It might seem like the law is relatively pro-defendant in this area, but it isn’t. Courts make sure of that. “Subtle” differences don’t matter, and what courts are willing to call subtle is often anything but. The courts end up construing “subtle differences” as encompassing almost any difference. The people in the lineup basically just have to resemble one another. Courts also tend to ignore the portions of some controlling opinions saying the suspect’s photograph must not stand out. The case law is ridiculous.

There’s no problem if the defendant’s is the blurriest photograph. His can be the first, and it can even be the only one taken from a unique angle. That’s to be expected, but Arizona courts go several steps farther. The defendant can be the only one with a beard. He can be a different height and weight and have a different hair length from everyone else. He can have all of those difference and also be the only one with a mustache. That may seem bad, but it isn’t the worst. Believe it or not, it isn’t unduly suggestive to do a photo lineup where the defendant is disfigured, with two blackened eyes and a broken nose, and everyone else is fine. Apparently, Arizona courts think that looking like Rocky after fifteen rounds with Apollo Creed amounts to “a subtle difference” from your average guy-on-the-street.

If the case is serious enough, I imagine there’s no limit to what differences the courts are willing to call subtle. As in pretty much every area of the criminal law, courts tend to make it so whatever the state wants to admit is ultimately allowed, thus assuring a conviction. Given the absurd lengths to which they’ll go to uphold an identification, I almost wish they’d quit pretending to care about subtle differences and a basic resemblance and announce that any lineup is a constitutional lineup. At least that would be honest.

Liddy’s newest filing, which you can peruse here, is confusing for a number of reasons. It looks like Liddy’s work is officially being done by private counsel, Michele Iafrate, a former attorney with his office. The filing lists only her name above the caption, then lists her name first where signatures go. She also appears to be signing on his behalf, though for all I know, she may by signing above his name and writing “for” because she now represents Liddy. If that’s the case, it’s awfully sad that Stoddard’s lawyer gets a lawyer while Stoddard is stuck being represented by an office that, given its close ties to Stoddard’s boss, may have a serious conflict of interest.

Mostly, the filing is strange because it’s being filed in Donahoe’s court. My post-conviction relief clients, whose petitions must be filed with the trial court, are smart enough to know that their best bet for relief is with a different court. They can’t wait for review by an appellate court. It could be that I have uncommonly bright clients, but the county attorney should certainly be able to figure that out too.

The filing is also unusual in that it acknowledges that a special action is going to be filed, but it says nothing very specific, and certainly nothing convincing, about why the privileged documents need to be unsealed before that can happen. My guess is that Stoddard was ordered to pull the documents and copy them as part of some fishing expedition. He did his best to justify it, but because he had no good reason to do it in the first place, the county attorney now needs to view the documents to pick them apart and fabricate some kind of elaborate defense showing the sheriff’s office was in fact foiling some evil conspiracy, or at least preventing some minor threat.

Without the documents, attacking Donahoe’s ruling shouldn’t be that hard. Facts aside, the law seems against Donahoe. He should have held Stoddard in direct criminal contempt. I’ve said it, as did Mark Bennett before me. Now, it’s just one big mess. No one seems to agree about when Stoddard was held in contempt, or even if he is or has ever been in contempt.

I’ve heard a few people say Donahoe never actually held Stoddard in contempt. They argue the wording of the order was misleading and that Donahoe just ordered Stoddard to apologize, threatening contempt and jail should he refuse to comply. If Donahoe just issued an order to apologize then held Stoddard in contempt after the unapologetic press conference, they might have a point. The problem is that Donahoe said, “IT IS FURTHER ORDERED holding Detention Officer Adam Stoddard in indirect civil contempt of court.” I’m not sold.

Also, some people are now claiming Stoddard is really in indirect civil contempt, making Donahoe’s order accurate. Others are claiming he isn’t in contempt at all. People claiming he isn’t in contempt cite the fact he was ordered to jail and went. People on the other side claim the order was to apologize, that the way to avoid contempt was to apologize, and that not apologizing would result in Stoddard being in contempt and having to go to jail. Again, I’m not sold. Donahoe’s order made it clear Stoddard was in fact in contempt and that apologizing merely purged that finding.

In general, contempt in Arizona isn’t terribly complex. Here’s what our Supreme Court said:

Criminal contempt is the commission of a disrespectful act directed at the court itself which obstructs justice; civil contempt is the disobedience of a court order directing an act for the benefit or advantage of the opposing party to the litigation. Also, the same acts may be both criminal contempt and civil contempt, and quite often are. The classification of contempt as criminal, civil, direct or indirect is merely a judicial device for determining the procedure to follow in each case. We are satisfied that we are dealing with a criminal contempt as the primary purpose of respondent’s action was to punish for petitioner’s alleged disrespect to the court and attempted obstruction of justice.

Ong Hing v. Thurston, 101 Ariz. 92, 98 (1966) (internal citations and quotations omitted). Other cases more thoroughly analyze whether specific circumstances constitute contempt, but that’s the best general explanation. From what I can tell, none of the more specific cases, even the one Donahoe cited, does a great deal to support the contempt finding or classification in Stoddard’s case.

Based on the law and the facts publicly available at this point, without looking at the privileged documents at all, isn’t it at least possible that there’s enough to convince another court that Donahoe abused his discretion? How much of a difference will the contents of the documents, which Stoddard can’t even recall, have on the outcome? Donahoe abused his discretion if he misapplied the law or predicated his decision on incorrect legal principles, and Stoddard has a decent argument he did. What Stoddard’s lawyer filed was too little. As Lozano’s lawyer explained, it’s also too late.

Everything I know about this case comes from the news sources and commentary I’ve cited here, so I’m no expert. However, it looks like Liddy had more than enough to file a special action before Stoddard surrendered.

In Arizona, the term “special action” encompasses a number of different things. Basically, it’s the vehicle used in Arizona to obtain relief previously obtained against a body, officer, or person by writs of certiorari, mandamus, or prohibition. That’s explained in the rules. It was intended to simplify the process by creating one cause of action instead of a number of different, confusing writs, each with its own unique rules. Apparently, there was a lot of frustration, and different rulings often came down based on minute differences in the nature of the filing. I wasn’t practicing here before they were consolidated, so I can’t really say if things are any better now.

Special actions are rarely granted because jurisdiction is highly discretionary. It’s appropriate when no equally plain, speedy, and adequate remedy is available, and a special action can be accepted when under no rule of law can a trial court’s actions be justified. I understand that each division of the court of appeals rejects about ninety percent of special actions. In Stoddard’s case, though, a special action would have had a far higher than normal likelihood of being accepted because civil contempt orders are not appealable, with very few exceptions. The case law makes it clear that the review remedy is special action.

Liddy could have filed a special action as soon as Donahoe made his ruling, well before Stoddard had to apologize or go to jail. To request a stay from the court of appeals in a special action, you only have to request one below. Liddy did that. He had a chance to ask another court for more time, but he didn’t. Stoddard went to jail. Why?

To some extent, I can see why Liddy would want some time before filing a special action. There is no record other than what you create and provide, so he’ll want a transcript of proceedings or at least a recording. Did he immediately request either of those? Does Liddy really think the document is that big a deal, or was it really just a fishing expedition Liddy now has to justify? Is he just showing everyone how little he values our rights? Even if Donahoe ends up being a little off on his ruling about unsealing the documents, I see the face of Donahoe’s contempt order as the better issue.

If Liddy’s objective was to keep his client out of jail, his strategy for achieving that seems highly ineffective. I can’t imagine the thought of avoiding jail for Stoddard was that much of a concern for Liddy, or he would’ve handled this very differently. On the other hand, if his objective was to get press for the sheriff’s office or continue showing utter disregard for attorney-client privilege and the constitution, I’d say he’s doing a great job.

Now that Stoddard is in jail, the relief remedy is likely still a special action. Civil contempt can become criminal contempt when someone has refused to comply for long enough, and criminal contempt is specifically appealable by statute. However, Stoddard will probably spend an awful lot of time in jail before that happens. I only see Liddy waiting a while and filing an appeal on those jurisdictional grounds if his goal really is to maximize jail for his client.

You may be wondering why the word “habeas” hasn’t come up much in all of this. In Arizona, habeas applies to someone who is “unlawfully committed, detained, confined or restrained of his liberty.” That now applies to Stoddard, but the special action is thought by many Arizona lawyers to now encompass the writ of habeas corpus as well. Although there are still specific habeas laws on the books, the bar notes for the rules on special actions call the writs replaced by the special actions “extraordinary writs,” and Article 6, Section 5 of the Arizona Constitution calls habeas corpus, quo warranto, mandamus and injunction “other extraordinary writs.” The Court of Appeals, Division Two, has flat-out said that the writ of habeas corpus has largely been replaced by the special action proceeding and our post-conviction relief rule, and smart lawyers and at least one judge who teaches a CLE on special actions believe that the special action has supplanted the state writ of habeas corpus altogether. The fact Liddy is saying he wants to file a special action on behalf of his jailed client probably shows his feelings on the subject.

It seems obvious to me that Liddy should have filed a special action and request for a stay before Stoddard surrendered. It seems obvious to me that Liddy should now file a special action or habeas petition. The sooner he files it, the sooner another court reviews Donahoe’s order. I see no benefit whatsoever in waiting for Stoddard’s detention to become appealable, criminal contempt. I seriously doubt the Court of Appeals, Division One, is going to deny special action jurisdiction when Stoddard has no other sufficient remedy. The issues with the highest likelihood of success are as good now as they’ll ever be.

This would all make sense if Liddy’s goal was to keep Stoddard in jail and in the news. That seems more like Sheriff Joe’s agenda that Stoddard’s, and I hope that isn’t the case. If it is, shame on Liddy. If it isn’t, I wonder what he’s thinking.

The judge was hearing a number of pleas at once. Two of the defendants were in custody and pleading to aggravated DUI. Pursuant to A.R.S. § 28-1383(D) and (E), certain types of felony DUI require that a defendant spend a certain amount of time in prison before being placed on probation.

In Arizona, prison and jail are different. Jails are run by counties and cities, and felony defendants spend their time in county jail pending resolution of their criminal matters. Prisons are run by the state. You can only go to prison if you are sentenced.

Both of those pleading defendants were in custody and had pleas stipulating to probation with the mandatory prison required by the statute. Both had pleas giving them credit against the mandatory prison term for the time they spent in jail prior to sentencing.

The judge indicated he could not give them credit for jail served because the statute specifically said the time had to be “in prison.” On its face, that seems to be what the statute requires. It isn’t, and the judge was wrong.

A.R.S.§ 13-709(B) provides that “[a]ll time actually spent in custody pursuant to an offense until the prisoner is sentenced to imprisonment for such offense shall be credited against the term of imprisonment.” There are cases from each division of the Court of Appeals of Arizona holding that DWI statutes do not preclude credit for presentence incarceration time. Some are still good law and over a decade old (for the Arizona lawyers reading this, check out State v. Nihiser, 191 Ariz. 199 from Division Two in 1997 and State v. Mathieu, 165 Ariz. 20 from Division One in 1990).

The judge told the lawyers he would not give their clients the presentence incarceration credit required by the pleas, and neither attorney was able to convince him he was permitted to do otherwise. Each matter was continued for a week or two so the attorneys could work out an agreement that fit the judge’s concept of what the law required.

Hopefully, the attorneys have already brought to the judge’s attention the statute and cases I mentioned above. I sent one of them the cites after the hearing, and I hope both clients enter those pleas again as soon as possible. I hope the judge has realized he was wrong. There’s no way he could have been right.

Here’s what I really wonder: when the judge realizes his mistake, if he hasn’t already, will he feel bad? What if one of those defendants ends up serving an extra week or two because of the continuance he forced based on incorrect legal principles? Will he only be embarrassed about being wrong, or will he feel guilt about mistakenly depriving two people of their freedom?

When Arizona’s Court of Appeals, Division Two came out with a related opinion in State v. Zaragoza, I put up another post about actual control. I was pretty negative about whether the opinion would make a difference. It turns out I was right to be negative, but for the wrong reasons. This summer, the Supreme Court of Arizona vacated the opinion of the Court of Appeals.

In Zaragoza, the defendant staggered to his car and got in. An officer pulled up behind him, shined his flashlight inside, and saw him in the driver’s seat with one hand on the steering wheel and the other putting the key into the ignition. Although he testified he just wanted to sleep in the car and planned to start the ignition to roll down the window and turn on the radio, the jury convicted him of felony DUI. The jury was instructed that “[t]he defendant is in actual physical control of the vehicle if, based on the totality of the circumstances shown by the evidence, his potential use of the vehicle presented a real danger to himself or others at the time alleged.” They were also given several factors to consider when deciding whether or not he controlled the vehicle.

The Court of Appeals reversed the trial court because they thought the phrase “potential use” misled the jury. The court was worried the jury found the defendant guilty based on hypothetical control. I think that’s reasonable, and in that respect, Zaragoza was one of the better opinions I’ve read. I was sad to see it overruled, but I wasn’t surprised.

The Supreme Court thought the Court of Appeals had it all wrong. They claimed “a conviction could not be premised on speculative potential use” and said “[t]he instruction does not raise the specter that any impaired person with access to a vehicle could be convicted for being in actual physical control of a vehicle.” Apparently, the words “presented a real danger to himself or others” made everything okay.

Obviously, I disagree. Saying “presented a real danger to himself or others at the time alleged” does nothing to avoid convictions based on speculative potential use. I interpret those words as only ensuring your speculative potential use is actually dangerous. Because a vehicle is involved, they are pointless. Of course your hypothetical use is dangerous. I imagine quite a few jurors will interpret it like I do. The nuances of those magic words the Supreme Court trusts so much will probably be lost on quite a few jurors too.

After making the conclusory statement that the instruction simply cannot be interpreted the way the Court of Appeals and I interpret it (an amazing claim, seeing as how we did in fact interpret it that way), they go on to claim it won’t result in any impaired person with access to a vehicle being convicted of DUI. That’s equally silly. Isn’t that the point of all this?

First, we were only worried about actual “driving” under the influence. Then, we got tough on those rascally drunk drivers who don’t drive by punishing drunk people with actual control of a vehicle. At that time, we thought we should allow drivers who realized they were impaired to pull completely off the highway, turn the off the car, and sleep without fear of being arrested for DUI. Unsurprisingly, we got tough again. We decided to just have the jury look at the totality of the circumstances to determine if there was actual physical control.

What’s a jury going to do when they hear about drinking and a motor vehicle? Seriously. This is going to be their reasoning: “drinking scary, car scary, drinking plus car very scary.” In Zaragoza, the Supreme Court even cites an earlier case acknowledging that the “totality approach” allows the state to prosecute drunk drivers “under a much greater variety of situations – for example, even when the vehicle is off the road with the engine not running.” Great. No matter how hard the courts try to convince themselves it isn’t true, the goal of all this is to ensure that every impaired person with access to a vehicle gets convicted of DUI.

The Supreme Court doesn’t even want a person’s purpose in controlling the vehicle to matter. The Court of Appeals thought the legislature intended to criminalize control of a vehicle when the circumstances “as actually physically exercised – demonstrate an ultimate purpose of placing the vehicle in motion or directing an influence over a vehicle in motion,” but the Supreme Court didn’t like that because it thought the facts determine whether a defendant exercises physical control of a vehicle. The opinion literally says an instruction telling a jury to consider the defendant’s purpose incorrectly states the law. I guess they’re fine with convicting people of DUI when they had no intention of driving.

Here’s the bottom line: there is nothing you can do to avoid getting a DUI. The goal is prohibition, not safety. Not driving won’t help you. Not drinking and not doing drugs may not even help you. While a DUI used to require the driver be impaired to the slightest degree, that doesn’t even matter anymore. You can get a DUI simply because of the content of your blood, regardless of whether or not you’re impaired. I’ve posted before about that too. Doesn’t anyone think it’s pretty ridiculous that someone can get convicted of driving under the influence for neither driving nor being under the influence?

The only good thing about Zaragoza is that the Supreme Court provides a new jury instruction that’s a little better than what we had before. Here it is: “[i]n determining whether the defendant was in actual physical control of the vehicle, you should consider the totality of the circumstances shown by the evidence and whether the defendant’s current or imminent control of the vehicle presented a real danger to [himself] [herself] or others at the time alleged.” Hopefully, now it’ll be a lot harder to get a DUI in a car that doesn’t work.

It’s sad when something so little in the midst of so much unfairness is the only glimmer of hope I get from our Supreme Court.

Congratulations, you just escaped a very dangerous situation. You’re safe, but just for a little while. A few blocks from your home, a friendly law enforcement officer notices your excessive speed and pulls you over. When he walks up to the driver’s side window, he sees you’re a wreck. You’re sweaty, shaking, and can’t think straight. You don’t make any sense, constantly rambling about intruders. He notes your bloodshot, watery eyes, your slurred speech, and smells a moderate odor of alcohol. Don’t they always? He doesn’t care about your crazy burglary story because he’s heard every imaginable drunk driving sob story a million times. He wants to know how many you’ve had. He wants you to do some tests. Because you’re so flustered, you forget to ask for your lawyer. You do what he asks. He eventually takes you to the station, and you submit to a blood test.

I’ve got some bad news for you. You’re going to get a DUI. The courts won’t care that you can prove your windows were broken and your home was burglarized. It doesn’t matter that you have 911 in your call history, left your garage door wide open, and that there’s an ongoing police investigation about the burglary of your home. It won’t matter if they catch the guys who did it and you’re the named victim in the case against them.

Here’s the problem: there is no necessity defense to DUI in Arizona. In fact, to my knowledge, there is no type of DUI justification defense whatsoever in Arizona. That’s explained very clearly in State v. Fell, 203 Ariz. 186, 52 P.3d 218 (App. 2002), a Court of Appeals of Arizona, Division Two case that tells us why justification defenses do not apply to DUI.

State v. Fell doesn’t have the facts I just described, but the facts of the case do make me feel bad for the defendant. She was assaulted by her husband, who left the house. Fearing for her safety if her husband returned, she left. She was eventually stopped, arrested, and charged with DUI. She wanted to use as a defense “the fact that she had necessarily driven away from her home because of concern for her safety,” and the trial court let her. However, the state got a stay before trial and filed a special action, which it ultimately won.

The reason she didn’t get to employ a necessity defense, the same reason you won’t be able to use a justification defense, is because the DUI laws are found in Title 28 of the Arizona Revised Statutes, while the justification defenses are found in Title 13 of the Arizona Revised Statutes. A.R.S. 13-417 says that “[c]onduct that would otherwise constitute an offense is justified if a reasonable person was compelled to engage in the proscribed conduct and the person had no reasonable alternative to avoid imminent public or private injury greater than the injury that might reasonably result from the person’s own conduct.” It’s found in Chapter 4, “Justification,” which is found in Title 13. Title 13 is the criminal code. Also in Chapter 4 of Title 13 is A.R.S. 13-401, entitled “Unavailability of justification defense; justification as defense.” That statue provides that “justification, as defined in this chapter, is a defense in any prosecution for an offense pursuant to this title.” Unfortunately, Arizona’s DUI laws are all found in Title 28 along with other laws involving transportation.

State v. Fell isn’t a long opinion, but it’s long enough to pretty thoroughly piss me off. Even the way it states the facts of the case is irritating. The court admits the facts of the case were undisputed, yet it says the defendant’s husband “allegedly assaulted her.” I suspect that, if you appealed based on the facts I gave you above, the court would say your home was “allegedly burglarized.”

The defendant argued that the court should look at A.R.S. § 13-102, which provides that Title 13 “shall govern the construction of and punishment for any offense defined outside this title.” Sounds good, right? Justification defenses should apply to Title 28 offenses, right?

No such luck. The court decides the issue at hand doesn’t involve “the construction of” or the “punishment for” a DUI offense. I guess I can understand why they think that deciding whether to apply a defense might not be considered construction or punishment, but it irritates me. Arizona courts use A.R.S. § 13-102 to apply Title 13 sentence enhancement provisions to Title 28 felonies, but they won’t use it to apply Title 13 defenses to Title 28 felonies. I understand a sentence enhancement is pretty clearly “punishment for” a non-Title 13 offense, but I feel like it’s another example of courts interpreting statutes one way when they help the state and another way when they help defendants.

The court decides that the words “this title” reflect a clear legislative intent to limit application of the justification defenses to Title 13 and says that “no further inquiry is required.” The court ignores the rule of statutory construction called the rule of lenity because the statute is clear. Then, it applies the rule of statutory construction called inexpressio unius est exclusio alterius to decide that, because A.R.S. § 13-401 doesn’t list non-Title 13 offenses like DUI, the legislature did not intend justification defenses to apply to them. The court wasn’t impressed with the out-of-state authority the defendant cited, and it explained that Arizona has no common law defense of necessity. The court concludes that a DUI defendant can’t argue necessity.

The biggest frustration in all this is that I can’t say the case was wrongfully decided based on the text of the statutes. The statutes are terrible. Because of them, in the scenario I described above, you would be convicted. You could appeal, but the appellate court would just tell you the law is clear. It would use the rules of statutory construction that hurt you while dismissing the ones that help you. If you are convicted, the court may give you a Title 13 enhanced sentence, though it refused to give you a Title 13 necessity defense.

Knowing that, if you ever find yourself in the situation I described above, which I hope you never do, you will realize that you have two choices. You can risk death, or you can risk DUI. You aren’t going to find so much as a scrap of sympathy from any court.

I hope that all of you are as offended by this as I am. I wish I could say that State v. Fell is Arizona’s worst DUI opinion, but it probably isn’t close. It’s just one little sample of Arizona DUI stupidity.

1) Don’t argue ineffective assistance on direct appeal

You can try, but it isn’t going to work. I’ve seen judges appoint new counsel for a direct appeal because they thought appellate counsel might want to argue ineffective assistance. Lawyers have told me they intend to argue ineffective assistance on direct appeal. Please, have a look at State v. Spreitz, 202 Ariz. 1, 3, 39 P.3d 525, 527 (2002). The Supreme Court of Arizona explained:

[I]neffective assistance of counsel claims are to be brought in Rule 32 proceedings. Any such claims improvidently raised in a direct appeal, henceforth, will not be addressed by appellate courts regardless of merit. There will be no preclusive effect under Rule 32 by the mere raising of such issues. The appellate court simply will not address them. This ensures criminal defendants a timely and orderly opportunity to litigate ineffectiveness claims and, we believe, promotes judicial economy by disallowing piecemeal litigation.

You’ll look pretty stupid trying to argue ineffective assistance on direct appeal, and you’ll waste a lot of time doing it. Why does that seem so difficult for lawyers to understand?

2) Don’t assume a federal or out-of-state felony conviction is an historical prior

If you don’t know that, your clients have probably been suffering. “Before a court may use a foreign conviction for sentencing enhancement purposes under § 13-604, the superior court must first conclude that the foreign conviction includes every element that would be required to prove an enumerated Arizona offense.” State v. Smith, 194 P.3d 399, 401, 2008 Ariz. LEXIS 202, 542 Ariz. Adv. Rep. 6 (2008) (internal citations and quotations omitted). “Instead, the trial court must make ‘this determination by comparing the statutory elements of the foreign crime with those in the relevant Arizona statute.’” Id. “[T]here must be strict conformity between the elements of the [foreign] felony and the elements of some Arizona felony.” State v. Clough, 171 Ariz. 217, 219, 829 P.2d 1263, 1265-66 (App. 1992).

I’d guess that almost half of the time, a federal or out-of-state felony conviction isn’t an historical prior. The most common mistake I see involves human smuggling. 8 U.S.C. § 1324(a)(1)(A)(ii)(a) creates criminal penalties for “[a]ny person who . . . knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law.” The analogous statute in Arizona is A.R.S. § 13-2319, which provides, “[i]t is unlawful for a person to intentionally engage in the smuggling of human beings for profit or commercial purpose,” later explaining that “‘[s]muggling of human beings’ means the transportation, procurement of transportation or use of property or real property by a person or an entity that knows or has reason to know that the person or persons transported or to be transported are not United States citizens, permanent resident aliens or persons otherwise lawfully in this state.” A federal conviction could be based on conduct that wouldn’t support an Arizona conviction. You don’t need to look at the indictment. You don’t look any further than the statutes. The federal statute prohibits more conduct, so a conviction under it should not be used to enhance a state sentence.

I could go on for a while with other suggestions, but I don’t have the time. Hopefully this will help someone.

In Arizona, it’s practically impossible to get by without driving. Public transportation is generally inadequate in urban areas, and in rural areas, it’s basically non-existent. Cabs are very expensive. Most people I know who take advantage of buses or the light rail still have to drive a few miles to get to a park and ride. My clients who can’t drive are severely limited in where they can live and work.

Not having a car leads to many of my clients getting into more trouble. Those who drive anyway often find themselves with new misdemeanor charges when they’re caught. If they’ve been drinking, what would be a misdemeanor DUI becomes a felony DUI. The jail time turns to prison time, and they have to do 120 times as much of it. Plenty of stops and searches incident to arrest that resulted in new charges would have never happened if the driver’s license hadn’t been suspended.

I’ve had clients who picked up serious drug charges after getting rides with friends who ended up having drugs in the car. I’ve also had clients who said they committed crimes because the person who gave them rides called in a favor. The most common excuse I hear for people failing to check in while on probation or missing court dates is that they couldn’t get a ride. Judges, prosecutors, and probation officers usually show no sympathy.

No one is less sympathetic than Arizona’s Supreme Court. You see, Arizona courts do not recognize driving as a right. To them, it’s a “privilege.” They claim to recognize that not driving hurts those who must drive for a living, but they seem to think that matters only for particular occupations or fields. They don’t think the potential loss of the driving privilege is a grave or serious consequence. That’s why a license suspension isn’t enough to support a right to trial by jury.

Unless the justices make a lot more than I think they do, I doubt they’re getting chauffeured everywhere in limousines. I’d love for them to go without driving for three months and say loss of license isn’t a grave or serious consequence. They’d have to tell their friends and family they aren’t allowed to drive. They’d have to walk back from the grocery store laden with bags or bother everyone they know for rides. People would have to accommodate their lack of transportation. Maybe then, things might change

Insensitivity isn’t the only problem with how Arizona courts view driving. I find the very use of the word “privilege” repulsive. It sounds as if we’re small, helpless children who should be grateful for every little scrap of autonomy the state decides to grant us.

As an American, I’m proud to have rights, not privileges. The word privilege isn’t anywhere in the Bill of Rights, and the founders declared that I am endowed with unalienable rights, not granted alienable privileges. In much of this country (and most if not all of Arizona), driving is often necessary in order to make a living, raise a family, and have a decent quality of life. I shouldn’t have to rely on big brother to give me permission to do something necessary to live my life in a normal, reasonable manner. I’m ashamed Arizona uses the word privilege in its constitution and statutes. It sends the wrong message, telling us someone has to give us our freedom.

To the government, it doesn’t matter how essential something may be to life, liberty, and the pursuit of happiness. If the government wants to regulate it, that’s what the government is going to do. In most cases, all it takes is a name change.

Relabeling and over-regulating something as important as driving frightens me. Reproduction, marriage, and plenty of other essential rights aren’t enumerated. Although it would probably love to do it, Arizona can’t relabel them privileges because courts have decided they’re important enough to be off-limits.

I’m not thankful for that because I shouldn’t be. Instead, I’m angry that I have to hope judges think something is important before I’m allowed to exercise my right to it. It’s a sad state of affairs, and I can’t think of any area where the judges more plainly and disturbingly ignore something essential to modern life than with driving.

Arizona’s DUI law says, “[i]t is unlawful for a person to drive or be in actual physical control of a vehicle in this state . . . [w]hile there is any drug defined in section 13-3401 or its metabolite in the person’s body.” Impairment doesn’t matter, as it’s a strict liability crime. If a test can detect a drug or its metabolite in your body, you’ll be charged regardless of the quantity. I’m not saying quantity is a good sign of impairment, but a statutory minimum would at least save some unimpaired drivers from being charged. Currently, in Arizona, even you test positive as a result of legally smoking medical marijuana a couple weeks earlier, that won’t help you one bit. There are also plenty of legal drugs, both prescription and over-the-counter, that might land you in jail if you’re caught driving after taking them.

But don’t worry, the list of drugs in section 13-3401 isn’t that big. Oh wait, nevermind. The list is huge, and who knows how many metabolites each of those drugs has. Aren’t laws supposed to give us some kind of notice about what is and isn’t illegal? It might not be a bad idea to keep a doctor, pharmacist, or maybe chemist on speed dial to make sure you aren’t breaking the law by driving.

To give you an example of how our DUI drug law might convict an innocent person, here’s a little story. A client works a full shift. His managers and co-workers are with him the whole time, and at no point does he use any kind of illegal substance. He gets in his car to drive home. As he leaves the parking lot, he makes a wide right turn, and an officer pulls him over for breaking a traffic law. After approaching, the officer says he smells marijuana and claims the client has a green tongue. The officer asks the client if he recently smoked marijuana, and the client says “yeah, a few weeks ago.” The police report, of course, will merely note “suspect admitted to smoking marijuana.” The client is arrested, and a subsequent blood test eventually comes back positive, though only slightly over the absolute minimum amount the state’s equipment is capable of detecting.

In most instances, that client will be convicted of DUI drugs. Furthermore, his strict-liability DUI drug conviction will result in a one-year driver’s license suspension, not the 90-day suspension a driver actually impaired by alcohol would have gotten. The client will also have to equip his vehicle with an interlock device that does nothing to detect whether he has one of the numerous forbidden drugs or metabolites in his body.

If Kentucky’s legislature has even the tiniest bit of common sense, it won’t go down the ridiculous path we have.

Here’s the dilemma: imagine a burglary case where intent is the only real issue. It’s clear the defendant shouldn’t have been there, but it’s tough to know whether he entered or remained unlawfully with the intent to commit a felony or any theft. If the defense attorney gets a lesser included offense instruction on criminal trespass despite the relevant case law, the defendant could be spared a lot of prison time. He would have a good chance of being convicted of a far less serious crime.

On the other hand, he may have a good issue to bring up later. Due process prevents someone from being convicted of a crime not listed in the indictment. You need to have notice of the charges. You have notice of a lesser included offense because it is part of the listed offense. However, if you get an improper lesser included offense instruction, you could at the very least argue your lawyer was ineffective because he let you get convicted of a crime of which you had no notice you were being charged.

I haven’t done a great deal of research on it, but I am not aware of any Arizona case dealing with that particular issue. I’d be curious to know if courts would be receptive to that argument. A defense attorney might have to balance a client’s well-established constitutional rights with something that might result in a much better result at trial. If the defense attorney chooses to get the instruction, it might violate due process, and if the attorney doesn’t, he or she might be ineffective for failing to save the client a lot of prison time. It can create a real predicament.

Anyway, to give you some background (for those of you who don’t like reading blog comments), I brought up in a comment that A.R.S. § 13-4433(B) says “the defendant, the defendant’s attorney or an agent of the defendant shall only initiate contact with the victim through the prosecutor’s office.” Andrew Becke asked: “is there a way to initiate contact with the victim through a motion to the court, thus requiring the prosecutor to respond in a pleading that the victim doesn’t want to talk? That might enhance their desire to be honest.”

My answer would be that there are a few things a defense attorney can do to intitiate victim contact, but they aren’t particularly great options. If you file a motion that requires a hearing in which the victim will need to be a witness, the victim isn’t insulated from being required to appear and testify. Of course, you can’t file a frivolous motion just to get a crack at the victim on the witness stand, and the scope of your examination will be limited. Someone would have to initiate contact with the victim, but the prosecutor wouldn’t have to aver in his or her response that the victim doesn’t want to talk. It would just give you the victim, albeit for a limited purpose.

A better motion that would initiate victim contact and require a prosecutor to say he or she has spoken to the victim is based on an exception (sort of) to A.R.S. § 13-4433(B) involving a victim’s credibility. In State v. Riggs, the Arizona Supreme Court said that “A.R.S. § 13-4433 neither authorizes nor precludes the cross-examination of a victim on the victim’s refusal to grant a pretrial interview. Admission of evidence of refusal is governed by the rules of relevancy. The state constitution confers no blanket right upon a victim to refuse to testify concerning the fact of refusal, and the federal constitution confers no blanket right upon defendants to inquire into the fact of refusal.”

So let’s say I think the victim is biased. I can’t prove that, by itself, his or her refusal to submit to an interview is relevant to bias, and I can’t find out more about his or her potential bias as it relates to his or her refusal to submit to an interview unless I do an interview. There’s something pretty unfair about that situation. I think a reasonable court would find that argument compelling and grant me a limited interview to determine whether the victim’s refusal to do an interview shows bias. I could file a motion requesting that interview on those grounds.

The problem is that, in State ex rel. Romley v. Hutt, Arizona’s Division One Court of Appeals vacated the trial court’s order for a pretrial inquiry of the victim regarding bias, interest or hostility. I think the opinion was terribly written, and luckily, the defendant’s arguments weren’t quite in line with what I would argue (though they aren’t entirely clear from the opinion). Also, the trial court in that case gave the defendant’s attorney permission to go a lot further than would be allowed under any reasonable interpretation of the case law. There’s a decent argument that ordering a simple victim interview for limited purposes wouldn’t be forbidden under Hutt.

If I file a motion distinguishing Hutt and asking for a pretrial interview or deposition of some sort, the prosecutor would have to respond with something acknowledging that the victim refused to speak with me. Unfortunately, the prosecutor would probably just talk to the victim after receiving my motion and convince him or her not to do an interview. It wouldn’t do much to keep the prosecutor honest, but I’d at least guarantee the prosecutor would ask the victim. I could start filing a motion like that regularly, but I think it would be a lot of work for minimal results.

The other comment that got me thinking was from an understandably shocked Bobby G. Frederick, who noted: “that is insane. Violation of due process, right to confrontation? Declaratory judgment action?”

There have been plenty of challenges to that statute. Defense attorneys have made all kinds of well-reasoned, well-supported arguments, but Arizona courts seem to love the victim-interview statute and its counterpart in our rules of criminal procedure. Although at least one court has noted that victims are often important, crucial, and even critical witnesses and that it’s no doubt sound practice for lawyers to interview witnesses before trial, Arizona courts claim a victim’s right to decline an interview is absolute. They claim confrontation clause rights don’t apply. Due process can give a defendant access to certain information about a victim, but it won’t give a defendant a pretrial victim interview.

The only successful challenges seem to expand the scope of the refusal law. For instance, the part of the statute denying peace officers status as victims was declared unconstitutional because its conflicts with the definition of “victim” in the Arizona Constitution. Now, a defendant’s attorney can’t even initiate contact with an officer-victim.

Arizonans should be ashamed that they’ve created a system where a defense attorney must file clever motions to do something essential to a proper defense. We shouldn’t have to think outside the box just to keep prosecutors honest. Arizona’s courts shouldn’t eagerly use our constitution to harm defendants while ignoring it (as well the US Constitution) when it might help a defendant. The saddest thing is that these are just a couple of the many ways Arizona’s victims’ rights laws create injustice.