Attorney Scott Campbell

Criminal Defense Attorney

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.

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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 Judge

DUI From the Perspective of a Judge. I am a pro-Tem Justice of the Peace.  That means I fill in for another Judge when he needs help.  In that role, I do formal plea agreements, preside at hearings on motions, and even preside at jury trials.  I am often asked how I can be a defense attorney one day and a Judge the next.  The simple answer is I believe in the system when all parts are working like they should.  But, I don’t appear as an attorney in the Court I am a Judge in.  I take off my “attorney hat” and put on my “Judge hat.”

DUI From the Perspective of a Judge

Being a Judge is not as easy as it looks.  Both the prosecutor and the defense lawyer are doing their best to argue their case.  Neither is lying, but they see facts from different perspectives and both are arguing the law, or sometimes different laws, to show the facts in a different light.  At a hearing, I am not judging whether the defendant is a nice person or not (most are nice people who had a bad day), but to decide what the facts are and how the law applies to those facts.  I really try to get it “right,” knowing any decision can be appealed to a higher Court. 

DUI From the Perspective of a Judge

When you are in Court, the Judge doesn’t like or dislike you. In the few minutes, you are in front of the Judge you are very important to him.  He does care, he just has a job to do.  In a day, he won’t even remember your face, but he may remember the facts of the case. 

At a jury trial, the burden of making the big decision – guilty or not guilty – belongs to the jury.  But, I am happy about that.  You see, the slam dunk cases are handled without a trial.  The really weak cases are never filed or are pled to something lower than a DUI.  It’s only the close ones that go to trial.  I know the prosecutor thinks he will win, and I know the defense attorney has an argument that he thinks will get a not guilty verdict.  I don’t envy juries.  They have a tough job.

If you have read through all these series of posts I hope you have gained some insight into the way each cog in the wheel of a DUI case looks at it, the motivations, and the realities that each must accept.  If you are charged with a UDI, call me.  I probably have a better knowledge of the system than most.

This concludes this 5-part series on DUI.

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 a Judge

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.

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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.

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DUI From the Perspective of an Attorney

480-745-5677

DUI From the Perspective of a Police Officer

DUI From the Perspective of a Police Officer. Who was that police officer who arrested you for DUI?  Why was he so formal?  Why did it seem like he liked it?  Also, why are they arresting people just driving home rather than looking for real criminals?  There are two basic answers.

The first you can guess. Police policy is that DUI is a problem, impaired drivers are dangerous, and they have to spend resources on all crimes, even those you may consider minor. Yes, murders get many detectives working many hours on one case. Murder is so significant that resources are poured into solving each one. But, even the most minor crime gets some time and attention. DUI falls somewhere in the middle. Resources are allocated on enforcing DUI laws, but they are not trying to catch every person driving impaired. If they were, there would be DUI checkpoints every mile.

The second and one important from the police officers’ point of view is less obvious. Money. I’ll explain. Most DUI arrests are by police officers on a DUI squad or a task force. They are out there specifically looking for DUI arrests. They are sent to training schools and are usually working at night. So where does the money come in? The police officers on these squads or task forces are generally paid assignment pay. That means they make more than a police officer assigned to patrol duties. In addition, they are called to court more often than other police officers because of the number of arrests they make and the fact that people charged with DUI routinely fight the charges. Why is that important? Court time is usually overtime. More money.

The police department I worked for would sometimes have an ad hoc DUI task force. They would pay patrol officers 8 hours overtime to work one night shift and look for DUI arrests. You were expected to make at least one arrest, or you wouldn’t be invited back for the next DUI night. So, officers would start work about 10, hang out in a coffee shop until about 1:30 a.m.; then go sit near a bar at the 2 a.m. closing time. They would look for one very drunk driver, arrest him, then return to the coffee shop until the 8-hour shift was over. Voila! Eight hours at time and a half and they get invited back the next time. Their motivation was not the DUI arrest; it was the overtime.

Police departments often get federal grants to target DUI. This is the best of both worlds for them. They get to show they are enforcing DUI laws and the police officers get their extra money, but it doesn’t show up on your tax bill. Only it does. Federal money means federal taxes – like your income taxes. The government doesn’t have any money of its own; it’s all yours. It just often isn’t showing up in the particular police department’s budget.

Now for the encounter when you are stopped. Don’t believe that they just stopped a regular traffic violator and happened to see that you were impaired. They are actually targeting specific violations that are taught to them as “cues” that the driver may be impaired. When they first encounter you, they are already looking for more information to arrest you.

The police officer will be nice but will be specific in what he is saying and telling you to do. He will ask for your license and registration. While he does need your license, he couldn’t care less about the registration. He probably already saw who the car is registered to on his computer before he got out of his car. He is trying to confuse you. Impaired drivers will often hand the police officer his license only, or they will hand the officer their license, registration, and proof of insurance; as they are taught to do when pulled over. Either of these will be “wrong” and will be cited as a “cue” that you are impaired. You see, the police officer specifically asked for your license and registration, not just the license but also the insurance card.

Next, he will ask you to get out of your car. He doesn’t care if you are in your car or out of your car (if you are getting a speeding ticket, they leave you in your car), he wants to see you walk. If your foot was asleep or the road is uneven, or even if nothing is wrong, you will naturally touch your car for balance. Another “cue.” Then, he will ask to “check your eyes” and have you do some balance tests to “see if you are ok to drive.” He is not checking to see if you are ok to drive home, he is gathering evidence to arrest you. I could go into excruciating detail o how the balance tests are set up, but suffice it to say that a sober person would have a difficult time passing the tests.

Once the officer thinks he has enough “cues,” he will arrest you and take you to a station or DUI van for breath or blood testing. He will probably tell you that if you are cooperative, you will be released from the station and not taken to the county jail. You, of course, don’t want to go to jail, so you are now set up for the coup de grâce.

The police officer will ask you a series of scripted questions and carefully write down exactly what you say. One of the questions is a trick question. It goes like this: on a scale of 1 to 10, with one being completely sober and ten being falling down drunk, how impaired do you think you were when you are stopped. Of course, you had something to drink, but you don’t think it affected you, so you say “2” or “3.” You just lost your case. You see the law says it is DUI to be impaired to the slightest degree. Anything other than a “1” and you have just admitted to DUI.

So, that is DUI from the police officer’s point of view. Stay tuned for my next installment, DUI from the attorney’s point of view.

Next in this series : DUI From the Perspective of an Attorney

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DUI From the Perspective of a Police Officer

DUI A Series From Different Perspectives

DUI A Series From Different Perspectives. I wanted to write on probably the biggest subject I get questions about in my practice, Driving Under the Influence. People who have been arrested come in and tell me their story, then hope I can somehow get the charges dismissed. Getting charges dismissed is rare, but there are things that can be done to mitigate a DUI charge. This will not happen in every case and don’t believe a lawyer who promises unrealistic outcomes. The police are practiced in making DUI arrests, and some are very good at it. Fortunately, there are lawyers who are also practiced in defending people charged with DUI, and some are very good at it.

I could write the same statute-heavy post saying what I can do for someone to get them off a DUI, but that would be boring. So, I am going to write a series of posts I may be uniquely qualified to write from different perspectives.

My first post will detail DUI from a police officer’s point of view. Having been a police officer for over 26 years and having made DUI arrests, I understand the many dynamics involved. Second, I will do the obligatory post from my perspective as an attorney representing people arrested for DUI. Next, I will write about how it is to be arrested for DUI. I was arrested for DUI, but I was not impaired at all – I was actually innocent. Finally, I will write from the perspective of a Judge as I am a Pro Tem Justice of the Peace and preside over pleas, motions, and trials for DUI.

From all perspectives, though, I want to emphasize not to drive when you are impaired. It is dangerous and can be costly, through an accident, an arrest, or both.

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Next in this series : DUI From the Perspective of a Police Officer

DUI A Series From Different Perspectives

A New Reason You Need a Lawyer When Talking to the Police

Most people think they have a Constitutional right to remain silent.  That is close, but the correct right is not to be compelled to be a witness against oneself.  The Supreme Court made that right clearer when it required police to tell people under arrest that they have the “right to remain silent.”

But, what if you are not yet under arrest?  What if you don’t answer police questions, but just choose to say nothing?  Can that be used against you?  Well, what the Supreme Court gives, they also take away.

In a recent case (Salinas v. Texas for those of you who want to read it), the Supreme Court said you have to not answer questions in a specific way in order to not have your silence used against you.  If you just remain silent, a prosecutor can later tell a jury to infer that you are guilty because you remained silent.  That is, unless you say you are not answering because you are claiming your 5th Amendment right not to say anything.

Confused??  That’s the point.  The Supreme Court has made a simple right not to say anything to the police, and not have it held against you, so difficult that you need to have legal training to understand how to do it.

Specifically, The Supreme Court now says it is a “simple matter” to say that you are “not answering the officer’s question on Fifth Amendment grounds.”  Right.  Lawyers and judges debate what the 5th Amendment means, but it is a “simple matter” for ordinary citizens to know when the 5th Amendment applies, and how to correctly assert the rights it contains.

Again, rights we fought a revolution for are being eroded.  The lesson to be learned is to get a lawyer before talking to the police.  Just refusing to talk can be as bad as saying the wrong thing.  Make sure you are staying silent the right way.

Want to visit someone in prison? You gotta build the prison.

Another unbelievable tax on the poor has been held constitutional.  Arizona started a one-tile $25 fee for anyone wanting to visit a prisoner.  At first, they claimed the fee was for doing a background check, but later admitted the money went in a prison construction fund.

No big deal, you think.  It’s more than that.  People in prison are overwhelmingly poor.  Their families are poor.  Prisoners should be encouraged to keep in contact with their families, especially their kids, in the hope that family units will be kept together and kids will be parented, albeit from prison, and less likely to become “part of the system” themselves.

So what do we do?  Encourage visitation?  Reward visitation? No.  We charge families (kids included) a fee to see their family member in prison.  No big deal, it’s only $25.

For most of us, $25 is not too much to spend, but most of us just do not understand the situation many live with.  Let’s say a prisoner has a wife and 2 kids.  And a mother.  That’s four people who should be encouraged to visit the prisoner.  The prisoner needs connection with his home, and the family needs to see their family member, especially the kids.  But the state is now saying the family must cough up $100, on top of the expense of driving to the prison, and perhaps getting a motel, to see their family member.  For many, many families, $100 is a tremendous amount of money.  If it dissuades even one family from visiting someone in prison, it is too much.

Heck, it would be better policy to pay the prisoner $25 whenever family visits.  It would do more to keep them from being institutionalized than most anything else.  But no, we do just the opposite.  Make it more difficult, even if just a little, to make them less likely to return to prison.

And the fee?  It goes to building more prisons, more prisons to hold more people to pay more fees.

As I often write in these posts….unbelievable.

This one is unbelievable.  A group of Amish citizens had a falling out with another group of Amish citizens.  The first group “attacked” the second group and committed the heinous crime of cutting their hair and beards.

Some may laugh at this, I don’t.  It was an assault and religiously degrading.  Police dutifully investigated.  This is where it gets unbelievable.

The U.S. Justice Department…the same one that is too busy to prosecute even one gun-related crime in Chicago…charges the people who did the hair and beard cutting with a hate crime.  For those non-lawyers reading this, Congress can’t just say an assault, even a hate crime, is a violation of Federal law.  They have to find something in the Constitution (you know, that document that gives only certain, enumerated powers to the Federal government) to authorize such a prosecution.

Well, as usual they found it.  The Commerce Clause.  The U.S. Justice Department determined that because the scissors used to cut the hair were bought in one State and used in another to commit a crime, the Federal Court had jurisdiction.  Voilà!   A Federal hate crime prosecution.

It gets more absurd.  The hair-cutters were convicted and sentenced to up to 15 years in Federal prison.  15 years.  For cutting someone’s hair and beard.

Don’t get me wrong, I agree something should be done to punish the offenders and keep this from happening again.  How about a fine, community service, maybe probation.  But no, not our too-busy-to-put-violent-offenders-in-prison U.S. Attorneys.  They dig their heals in when confronted with despicable, heinous crimes like hair-cutting (not that they don’t shave every day and get regular haircuts).

So now we have multiple people, men and women, in Federal prison for terms that exceed some I have seen for murderers, for cutting the hair and beards of others they have a religious disagreement with.

Absurd.  Unbelievable.  Floyd the Barber better watch out.

SWATing at Flies

I often interview people charged with drug offenses who were arrested by a SWAT team.  Last week, I interviewed a person who was accused of delivering one ounce of marijuana in a very public parking lot and was arrested by black and armor-clad SWAT officers who jumped out of two vans.  Overkill?  Obviously.  Why are SWAT teams used to make arrests when there is no known threat of heavily armed people?  There is a reason, and it has nothing to do with the actual arrest.

The first time I, and probably most people, became aware of SWAT teams was in 1974 when a televised attempt to arrest Patty Hearst and those who kidnapped her was seen from Los Angeles.  The group, the Symbionese Liberation Army, was known to be heavily armed and LAPD wisely used their recently formed SWAT team to raid a house.

Soon after, many very large police departments decided they needed the same firepower, equipment, and training and formed their own SWAT teams.  For these very large police agencies who would utilize such a team often enough to justify the expense, it was a wise move.  However, smaller and smaller police departments decided “hey, we’re big too – we need a SWAT team too!”

As more and more police chiefs in smaller and smaller departments convinced their cities that real bad things can happen in their city too, the cities agreed to finance, arm, and train their own officers in SWAT tactics.  Never mind that an adjacent large city would lend them a SWAT team if was needed (which it may be, every 5 or 10 years).  That would mean the smaller city did not have a “full service” police department.

Now, the inevitable happened.  The smaller cities had expensive SWAT teams that were not being used enough to justify the expense.  The police chiefs had to explain their waste of money – or show that the SWAT teams were being used.  So, they changed the rules.

Now, SWAT teams would be used to serve any search warrant, not just those where armed resistance was threatened.  Now, SWAT teams would be used to make any planned arrest.  Voila!  SWAT teams were needed and the money was wisely spent!  Smoke and mirrors.  Justifying the unjustifiable.  SWATing at flies.