Those vans are pretty prevalent here in Arizona too, though we’re switching to violent, forcible blood draws in many jurisdictions and don’t have nearly as cool a name for them. The big problem in Texas seems to be that there are Texas-sized problems with the machines’ reliability. A grand jury became suspicious, and it’s created a situation that’s fascinated blawgers everywhere. There’s a whistle-blower who fell out of favor with the powers-that-be, there’s the looming threat of contempt for some unlucky prosecutors, and there’s more than enough else of interest to make me wonder why I didn’t write about all of this earlier. Mark Bennett gives a timeline of the problems, and there are plenty of other great posts predicting what will happen, analyzing what’s happened, and discussing from afar what might happen in the end.

I’m excited about the prospect of a grand jury, troubled with what’s been going on with these BAT vans, taking a stand. I’m excited about a grand jury putting some pressure on some prosecutors. I’m excited that people might finally be seeing how unreliable the science behind all of this is and begin questioning the tactics the government keeps insisting on using against its citizens. The only thing I’m not excited about is the fact I’m excited.

A person in a patrol car who could be solving a murder or a rape, or catching a burglar or a thief or just helping a stranded motorist helpless by the side of the road, is stopping some guy for a wide left turn. The cop, who isn’t a doctor or a nurse or a scientist, is making the guy do stupid and un-scientific tests, probably using an un-scientific tinker-toy to do a preliminary breath test, and arresting the poor guy before forcing him to blow into a ridiculous machine that spits out a result that will ultimately determine his fate.

I love that some good people in Texas have questioned the process and taken a stand while performing their solemn duties as grand jurors. I’m saddened that the thing that worries them seems only to be the final act of this theatre of the absurd, the fact that the van to which the armed enforcers take these abused, unwilling people might somehow produce scientifically inaccurate results.

From my perspective, it only takes a little reason to see a much bigger problem. My guess is lack of perspective, but for some reason, most people aren’t able to see it. I suppose I’m just out of touch.

Unlike those sentencing options, I’ve never much liked the idea of court-ordered fines. It’s easy for me to understand why restitution, supervision, and even incarceration are available options to a sentencing judge. I’m not inherently skeptical about a judge’s motivation in ordering any of those as part of a sentence. That isn’t the case with fines.

I think there’s something fundamentally wrong about a judge with a cushy job and lots of power ordering a poor defendant to give money to a taxpayer-funded court. It’s always struck me as problematic that a judge can lawfully order another person to pay the judge’s employer. It only seems worse to me taking into consideration the fact Arizona has elected judges in many jurisdictions as well as strange things like judicial productivity credits. I think it’s ridiculous that we give the power to order fines to people whose re-election hopes and salaries can hinge on the financial situation of the entity to which the fines are going. It should come as no surprise to anyone that courts frequently bury defendants in all types of fines, surcharges, fees, and assessments. If I can punish you by making you give me and my boss your money, why wouldn’t I?

Yesterday afternoon, I saw a typical exchange between a judge and a defendant as I waited to get a new court date from the clerk in a misdemeanor jurisdiction. It went something like this:

Judge: You haven’t made any payments on your fine.
Defendant: I don’t have any money. I can’t find work. My kids are hungry.
Judge: That’s what you said last time.
Defendant: I’m really trying, I promise. The economy is bad. I’m trying to find work.
Judge: What’s changed between this time and last time?
Defendant: Nothing. I was trying to find work then too. I’m bound to find something sooner or later. Please give me more time.
Judge: You said that last time. Why shouldn’t I just throw you in jail and get it over with?
Defendant: My family needs me. We can’t even afford a fridge. Or a stove. We’re behind on rent. I need to find work.
Judge: I’ll give you one more chance. No matter what, you’re going in next time unless you pay your fines in full
Defendant: Thank you, I promise I’ll do my best.

Given the court and the hour of the day, I imagine the defendant owed the fines in an old DUI case. He had probably been ordered to pay the minimum fine and surcharge, which total over a thousand dollars. He probably had to pay a couple hundred dollars for mandatory alcohol screening plus hundreds more for the recommended alcohol classes. He probably had to pay for his own incarceration costs too. Because of the conviction, if he wants to drive, he probably has to pay about a hundred dollars a month for the mandatory interlock device, and he’d probably have to pay hundreds of extra dollars each year to have special SR-22 insurance. Like with most people, his DUI at some became a money pit. I’m sure it also made it especially tough for him to find work, as lots of jobs won’t hire people with DUIs.

The discussion I heard really bothered me, just like it always does. I hear it all the time. The court, which has ordered a fine, is demanding payment. The defendant, who probably couldn’t even afford decent representation, is stuck trying to pay what most people would consider an enormous amount of money. I’ve found that judges rarely show even the slightest hint of understanding in such situations. I often notice quite the contrast between the shabbily-dressed defendant with work-worn hands and the judge with an expensive watch and delicate hands peeking out from beneath his black robe. I think about how sick it is that a guy who’s walking home to his house with no fridge because he’s too poor to get his license reinstated or buy appliances could be ordered by a judge who’s probably driving his Lexus back to a big home in Paradise Valley to pay a fine to a court housed in a multi-million-dollar building. The court doesn’t need his money. It means the world to him and his family though.

I think the message is supposed to be that crime doesn’t pay. It’s too bad that message is false. Crime does pay. If you get away with it or if you’re the government, that is. Regardless, even if the message was true, it wouldn’t matter. That guy with the DUI lost his license. He went to jail. He attended court then classes then victim impact panels. His life was disrupted and he and everyone around him suffered. Now, some rich guy is threatening to mess up his life and his family’s life a little more because he’s too poor to line the coffers of the rich guy’s even-richer boss. With the crime long since past, the message is not that crime doesn’t pay, but that the system and the people in it can be very, very cruel. It may not have the same ring to it as crime doesn’t pay, but at least it’s true.

If I lived in Texas, I would have had a little more background when I read this post by Murray Newman. I was skeptical about what he perceived as a double standard even reading it without context, but that by itself didn’t seem worth a post on my part. When a prosecutor gets charged and defense lawyers don’t just rant about the presumption of innocence, I hardly see it as cause for concern. We’re still human, right? Defense attorneys live in the same world as everybody else, don’t we?

I once got hammered for writing about a colleague after reading he’d been charged, and I left the mess feeling like “presumption of innocence” was a chorus sung outside of court only by those people with some skin in the game. Everyone feels outrage when they’re attached to an accused. Secret grand juries, presumptions against bail, and mandatory minimums don’t seem so bad when you don’t care about the person who bears the brunt of the rules. Otherwise, who cares? It’s all about fairness when you’re linked in some way to someone on the receiving end, but it doesn’t matter every other time.

In a post so perfect I couldn’t possibly add anything, Mark Bennett at Defending People explained why there is no double standard. Lack of contradiction isn’t the only thing that matters, however. There are additional, fundamental reasons why Murray’s post misses the mark, and here’s the passage that bothers me most:

The irony of the situation is stunning, because as members of the Defense Bar celebrate and rebroadcast the arrest of a prosecutor or police officer, they are abandoning the most sacred principles of the Constitution.

First, they are presuming them guilty.

And second, they are relishing in the idea that they should be treated more harshly under the law because they are different.

That last part is where I get the wind knocked out of me. It’s also where circumspection ties in. I’m going to be far less artful in my approach here than the others I cite, as the gravity of the situation as I see it depends on the full picture being crystal clear.

Here’s what’s happening, for the less-than-attentive: a prosecutor, one who once argued for a life sentence in a drunk-driving case, was just arrested for DUI. This comment from him in that life-sentence DUI case, which Mark quotes to start his post, is absolutely stunning in light of his current predicament:

Prosecutors Lester Blizzard and Kayla Allen, however, asked Ellisor for life sentences to send a message to anyone who would drive while intoxicated.

“To send a message to anyone who would drive while intoxicated.” If I could emphasize that more, I would. Should I put it in all caps too? “TO SEND A MESSAGE TO ANYONE WHO WOULD DRIVE WHILE INTOXICATED.”

Maybe they were misquoted, as news outlets rarely get it right with criminal cases, but that doesn’t matter much. Presumption of innocence and the fundamental role of a criminal defense attorney aside, this just isn’t a double standard in the traditional sense. This is something far greater. This is the kind of irony from which great tragedies are written. Mark does it justice, but I just can’t get over how amazing this is.

If this is indeed a double standard, it’s a justified one, if such a thing exists. This prosecutor is different. I do indeed relish the idea that this man, if guilty, should be treated more harshly under the law. I relish that because this man, if guilty, is different. I’m also saddened because cruelty and ignorance, when applied to one who himself has sought institutional cruelty and ignorance, is no less cruel or ignorant. I really am overwhelmed by this situation, and I’m having trouble grasping how Murray’s response can possibly make sense.

What about a defendant who is treated more harshly after being convicted of child rape because he was convicted of committing the offense at a time when he was entrusted with the child’s care after she had been raped by someone else? Would Murray view that as a double-standard? My analogy is crude, to say the least, but not as far off as it might seem. Isn’t someone more culpable than he would otherwise be for doing something if he was endowed with and had in fact exercised incredible power against others in order to prevent them from doing the very thing he was convicted of doing? Do additional circumstances beyond his control change things? Do they make him different from the supposed monsters he once fought?

This isn’t something that would ever cross my mind if 99.9% of prosecutors I know were arrested for DUI. I would normally rant against the DUI laws and other bullshit legislation after hearing they were charged. The system is unbelievably unfair when you don’t sign up for the insanity. If you wrote it, enforced it, or upheld it, you won’t see a lot of sympathy from me when you break it, if in fact you broke it. Even if you didn’t break it, if you supported the laws that made you likely to be wrongfully convicted of breaking it, you won’t get any sympathy. But then again, depending on the case, I probably could put my feelings aside and give my heart to the representation.

The situation is remarkable, obviously. It’s like anti-gay Republicans getting busted for rest area blow jobs and tax-and-spend Democrats getting busted for hiding assets from the IRS. It has all the makings of a great tragedy. It is a unique situation. It is something I will think about for months, maybe years to come. My feelings about the situation, however, are not evidence of any kind of double standard. Of that much I am sure.

From the beginning, my client has wanted to plead. He just doesn’t want to lose his license for a year, which is the case with DUI drugs, so we asked for him to plead to DUI for being impaired to the slightest degree, a different subsection with a 90-day license suspension attached. It’s a case where the supposed marijuana use was a day before driving. My client is young and has no prior criminal history. The facts of the case as well as my client’s personal circumstances are very sympathetic. My client’s was a modest request at best.

The prosecutor’s response to why she couldn’t make my client a regular DUI offer was that there was no drinking involved. “There’s no factual basis for impairment or alcohol,” she said. Immediately, I asked, “so if my client had been drinking before he drove, we probably could have worked out a deal to a lesser DUI?” She seemed to think so, which led me to my next question: “should I then advise clients that, if they’ve ingested marijuana, they are best off also consuming alcohol prior to driving?”

My question resulted in a long, confused silence. Somehow, I don’t think her office has really thought its policies through.

I’ve written before about prosecutors offering pleas that no defendant in his or her right mind should ever accept. I’ve also written before about Arizona’s DUI drug statute. I haven’t written about how defense lawyers are enabling and even encouraging prosecutors to offer worthless pleas to defendants in drug DUI cases.

A plea should give a defendant some benefit. Otherwise, there’s little if any reason not to go to trial. Prosecutors seemed to know that before, as the standard offer for a first time drug DUI in many courts used to be a plea to an “A1″ DUI stipulating to nothing more than the absolute mandatory minimums. “A1″ refers to the statute subsection for driving while impaired to the slightest degree. By pleading to being impaired to the slightest degree rather than to having certain drugs or metabolites in your system, you would face a 90-day license suspension instead of a one-year license suspension. It makes for only a marginally decent plea at best, but at least it was something.

Now, I’m seeing the standard offer become a straight-up plea to the charge. If you want to do the plea under A1, the prosecutor will let you, but it will be amended to show drugs were involved. The court abstract will show that, which is the problem. The Arizona MVD relies on the abstract in determining the appropriate license suspension. It doesn’t matter if the plea is an A3 (the DUI drug subsection) or an A1 involving drugs. You will get your license suspended for a year if the abstract shows it’s a drug DUI.

I’ve sat in court a few times over the past months and watched defense attorneys plead client after client to that standard offer. In most cases, I think it’s borderline malpractice.

I have never heard of anyone taking a DUI drug case to trial, losing, and getting more than the mandatory minimums. It’s possible, and I’m sure it’s happened, but it certainly isn’t likely. Tell your clients it can happen, of course, but be realistic. Explain to them that there is a possibility of 6 months jail, 5 full years of probation, and $2,500.00 in fines plus a huge surcharge on top of other DUI-specific fines, assessments, and other costs. Tell them that, but say that remote possibility is the only reason not to fight the hell out of the case. If defense lawyers would suck it up, get off their asses, and take every “standard offer” case to trial, the offers would starting getting better across the board.

To my disbelief, defense attorneys actually argue with me on this. One argument goes something like this: “I can’t afford to try all of these cases; if I do that, I will have to charge more and get fewer clients.” Since when do our finances clients dictate how diligently we represent existing clients? For some lawyers, I guess it must. If you’re making that argument, don’t ever expect a referral from me. Charge what it takes for you to do the job right.

I’ve also heard this one: “by taking anything to trial where the plea doesn’t offer any benefit, you’re suggesting clients pay for an outcome, not professional services.” I don’t buy it. There are times that I’ve poured my heart and soul into a case and gotten no movement on a plea. The goal is always the best possible outcome for the client. The agreement is always for my absolute best efforts, and every client understands and acknowledges in writing that they’re paying for that, not a guarantee that some ideal result will occur. Any lawyer who can’t understand the difference is a bar complaint waiting to happen.

Prosecutors make these non-offers because defense attorneys let their clients take them. There’s absolutely no excuse for enabling prosecutors who don’t understand the concept of a plea bargain to go around screwing defendants. Defense attorneys need to quit it. Prosecutors couldn’t do this without our help.

I don’t want to hurt Oprah’s feelings, but I think she needs to know she’s wasting her time. People are never going to quit using their phone while they drive, just like some people are never going to quit driving drunk, driving tired, or driving while eating burritos. For decades, we’ve thrown away our civil liberties in the name of safety. We’ve drafted laws providing for vehicle impounds and license suspensions long before drunk drivers even make to to their first court hearing. We’ve put up roadblocks, required ignition interlock devices for all offenders, and added so many mandatory minimum fines, jail terms, and other penalties that you may be better off killing someone with your car sober than being stopped driving with your taillight out while impaired to the slightest degree. None of that seems to be stopping anybody; the DUI clients come in at the same rate now as they did when I first started handling these cases, and I have a tough time believing statistics touting the positive effect of our tyranny when it comes to drunk driving. If the real numbers were that great, MADD wouldn’t have to keep making them up.

Oprah shouldn’t be too sad because I’m going to propose something that might help. Here it is: start teaching people how to drive better while they’re distracted. That’s right. Think back to that girl in the golf cart I saw on TV. Put every driver in a golf cart and make them learn how to text and drive safely. Maybe start simple, like talking on speaker phone while driving, then eventually let people progress to things like texting, folding laundry, doing sudoku puzzles, or whatever else people like to do while they drive. We should know by now that we can’t eradicate DWD, so why not teach people the skills they need to multi-task better? There have to be techniques to enable you to text and drive more safely. Maybe there’s a certain way to hold your phone. Maybe you have to track a certain way with your eyes as you shift your attention between the road and your phone. Personally, I have no clue how best to drive distracted. Someone must know. Why not figure it out and teach people?

I won’t be surprised if I get a lot of angry people telling me how dangerous DWD is. Every one of those people will be hopelessly confusing the issues. DWD probably is dangerous, and people probably shouldn’t do it. That isn’t what matters. What matters is that people do it now and will continue to do it and endanger themselves and others no matter how many laws we pass. Why not make them a little safer when they do what they’re going to do anyway? People also argue that handing out condoms encourages sex, but a lot of people are going to have sex anyway, and wearing a condom prevents the spread of disease. Am I so unreasonable suggesting we take human nature into account in the context of DWD and craft solutions that cater to our natural predispositions rather than try to change who we are and what we like to do?

I’m largely joking here, as I enjoy thinking about people taking an advanced DWD class, maybe doing laps around the Nürburgring texting in a Ferrari while an instructor tells you how to improve your DWD lap time. But my suggestion isn’t just funny. It may have the potential to save millions of lives. I’d be pretty psyched if the government decided not to pass more oppressive driving laws and instead gave those around me the skills and training needed to safely do what they’re going to do anyway.

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.

I think those are fair questions. In Arizona, an aggravated DUI is forever an historical prior felony conviction. Once you’ve been convicted of aggravated DUI, you will always be looking at an enhanced, mandatory prison sentence if you are later charged with pretty much any felony. That aggravated DUI conviction will follow you around for the rest of your life, resulting in worse plea offers and giving you powerful incentive to take them because of the risk of guaranteed prison. It’s something that comes as a surprise to most defendants.

I think it’s ridiculous to make any DUI a felony in the first place, but it’s even worse to give it particularly severe consequences. Other convictions that serve as eternal priors are things like dangerous crimes against children or offenses involving a deadly weapon or dangerous instrument. Adding DUI to that list is an example of anti-drunk-driving hysteria at its worst, and I can see why clients have problems understanding it. Clients often say things like “I made a mistake, it was years ago, I did my time, and these new charges have nothing to do with DUI…I can’t believe I’m looking at this much time.” Those aren’t bad points.

The lawyer I overheard, on the other hand, didn’t seem to see any problem with the situation at all. He was saying all the things a prosecutor would say. He went into great detail about why repeat offenders should get harsher punishments, trying to make points about the need to deter future misconduct and how those who violate the law on more than one occasion have a more culpable mental state and thus deserve greater penalties. Needless to say, the client didn’t care about how the law could be justified under deterrence-based or retributive theories of punishment. It sounded like a law school lecture, and all the attorney accomplished was to royally piss off his client.

If they ask, I tell clients why I believe certain laws are the way they are. However, I can’t recall ever trying to justify a law to a client. That’s not my job, and a lot of the time, I’d end up trying to justify the unjustifiable. I don’t have to convince my client that he’s being rightfully prosecuted. Many Arizona laws are terrible. Quite a few of my clients are being prosecuted for things that shouldn’t be illegal. Justifying a law to a client isn’t going to help the client, and it certainly isn’t going to do anything to improve the attorney-client relationship. I defend people, not crappy laws. I really don’t know what that lawyer was thinking.