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.
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.
