Craig Rosenstein 2012-12-12 01:05:38
As I am sure you know, most people assume that if someone is a lawyer, then that person must know the answer to most, if not all, legal questions. One legal question that is often posed by our friends, neighbors, and/or clients involves a discrete area of law that most attorneys do not practice: DUI defense. Almost every attorney has received that call from a friend or client asking what to do after being pulled over for a DUI in Arizona, and unfortunately, it is often too late to give the best advice of all: don’t drink and drive. Further complicating the matter is that DUI questions tend to arise in the middle of the night, and the incident is happening at that precise moment, so there is little time for the attorney to research the issues. As a result, attached below is an easy to read “cheat sheet” on how to advise a person who has been arrested for a DUI in Arizona. You can cut it out and leave it on your nightstand, knowing that you will be prepared if you get that middle of the night call. 1. In all likelihood, the person is calling you from one of two places: roadside or at the police station. In either event, you should advise your client that it is unwise to participate in the HGN test (commonly referred to as the “pen test” or “eye test”) and/or the field sobriety tests (also known as “balancing tests”). Although Arizona law requires that the person participate in the police investigation, these tests are dubious in their ability to determine impairment, and usually lead to more harm than good for the person charged. This is more likely to be relevant if the person is calling you from the roadside, versus calling from the police station or mobile van. 2. Inform the person that he or she has a right to remain silent, and that he or she should use it. The adrenaline of police contact can be enough to make even shy people chatty. 3. The person will likely be inquiring about whether they have to give a blood, breath, or urine sample to the police. The answer to the question is usually yes. In Arizona, blood, breath, or urine is gathered by one of three methods: consent, warrant, or medical blood draw under A.R.S. Section 28-1388(E). If the individual refuses to participate in an evidentiary breath test or blood test, or provide a urine sample, then the police officers will contact a judge for a telephonic search warrant. The police have access to such a search warrant twenty-four hours a day. If the police serve a search warrant to procure the bodily substance, then there are extreme Arizona Motor Vehicle Division (MVD) consequences for the person. The only exception to this rule is the hand held breath testing device (often called a “portable breath test” or “PBT”) that is administered roadside by the police. Refusal to blow into a PBT does not trigger MVD consequences, nor does it allow an officer to procure a search warrant, but it is part of the police investigation. Although it is mandatory to participate in the police investigation, the best thing that you can do is advise your client that it is unwise to blow into a PBT. So you can better advise your client, please note that a PBT is a hand held device, the required evidentiary tester is a blue/grey machine with a long tube coming out of it. 4. Most jurisdictions will “cite and release” a defendant following a DUI arrest. This means that after the person has given a blood, breath, or urine sample, the person will be processed and released shortly thereafter. However, should the person want to gather potentially exculpatory information like a second blood test, he or she must specifically state that demand to the police. He or she should thus politely but firmly insist that he or she be released to gather an independent blood test. This may also help to quicken the person’s release from police custody. 5. Arizona DUI defense is a complicated practice, as DUI charges have ramifications not just in the criminal court system, but in the Arizona MVD as well. Further, the practice of DUI defense involves a great amount of scientific and forensic knowledge. As a result, you should always refer the person to an experienced Arizona DUI attorney for a consultation on the defense of the DUI charges as soon as possible.
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