DUI Case Law

February 24, 2021

The “Actual Physical Control” Element of an Arizona DUI Case

Everyone knows that drunk driving is against the law. However, the elements of a DUI offense are not always straightforward. One of the most misunderstood elements of an Arizona drunk driving offense is the requirement that the prosecution proves a defendant was in “actual physical control” of the vehicle. A recent state appellate decision discusses what the prosecution must prove to meet its burden under the “actual physical control” element of a DUI offense.

The Facts of the Case

According to the court’s opinion, police officers received a call for people sleeping in a car. Police officers arrived on the scene, and noticed that the vehicle had been in an accident. Officers woke the passenger up without issue, but the defendant was “in and out of it,” and exhibited signs of intoxication, including slurred speech and confusion.

Police officers administered field sobriety tests, the results of which led them to believe the defendant was under the influence of alcohol or drugs. Subsequently, the police arrested the defendant, who then told them that he had driven to the store to buy some food, and fell asleep after pulling over. Police ordered chemical testing of the defendant’s blood, which indicated he was under the influence of methamphetamine and amphetamine.

January 27, 2021

Court Rejects Defendant’s Claim the Prosecution Failed to Preserve Important Evidence in Recent Arizona DUI Case

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

Earlier this month, a state appellate court issued an opinion in an Arizona DUI case involving the defendant’s claim that the prosecution failed to preserve evidence that would have shown police violated his rights. However, ultimately, the court concluded that the video, at best, could provide “potentially useful” evidence, but could not show that he was not guilty of the charged offense. Thus, the court rejected the defendant’s claim and affirmed his conviction.

The Facts of the Case

According to the court’s opinion, a police officer heard tires squealing and observed a car take off at a high rate of speed. The officer pulled over the car, which the defendant was driving. The officer noticed that the defendant smelled like alcohol, and arrested him, and took him to a booking facility.

Police asked the defendant to perform two sobriety tests, which he did. They then informed the defendant of his Miranda rights, at which point the defendant invoked his right to consult with an attorney. The officers explained the consequences of refusing a breath or blood test, and the defendant again insisted on having counsel present. Police officers then obtained a warrant to take the defendant’s blood, which revealed he had a blood-alcohol concentrate of .121, well over the legal limit.

January 13, 2021

Court Rejects Defendant’s Claims of Prosecutorial Misconduct in Recent Arizona DUI Case

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

The role of an Arizona DUI defense attorney is to defend his or her client at every step of the case. Initially, this means conducting a thorough investigation into the case, diligently reviewing the state’s evidence, and creating a compelling defense. Once the trial starts, however, a defense attorney’s role expands, requiring they keep an eye on the prosecution.

The role of a prosecutor is to “seek justice.” However, as history shows, sometimes prosecutors step out of line, either by withholding valuable evidence, trying to use prejudicial evidence, or making inflammatory comments to the jury. Defense attorneys are critical in keeping prosecutors in check, by objecting to their unfair tactics.

Recently, a state appellate court issued an opinion in an Arizona drunk driving case, discussing the defendants’ claims that the prosecutor engaged in prejudicial misconduct. According to the court’s opinion, the defendant entered a roundabout without yielding the right of way to a police cruiser. The officer initiated a traffic stop, and the defendant sped away. The chase reached speeds of 120 miles per hour before the defendant stopped the car and got out. The officer commanded the defendant to get on the ground, and he complied, at which point he was arrested.

December 23, 2020

Arizona Finds Witness Statements Were Improperly Admitted, but Affirms Defendant’s DUI Conviction

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

Last month, a state appellate court issued a written opinion in an Arizona drunk driving case, discussing the defendant’s challenges to certain statements admitted at trial. Ultimately, the court held that, while the statements should not have been admitted, the defendant failed to show that admission of the statements constituted a “fundamental error.”

The Facts of the Case

According to the court’s opinion, witnesses watched as a car drove into their driveway and crashed into their vehicle. There were three people in the car, the defendant, his girlfriend, and another male. One of the witnesses identified the defendant as the driver. However, in the witness’ statement to the police, the description of the driver matched both the defendant as well as the other male in the car.

When police arrived, the witness again identified the defendant as the driver, as did several of the witness’ housemates. The defendant was arrested and charged with DUI. He then told police that he had been drinking, he was driving at some point, but he did not get into an accident. His defense at trial was that he was not the driver.

August 26, 2020

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

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

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.