Arizona DUI Accident? Maybe not says local attorney
It appears that a terrible accident which occurred in the Phoenix area yesterday may have been DUI related.
DPS: Wrong way driver slams into semi on Valley freeway - Phoenix Arizona news, breaking news, local news, weather radar, traffic from ABC15 News | ABC15.com: "The Arizona Department of Public Safety is investigating a three-vehicle collision that shut down portions of Interstate 10 on Tuesday morning.
Eastbound I-10 is closed at Queen Creek Road with all traffic exiting at Queen Creek.
The accident, involving a commercial vehicle, has also closed I-10 westbound at Riggs Road with all traffic exiting at Riggs Road.
According to DPS, a driver was heading westbound in the eastbound lanes on I-10 when he slammed into a semi-truck.
The semi burst into flames and crashed into a truck.
In all, four people were taken to the hospital with unknown injuries.
The alleged wrong-way driver was airlifted and is being tested for DUI.
The eastbound and westbound lanes were both reopened before 7 a.m., according to the Arizona Department of Transportation."
"It's really hot right now in Arizona," said AZ DUI attorney Stewart Bergman. "We should not rush to judgment. The heat plays tricks on people's judgment just like alcohol does. We should wait for the test results before we assume that anybody is guilty. That's how the criminal justice system works, and it's what DUI defense lawyers fight for every day... the right to the presumption of innocence."
Tucson DUI Intoxilyzer Source Code Issue Update
Here is an update on the DUI Intoxilyzer source code issues being litigated in Tucson, Arizona.
Ariz. court overturns order on breath-testing code - Forbes.com: "An Arizona appellate court skirted a big-picture issue snagging numerous drunken-driving cases as it issued a narrow ruling that overturned a judge's order requiring prosecutors to obtain a breath-testing machine's computer code and provide it to defense attorneys.
A Tucson-based panel of Court of Appeals judges ruled that Judge Deborah Bernini of Pima County Superior Court shouldn't have issued the order because law enforcement officials did not have the 'source code' for the Intoxilyzer 8000 machine and had no way to get it from the out-of-state manufacturer.
The next step in the case will likely be for defense lawyers to ask Bernini to prohibit use of breath-test results from the Intoxilyzer 8000, defense attorney Joseph P. St. Louis said from Tucson.
Meanwhile, the Court of Appeals' ruling Tuesday leaves a tangle of rulings by Superior Court and municipal judges, some of which prohibit use of the evidence while others that permit it, said Deputy Pima County Attorney Jacob Lines.
'It really depends on which judge you're in front of,' Line said. 'It's sort of been a mess.'
In cases where judges don't allow breath-test results to be used, prosecutors still press many drunken-driving cases by using evidence that includes testimony from police about drivers' performance behind the wheel and in field-sobriety tests, St. Louis said.
The Pima County Attorney's Office drew support in the Court of Appeals case from the Arizona Attorney General's Office and prosecution agencies for jurisdictions that included Phoenix, Tempe, Tucson and Yavapai County.
The Arizona Department of Public Safety has 250 of the Intoxilyzer 8000 machines in use statewide, spokesman Bart Graves said. Municipal police using the machines include departments in Phoenix and Tucson, officials said."
This issue has not gained the kind of traction in the Phoenix area that it has in Tucson.
Scottsdale DUI Fines
There is a big and scary sign in each courtroom in Scottsdale Municipal Court that says "fines are due on day of sentencing."
Don't let that sign get you down. The Court will allow payment plans. You just have to pay a one-time fee of $20.00 and fill out an application.
New Arizona DUI Case: Hearing required in right to counsel case
The Arizona Court of Appeals, Division I, issued a new DUI ruling on February 3, 2009 which remanded a case back to the trial court because the trial judge ruled on a right to counsel motion without a hearing, despite the fact that the Defense requested one.
This is a memorandum decision, so there is currently no citation available. The name of the case is State v. Standish.
The Facts:
Seneca S. Standish appeals from his convictions for two counts of aggravated driving under the influence. Standish argues that the trial court erred by summarily denying his motion to dismiss for interference with the right to counsel. Because the motion to dismiss alleged a colorable claim for relief, we remand for an evidentiary hearing.
Standish was charged with two counts of aggravated driving while under the influence of intoxicating liquor or drugs, each a class 4 felony. He moved to dismiss the charges, claiming the police violated his right to consult with counsel during the investigation. The motion alleged that the police, without justification, failed to honor his request to speak with counsel before obtaining blood evidence from him and refused to allow him to speak privately with counsel when he was eventually permitted to call counsel following the blood draw. The State responded that Standish had been provided with a telephone and phone book before the blood draw, but refused the offer, and that his subsequent disruptive behavior justified the police in not allowing further access to a telephone.
At a trial management hearing on April 5, 2007, the trial court scheduled an evidentiary hearing on the motion to dismiss for April 20, 2007. On April 11, 2007, however, the trial court issued a minute entry order stating:
The Court has received and reviewed Defendant's Motion to Dismiss for Violation of Right to Counsel.
No good cause appearing,
IT IS ORDERED denying Defendant's Motion.
No further explanation was given by the trial court for the order denying the motion to dismiss.The order apparently also served to vacate the evidentiary hearing. Standish filed a motion for reconsideration, which was likewise denied by the trial court without explanation.
Upon trial to a jury, Standish was found guilty on both counts as charged. The trial court suspended sentencing and placed Standish on probation for three years with the condition that he serve a six-month prison term. We have jurisdiction over his timely appeal. See Ariz. Const. art. 6, § 9; Ariz.Rev.Stat. §§ 12-120.21(A)(1) (2003), 13-4031 (2001), -4033 (Supp.2008).
The Ruling:
Under these circumstances, the proper procedure is to remand this matter for an evidentiary hearing on the claim of interference with the right to counsel. See State v. Warner, 150 Ariz. 123, 128, 722 P.2d 291, 296 (1986). Depending whether he can prove that his right to counsel was violated and the nature of his prejudice, Standish may be entitled to either dismissal of the charges or the suppression of evidence and a new trial. See Kunzler, 154 Ariz. at 570, 744 P.2d at 671 (stating that the proper remedy is the suppression of evidence); Holland, 147 Ariz. at 456, 711 P.2d at 595 (holding that dismissal was required). We express no opinion whether Standish has a valid claim or, if he does, as to the appropriate remedy.
My Comments: I have heard judges say things like "should we get the jury ready?" and "after I rule on the motion, we can bring the jury in right away." These things indicate that the judge is planning to rule against the defense. While not giving a hearing is certainly good grounds for appeal, it does not surprise me in the least that it happened. Arizona DUI law is complicated, and it would certainly be out of line were I to say that it is stacked against the defendant... but there are certain cases that certainly make you wonder.
Georgia DUI breath test case addresses police pressure
On January 13, 2009 the Georgia Court of Appeals reinstated a breath test that had been suppressed based on the Georgia DUI defendant's testimony that she was, essentially, pressured into taking a chemical test after refusing it.
The trial court found the defendant's testimony credible, and believed that her assertion that she felt that she would be held in jail if she didn't cooperate and take the test.
The case is State v. Quezada.
The facts and Issue:
Prior to trial, Quezada moved to suppress the results of her breath tests, arguing that she did not voluntarily consent to the same. At the motion to suppress hearing, Quezada testified that she changed her mind and agreed to the breathalyzer test after Knight repeatedly asked her to do so, explaining "I just felt that I ... wasn't going to get out of there [the jail] unless I did it." On rebuttal, Knight testified that he did not repeatedly ask Quezada to take the test but instead merely told her that, if she changed her mind, she could take the breath test. Knight further stated that he did not threaten Quezada to get her to take the test nor did he offer her a benefit or other inducement to submit a breath sample.
The trial court credited Knight's testimony, finding that nothing in the evidence indicated that Quezada was coerced or threatened into submitting to the chemical tests. The trial court nevertheless granted Quezada's motion to suppress, based on Quezada's refusal, at the time of her arrest, to submit to chemical testing. The State now appeals from the trial court's order.
The question in this case is whether Quezada rescinded her initial refusal to submit to a breath test. In granting the motion to suppress, the trial court relied on Howell v. State, 266 Ga.App. 480 (597 S.E.2d 546) (2004), interpreting that decision as holding that once a suspect has refused to submit to chemical testing, the State may not thereafter ask the suspect a second time if she will submit to such testing. Howell, however, does not stand for such a proposition.
Holding:
Quezada, by her own admission, then "changed her mind" and agreed to take the test, (footnote omitted) in the absence or any threats or inducements by Knight. In light of Stapleton, therefore, we conclude that Knight did not act unreasonably and that the trial court erred in granting Quezada's motion to suppress. Accordingly, we reverse the trial court's order. (all emphasis added)
My Comments:
In some states this is not even an issue. In Arizona DUI law, for example, when a person refuses the officers can apply for a search warrant and forcibly take a blood test. When you compare even the (supposed) misinterpretation that the the trial judge in this case made to the law in states such as Arizona (which from my informal survey is probably the most extreme DUI jurisdiction in the nation), it shows how very differently DUIs are treated in the judicial system from state to state.
Right now we are working on putting together a comprehensive comparative guide to DUI law in all 50 states, which should be ready within the next month or so.
DUI defendant who fled with a good plea agreement on the table
The Arizona court of appeals has granted review but denied relief in a DUI injury case where the defendant failed to take a favorable plea agreement, failed to appear in court, and was later apprehended. The defendant blamed his attorney, saying essentially that the attorney didn’t adequately advise him of the plea agreement. He claimed that if he had been properly advised, he would have taken it and not taken off.
The Cite: Court of Appeals of Arizona, Division 2, Department A. The STATE of Arizona, Respondent, v. Jose Luis Velasquez ORDUNA, Petitioner. No. 2 CA-CR 2008-0048-PR. Nov. 13, 2008.
The facts as taken from the opinion:
In 2001, Orduna was indicted on charges of aggravated assault with a deadly weapon or dangerous instrument, criminal damage, leaving the scene of an accident involving injury, driving under the influence of an intoxicant (DUI), driving with an alcohol concentration of .10 or more, and driving under the extreme influence of intoxicating liquor. The state offered a plea agreement allowing Orduna to plead guilty to aggravated assault, criminal damage, and misdemeanor DUI but withdrew that offer when Orduna absconded and did not appear at the change-of-plea hearing....
After he was apprehended, Orduna moved for an order directing the prosecutor to reinstate the plea offer. He asserted his counsel had inadequately explained it to him and suggested that he would have accepted the plea agreement and not absconded if counsel had been effective. The trial court denied his motion after an evidentiary hearing, and a jury found Orduna guilty of all charges except leaving the scene of an accident. The court sentenced him to concurrent terms of imprisonment, the longest of which was six years...
Analysis and commentary: It is extremely common in criminal cases, especially felonies, that the defendant blames the attorney upon conviction. While it is important to always work in the client’s best interest, it is also important to make sure that the client’s file is documented with every conversation.
For highly favorable plea agreements, it is also a good practice to put the terms of the agreement in writing and present it to the client. This will help avoid a misunderstanding about the terms of the plea agreement, and will also protect the lawyer in the even the client later claims that the agreement wasn’t presented.
This case occurred in Arizona. In Arizona criminal cases, a “Donald” hearing is available. At that hearing, the terms of the plea agreement are presented to the defendant on the record in open court, and the deadline for accepting the plea agreement is also stated. This protects the defense lawyer from claims such as the defendant in this case made. More importantly, it protects the defendant from an attorney who may have forgotten to explain the terms or the deadline.
As always, the most important thing to keep in mind when representing DUI clients is communication. It is better to repeat yourself several times than to risk your client either not hearing your message or not understanding it.
