they believed he stole their truck and drove it while under the influence. Because the defendant had a prior DUI, he was required to have an ignition interlock installed on any vehicle he drove.

Not long after speaking with the defendant’s parents, police officers located the truck with the defendant asleep inside. The truck’s lights were on, but the engine was off, and the keys were not in the ignition. Police woke the defendant up, who told them that the keys were “where they were supposed to be.” However, the defendant did not elaborate, and the officers never found the keys.

June 26, 2020

Arizona Court Affirms DUI Conviction Over Defendant’s Challenge to Officer’s Decision to Remove Him from the Vehicle

by James E. Novak, P.L.L.C.

Earlier this month, a state appellate court issued a written opinion in an Arizona DUI case discussing whether the arresting police officer was justified in removing the defendant from the vehicle to perform several field sobriety tests. Ultimately, the court rejected the defendant’s challenges to the traffic stop and affirmed his conviction.

The Facts of the Case

According to the court’s opinion, at around 2 a.m., an officer was on patrol in an area that was known as a road used by drunk drivers. The officer noticed the defendant pass by, traveling about 10 miles per hour over the speed limit. The officer noted no other traffic infraction.

When the officer approached the vehicle, he noticed the defendant’s eyes were watery and bloodshot, and the car smelled of alcohol. The defendant admitted to having something to drink, but explained that he was not feeling the effects of the alcohol. The defendant understood all the officer’s questions and responded in a clear manner. However, the officer then performed a horizontal nystagmus test to determine if the defendant was intoxicated or tired.

March 26, 2020

Court Discusses the “Operation” Element of an Arizona DUI Offense in Recent Opinion

by James E. Novak, P.L.L.C.

Before someone can be found guilty of a crime, the prosecution must prove each element of the offense beyond a reasonable doubt. When it comes to Arizona DUI charges, the prosecution must show not only that the driver was intoxicated, but also that they were in “actual physical control” of the vehicle. This is commonly referred to as the “operation” element. Recently, a state appellate court issued an opinion in an Arizona DUI case discussing the operation element, and what the prosecution must prove to sustain a conviction.

According to the court’s opinion, a police officer was on routine duty when he noticed a vehicle pulled over to the side of Interstate 10, with its flashers on and with the rear of the vehicle protruding into the roadway. As the officer approached the car, he could see that the driver was asleep and that there was a child unbuckled in the back seat. The officer opened the door and found an open can of beer, and the remains of a twelve-pack. The car was off, but the key was in the ignition, the car was in drive, and the hood was warm.

When the officer asked the defendant to get out of the car, he noticed that the defendant was unsteady and had bloodshot, watery eyes. The defendant told the officer he was not driving the car and that he “just pulled over.” A chemical test revealed that the defendant was intoxicated, and he was then arrested and charged with drunk driving.

February 26, 2020

The Operation Element of an Arizona DUI

by James E. Novak, P.L.L.C.

When the government brings a criminal case against a citizen, it is the government’s burden to prove each element of the offense beyond a reasonable doubt. Specific to Arizona DUI cases, the prosecution must prove that the defendant was intoxicated and that they were in physical control of a vehicle. This second element was the recent focus of a state appellate decision.

According to the court’s opinion, a family was traveling northbound on Interstate 17 when the driver saw headlights drifting off and on the road. A few moments later, the driver could see that the headlights sharply veered off the road and it appeared as though the vehicle was rolling. The driver made a U-turn to see if anyone needed help.

One of the family members in the vehicle saw the defendant about ten feet away from a damaged pickup truck. When the family stopped, the defendant approached them and asked them not to call the police. The defendant asked for a ride to the next exit, assuring the family that he was not in need of medical attention. However, the defendant was bleeding, and the family called an ambulance.

January 14, 2020

What Is Retrograde Extrapolation in an Arizona DUI Case?

by James E. Novak, P.L.L.C.

When someone consumes alcohol, their blood-alcohol content (BAC) will increase over time, before it starts to decrease as the alcohol dissipates from their blood. For many Arizona DUI offenses, the prosecution must prove that the defendant’s blood was above the legal limit. Thus, police officers will often try to take a driver’s blood as quickly as they can; however, in some cases, a driver’s blood is not taken until a later time. Typically, blood must be drawn within two hours of the time when the defendant was driving.

Recently, a state appellate court issued a written opinion in an Arizona DUI case discussing a process called “retrograde extrapolation” by which a chemist can estimate what a person’s BAC was at a specific time by looking at what their BAC was at a later time. The process is used by prosecutors to estimate what a defendant’s BAC would be at the time they were driving. Prosecutors will especially rely on this technique when they were unable to take a defendant’s blood within the two-hour time frame

According to the court’s opinion, witnesses observed the defendant get into a car accident between 4 and 6 p.m. After the accident, the witnesses noticed that the defendant smelled of alcohol and seemed off balance. Police officers arrived on the scene at 8 p.m, and the defendant’s blood was taken at 9 p.m. The results indicated that the defendant’s BAC was .336. Because the defendant’s blood was not taken until between three to five hours after the accident, prosecutors called an expert witness to explain the concept of retrograde extrapolation, and provide the jury an estimate of the defendant’s BAC at the time of the accident.

November 19, 2019

Can Arizona Law Enforcement Force a Motorist to Take a Blood Test?

by James E. Novak, P.L.L.C.

Seeing the red and blue lights of a police cruiser in the rear-view mirror is among the worst fears for many motorists, especially those who have had a few drinks. Part of what makes getting pulled over for an Arizona DUI so nerve-wracking is the knowledge gap between police officers who do this every day, and motorists who may have never been pulled over before. Learning about motorists’ rights, and the procedure that police must follow when executing an Arizona DUI stop, may put some of these anxieties to rest.

One of the most common questions is whether a police officer can require a motorist to give their blood for a blood test. The short answer is no, however, the question is really more complicated. By obtaining an Arizona driver’s license, motorists agree to consent to blood testing at the request of police. This is referred to as implied consent. However, police officers cannot physically require a person to submit to a blood test.

Thus, under Arizona DUI law, all motorists agree to undergo testing at the request of police. However, if a motorist refuses testing, the police cannot physically force them to give blood. The only way that police can physically force a suspect to give blood is if they obtain a warrant. However, in practice, warrants are rarely obtained in DUI cases.

August 28, 2019

Can Arizona Police Use Blood Drawn for Medical Purposes to Check for Drugs or Alcohol?

by James E. Novak, P.L.L.C.

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.

May 27, 2019

SCOTUS Will Decide Case that May Impact the Constitutionality of Arizona’s Implied Consent Statute

by James E. Novak, P.L.L.C.

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.

May 14, 2019

Court Rejects Defendant’s Expert Testimony in Recent Arizona DUI Case

by James E. Novak, P.L.L.C.

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.

April 25, 2019

Arizona Appellate Court Allows Illegal Sentence Due to Timing of Court’s Decision

by James E. Novak, P.L.L.C.

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.”