Chandler Criminal Defense

A DUI can be either a misdemeanor or a felony. For your run-of-the-mill first DUI, whether you have a blood alcohol concentration just over the legal limit or a blood alcohol concentration three times the legal limit, although the mandatory jail sentences differ, the charge will be a class 1 misdemeanor. However, a regular DUI can become a felony and be considered “aggravated” if, among other things, you had a suspended license, two prior DUIs in the past seven years, or a person under fifteen years of age in the car. A DUI that’s aggravated because of a suspended license or two prior DUIs in the past seven years is a class 4 felony, and a DUI that’s aggravated because there was a child in the car is a class 6 felony.

To me, the relative seriousness of those crimes are not reflected by their classes. The DUI that seems the worst to me is one with a child in the car, yet it is the same class of felony as personal possession of marijuana. What I would consider to be the next worst kind of DUI would be one with an incredibly high blood alcohol concentration, as it would pose the greatest danger to others. In most instances, that would not even be felony.

I can understand why getting three DUIs in seven years could arguably be the worst, as it shows a pattern of breaking the law and a problem with substance abuse and driving, but the suspended-license aggravated DUI makes no sense to me. The problem is that, in the statute, suspension, cancellation, revocation or refusal specifically means any suspension, cancellation, revocation or refusal. That means you could get your license suspended for something unrelated to DUI, like failure to pay child support, and suddenly be facing a class 4 felony. That’s the same class of felony as robbery or forgery, and it doesn’t matter if your blood alcohol concentration was right around the legal limit.

To me, the various classes of DUI in Arizona appear to indicate that what matters to lawmakers isn’t public safety or preventing recidivism, but enforcing administrative and licensing provisions. Why else would Arizona’s laws make having your license suspended for something non-criminal or even technical in nature more of an aggravating factor than directly endangering the life of a child?

This seems like a simple concept, but there are a couple of nuances that regularly cause problems for attorneys. Having one or more historical priors has an incredible impact on sentencing, so I’m always surprised when lawyers don’t know how it works.

Obviously, for a conviction to be an historical prior conviction, it must precede the conviction for the present offense. But what happens if the offense conduct of the so-called “prior” occurred after the conduct underlying the present offense?

Interestingly, the type of offense involved in the “prior” is the determining factor. For the convictions listed in A.R.S. § 13-604(W)(2)(a) and (d), the only requirement with regard to ordering is that the conviction for the offense being used as an historical prior felony conviction precede the conviction from the present offense. For the convictions listed in A.R.S. § 13-604(W)(2)(b) and (c), the offense for the conviction being used as an historical prior felony conviction must precede the present offense, and the conviction from the offense being used as an historical prior felony conviction must precede the conviction from the present offense.

I recently had a case where a police officer claimed he was able to smell a very small amount of unburnt marijuana. The amount was the same weight as a level teaspoon of salt, yet the officer pulled over the truck and performed a search of the vehicle without the client’s permission based solely on the odor of unburnt marijuana. The marijuana was located in the back of a closed camper inside two sealed plastic baggies inside a nylon gym bag filled with clothes. I have absolutely no doubt that the officer couldn’t have possibly smelled that marijuana. However, as a defense attorney few tools exist for me to challenge the claim on a scientific basis. I’ve only located one case where a court took issue with a super-nosed cop. It was in Ohio, and it involved more weed than in my client’s case. Because it was an Ohio State case, I could only cite it as persuasive (not controlling law) in Arizona. Therefore, I would have had to convince the judge that the officer was flat out lying in a motion to suppress hearing with no case law or scientific study to back my theory that the officer was not capable of such olfactory feats. That’s definitely not a tactic that had a great chance of success. Additionally, I don’t know of any expert that I could call to testify about the fact a human being could not possibly smell unburnt marijuana in that situation. Also, in Maricopa County, filing for such a hearing almost guarantees the plea offer is off the table. In our client’s case, he was looking at a lot of prison time. Fortunately, we resolved the case on other grounds (and the client is extremely satisfied), but I still wonder if I would have won the motion to suppress on the super-nosed cop issue.

What I’d like to be able to do is take the marijuana from the police evidence and put it in one car out of ten and let the officer try and pick the right vehicle. I’ve never heard of a judge allowing such a test, but I’ll keep looking and trying. Alternatively, I’d like some type of scientific test that could be used to call into question the officer’s ability. I think the American Bar Association, ACLU, or some other organization could do a great deal of good by funding a study that could be cited by attorneys to prevent such blatant violations of our 4th Amendment rights. Shouldn’t marijuana be of comparable odor to something else that would allow meaningful comparison? I can’t smell unburnt scented candles or bottles of cologne riding around in people’s trunks. To my knowledge, no such study or test exists, and without it, I don’t see any indication that judges are suddenly going to start realizing the officers aren’t being honest (or alternatively stop pretending it is plausible).

If I’m wrong and this officer could smell such an incredibly small amount of pot through plastic baggies, metal, rubber, nylon, glass and any other materials blocking his nose from the weed’s odor, then why isn’t this officer simply allowed to walk around parking lots all day pointing to vehicles that contain marijuana? Why do we have police dogs if officers can smell as good as if not better than our four-legged friends? How many people have been subject to search and then released when nothing is found? In my experience, this is very common among poorer people, especially minorities, and it certainly doesn’t help instill confidence in police officers. Most importantly, I wonder how many people are in jail because of some dishonest officers who are willing to testify that they smelled something that they didn’t. You can argue that the ends justify the means, but if officers can tell “little white lies” to win cases, when does it stop? In case you think that I simply have a problem with police officers, my father was a police officer and specialized in marijuana interdiction for many years. I don’t think all cops are willing to lie to make a case. I just find it disheartening when I meet the ones that do.

I often get questions from family and friends about cases in the media, especially death penalty cases. I don’t want to discuss the merits of whether or not we should have a death penalty; instead, I want to focus on process itself. People almost universally get upset over the cost and time of such cases. No doubt it is frustrating to hear about someone who committed a heinous crime and received expensive legal representation for free, and I certainly think that the system could be streamlined. I’ve heard numerous times that “we all know he (or she) is guilty, why can’t we just execute them immediately” or “why do we have to pay for their defense.” While the complete answer to the question would involve a long discussion about the legal mechanisms surround the death penalty and the development of the constitutional right to counsel over the last century, I like to tell people about what I think is the silver lining to the incredibly complex and expensive nature of death penalty cases.

We want to ensure the right person is executed because the decision is permanent. In death penalty cases we have automatic appeals because we want to be absolutely sure we have the right person. A DNA test that later proves the person is innocent is meaningless if we’ve already executed someone. Even more importantly, all people (including guilty people) deserve a fair trial. That thought often bothers people, but I believe it is the cornerstone of our justice system. All persons are presumed innocent, and each person gets the same opportunities to defend themselves at trial. The prosecutor is required to convince the jury of the accused person’s guilt. A person isn’t guilty under the law until a jury says “guilty.” While the presumed innocence concept often seems like a legal fiction in a case that is covered by the media long before the trial starts, our system is designed so that both sides fight as hard as possible with the presumption that after the battle is fought the truth will be evident.

Even with all these safeguards, we still get it wrong more often that people think. As of 2002, 110 people had been freed from death row because of by DNA evidence. Could we create a more efficient system? Sure. Could we execute people we are all pretty sure are guilty and save several millions of dollars a year? Sure. Many countries have developed very quick systems for executing people; the Soviet Union, Nazi Germany, and Pol Pot’s Cambodia to name a few. I sure wouldn’t want to live in those places, and I don’t want to live in a country that kills people without being more than pretty sure. In my opinion, one of the best things about America’s legal system is our willingness to put fairness above efficiency.

Sometimes a judge will reject a plea because he or she feels it is too lenient. In fact, I can think of a few judges who do it frequently, and Arizona’s rules contain more than one provision that can be read to permit a change of judge in that situation. After a change of judge occurs, in most instances the plea will be changed and presented to a new judge. However, some judges are willing to accept the old plea without any changes at all.

The judges who require some change to the plea are usually adamant about the fact that using the same plea again constitutes “judge shopping” and isn’t allowed. I’ve yet to figure out whether there is in fact a rule against it in the context of a rejected plea. In fact, the part of the general rule that arguably prohibits changing judges to gain an advantage or avoid a disadvantage specifically states it does not apply to automatics changes of judge after a withdrawn plea.

I can think of a number of cases that use the term disapprovingly, but I know of no case that expressly forbids it. I even remember reading a death penalty case where the opinion plainly states that the defendant’s lawyer was judge shopping. Obviously, judge shopping may waste judicial resources and create tension between judges, but most of the time the judges who require a change to the plea are more than happy to accept a plea with a very minor change. Wouldn’t all of the problems with judge shopping still be present when that happens?

In a certain jurisdiction where I regularly find myself practicing, defense attorneys line up to call their cases. Generally, it works out well. If I have a quick matter, like a continuance, the other attorneys let me go first. If I know I’m going to be there for a while, I’ll let other attorneys go ahead. Of course, my primary concern is what my client wants. If my clients want me to call the case as soon as possible, unless there’s a compelling reason not to, that’s exactly what I do.

A couple months ago, an attorney showed up (I was the first person in the courtroom, but I was speaking with the bailiff) and went straight to the front. His entire demeanor was arrogant and pushy from the start, and it was clear that he was determined that his case would be the first one called. When I asked him what kind of hearing he had, he asked me why I wanted to know then refused to tell me. I had another hearing to attend and DOC hadn’t transported my client, so I had good reason to hurry and my case wouldn’t have taken long at all.

That situation would not have stood out to me if the attorney’s case hadn’t been a probation violation hearing and he hadn’t talked his client into entering an admission in open court. It was a relatively long case to call and it appeared that he not discussed the admission with his client at all. On top of that, from what I could tell, the court wanted to set the matter for a sentencing right away because the client was in custody and going to be reinstated, but the attorney insisted on a very lengthy continuance. He got it, after citing personal reasons like previously-scheduled vacations and “busy weeks.” What he didn’t do was bother getting a change of release conditions for his client.

The reason I mention this is because that attorney managed to, in one fell swoop, irritate a number of attorneys and show a courtroom full of people that his own interests trump that of his client. Another attorney whispered, “that guy really isn’t making any friends today.” I have to agree, as he certainly didn’t make his client happy, and he showed other attorneys that he was neither a gracious colleague nor particularly interested in doing what is in his clients’ best interests.

If an officer has probable cause to believe you are in actual control of a motor vehicle while under the influence of drugs or alcohol, the law provides that you will lose your license for a year if you don’t submit to a chemical test. Personally, I find the whole concept offensive and wholly incompatible with the idea of a free society. However, one thing that makes it even worse is that the judge at your admin per se hearing (license suspension hearing) will only consider whether the officer had reasonable grounds to believe you violated a DUI statute, whether you were arrested, whether you refused or failed to complete an alcohol or drug test, and whether you were informed of the consequences of your refusal or failure. There can be a particularly unjust result when the right to counsel comes into play.

Before I began my legal education, I never would have believed that something like Arizona’s admin per se law could exist in this country. This is America, right? Aren’t we innocent until proven guilty? If I was stopped by an officer who told me I had to either submit to a test or lose my license for an entire year, I wouldn’t have believed him, and I would’ve asked to speak with my lawyer. After all, this isn’t Nazi Germany. Even if I was completely sober, I never would’ve submitted to a test. If an officer is going to try to trick me into taking a test by making up some preposterous law, wouldn’t he also be more than happy to alter the test’s results?

That’s what I would have thought, and my continuing requests for an attorney likely would have resulted in me failing to complete a chemical test. I truly wonder how many people are aware of admin per se, and how many people are skeptical about it when they are pulled over and asked to submit. If anyone has statistics or even anecdotal evidence on this, I’d love to hear about it.