Attorney Scott Campbell

Criminal Defense Attorney

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The 10th Amendment Lives

The 10th Amendment Lives – On May 14, the Supreme Court of the United States (SCOTUS) handed down a decision that most believe authorized sports betting. The decision did not authorize sports betting but allows the States to change their laws prohibiting sports betting.

The 10th Amendment Lives

The 10th Amendment Lives

From a layman’s point of view, it really is that simple. From a Constitutional point of view, the decision is the first affirmation of the 10th Amendment in over a generation.
The 10th Amendment, ratified with the remainder of the Bill of Rights in 1789, states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The 10th Amendment was insisted upon during the ratification process of adopting the Constitution by the Anti-Federalists to emphasize the limited nature of the powers delegated to the federal government. Like the 3rd Amendment (prohibiting the non- consensual quartering of troops except during war), the 7th Amendment (right to jury trial in any civil dispute over twenty dollars), and the 9th Amendment (not denying rights not enumerated), the 10th Amendment has seldom been referenced in SCOTUS opinions.

The 10th Amendment Lives

A quick search of a case law database shows SCOTUS last referenced the 10th Amendment in 1949, almost 70 years ago. For Constitutional wonks, that case affirmed that the District of Columbia was not a “State” for Federal diversity jurisdiction, and Congress could not designate it one because that power was not enumerated in the Constitution.
In the recent sports gambling decision, the 10th Amendment was applied differently. To understand the Constitutional issue, we have to look at the history of the statute in question, The Professional and Amateur Sports Protection Act (PAPSA or “the Act”). The Act, passed in 1992 and effective January 1, 1993, prohibited a State from changing its law prohibiting sports gambling unless it did so within one year. The law did not outlaw sports gambling, it simply purported to prohibit a State legislature from changing a State law prohibiting sports betting.
This is where PAPSA came up against the 10th Amendment. The Congress did not prohibit or regulate sports gambling, it regulated State legislatures power to change laws vis-à-vis sports gambling. As Justice Alito stated in the recent decision, the “anti-commandeering doctrine” prohibits the Congress from issuing orders to the governments of the States simply because that is not an enumerated power in the Constitution.

The 10th Amendment Lives

SCOTUS, in its opinion, affirmed the 10th Amendment’s power to prohibit Congress from either requiring or prohibiting a State from passing or repealing a State law. New Jersey (the plaintiff through its Governor) can now modify its State law prohibiting sports gambling and regulate it as it sees fit. Thanks to SCOTUS re-discovering the 10th Amendment.


Punitive Damages in Personal Injury Lawsuits

Punitive Damages in Personal Injury Lawsuits – Today’s Guest Blog is by The Law Firm of Percey Martinez.

A person who files a personal injury lawsuit might learn that they will be entitled to receive two types of compensations: specific and general damages. What most people might not be aware of is that they can also receive a damage known as “punitive damages”, often referred to as “exemplary damages”. What are punitive damages? Punitive damages are damages that a defendant might be ordered to pay as a result of their attempt to hurt someone or their reckless acts.

Punitive Damages in Personal Injury Lawsuits

Punitive Damages in Personal Injury Lawsuits

This is a damage that the court decides whether they want the defendant to pay it or not. If the court establishes that the defendant must pay punitive damages, the plaintiff will be entitled to obtain some or possibly all of the amount that the court orders the defendant to pay. The way that punitive damage differs from specific and general damages is the reason behind the compensation. With punitive damages, they are not mandated in order to pay back the victim for the injuries caused, they are ordered to serve as a form of punishment towards the defendant’s reckless actions.

Additionally, the court might order punitive damages if they believe that the amount the victim will be receiving is not fair for the number of damages that they sustained. As mentioned above, punitive damages were created to punish the defendant, but also to deter other people and the defendant from committing the same reckless actions again. For example, drunk driving. When a victim is injured by another driver who was driving under the influence, the victim will not only be entitled to receive specific and general damages, but they will be entitled to receive punitive damages because the actions of the driver were reckless. The drunk driver knew that driving while intoxicated could lead to another person’s injuries, but they still went ahead and drove that way. With the case mentioned above, the court will most likely require the drunk driver to pay punitive damages to deter them from ever driving drunk again.

Punitive Damages in Personal Injury Lawsuits

Cases Where Punitive Damage Can be Awarded

Punitive damages are not available for every personal injury case. Listed below are several different cases where punitive damages may be awarded:

  • Intentional torts like rape, assault, DUI
  • Product Liability like poorly manufactured products
  • Premises Liability

Punitive damages rarely ever amount to anything in the million dollar range. The average pay for punitive damages falls under $50,000.

Helping Victims Receive the Compensation That They Deserve Including Punitive Damages

If a person was reckless or intentionally hurt another person, the victim can possibly be awarded for punitive damages along with the actual damages they will receive. Everyone needs to be held liable for their actions and ordering a defendant to pay punitive damages is a great start in deterring them from ever committing the same action again. The personal injury legal counsels within Percy Martinez’s law firm always fight to obtain as much money as possible for their clients. They want to see justice served.

Punitive Damages in Personal Injury Lawsuits

A Whiff, But Not a Breath of Fresh Air

A Whiff, But Not a Breath of Fresh Air. For years, the government has been touting their success in taking drug dealer’s assets, thus advancing their war on drugs.  What they have consistently denied is what is, in war, euphemistically called “collateral damage.”  The government shows many millions of dollars alongside great quantities of drugs and proudly proclaims that they got the drugs and the profits.  What they don’t tell is the rest of the story.

A Whiff, But Not a Breath of Fresh Air

A Whiff, But Not a Breath of Fresh Air

What they don’t show is innocent people who accumulate cash in savings or a cash-intensive business who are stopped by police and have to prove their money was legally acquired.  The government will seize the money, then call an “expert” police witness to say the way the money was packaged or carried was indicative of drug proceeds.  However, I have seen these “experts” say money carried in a roll, folded in half, carried in bundles of round amounts, put in plastic, put in paper bags, or just not carried the way most people carry pocket money (a few dollars in a wallet) in indicative of drug money.  In other words, any way you carry money is indicative of drug money.

A Judge, who has presided over countless drug trials, then finds “by a preponderance of the evidence” (51%), that the money was drug money and the government seizes it.  Often, maybe more often, the amount is just a few thousand dollars and the victim of the seizure doesn’t want to pay an attorney more that is at stake to try to recover it.

A Whiff, But Not a Breath of Fresh Air

Put another way, imagine you have a nice watch…one that cost a couple thousand dollars.  A police officer says drug dealers have nice watches and takes it from you.  An attorney would cost more than the value of the watch, so you don’t hire one.  An “expert” police officer then testifies that drug dealers wear nice watches, so the Judge says the government can have your watch…even though you were never charged with a crime.

The Arizona legislature, in an uncommon change in the law of forfeiture, has given us a whiff of fresh air.  Now, the Judge has to find by “clear and convincing evidence” that the money was illegally obtained.  In addition, if the person whose money was taken “substantially prevails” at the hearing, the State has to pay his attorney fees.  Finally, the Attorney General has to approve a city or county spending any forfeited funds, meaning they have to be spent only on what they are legally allowed to be spent on…with oversight.

Hear the police howling?  I can.  But, it is just a whiff of fresh air.  A true breath would be to release any money taken where no criminal conviction ensued, without the need for lawyers, hearings, and “expert” police testimony.  That would be a true breath of fresh air.

A Whiff, But Not a Breath of Fresh Air

Arizona Drug Crimes

Arizona Drug Crimes – What are the punishments? Today’s guest blog is by Powers Law, P.C in West Islip, NY.

Punishments for drug crimes in Arizona can vary, depending on a number of factors, namely the illegal substance in possession, the amount of said substance, the person’s previous criminal record, more specifically their record of drug-related crimes.

Arizona Drug Crimes

Arizona Drug Crimes

Those convicted of drug crimes in Arizona can be penalized heavily with jail time, probation and fines which can reach up to $150,000 for drug charges for individuals and $1,000,000 for drug charges for enterprises.

Illegal substances and their classifications

Possession charges carry different punishments depending on the drug that the person is being charged with possessing.

Possession of marijuana can be charged as a misdemeanor, but it is most often charged as a class 6 Felony offense. A class 6 Felony offense is punishable by up to 2 years in prison.

Possession of narcotic drugs is considered a class 4 Felony offense in Phoenix. There are many different drugs that may be classified as a narcotic drug in Arizona, including cocaine, crack, heroin and prescription drugs. A class 4 Felony offense is punishable by up to 3.75 years in prison.

Possession of dangerous drugs is also classified as a class 4 Felony offense. Dangerous Drugs include a variety of different drugs such as Methamphetamine, PCP, Ecstasy, Mushrooms, and LSD. A class 4 felony is punishable by up to 3.75 years in prison.

Arizona Drug Crimes

Charges for single offenses

For a possession for personal use charge, the court generally gives probation to first-time offenders. Completing a drug treatment or education program is one of the probation conditions, and the court requires defendants to bear the cost of the program to the extent that they are financially capable of doing so. Probation is also common for second-time offenders, but the court may make incarceration a condition of probation. Various other circumstances affect whether the court imposes incarceration for these offenses or not.

The more serious offenses of distribution, transportation, etc., are class 2 felonies with maximum sentences of several years in prison if they involve narcotics, a listed “dangerous drug,” or more than 2 pounds of marijuana. Methamphetamine is singled out for an even higher maximum penalty.

Charges for multiple offenses

Most drug charges in Arizona involve multiple offenses. This means that the defendant is accused of several illegal acts based on the same event. For example, possession of a drug combined with possession of drug paraphernalia, or both transportation for sale and the actual sale. For multiple offense cases, Arizona provides a comprehensive scheme based on whether it is the first, second, or third and higher offense, and whether the quantity of drugs exceeds the statutory threshold amount.

The penalties cover a broad range even for the same offense. For example, a class 2 felony that is a second offense involves a quantity below the threshold amount, and the presence of other mitigating factors draws a 3-year sentence. If the class 2 felony is a third-time or higher offense, involves drug quantities above the threshold amount, and other aggravating factors, then it draws a 15-year sentence.

Arizona Drug Crimes

Author Bio:

Competent attorneys at Powers Law, P.C provide strong representation for family law, commercial litigation, and real estate cases.

What constitutes domestic violence in Arizona?

What constitutes domestic violence in Arizona?

Today’s guest blog is by Attorney Paul W. Hamilton

The legal definition and consequences of domestic violence in the state of Arizona are referenced under Arizona Revised Statutes 13-3601. In essence, it is the use of violence against a family member, significant other, sexual partner and in certain cases, an acquaintance.

What constitutes domestic violence in Arizona

What constitutes domestic violence in Arizona?

On the authority of ARS 13-3601, the charge of domestic violence can be applied in the following cases:

  • The alleged victim and aggressor are married, were formerly married, share a household or formerly shared a household.
  • The alleged victim is pregnant with the accuser’s child, the victim and accused are related by blood or marriage.
  • The accused lives in the same household as a minor victim and the two are related by blood or through a former spouse. The accused and victim are or were in a romantic or sexual relationship.

The nature of the domestic violence can be physical, sexual and also economic. When dealing with domestic violence cases, the court has to take into account the nature of the relationship between the accuser and the victim, the period of time during which the relationship has or had been ongoing, as well as the frequency of interaction between the accuser and accused. In cases of a terminated relationship, the time period since the relationship has been ended is also taken into account.

Offenses that may result in a domestic violence charge

According to ARS 13-3601 if any of the offenses listed below are committed against an individual who is in a relationship that is defined as protected by Arizona’s domestic violence laws, the charge of domestic violence applies.

  • Negligent homicide, manslaughter or murder
  • Endangerment (acts that create substantial risk of bodily harm to another person)
  • Threatening or intimidating a witness
  • Assault or aggravated assault
  • Custodial interference (interfering with a parent or legal guardian’s physical custody of a child)
  • Unlawful imprisonment
  • Kidnapping
  • Sexual assault
  • Criminal trespass
  • Criminal damage
  • Interference with judicial proceedings
  • Disorderly conduct
  • Cruelty to animals
  • Preventing use of a telephone during an emergency or false representation of an emergency
  • Intimidation, annoyance, and harassment over the telephone
  • Stalking
  • Emotional abuse of a child or vulnerable adult
  • Dangerous crimes against children

How is Domestic Violence Charged?

How domestic violence is charged as a misdemeanor or felony depends on the exact nature of the violation. In cases of emotional abuse or endangerment, the accused can be charged with a Class 1 misdemeanor. A charge of disorderly conduct involving a deadly weapon is a Class 6 felony.

If an individual is charged and found guilty of one of these offenses, such as assault, he or she will face the potential sentence recommended by Arizona courts. If the convicted does not have any prior record, typically criminal penalties are the same regardless of the domestic relationship between the victim and perpetrator. However, domestic violence cases are often prosecuted much more aggressively than typical legal cases.

A second conviction of domestic violence can result in the convicted being put on supervised probation with jail time being one of the conditions for probation.

Being found guilty of a misdemeanor domestic violence charge for the third time in an eighty-four month period can result in a felony charge resulting in the individual being charged with jail time accordingly.

If the charge involves serious bodily harm to the victim or the use of a weapon, the accused may be charged very seriously.

Aggravated assault is a class 3 felony with a minimum jail time sentence being five years and the maximum jail time sentence being fifteen years.

Because of the nature of domestic violence charges and the stigma associated with them, it is crucial to take domestic violence accusations and charges very seriously. It is of the highest importance to find proper legal representation, preferably with an attorney who has extensive experience in domestic violence cases.

What constitutes domestic violence in Arizona?

Author Bio:

Law Office of Paul W. Hamilton strives to exceed your expectations in criminal law, family law, real estate, estate planning & probate representation. Call (229) 232-8056

How Are Felony Crimes Classified Under Arizona Laws?

How Are Felony Crimes Classified Under Arizona Laws?

Today’s guest blog is by Michael L. Ainley, Esq.

Felony crimes refer to serious criminal offenses and carry a prison term of at least one year. The most serious felonies are punishable by death. These are crimes which include a physical violation of another human beings rights violation. Examples of such crimes are murder, rape, sexual molestation of a child, armed burglary and thefts of property with very high monetary value. Prison terms are longer for people convicted of repeat felonies. In Arizona, felonies are classified as Class 1, 2, 3, 4, 5 and 6.

How Are Felony Crimes Classified Under Arizona Laws

How Are Felony Crimes Classified Under Arizona Laws?

Class 1 Felony – Class 1 felonies are reserved for murders in the first and second degree. First-degree murder (murder that is both willful and premeditated) is punishable by death or life in prison. Second-degree murder (a non-premeditated murder, resulting from an assault in which the death of the victim was a distinct possibility) is punishable by 16 years to life in prison.

Class 2 Felony – In Arizona, Class 2 felonies are reserved for sexual molestation of a child, production of child pornography, possession of dangerous drugs (methamphetamine, LSD, mescaline) for sale, trafficking of stolen property, burglary with a firearm and theft of property worth more than $25000. The presumptive prison term for these crimes is five years and the aggravated term can be up to twelve and a half years.

Class 3 Felony – Possession of more than two but less than four pounds of marijuana, certain forms of theft, certain forms of stalking and telecommunications fraud are all Class 3 felonies in Arizona. They allow sentences of a minimum of two years in prison, whereas aggravated sentences can carry a sentence of up to 8.75 years.

Class 4 Felony – Class 4 felonies in Arizona include theft of property with a value between $3000 and $4000, growing marijuana illegally, possession of dangerous drugs, identity theft, weapons misconduct and driving under the influence. Class 4 felonies carry prison sentences of one year, with aggravated felonies carrying a sentence of up to three years and eight months.

Class 5 Felony – Prostitution, as well as pimping and pandering (facilitating and making a profit from prostitution), are class 5 felonies. Class 5 felonies carry a prison term of two years, with the aggravated term being one of two and a half years.

Class 6 Felony – Class 6 felonies are the least serious felony crimes under Arizona law. These include charges for possession of drug paraphernalia, unlawful use of means of transportation and theft of property with a value of $1000. In some cases, a judge may designate the conviction as a class 1 misdemeanor, which can result in a sentence of six months in jail and three years of probation.

Statute of Limitations

The statute of limitations is a time period designated by lawmakers during which the state of Arizona must begin prosecution against the defendant or their attorney can have the case dismissed. Usually, the state has a period of seven years from the time the crime has been committed to begin its prosecution. However, the most serious felonies such as murder and production of pornographic material featuring children have no statute of limitations and the state can begin its prosecution at any time.

Felony convictions have serious consequences. If convicted, an individual can go to prison and lose chances of finding employment which is up to the standard of his or her qualifications. The individual can lose the right to vote and to possess a firearm. Being convicted of multiple felonies can result in a harsher punishment, meaning longer prison terms and heftier fines. For further information click here

How Are Felony Crimes Classified Under Arizona Laws?

Author Bio:

People in northwest Tennessee turn to the law office of Ainley, Hoover & Hoover, PLLC when they need experienced legal advice or representation to resolve simple to complex legal issues. At Ainley, Hoover & Hoover, PLLC, you can expect fairness and honesty, and to be treated with the respect and dignity you deserve.

Arizona Drug Crimes Punishments and Defenses

What are the possible Punishments and their Defenses for Drug Crimes in Arizona?

Today’s guest blog is by The Weingart Law Group.

The state of Arizona incarcerates thousands of people on drug-related charges every year. As a state, Arizona has a relatively high conviction rate for those accused and arrested for drug-related crimes. It is, therefore, prudent to have an understanding of Arizona’s drug laws, possession charges, their punishments and possible defenses that your lawyer may use to lighten or defeat these charges.

Arizona Drug Crimes Punishments and Defenses

Arizona Drug Crimes Punishments and Defenses

Arizona divides drugs into the following categories under Arizona Revised Statute 13-3401:

Marijuana – Marijuana can refer to the resin extracted from any part of a plant of the genus cannabis, and every compound, manufacture, salt, derivative, mixture or preparation of such plant, its seeds or its resin.

Prescription drugs – Prescription drugs refer to any legally produced, FDA approved medication, which has a potential for abuse and is, therefore, illegal to purchase or possess without a medical doctor’s prescription, or to sell to any individual that does not have prescription for these drugs.

Narcotics – Narcotics refers to a host of specifically named drugs where the substances may or may not be from a natural or synthetic origin. It is a controlled substance, a drug that reduces pain, causes drowsiness, and induces sleep.

Peyote – Peyote refers to any part of a genus Lophophora or spineless cactus, known mainly for its use as a hallucinogenic.

Substances that release toxic vapors – This refers to a substance that contains fumes that release toxic substances that have an intoxicating effect when inhaled.

Dangerous drugs – Dangerous drugs refer to a host of named substances with varying effects, such as LSD, stimulants of the central nervous system such as amphetamines, depressants of the central nervous system such as heroin, and anabolic steroids.

Apart from the aforementioned categories of controlled or illegal substances, individuals found to be in possession of substances which can be used to illegally manufacture these substances can be prosecuted under Arizona Revised Statute 13-3408.

Possession of a Dangerous Drug (Charges and Defenses)

Possession of a dangerous drug is a serious offense, resulting in grave consequences for those who are found guilty. Under Arizona Revised Statute 13-3407, it is prohibited to knowingly possess, use, manufacture, transport, sell or distribute substances defined as “Dangerous Drug”.

Individuals found in possession of substances defined as such are guilty of a Class 4 Felony, which means that the said individual can receive punishment similar to those found guilty of forgery, aggravated DUI or misconduct with a deadly weapon.

However, if the drug in possession was not LSD, crystal meth, heroin or amphetamines, or the individual has no prior convictions under sections 13-3407 or 13-3408, the defense attorney might be able to motion the state to reduce the charge to a Class 1 misdemeanor with probation. Being found guilty of a Class 1 misdemeanor, the individual can still be charged with jail time up to, but no more than six months as well as a fine, up to but not more than $2500.

Being charged with a Class 4 felony means that the individual can be charged with 3.75 years in prison, four years of probation and a fine of $150,000 with surcharges.

If the individual ends up being charged with a class 4 misdemeanor, he or she can face a reduced sentence of six months in jail, maximum five years of probation and a $2500 surcharge.

It is important to note, that in cases of probation the court reserves the right to issue a warrant for arrest, add additional conditions to the probation and revoke probation in exchange for imprisonment.

For more information on the penalties associated with possession of marijuana, driving under the influence and their possible defenses, contact an experienced and qualified criminal defense attorney.

Arizona Drug Crimes Punishments and Defenses

Police Are Lowering the Bar for Use of Deadly Force

Police Are Lowering the Bar for Use of Deadly Force. If you have read previous posts you will know that I was a police officer for over 25 years before becoming an attorney.  I worked in South Florida and moved to Phoenix to attend law school and eventually opened my practice here.  One thing that struck me was the widespread use of deadly force by police here.  From news reports, it seemed like police killed almost a person a week in the greater Phoenix area.  I just checked and see that the count is 37 through the first week of October 2016.


Police Are Lowering the Bar for Use of Deadly Force

When I was in the police academy, it was hammered into our brains that we could use deadly force only when we feared for our life or the life of another.  While it was technically legal to shoot a fleeing felon, we were told it would probably get us fired and not to do it.  That was it.  Fear for life.

In my practice and in the news I often hear police say that deadly force was used because someone did something like reach into a car or not obey police commands and the officer “feared for his safety.”  That sounds reasonable on its face, but fearing for your safety is far from fearing for your life.

In my years, I feared for my “safety” or feared that I would get injured many times.  I never used deadly force.  Cops and emergency rooms become well acquainted, or at least they did.  It seems our now para-militaristic police would rather shoot someone than take a risk of getting a cut or broken bone.

Police Are Lowering the Bar for Use of Deadly Force

I see videos on the news and YouTube of police shootings that look questionable at the least.  I see police shooting people who are unarmed because they “may be reaching for a gun.”  They could also be reaching for a cell phone, their wallet, or a candy bar. Therefore, “may be reaching for a gun” just isn’t enough to be in fear for your life.  I also see police shooting people who have a gun but are just standing there with the gun pointed at the ground.  A closer call?  Yes?  A tense situation?  Very.  But we were taught that until that gun moved toward someone, don’t shoot.  Now it seems the police culture is “he has a gun, shoot him.”

The law in Arizona allows police to use deadly force “only when the peace officer reasonably believes that it is necessary to defend himself or a third person from what the peace officer reasonably believes to be the use or imminent use of deadly physical force.”  I assume other States have identical or very similar laws.

It is a shame that the cries for ‘support of police’ and lamenting that police have ‘such a tough job’ to do is allowing police to shoot people simply because they fear for their “safety” rather than their lives.

Police Are Lowering the Bar for Use of Deadly Force

DUI From the Perspective of a Driver

DUI From the Perspective of a Driver. I never thought I would be in this position. Because I am careful about drinking and driving; therefore, I was also careful this evening, as well.

I met a few friends at a bar one evening about 11 p.m. But, I had not consumed any alcohol earlier that evening and I only had 1 beer at the bar later (no, really, I had 1 beer). About midnight I left the bar and was driving home when I was stopped. I don’t think I committed any traffic violations, but the officer did (remember “reasonable suspicion” from the last blog post)?

Even though I knew that I had done nothing wrong, I was cooperative and did what I was told. So, I followed my own advice and refused the eye test and balance tests. But then disregarded my own rule and talked to the police officer. It’s hard not to, especially when you are innocent. Therefore, I told the truth (if you can’t resist saying something, at least don’t lie). I told him I had 1 beer that evening and I was on my way home. It didn’t matter, he decided I was lying and arrested me. Now I shut up.

DUI From the Perspective of a Driver

At the police department jail (they are not a pleasant way to spend the evening), the officer asked if I would consent to a blood draw. So, I did what I tell people to do, and stuck out my arm; because I knew it would show that I was not impaired. Also, because I knew if I refused my license would be suspended for a year; regardless of the results. Next, I was fingerprinted, photographed and then released. The next day I went to the tow yard to get my car.

Then I waited a couple months and paid for a copy of the police report. The reason I waited was because I knew that is about how long it would take for the blood test to come back. The report was surprisingly accurate, right down to the supplement report on the lab results: 0.00%. From the time I finished the 1 beer until the blood was drawn; I had metabolized the alcohol in the beer. Here was proof I was actually innocent.

Not that the police officer believed it…he sent the blood back out to test for drugs, even though he did not suspect drugs on the night I was arrested. So, I waited another couple months and requested the report again. This was no surprise. Anyone who knows me knows the only drug in my system is blood pressure medication. The supplement stated no drugs were found.


So, if someone comes to me saying they are actually innocent, I listen. It happened to me.

If you have been charged with DUI in Tempe or anywhere in the Phoenix area; contact me for a free consultation to discuss your legal rights.

Next installment: DUI from the perspective of the Judge.

DUI From the Perspective of a Driver

(480) 745-5677

DUI From the Perspective of an Attorney

DUI From the Perspective of an Attorney. One of the most common questions I get when first meeting a potential DUI client is “do I need a lawyer for this?” Yes. You need a lawyer. In fact, if you can’t afford your own, the Court will give you a public defender. They have to because jail is mandatory for even the lowest DUI offense.

So why not just use a public defender? The short answer is choice. You have none when you are assigned a public defender. Some are very good, very concerned, and very experienced. Some are not as good, not as concerned, and not as experienced. If you can afford you own lawyer, hire one. You should expect them to be attentive to your case, explain what is happening as the case goes on, and know what he is doing. Don’t use a lawyer just because he did estate planning for your dad. He may know nothing about DUI law. And, to be fair, don’t come to me for estate planning.

DUI From the Perspective of an Attorney

So what am I looking at when you tell me what happened and as I go through the police report? First, I don’t care if you are guilty or not. If your blood alcohol level was too low or if you did not have drugs in your system, you would not have been charged by the prosecutor. You have a problem and I’m trying to get you out of it as clean as I can. I am looking at you encounter with the police in separate parts.

First, I’m looking at whether the police had enough to stop you. This standard is very low; all they need is “reasonable suspicion” that you committed a traffic violation or crime. They don’t have to be right, they just have to have a suspicion based on a sufficient reason, not just a hunch. This one is tough to win, but in some cases it is possible.

Next, before the police can require you to take roadside tests (these are the eye and balance tests), they have to have reasonable suspicion that you are impaired. Again, it is a low standard, but one they have to meet.

DUI From the Perspective of an Attorney

Then, based on how the police said you did on the roadside tests (remember, they are designed for you to fail), was there enough information to arrest you? Teaser – this is important in my next blog post. The police need probable cause to arrest you. That is more proof than reasonable suspicion, but again you don’t have to be guilty to get arrested.

Next, were the breath or blood tests done correctly? I do look carefully at these, but they are the hardest part of the case to attack. The breath test is automated with many checks, and the blood is analyzed by crime labs that try to be very accurate.

Finally, I look at whether your case has “jury appeal.” There are instances where something will play well to a jury and, even if you are technically guilty, could result in a not guilty verdict.

That’s a lot, but not all. DUI cases have many parts, not the least in including the implications on your driver license and insurance. Whatever we decide to do, all aspects of the case need to be considered.

DUI From the Perspective of an Attorney

To be basic, most parts of a DUI case are handled between your attorney and the prosecutor. Assuming you have hired an attorney experienced in DUI law; both he and the prosecutor know the ins and outs of how the law applies to your case. If I can’t get a prosecutor to see things my way (and often they are not allowed to do things they personally think would be right – they have a boss too), I look to filing a pretrial motion to be heard by a judge.

There are a number of reasons to file motions. Maybe I think I can win, maybe I think the prosecutor just won’t want to fight it, and maybe there is another reason. In the big picture, this pretrial stage is where most cases are finalized. If you are actually guilty and I can get an agreement to charge less than a DUI, I have usually saved you more money than it would have cost you in the long run.

Finally, maybe it is one of the few cases that actually go to trial. Unless everyone agrees, you get a jury trial. It will only last 1 or 2 days, and a jury is 6 people who would rather not be there and don’t care about you personally. It is cold. The police officer will most likely be a trained, rehearsed, and polished witness. The lab person will be educated, rehearsed, and very convincing.

If there is an issue with the scientific evidence, there are former lab people who have a business testifying to what may be amiss – they are actually real good, though they will agree with the police lab people if the evidence is correct. Then there is you if you testify. If the facts are lined up against you, the “but I’m a nice person” defense doesn’t work. Trust your lawyer. If he thinks you will lose, you will probably lose. If he says you will lose and there is some deal less than a DUI conviction offered, take it. Personally, I don’t give up without a fight, but I have to consider when it is best to settle a case.

DUI From the Perspective of an Attorney

So…what should you do if you are stopped and you may be impaired? Here is my advice, though I have talked to other lawyers who give somewhat different advice at certain points. First, stay calm and shut up. Give the officer what he asks for – license, registration, whatever – and shut up. If he tells you to get out of the car, get out and stand where he tells you to, and shut up. If he asks to check your eyes, say nothing. Don’t do it. Don’t give him ammunition to arrest you with. If he asks you to do some balance tests, say nothing. Don’t do them.

If he arrests you, do exactly what he says, and shut up. When they ask you to do a breath or blood test do it. I know this sounds odd, but the punishment for refusing is worse than the punishment for failing, and they will just get a warrant to take your blood anyway. Oh, and shut up. If they read you your right (you know…you have the right to remain silent, etc.) and ask if you will answer questions, shake your head no. And shut up. Did I mention shut up? I’ve never got in trouble for something I didn’t say.

The goal in all this is to give the police as little evidence as you can that may be used against you. It gives me the best chance to get the best outcome for you.

Next installment will be a first-hand experience of being arrested for DUI when I wasn’t. Next in this series : DUI From the Perspective of a Driver.

If you have been charged with DUI in Tempe or anywhere in the Phoenix area; contact me for a free consultation to discuss your legal rights.


DUI From the Perspective of an Attorney