Are Field Sobriety Tests in DUI cops use Junk Science?

In 2012, Arizona courts incorporated federal rule of evidence 702, which codified the United Supreme Court's Daubert decision. The current Arizona Rule 702 reads:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

The Daubert standard is completely different from the previous Arizona Frye standard, which strictly focused if the technique used was "generally accepted in the scientific community". Under Daubert the Supreme Court defined "scientific methodology" as the process of formulating hypotheses and then conducting experiments to prove or falsify the hypothesis and enumerated criteria for establishing the "validity" of scientific testimony:

1. Empirical testing: whether the theory or technique is falsifiable, refutable, and/or testable.
2. Whether it has been subjected to peer review and publication.
3. The known or potential error rate.
4. The existence and maintenance of standards and controls concerning its operation.
5. The degree to which the theory and technique is generally accepted by a relevant scientific community. (Daubert v. Merrell Dow Pharmaceuticals, Inc.

While Arizona Courts have previously admitted field sobriety tests and horizontal gaze nystagmus tests under the Frye standard, the Arizona Supreme Court has not ruled on this issue under the new Daubert standard.

Other courts, however, have addressed this issue. In U.S. v. Horn,:

Thus, based on the foregoing, I conclude that the SFST evidence in this case does not, at this time, meet the requirements of Daubert/Kumho Tire and Rule 702 as to be admissible as direct evidence of intoxication or impairment.

The Montana Supreme Court concluded a trial court abused its discretion in admitting HGN results even though the government proved the officer was qualified to administer the test and conducted it as instructed:

This testimony shows that Officer Kennedy was trained to administer the HGN test and, in fact, administered the HGN test on Hulse in accordance with this training, and, therefore, he was qualified to testify as to both his administration of the HGN test and his evaluation of Hulse's performance.
However, nothing in the evidence establishes that Officer Kennedy had special training or education nor adequate knowledge qualifying him as an expert to explain the correlation between alcohol consumption and nystagmus, the underlying scientific basis of the HGN test.
Accordingly, we conclude there was insufficient foundation for the admission of evidence concerning the HGN test and the District Court abused its discretion when it summarily denied Hulse's motion in limine and allowed Officer Kennedy to testify as to Hulse's HGN test results.

A Connecticut Court of Appeals ruled the same way:

We conclude, therefore, that the court abused its discretion in admitting Kovanda's testimony regarding the results of the defendant's HGN test without requiring that the state satisfy the criteria for the admission of scientific evidence as set forth in Daubert.(State v. Russo)

Finally, in the most extensive analysis of this issue, the New Mexico Supreme Court held the results of the HGN should not have been admitted in a DUI trial.

We also hold that testimony as to the results of a Horizontal Gaze Nystagmus (HGN) test should not have been admitted at trial, because the State failed to lay a proper foundation for the admission of this expert testimony. Although the State qualified a police officer as an expert in administering the test, it failed to show the evidentiary reliability of HGN testing. (State v. Torres)

The New Mexico Supreme Court noted that Arizona courts had admitted HGN results under the Frye standard:

Unlike New Mexico, the Arizona courts have rejected Daubert in favor of the "general acceptance" standard articulated in Frye, 293 F. at 1014. See State v. Tankersley, 191 Ariz. 359, 956 P.2d 486, 491 (1998). Given that HGN testimony had been ruled admissible in Arizona courts four years prior to City Court, see State v. Superior Court, 149 Ariz. 269, 718 P.2d 171, 181 (1986) (en banc) we do not find it surprising that the prosecution met the "general acceptance" standard in that case without any additional testimony regarding the scientific principles upon which the HGN test is based.

But under the New Mexico Daubert standard, that evidence is not admissible:

Although the State presented evidence at trial as to Officer Bowdich's training and experience with HGN testing, we conclude that his training and experience are not sufficiently probative of the test's evidentiary reliability...

As stated previously, Arizona no longer uses the Frye standard and any evidence must meet the Daubert standard. In other words, while the results of field sobriety tests have been admitted in Arizona DUI cases for ages, maybe that will soon change...

Selling Marijuana on Craigslist is a bad idea...

Purple-Voodoo-Marijuana-Buds.jpgIf someone has an Arizona medical marijuana card but has more marijuana than the card allows, will the police charge the person with possession for just the marijuana that is over the legal limit or will all the marijuana in the person's possession be charged as illegal? The answer for the time being is "all of it".

According to the Arizona Court of Appeals, once a person has more marijuana than the allowed "two-and-one half ounces of usable marijuana," or if the "patient is authorized to cultivate marijuana, twelve marijuana plants", then all the marijuana in the person's possession is illegal, not the just amount that exceeds the authorized amount (see ARS 36-2801(1)(a)).

In the particular case at issue, State v. Fields (Ariz. App., 201 (1).pdf, the defendant Chase had 18 plants, more than the allowed 12 plants as a cultivator. The County Attorney charged Chase with illegal possession for all the marijuana in his possession even though Chase had a valid medical marijuana card and could legally possess up to 12 plants:

immunity from prosecution is conditioned upon a cardholder 'not possess[ing] more than the allowable amount of marijuana' and not improperly transferring marijuana. 36-2811(B)(1),(3). We therefore agree with the state that, if the cardholder does not comply with those conditions, he or she may be prosecuted for marijuana-related offenses. None of a cardholder's marijuana use or possession is protected by the AMMA if he or she fails to abide by the enumerated conditions.
Chase not only had more marijuana than the limit, he had tried to sell some of the marijuana by placing an ad on Craigslist.
A Tucson police officer saw an advertisement for marijuana posted on the website Craigslist.com [the ad claimed] extra medical marijuana for legal cardholders [for] $10.00 ... The officer arranged to meet Chase in a grocery store parking lot, and Chase sold the officer six grams of marijuana for $60 cash

Chase tried to argue what he did not was not illegal because of a presumption of legality under ARS 36-2811(A)(1):

A. There is a presumption that a qualifying patient or designated caregiver is engaged in the medical use of marijuana pursuant to this chapter. 1. The presumption exists if the qualifying patient or designated caregiver: (a) Is in possession of a registry identification card. (b) Is in possession of an amount of marijuana that does not exceed the allowable amount of marijuana. 2. The presumption may be rebutted by evidence that conduct related to marijuana was not for the purpose of treating or alleviating the qualifying patient's debilitating medical condition or symptoms associated with the qualifying patient's debilitating medical condition pursuant to this chapter.

The Court of Appeals rejected this argument because Chase had more than the legal limit and he tried to sell it. Chase also argued that under ARS 36-2811(B)(3), it was not illegal to transfer marijuana for value if the transfer was to another cardholder. The Court of Appeals did not consider this issue because it was not ripe.

The bottom line from this case? Selling marijuana on Craigslist is a bad idea.

Arizona Underage DUI and Driver's License Suspensions

What happens to someone who under 18 and is charged with a DUI? Because the person is under 18 years old at the time of the offense, the person will go to juvenile court and not be tried as an adult, right? How long will the driver lose their license for? Can they drive to school?

First, even though a driver may be under 18 at the time of the offense, prosecutor's offices around Arizona usually wait until the driver turns 18 and charge the driver as an adult. That means a minor under 18 is facing adult time and consequences. That means the same punishment as far as jail time and fines as a 50 year old charged with a DUI even though during the investigation the police might not advise the driver of the possibility of being charged as an adult (see "A DUI suspect's consent to a blood draw must be voluntary" regarding In re Tyler. There could be a voluntariness issue if police do not advise a minor he or she is facing adult charges in adult court.).

Second, a minor will always be charged with 4-244.9, which I call "baby DUI" because it is a crime for someone under 18 to drive with any alcohol in their system. The worst part of this charge is that it requires a 2 years license suspension from MVD, with restricted driving privileges if ordered by a judge and if the driver installs an interlock device for two years.

This is where it gets tricky. If someone is over 18, they shouldn't lose their license for two years, just the 90 days under admin per se. But even though a minor will treated as a adult in the criminal system, MVD will still treat the driver as a minor for MVD. That means a minor charged as an adult could lose their license for 90 days under admin per se because they were charged as an adult and then lose their license for another 2 years because MVD treats them as a minor. For more information, see 28-3320:

Suspension of license for persons under eighteen years of age; notice; definition A. ... the department shall immediately suspend the driver license or privilege to drive or refuse to issue a driver license or privilege to drive of a person who commits an offense while under eighteen years of age as follows: 1. For a period of two years on receiving the record of the person's conviction for a violation of section 4-244, paragraph 34, section 28-1381 or section 28-1382.

Many lawyers are not aware of ARS 28-3320 and assume that if a prosecutor drops the 4-244.9 allegation there will not be a 2 year suspension.

Arizona v. Hauser: prior felony convictions under ARS 13-604 and 13-702.02

If somebody is convicted of a felony in Arizona and then they are charged again with a new felony, does that prior felony conviction affect the new case? The answer to that question is "it depends..."

As a general rule, a class 6, class 5, or class 4 felony counts as prior convictions for up to five years. A class 3, 2, or 1 felony can last up to 10 years. A dangerous crime conviction is a lifetime or "historical" prior and time spent in custody does not count towards the time period, whether the prior conviction was dangerous or nondangerous. The relevant dates are date of occurrence to date of occurrence. Also, a third "expired" felony counts too regardless of how old it is. In the parlance of Arizona criminal law, a felony that counts to enhance the sentence on a new charge is called a "historical" prior.

For example, if somebody commits a class 6 nondangerous felony on January 1, 2000 and is charged with a new crime committed on January 2, 2005, and the person did not do any jail time, they should be treated as a first offender. That prior conviction is non-historical. However, if that class 6 felony was dangerous then it would count as a prior conviction. Also under the first scenario, if the person did more than one day in jail, the first conviction would count as a historical prior because time spent in custody does not tick the felony clock.

This is important because prior convictions can enhance the penalty for new convictions. By way of example, a first conviction for a class to nondangerous felony the penalty can be anywhere from probation up to 12 ½ years in prison. But with one historical prior the sentence is a minimum of 4 ½ years in prison up to 23 ¼ years in prison. Someone with a historical prior is not eligible for probation on a new conviction.

Even though someone may be charged with a felony and have a historical prior conviction, that does not mean the prior will automatically apply to enhance a new sentence upon conviction. For one thing, the government must officially "allege" the prior, usually as an attachment to the indictment. And further, the government must "prove up" the prior upon conviction on the new charge. Sometimes, the government will even drop the allegation of a historical prior to motivate a person to plead guilty.

Finally, even if a prior conviction is too old to be alleged as a historical prior, the government can try to get around that by alleging under ARS 13-702.02(2) "Multiple offenses not committed on the same occasion": "(2) those that "were not committed on the same occasion" and "are not historical prior felony convictions as defined in section 13-604." See State v. Thompson, 200 Ariz. 439, 441 ¶ 9, 27 P.3d 796, 798 (2001). For a detailed exposition on the difference between ARS 13-702.02 "multiple offenses" and ARS 13-604 "sentencing enhancements" see State v. Hauser.

Arizona Veterans and Traumatic Brain Injury and CTE

Frontline recently ran a story about football players who suffered brain damage from playing football. It is one the best documentaries I have ever seen (see it here "League of Denial").

Most people assume that football players who suffered multiple concussions were at high risk for brain damage and the evidence certainly supports that opinion. But the real insight of the Frontline story is that even players who never once suffered a concussion and who only played high school football were at serous risk for Chronic Traumatic Encephalitis (CTE). The important point here is CTE can be caused by the cumulative effect of thousands of sub-concussive hits. In other words, it is the normal hits of the game (about 1500 per season per player) that causes the brain damage and not necessarily the highlight reel hits.

CTE can only be diagnosed conclusively by an autopsy, and like any other encephalitis, ie, "Mad Cow" disease, it eats away at brain tissue like a microscopic, but very real Zombie. It turns normal, happy people into depressed, anti-social, and destructive suicidal maniacs. It destroys a person's very soul.

So what does that have to do with veterans? We now know that veterans suffer some of the very same brain injuries that football players suffer, traumatic brain injury or TBI, and that injury can have the very same effect on veterans as it does in football players. Again, this is not necessarily the result of a small number of spectacular hits, from an IED for example, but from multiple sub-concussive hits.

Dr. Bennett Omalu, the doctor who started the CTE and NFL investigation with his groundbreaking discovery of CTE in Mike Webster, also studied war veterans. You can see that study here "Chronic traumatic encephalopathy in an Iraqi war veteran with posttraumatic stress disorder who committed suicide."

The authors report this case as a sentinel case of CTE in an Iraqi war veteran diagnosed with PTSD to possibly stimulate new lines of thought and research in the possible pathoetiology and pathogenesis of PTSD in military veterans as part of the CTE spectrum of diseases, and as chronic sequelae and outcomes of repetitive traumatic brain injuries.

A lot of people, most of them non-veterans and many prosecutors and police officers, think veterans facing prosecution are just using post-traumatic stress syndrome (PTSD) as an excuse. Part of the problem is that PTSD cannot necessarily be proven with a test like a MRI or blood test. I now wonder how many cases of PTSD induced behavior is really the result of CTE?

For more information about Arizona veterans and the criminal justice system, see "Why we need Veteran's Court for Maricopa County and Pima County" and "Veteran's Court in Phoenix".

For a very article about this issue, see "The Case Against Brain Scans As Evidence In Court" by Jon Hamilton.

ARS 28-1402 and Interlock device for Reckless Driving in Arizona

If I were to ask 100 people at random, "which is worse, a second time DUI conviction or a reckless driving conviction after a previous DUI conviction?", I am certain those 100 people would all say, "obviously, the DUI is worse!". But while that may seem like the obvious answer, it is not necessarily the case.

If you are convicted of a reckless driving within 24 months of a previous reckless driving or a DUI, you will have to spend at least 20 days in jail. If you are convicted of a second DUI within 84 months of a previous DUI, you will have to do at least 30 days. But the most significant reason is not because of what happens at court, but what the Arizona Motor Vehicle Department will do with your driver's license.

If you have been convicted of a DUI in the previous 8 years- important, MVD goes back 8 years, not 7 years like the courts do- you will have your license suspended for 12 months. The same is true for a reckless driving, no license at all for 12 months. But with the second time DUI conviction, if you install a certified ignition interlock device you will have a restricted driver's license after 45 days. That means, in general, after a month and a half of no driving, if you install the interlock you can drive to and from work, while at work, to school, court ordered counseling, legal reasons, and health reasons (see ARS 28-1402 for specifics). The 45 no driving period is upon conviction. With a reckless driving conviction, that option is not available and the entire 12 month suspension is flat, ie, no driving for any reason. Note there could also be another suspension for 90 days without the right to drive at all from MVD directly. Also, a DUI after a reckless driving conviction could trigger both the administrative 90 days no driving at all and an additional 12 months no driving at all.

Couple of important points, if you are driving with an interlock device and are charged with a DUI, even if your license is not suspended, you will be charged with a felony or class four aggravated DUI. If you are convicted of a class four aggravated DUI, that means you will have to serve at least 4 months in prison, maybe even a few years, even if it is a first offense.

Second, if you are charged with a second time, misdemeanor DUI and install an interlock device so you can have a restricted driver's license after 45 days, that does not count towards the interlock device requirement that the court can order after a second conviction. The interlock device requirements that MVD orders and that the court will order do not run concurrently and do not overlap. The important point here is that MVD can suspend your license even though the criminal court does not convict you.

Finally, just this year, the Arizona legislature removed the provision that a driver at work did not have an interlock device while driving work vehicles so long as he was at work, driving a work vehicle engaged in work, and his employer had sworn out an affidavit. Now, even if you are at work and you drive a company vehicle, any vehicle you drive must have an interlock device installed.

Why the legislature changed the rule I am not sure. But I think this change is partly the reason why the new Phoenix police chief is automatically firing all police officers charged with a DUI. Before a police officer with a DUI conviction- trust me, there are plenty of them- did not have to have an interlock device while driving his or her squad car. That has now changed.

Arizona DUI Ruling: Cooperman and Partition Ratios

Even though most law enforcement agencies in Arizona use blood draws to determine the blood alcohol concentration (BAC) in DUI cases, some jurisdictions still use breath test machines. These machines are commonly known at intoxilyzers or breathilyzers. Most notably, the city of Tempe and the city of Tucson, as well as some smaller jurisdictions state wide, still use breath machines.

The reason most law enforcement agencies have moved to blood instead of alcohol is because the Arizona DUI statutes define a DUI according to the concentration of alcohol in blood, not breath. That means a blood test is a direct measurement while a breath test is an indirect measurement. And that is part of the reason why direct blood tests are allegedly twice as accurate as the breath test.

According to government prosecutors, a breath test result can be converted to blood alcohol concentration by something known as the partition ration. Simply stated, the partition ratio is the variable that is used convert a breath test reading into a blood alcohol reading. I use the word variable because it is exactly that; the partition ratio changes on a person to person basis. It is not constant for all people.

Despite the fact the partition ratio is not constant, the Arizona Court of Appeals ruled in Guthrie v. Jones that the partition ratio is constant for every person. That means the defense cannot introduce evidence that the standard partition ratio (2100:1) is wrong in a particular case, and thus, the BAC determination is too high. That evidence is simply irrelevant, despite what scientists say is actually the case.

Since the Guthrie decision in 2002, an open question remained on which charges the partition ratio was irrelevant. That is because almost all DUI cases have at least two counts: impaired while driving under the influence of alcohol (A1) and driving with a BAC above the legal limit (A2 or per se charge). The Guthrie court only ruled that partition ratio evidence was forbidden with regard to the A2 charge, but what about the A1 charge?

That question was just now settled in State v. Cooperman. The court ruled that with regard to the A1 charge only:

This case addresses (a) whether partition ratio evidence is admissible in a prosecution for driving while impaired in violation of A.R.S. § 28-1381(A)(1) if the state elects to introduce breath test results only to prove that the defendant had "an alcohol concentration of 0.08 or more within two hours of driving" in violation of A.R.S. § 28-1381(A)(2),and (b) whether evidence relating to the variability of partition ratios in the general population is relevant to a particular defendant's state of impairment. We conclude that such evidence is relevant and therefore may be admissible to show the defendant's lack of impairment.

If, for example, a person is charged with both an A1 and A2 charge, and let's say the BAC is allegedly .100, then the defense can prove the partition ratio is off, and thus the .100 too high, for the A1 charge. But that very same evidence would not be relevant to the A2 charge.

If this result sounds more like a subtle resolution conjured up by legal philosophers on a college campus than an actual solution to a real problem, you are not alone. That being the case, the question remains how exactly can this absolute gem of legal dogma be applied to real cases. Will a jury be able to distinguish the evidence proving variability of partition ratio for the A1 charge but simply ignore it for the A2?

The better solution would have been for the Arizona Supreme Court to accept the overwhelming scientific evidence that partitions ratios vary from person to person, and allow the defense to prove that fact, and that the BAC result is too high for all the charges.

The Guthrie decision is premised on the fact the Arizona Legislature simply said the partition ratio is fixed at 2100:1 and thus the court does not have the power to overturn that legislative, certainly not scientific, fact. That was a grave mistake. The legislature cannot create a judicial procedural rule. It can only create substantive law. Only the judiciary can create procedural rules, ie, rules of evidence, criminal procedure, civil procedure, etc... Fixing the partition ratio was clearly a procedural rule that is within the strict domain of the judiciary.

Somehow, if the legislature passed a law saying the Universe was created in only 6 days, I have no doubt the Supreme Court would strike that law in a matter of minutes. The same should be done with regard to the partition ratio.

You can see the Cooperman decision here: cooperman decision.pdf

P.S. In a huge ruling, Superior Court Judge Bernstein has thrown out the BAC results in 11 Scottsdale DUI cases because of a faulty machine, a machine Scottsdale Crime is still using. See Judge tosses Scottsdale DUI cases because of Crime Lab Incompetence.

Veteran's Court in Phoenix

In a recent, and very encouraging development, the city of Phoenix municipal court has started a Veteran's Court program. That is a program that is available only to veterans. To qualify, one must have served in United States military. It does not matter if the service was in the reserves or active duty, the type of discharge does not matter, combat duty is not required, and to qualify no deployment is required.

In other words, so long as anyone was in the military and received any sort of discharge, presumably even other than honorable or even dishonorable discharge, they are qualified for Veteran's Court. So what is the benefit of Veteran's Court?

In the context of a DUI case, a veteran who is facing DUI charges can have the charges reduced to the minimum 28-1381(A)(1) regardless of the blood alcohol content alleged. For example, even if someone is facing a super-extreme DUI charge, which means a minimum sentence of 45 days in jail, that veteran can have the charge reduced to the minimum DUI charge. Even better, even though there is a statutory requirement for at least one day in jail for even a first time DUI conviction, that veteran can avoid jail completely so long as he is compliant with all court ordered treatment.

For example, imagine a non-veteran convicted in the city of Phoenix with a BAC above .20. He would have to do 45 days in jail, which usually means 9 days in the county jail and another 5 days home arrest. But a veteran would not any jail time so long as he complied with the treatment the court ordered. Keep in mind, however, that treatment could be onerous in its own right: it could very well include inpatient treatment for months.

The idea behind Veteran's Court is that our veterans should not suffer criminal sentences as a result of their service. And while the category of "veteran" may seem broad, it is better to make the net wide and include as many veterans as possible.

What does 20% mean for an Arizona DUI conviction?

There is a joke that lawyers ended up in law school because there aren't any math problems on the LSAT. Despite that impression, the Maricopa County Superior Court created a math problem worthy of Noble Prize winning physicists.

The issue is reduction of a DUI jail sentence to 20% of "initial term of incarceration" under A.R.S. § 9-499.07(N)(3). For example, if someone is convicted of a first time super-extreme DUI under ARS 28-1382(A)(2) the jail sentence is 45 days in jail. But under a new law called CERTA, if a driver installs an interlock device under A.R.S. § 28-1382(I), then the minimum jail term is only 14 days in jail.

So the question remains are judges supposed to calculate 20% of 45 days or 20% of 14 days. If the first scenario is correct, the driver would serve 9 days in jail, 5 days home detention, and the remaining 31 days are suspended. If the second scenario is correct, then the sentence is 3 days in jail, 11 home detention, and the remaining 31 days are suspended.

My experience has been the interpretation of this law differed from judge to judge without a clear answer anywhere. In fact, the city of Peoria judges were interpreting the jail time under the second second but then doubling the days on home arrest. Where they got that interpretation I have no idea.

On appeal, the Superior Court of Maricopa County issued a preliminary ruling holding the first scenario is correct. You can see the ruling here 45422747-Jenja sentencing.pdf.

What is the Battered Women Syndrome Defense in Arizona?

As I have previously, Arizona does not allow evidence of diminished capacity and does not allow a defendant to argue extreme emotional disturbance. That is the rule from the Arizona Supreme Court case of State v. Mott. What this rule broadly means is that a defendant cannot present expert testimony as to the defendant's state of mind. Having made that point though, the Mott rule is not exactly airtight. That is because of two exceptions.

The first is that a defendant can still introduce "observational" evidence at trial, even if that evidence is from a mental health expert. In other words, a psychologist or psychiatrist can testify evidence that he observed, even if they are related to the defendant's state of mind.

Second, if the defense claims self defense, and in particular self defense as a victim of domestic violence under ARS 13-415, then the reasonable person standard is from the perspective of someone who has been the victim of domestic violence.

If there have been past acts of domestic violence as defined in section 13-3601, subsection A against the defendant by the victim, the state of mind of a reasonable person under sections 13-404, 13-405 and 13-406 shall be determined from the perspective of a reasonable person who has been a victim of those past acts of domestic violence.

This is the battered women syndrome defense. In the Mott decision, the court stated in footnote 3 that nothing in the decision applied in self defense cases.

Evidence of battered-woman syndrome is ordinarily offered in self-defense cases. It has been used to aid the jury in assessing the reasonableness of the defendant's apprehension and the imminency of death or serious bodily injury. Ex Parte Haney, 603 So.2d 412, 414 (Ala.1992); State v. Koss, 49 Ohio St.3d 213, 551 N.E.2d 970, 973 (Oh.1990); Bechtel v. State, 840 P.2d 1, 9 (Okla.Crim.App.1992). In this case, however, defendant did not offer the evidence for these purposes and we need not address the admissibility of battered-woman syndrome evidence in self-defense cases.

What this means is that while a defendant cannot use an expert witness to prove generally the defendant did not have intent to commit a specific crime, that expert can be used, among other things, to prove expert observations and to establish the reasonable person standard as a victim of domestic violence for a claim of self defense.

So bottom line, what does this mean? Are these two exceptions so broad as to have made the Mott rule irrelevant, or are they in fact the exceptions that prove the rule? All I can tell you from my own experience is... it depends. Courts will typically resolve this issue pretrial on a case by case basis.

Arizona MVD: Losing Your Driver's License for too many speeding tickets

One of the most common calls I get from people is from drivers who are facing a license suspension for too many moving violations, usually speeding tickets. Most of them are shocked to find out that not only will Arizona Motor Vehicle Department suspend a drivers license for too many speeding tickets, if they do so, that driver will not be eligible for a restricted license. That means no driving to and from work.

What that means if a driver is charged with a DUI and MVD suspends that driver's license for 90 days as a result, that driver has a restricted permit for the final 60 days of the suspension. A restricted permit means the driver can drive to and from work, at work, to and from school, and for medical and legal reasons. A driver, however, who gets a 90 day point suspension has a flat suspension with no driving privileges whatsoever.

If someone accumulates 8 to 12 points in 12 months, MVD will order that driver to attend traffic survival school. If that driver fails to attend TSS, their license will be suspended for 6 months with no restricted license. If that driver attends TSS but then accumulates 8-12 points in 12 months and had attended TSS in the previous 24 months, that driver will have a flat suspension for 3 months. 13-17 points in 12 months will lead to a 3 flat suspension, 18 to 23 points in 12 months will lead to a six month flat suspension, and 24 or more points in 30 months will lead to a one year flat suspension. A DUI, reckless driving, and racing citations are all 8 points. Traffic signal violation resulting in serious injury is 4 points, speeding is 3 points, and all other moving violations are 2 points.

One thing drivers should keep in mind is that even though they are not eligible to have the right to drive to and from work if their license is suspended because of too many points, they can request a hearing with MVD. In my experience, MVD judges will listen carefully and consider giving a driver a "warning", especially if it means losing a job.

If you have received a letter from MVD, read the letter the carefully and all the paragraphs that apply to the MVD action. At the bottom of the letter, you will see a sentence that tells you which numbered paragraphs on the back side of the letter apply to your case. One of those numbers will indicate your right to request a hearing. Be sure to request as hearing and speak to me as well. I can help you with the MVD action and possibly avoid a suspension.

Should Jodi Arias have tried Diminished Capacity Defense?

After every trial, regardless of the outcome, one side will always analyse the results and ask themselves if another strategy or approach would have been better. In the context of the Jodi Arias trial, I have heard a few commentators mention that she would have been off not arguing self defense, but had instead tried something different like diminished capacity. For trial watchers who also happen to watch a lot of TV procedural shows, they will know diminished capacity is the favorite defense strategy of fictional TV criminal defense lawyers. So what exactly is the defense of "diminished capacity"?

Briefly, it is "evidence that the defendant suffered from a mental disease or defect that would prove that the defendant did not have a state of mind that is an element of the defense" (Model Penal Code 4.02(1)). The important point here is that diminished capacity is the same thing as the so called "insanity defense", or in Arizona "not guilty except insane", but is a lesser version of it. Diminished capacity is a "mental illness that falls short of that required to invoke the defense of irresponsibility, but that may be put in evidence as tending to show that the defendant lacked the specific mens rea required for commission of offense charged." In layman's terms, diminished capacity means the defendant knew right from wrong, and thus the insanity defense would not apply, but the defendant did not have the required intent to commit the crime because of a mental disease.

In the case of Jodi Arias, if her defense team had argued diminished capacity instead of self-defense, the argument would have been she was not criminally insane when she killed Travis Alexander, but instead, she did not have the specific intent to kill Mr. Alexander as a result of mental illness, and thus, at the very least was not guilty of first degree murder.

In contrast to diminished capacity, Arizona uses the M'Naghten test for the "guilty except insane" defense:

A person is not responsible for criminal conduct by reason of insanity if at the time of such conduct the person was suffering from such a mental disease or defect as not to know the nature and quality of the act or, if such person did know, that such person did not know that what he was doing was wrong. (State v. Ramos)

While guilty except insane wouldn't work, diminished capacity seems like a plausible argument, at least according to Monday morning quarterbacks criticizing her defense team. So why wasn't that the defense she actually used in her case? The answer is very simple: because neither she, nor any defendant for that matter in Arizona state court, is allowed to use it. In State v. Mott, the Arizona Supreme Court held the defendant was not entitled to present evidence of "battered women syndrome" or diminished capacity because the Arizona legislature had did not include it as a justification to criminal conduct. And thus, even if Ms. Arias would have had a better result with that defense than self-defense, it was not available at all.

Medical Marijuana Card No Defense to DUI 28-1381(A)(3) Charge

Even though Arizona voters recently passed a medical marijuana law, Arizona prosecutors are not giving the new law much respect. As I have written about before, Arizona has an illegal metabolite statute, 28-1381(A)(3) that makes it illegal to drive a motor vehicle with an illegal drug or metabolite in the driver's system.

That means even if someone is driving perfectly fine without any sign or symptoms of impairment, that driver will be guilty of a DUI just because he or she has an illegal drug in their system, even if it is only the metabolite and not the active ingredient (see "Arizona court ruling upholds DUI test for marijuana".

An appeals court has issued a ruling that upholds the right of authorities to prosecute pot smokers in Arizona for driving under the influence even when there is no evidence that they are actually high.

The ruling by the Court of Appeals focuses on the chemical compounds in marijuana that show up in blood and urine tests after people smoke pot. One chemical compound causes drivers to be impaired; another is a chemical that stays in people's systems for weeks after they've smoked marijuana but doesn't affect impairment.

The court ruled that both compounds apply to Arizona law, meaning a driver doesn't have to actually be impaired to get prosecuted for DUI. As long as there is evidence of marijuana in their system, they can get a DUI, the court said.

The ruling overturns a decision by a lower court judge who said it didn't make sense to prosecute a person with no evidence they're under the influence.

But what is even worse than that is that if someone has a medical marijuana card that is not a defense to the metabolite charge. That is because while having a valid prescription is a defense to the metabolite charge, the medical marijuana card is a "certification", not a prescription, and thus no defense. That means an Arizona driver can consume marijuana legally pursuant to the medical marijuana statute, drive perfectly fine, and still convicted of a DUI even though they did not have any active ingredient in their system.

Also, the Arizona Department of Motor Vehicles (MVD) started conducting administrative hearings to possibly suspend the driver's licenses of drivers cited with a drug DUI. The important point here is that a driver can lose their license even if they are not convicted at court. I recently asked a MVD judge if MVD considers a medical marijuana card sufficient to keep a driver cited with a marijuana DUI from losing their license, and she told me MVD has not yet decided on the issue.

If you have been charged with a DUI, call me right away for a consultation at 602-955-1985.

Is a Pillow a "Deadly Weapon" or "Dangerous Instrument"? Why Yes it is...

Some crimes are alleged as "dangerous" because a deadly weapon was used by the defendant. For example, if a defendant uses a deadly weapon while committing misdemeanor assault, the charge will be aggravated or felony assault and as "dangerous". That is true even if the victim was not hurt at all. If someone disturbs the peace of another person while displaying a deadly weapon, that is a felony even if no one was hurt.

So what exactly is a deadly weapon? Under ARS 13-105(15), a deadly weapon "means anything designed for lethal use, including a firearm." That is obviously circular, but ARS 13-105(12) defines "Dangerous instrument" is more helpful:

means anything that under the circumstances in which it is used, attempted to be used or threatened to be used is readily capable of causing death or serious physical injury.

The important point here is that a deadly weapon or dangerous instrument can be anything under the sun, and is not limited to obviously deadly weapons like guns or knives. For example, I go to a bar and have a beer and go home. In that instance, the beer bottle is nothing more than a bottle. But let's say I get into an argument and I grab the bottle by the neck threatening to hit someone. In that instance, the beer bottle would be a deadly weapon and I would be charged with aggravated assault. I would venture to guess the instrument most charged as dangerous would be a car. I once had a case where the county attorney claimed the sidewalk was a dangerous weapon because a defendant was trying to slam a boy against it causing injury.

I bring this up in the context of the Jodi Arias trial. The prosecutor has alleged Ms. Arias stole her grandfather's handgun to kill Mr. Travis Alexander, which, in the eyes of the government, proves the crime was premeditated and therefore murder one. There is only one problem with that proposition, Mr. Alexander did not die from a gun shot, but from multiple stab wounds. He was shot after he was already dead or nearly dead. So how does the fact Ms. Arias stole a gun to kill Mr. Alexander, assuming that point is sufficiently proven to the jury, prove premeditation?

It doesn't. Imagine the following scenario: the government alleges Ms. Arias stole a pillow from her grandfather with the intention of smothering Mr. Alexander in his sleep. A pillow, as defined by ARS 13-105, is a deadly weapon under that particular scenario. Also imagine the evidence proves Mr. Alexander was only smothered after he was already dead. Would anyone, under those set of facts, believe beyond a reasonable doubt stealing the pillow and smothering Mr. Alexander after his death proved Ms. Arias intended to kill Mr. Alexander with premeditation? Of course not, but the broader point is that this "pillow" scenario is legally absolutely the same as the "she stole the gun to kill him" theory as the government has presented.

How to Get Permission to not have to Register as a Sex Offender

Under some circumstances, someone who is convicted of a sexual offense could have the requirement to register as a sex offender. That means once they are on probation, usually after being released from jail or from the Arizona department of corrections, they must tell the local police station that they are living in the neighborhood within 10 days of moving in. The police will then notify all local residents, through the mail, that a registered sex offender is in the vicinity.

The theory behind having sex offenders register is that parents and citizens will be careful if they know someone convicted of a sex crime is nearby. For many people convicted of a sex crime felony, probation can last for the "lifetime" of the defendant, which would include the lifetime requirement of registering as a sex offender. But is there a way to get rid of that requirement to have to register as a sex offender. The answer is yes.

If someone was convicted under the 18 or as Arizona's guilty except insane, then the person can petition the court to eliminate the requirement to register as a sex offender. The statute is found under ARS 13-3821(G):

The court may order the termination of any duty to register under this section on successful completion of probation if the person was under eighteen years of age when the offense for which the person was convicted or adjudicated guilty except insane was committed.

The important point here is that the person must have completed probation for the court to release him from the duty to register as a sex offender. Also, while at first blush this statute may seem generous, it is actually very limited. In comparison with most people who are convicted of sex crimes, a very small percentage of them are under 18 or adjudicated guilty except insane. Guilty except insane is what Arizona has in place of the traditional common law "not guilty for reason of mental defect".