Arizona Court of Appeals Marijuana Trafficking Case Study: Part II of II – Suspects 40 Minute Detention for K-9 Drug Unit Not Unreasonable.

Your Rights at a Stop; 10 Defenses for Drug Charges; Mitigating Sentencing; Drug Trafficking Laws; Penatlies.

This is Part 2 of our Case Study on a recent Arizona Court of Appeals ruling involving Marijuana Trafficking charges.

If you’re just joining us, here’s a quick summary of the case: Recently, an Arizona Superior Court granted suppression of the Marijuana evidence that led to the State’s dismissal of the charges. The State promptly appealed arguing that the lower court erred in dismissing the Marijuana evidence found in the vehicle the suspect was driving.   The state argued on Appeal that the detention of the suspect for 40 minutes while awaiting the drug K-9 unit was not unreasonable.

The Appeals Court agreed, and overturned the lower court’s ruling, based on totality of the circumstances at the time.   The factors that the Appellate Court considered were the police officers extensive knowledge and experience in drug trafficking detection; prior drug crimes history of the suspect; voluntary statements made by the suspect at the time of the stop; and the suspect’s consent to search the vehicle he was driving.

In this discussion we focus on criminal rights at a stop, common defenses for drug crimes, laws, and drug trafficking penalties in Arizona.

Criminal Rights at a Police Stop

In the case study, the police used the suspect’s inconsistent statement about his destination to police which were used against him. The suspect also agreed to a search of his vehicle, which led to the discovery of the boxes of Marijuana in the trunk of his rental car.

Under the 5th Amendment of the US Constitution a person is afforded protection from self-incrimination. A person has the right to remain silent upon questioning by police, except to answer routine identification or procedural question during an investigative stop. But a suspect does not have to answer questions about where they were, or where they were going at an investigative stop.

At a police stop, a person has the right remain silent, including the right to refrain from answering questions about where we are going.  A person also has the right to refuse a search of their vehicle. There are a few exceptions to this including police having a valid warrant, or what is known as exigent circumstances. A person has these rights under state and federal laws, whether the Miranda warning is read to them or not. It is critical to invoke these rights. Failure to do so may result in arrest and prosecution.

In this case, the statements offered by the suspect were seemingly innocent, and had nothing to do with the illegal drugs that were in the trunk of the vehicle.  However, the officer testified that he found the suspect’s statements “perplexing” and “confusing”, which raised the officer’s suspicions of the suspect’s potential criminal activity.

Alone, the suspect’s statements may not have been sufficient to raise suspicion of criminal involvement. But the officer took into account other factors he observed, when he decided to further detain the suspect. So the seemingly innocent statements made by the suspect, were used by police against him in this case. When this happens it constitutes a form of self-incrimination.

Under the 4th Amendment, a person is protected against unlawful search and seizures. If a person consents to the search, the officer may search their vehicle without a valid search warrant. In this case the suspect consented to a search of the vehicle. But he refused to extend his consent to the contents of an unmarked, taped box in the trunk. At this point the police requested the K-9 unit to investigate the boxes with the suspicion that the boxes contained illegal drugs. It was the original consent however of the vehicle that led the discovery of the suspicious boxes in the trunk of the vehicle.

10 Common Drug Crimes Defenses

A number of defenses can be used to challenge drug charges. Which defenses your attorney uses to challenge the charges will be heavily based on the facts and circumstances surrounding the case. There are also, different types of defenses that made be used pre-trial or during trial. Below is a sample of 10 defenses commonly used by experienced drug crime defense lawyers:

• Reason for the stop:
• Unlawful search and seizure rights;
• Violations of Miranda Rights;
• Unlawful detention;
• Police procedural violations;
• No probable cause for arrest;
• Other constitutional violations;
• The drugs belonged to someone else;
• Entrapment;
• The suspect was unaware that they were in possession of the drugs:

Note: It is not a valid defense for someone to be unaware of the laws in Arizona regarding the legality of Marijuana. But rather, it would be a valid defense if the accused was reasonably unaware that they possessed illegal drugs, or that the vehicle they are driving contained them.

5 Sentencing Diversion or Reduction Factors

If a person is found guilty or pleads guilty to a drug crime there are multiple factors the court takes into consideration.   The general rules are that crimes involving repeat drug convictions, and higher quantities call for the most severe of penalties under the Arizona criminal justice system.

Below are some common alternatives that can be used to reduce the severity of  penalties or help a defendant avoid incarceration:

Successful completion of substance abuse program, (TASC) in place of incarceration for qualified first time offenders with no criminal history;Amount of illegal drugs involved was below the Statutory “Threshold Amount” or lower than the person had been originally accused of possessing;No weapons were involved No other aggravated circumstances were involved;No prior criminal records;Felony charges reclassified to allow which serve to reduce sentencing and penalties.

Arizona Marijuana Transportation Laws

In Arizona it is unlawful to possess, use, sell, transport or distribute Marijuana, outside of the scope of the Arizona Medical Marijuana Act (AMMA) A.R.S. 36 – Chapter 28.1 recreational use of Marijuana is not lawful in any form.

A person may be guilty of violating A.R.S. 13-3405 (A) (4) if they knowingly transport for sale, import into the state; offer to transport for sale, or import into this state; or transfer marijuana in Arizona.

Marijuana Trafficking Penalties

The penalties below apply to non-dangerous, non-violent, non-multiple, non-repetitive offenses:

If a person is found guilty of illegally transporting an amount of less than two pounds of Marijuana they will be convicted of a Class 3 felony. Penalties for this offense range from 2 years Mitigated to 8.75 years Aggravated; 3.5 Presumptive prison sentencing.

If a person is found guilty of illegally transporting a weight of two pounds, the Statutory Threshold Amount, under A.R.S. 13-3405 (C) or more of Marijuana, they will be convicted of a Class 2 felony.  Penalties for this offense range from 3 years Mitigated to 12.5 years Aggravated; 5 years Presumptive prison sentencing;  ineligible for probation.

Fines not less than $750.00 or three times the value of the marijuana whichever is greater up to $150,000 per charge per person or 1, 000,000 per charge per enterprise; other fines, fees, costs, and assessments; supervised probation or parole if eligible; Felony Criminal Record; Community Service or Restitution; Completion of Drug Rehabilitation or Substance Abuse Program; Loss of civil rights to vote and possess arms; Other penalties ordered by the court.

Felony Drug Defense Attorney

In Arizona, all Marijuana drug sales and trafficking convictions call for serious punishment. It is possible that a person convicted of drug sales or trafficking, could spend the the rest of their life in prison. If you face any felony drug charge, it is important that you consult an experienced felony drug defense attorney to discuss your options for defense.

James Novak, DUI & Criminal Defense Attorney is an experienced and highly skilled drug defense lawyer. As a former prosecutor he has a vast amount of litigation experience in drug charges. The Law Office of James Novak, PLLC  is exclusively limited to DUI, and criminal defense.  If retained, James Novak, Attorney will protect your rights, defend your charges, and work hard to resolve your case for the most favorable outcome possible.  Some outcomes may include dismissal, reduction of charges and  sentencing, avoidance of incarceration, and other mitigation in sentencing.

James Novak provides a free initial consultation for active charges, in Phoenix, Tempe, Mesa, Chandler, Gilbert,  and Scottsdale Arizona.   You can call by phone or send a contact form thought the website to get a return call to confidentially discuss your matter and defense options.

“You have the right remain silent, and refrain from answering questions about where you are going. You also have the right to refuse a search of your vehicle, in absence of a valid search warrant.  You have these rights whether they are read to you or not”. 

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Arizona Court of Appeals: Officer had Reasonable Suspicion to Detain based on Totality of Circumstances: Part I of II: Case Study

“Suspect’s 40 minute detention, while awaiting drug K-9 unit was not unreasonable”.

In a case decided earlier this month, an Arizona Appeals Court ruled that an officer had enough “reasonable suspicion” to detain a suspect 40 minutes while awaiting the drug K-9 unit.

The court considered the “Totality of Circumstances” or “the whole picture”, to conclude that the detention was not unreasonable.

Case Facts

The suspect was pulled over, after the police officer observed the driver swerving and traveling at varied rates of speed.

The officer approached the vehicle, and requested the driver’s license, and registration.  The driver complied as well as providing the rental car agreement.

The officer asked the driver where he was going, at which point the driver provided several answers. The officer reported that the answers were inconsistent, “confusing” and “perplexing”.   The officer reported that the responses raised the officer’s suspicions.

The officer then noticed that there were no personal belongings in the vehicle.  So he asked the driver if he was planning to stay in Phoenix AZ. The driver said no.  The fact that the suspect was not planning to stay in Phoenix, but had no personal belongings in the vehicle, elevated the officer’s suspicions of potential criminal activity in progress.

The officer decided to do a background check on the suspect. The criminal records check revealed that the suspect had an extensive history of illegal drug trafficking and manufacturing crimes in a different state.

The officer asked for the suspect’s consent to search the rental car, and the suspect consented to the search.

Upon search of the trunk, the officer discovered two cardboard shipping boxes of “very solid weight” that were unlabeled, and taped closed.  The officer asked the suspect to open the boxes, but the suspect refused.

At that point the officer requested the police department’s narcotics K-9 unit to be brought to the scene and check out the boxes. The K-unit arrived approximately 40 minutes later.

The police dog “bit one of the boxes” in the trunk, signaling to the officer that the K-9 detected drugs in the boxes. The police officer opened the boxes and found the Marijuana. 

Court Summaries 

The Superior Court of Arizona initially granted the defendant’s motion to suppress evidence of Marijuana  discovered in the trunk of the rental car the defendant was driving. The Superior Court’s decision was made on the basis that the officer did not have reasonable suspicion to detain the suspect while the police officer waited for a narcotics dog to in check boxes found in the trunk of the vehicle.

The State appealed the Superior Court’s decision to suppress the Marijuana evidence. The state argued that the lower court erred by ruling that the police officer did not have reasonable suspicion to detain the suspect in order to wait for the drug K-9 unit to arrive.

Case Analysis

The Arizona Appeals Court identified the need to evaluate the  “Totality of the Circumstances” or the big picture, in its decision as to whether or not the officer had a “particularized and objective basis for suspecting that the person was engaging in criminal activity” citing “O’Meara, 198 Ariz. at 295 ¶ 7, 9 P.3d @ 326.

The Appeals Court recognized that while a police officer must have more than a hunch or non-particularized suspicion, “reasonable suspicion” does require a minimal level of objective justification, .though considerably less than a preponderance of the evidence citing Teagle, 217 Ariz. at 24 ¶¶ 25–26, 170 P.3d  @ 273.

In this case, neither the reason for the stop, or the facts surrounding the case were in dispute. So the question for the Appeals court was “What exactly did those facts and circumstances mean?”.  

The court ruled that the detention was reasonable based on the Totality of the Circumstances in which they considered the following set of factors:      

Circumstances that led to the initial stop;Defendant driving rental car, traveling, with no personal belonging inside the vehicle;Inconsistent Statements by suspect about where he was going:Extensive criminal history of illegal drug transport and manufacturing, out of state;Unlabeled, taped boxes found in trunk of car with weight and density consistent with illegal drug packages;The police officer’s high level of expertise, skills and experience in detecting illegal drug transportation activity.

Of those factors, the two that seemed to carry the most weight with the court were the defendant’s significant drug transportation crimes history; and the police officers extensive drug trafficking detection experience and skills.

The court cited a number of cases to support the opinion that a suspect’s criminal history is considered part of the totality of circumstances; in that, the criminal history may cast suspicious light on seemingly innocent behavior  (United States v. Simson).

The court concluded that criminal history  in conjunction with other factors contributed powerfully to the reasonable suspicion determination for the officer, (United States v. White). At the same time, however, the court emphasized that criminal history  cannot be used as the sole factor in deciding if reasonable suspicion exists. Criminal history is part of the equation that can impact the officer’s judgment about whether criminal activity may be in process or occurred.  It may serve to cast suspicious light on what might otherwise be considered seemingly innocent behavior.(United States v. Simpson; United States v. Chamberlin; State v. Lee; United States v. Cotterman).

With regard to the training and expertise of this particular officer, the court cited that these attributes would allow a highly skilled officer to distinguish innocent from suspicious actions. (Teagle, 217 Ariz. at 24 ¶ 26, 170 P.3d at 273).  In that, some inferences of drug trafficking activity might well have eluded in the eye of an untrained observer. (United States v. Arvizu).

Criminal Defense Attorney Phoenix AZ

Marijuana, or any illegal drug trafficking or sales in Marijuana are serious and carry some of the most severe penalties called for under Arizona law.   In fact, its quite possible that a drug trafficking conviction can send a person to prison for the rest of their life.

In this case study above focused on one issue of challenge in a criminal defense case. But a number of arguments may exist in which a criminal case and its evidence may be challenged.  Every case holds its own unique set of circumstances.  For this reason, an effective defense strategy should be tailored to the facts and circumstances of the case.   Challenges may include constitutional rights violations such as unlawful stop, search or seizure; weaknesses in evidence; affirmative defenses; violations of police procedure and protocol; and others. We will discuss these defenses in depth, in Part II  of this series. .

You should always consult a highly skilled and experienced criminal defense attorney if you face illegal drug trafficking, sales, or intent to sell charges.   A qualified and effective criminal defense attorney will protect your rights, and defend your charges through due process in the criminal justices system.  James Novak, Drug Defense Attorney is a former prosecutor with a vast amount of litigation experience in handling drug cases of all types. He will make sure you are treated fairly, protect your rights, and fight to get the most favorable outcome in your case.  The Law Office of James Novak, PLLC defends criminal and DUI charges in Phoenix, Mesa, Tempe, Chandler, Scottsdale, and Gilbert AZ. Experienced Attorney, James Novak provides a free consultation for active charges within his serving areas.

We hope you will stay with us to read part II of II as we examine continue our discussion.  Part II outlines Criminal Rights at a Stop; 10 Common Drug Defenses; Mitigating Sentencing; Drug Trafficking Laws; Penalties for conviction; Felony Drug  Defense Representation in Phoenix AZ.    

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The Scottsdale Crime Lab cases will be reviewed by the Arizona Supreme Court

The Arizona Supreme Court has decided to review the Court of Appeals' (COA) ruling regarding whether Scottsdale DUI results can be trusted.  

Our ongoing legal battle over the defective software used by the Scottsdale Crime Lab (SCL) to measure BAC levels begins its final stage.  The Supreme Court granted our request to review the COA's decision permitting prosecutors to rely upon the measurements generated by this software as a basis for a DUI conviction. 

WHAT HAPPENED?

Over three years ago a few chromatograms (a graphical representation of a blood alcohol measurement) escaped the Scottsdale crime lab (SCL).  It was something we had never seen before. The floodgates of evidence showing forensic malpractice soon opened.  

We learned, that for several years, the SCL had known of serious defects in the software used to measure BACs.  These malfunctions include assigning an incorrect result with the incorrect person (i.e. John gets Fred's result).  No one in the lab had the expertise to explain why this was occurring, or how to "fix" it.  According to an internal email we obtained from the SCL, they "buried" this from the rest of us.

Even after the defense brought this to light, the Prosecution continued to prosecute the public using this unreliable software.  The penalties for those convicted include mandatorily incarceration and significant monetary fines (a portion of which the crime lab receives).  They are currently still using these defective measurements to incarcerate people.

HOW DID WE GET HERE?

There were two primary venues for these debates: 

(1) Superior Court; and 

(2) Scottsdale City Court.  

The Superior Court (felony cases) is where these rulings originated.  The City of Scottsdale courts took a different approach.  That story will be addressed in a separate post.  In the Superior Court, the main case is State v. Herman (on appeal titled In Re Bernstein).  There were two challenges in "Herman" that ended up in the COA.  

Herman #1 (Re: Discovery) 

Because we only had access to the initial documents that appear to have been allowed out of the SCL by accident, we did not know the scope of the problem.  

We convinced two Superior Court Commissioners to hold a joint hearing.  They agreed with our arguments and issued an order to produce all chromatograms from 2011.  The Court also gave the Lab almost two months to provide them.  The deadline came and went.  The SCL admitted they did not even attempt to comply with the order.

We filed a Motion for Contempt.  The prosecution filed a Special Action asking the COA to reverse the order.  The morning before the contempt hearing, the COA stayed everything.   A few months later...

We did not get the data.  Today, the scope of the malfunctions still remains unknown. 

Herman #2 (Re: Reliability) 

After the COA's ruling, we requested a Daubert (reliability) hearing with the trial court.  This would be Arizona's first substantive Daubert hearing (fortunately, the evidence Rules changed in 2012 to permit such a hearing).   Combined, it lasted almost nine (9) months.  To our surprise, we ended up getting material information in the Daubert hearing (Herman #2) that we did not even think to request in Herman #1. 

At the same time, the Arizona Republic started to investigate our claims.  Through their public records requests (and later our own) a treasure trove of damming evidence was obtained.  

At the hearing, SCL personnel were testifying they understood the issues and put forth an “all was well” message.  However, in contrast to their testimony, the Arizona Republic obtained internal emails, that told a much different story than “all is well.”  Their "private" communications showed the court that the SCL personnel testifying, were less than forthcoming about the severity of the problems and their ability to comprehend them.

The combination of SLC personnel’s tainted testimony, and the testimony our forensic experts (including an independent forensic toxicologist, a certified quality assurance lab auditor, a and forensic software engineer), presented a powerful case that the SCL’s measurements and supporting testimony were not trustworthy. 

Arizona Court of Appeals 

As in Herman #1, the prosecution turned to the court of appeals for relief. 

Again, as in Herman #1, it was provided.  

Arizona Supreme Court

Over a year ago, we filed a Petition with the Arizona Supreme Court requesting that they: 

(1) review the court of appeals decision; 

(2) and reinstate the trial court's ruling.

A few weeks ago, the Arizona Supreme Court decided to review the matter.

WHAT'S NEXT.

The Court's decision merely means they granted part one of our request: they will hear the case. They have set oral argument on February 17, 2015 at 11:00 am.  It will be a road game for the Court, as it will be held at ASU Law School.  The oral argument is open to the public, but it is expected to be a full house.  If you want to attend, get there early.

Lawrence Koplow

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The Dirty Little Secret (of Arizona DUI First Offense)

Posted on August 25, 2010 by Lawrence Koplow

Here is the math used in Arizona: INCREASED JAIL + DUI PROBLEM = REDUCED DUI PROBLEM.  It makes perfect sense, right.  Who would risk more than a month in jail for a few drinks.  

Apparently - lots of people.  Maybe even more people now, than when the penalties were previously lower.  Unfortunately the State's math is flawed.  Let me give you some anecdotal evidence.

A few weeks ago I was sitting in an arraignment with a client waiting for our case to be called.  Before the judge started calling cases he told the packed court room about Arizona's DUI penalties.  After going through the sentencing schemes he also made the following disclosure in open court. He stated, these DUI penalties have become harsher and harsher ever since he had been practicing law (and by grey color of his remaining hair that appeared to be a long time). "However, my courtroom still stays full." He went on to say that "we all know" the new DUI penalties have not reduced the number of DUI cases but it is the law.  "Fair or not these are the laws I am required to follow."

Well it is not everyday a judge, in open court, makes such a candid admission.  Moreover, the judge's speech was absolutely correct about the Arizona DUI laws.  Those of who are involved in Arizona DUI cases, "all know" the math is wrong.  We all know, law enforcement included, raising penalties does not reduce the number DUI cases.  One reason is the real consequence of a DUI is not jail, but taking someone's life.  If that is not enough to stop someone from driving impaired, then long jail terms that no person really knows the specifics of (until after they are charged), certainly will not have a great impact.

However, I have an idea of what may work.  In part two of this post I make my case for how I believe we should address the problem.  That is, if we are serious about solving it - which I hope we are.

Lawrence Koplow

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DUI Confessions, Self-Incrimination in Arizona – Pleading the Fifth on Social Media

A Tragic Video Confession

You might remember the viral video of an Arizona man, 22 year old Matthew Cordle, who caused a fatal drunk driving accident. He provided a confession in a four-minute online video that went viral with 2.3 million views last September.

Cordle began his chilling confession with “My name is Matthew Cordle and on June 22, 2013, I hit and killed Vincent Canzani. This video will act as my confession.”

Vincent Canzani 61, was the father of two daughters, and a former USA Naval Submarine Veteran. He was pronounced dead at the scene of the accident.

Immediately following the crash, Cordle was taken to the hospital for his injuries. But at that time he denied being intoxicated, driving impaired, or causing the fatal accident.

Cordle confessed in the video, that he was driving the wrong way on an interstate, and crashed into Vincent Canzani vehicle.

In the video was the blurred face of man, Cordle, admitting to barhopping, blacking out and driving home drunk. Cordle explained that he had been drinking heavily before getting behind the wheel, and blacked out just before losing control of his vehicle.

Cordle had not yet been charged at the time the video was made, but was expecting the charges to be brought based on the DUI blood test results.

Interestingly, Cordle had retained an attorney, but his attorney claimed he was not aware that his client had planned to post a video confession on the internet.

The DUI test results revealed that Cordle had been driving with a Blood Alcohol Content (BAC) of 0.191 percent. In Arizona, BAC of .015 to .019 DUI would be in violation of the Extreme DUI laws.

Cordle faced the State’s maximum sentence in the charges of 8 1/2 years in prison for aggravated vehicular homicide and an operating under the influence (OUI).

Cordle said the reason he made the video was to encourage people not to drink and drive. In it he claimed that he understood that the video was a confession that would provide prosecutors with necessary ammunition against him to get a conviction.

Following the video confession, Cordle was formally charged. But at the arraignment, the suspect pled “not-guilty”. Entering a plea of “not-guilty” invokes a suspects right to defend their charges and retain legal representation.

However, the initial “not guilty plea” did not sit well with the presiding judge. She expected Cordle to plead guilty since he already confessed to the crime. The judge claimed she was “incensed” that Cordle did not plead guilty – claiming that a not-guilty plea at this point, in her opinion was a display that the defendant was not “forthright”.

Apparently, Cordle’s defense attorney pled guilty on his client’s behalf, largely due to the fact that under Ohio law, entering a guilty plea locks in the judge. Cordle’s defense attorney was concerned as to how this particular judge would sentence the defendant. He wanted to make sure his client received fair treatment and rather than a sentence influenced by the media or public outcry, as a result of the unfavorable response from the public, social media, and news media coverage. The
judge then set Cordle’s bond at $225,000.

In October 2013, Cordle reversed his plea to guilty for charges of aggravated vehicular homicide and operating a vehicle while impaired. He was convicted and sentenced to 6 1/2 years in prison; lifetime driver’s license suspension; and a fine of $1075.00, according to reports.

Cordle claimed his confession was intended with good cause to help others. At the end of the video, he extended a heartfelt and remorseful plea, warning motorists not to drink and drive.

At sentencing, Cordle was met with unexpected mercy by the family of the victim. The victim’s former wife read a letter at Cordle’s sentencing hearing. She requested on behalf of the family that the judge extend leniency in punishment to be imposed. She believed that because of the type of man the victim was, he would not have wanted the defendant to get the maximum punishment. This plea by family likely served to impact the judge’s decision not to impose maximum sentencing, considering the sentence was two years short of the maximum allowable for the charges.

The survivor’s unexpected plea to the judge for leniency in sentencing following the loss of their loved one caused by a drunk driver was compelling to say the least. It was a rare and and exceptional response from a family who lost a loved one whose life was ended by a drunk driver. One few defendants would be afforded under similar circumstances.

A wrongful death of a loved one in and of itself is enough to harden the hearts of their families. But for many, there is no worse aggravation of pain and suffering than to learn that the wrongdoer has posted public social media messages, videos, or photos, about the wrongful death or serious injury, or to boast about their involvement in the crime.

Law Enforcement’s Use of Social Media in Criminal Investigations

The Federal Bureau of Investigations (FBI) and Police Agencies have long recognized the benefits of using social media and the internet to derive evidence in criminal investigations.

In the “2013 Social Media Survey” conducted by the International Police Chief’s Association it was revealed that 96 percent of law enforcement agencies surveyed were using social media to investigate crimes. Below are some additional findings from that study:

• 500 police agencies representing 48 states reported using social media as an
integral tool for criminal investigations.

• 81 percent of agencies said the most common use of social media was for criminal investigations;

• 80 percent of agencies reported that social media helped solve the crimes in their
investigations;

• 69 percent of agencies surveyed had social media policies and 14 percent were
in the process of crafting policies;

• 92 percent of the investigations were conducted using Facebook;

• At the time of this survey the top three Social Media outlets used to investigate
crimes were Facebook, Twitter, and Youtube.
The internet as become a staple in criminal investigations. Police and prosecutors often scour social media accounts and the internet as part of a criminal investigation. There is potential for not only law enforcement officials to learn about criminal involvement, but also for other users to report it to them.

Freely commenting or sharing information about about your drinking and driving behaviors, or involvement in a crime, will usually result in a swift arrest and prosecution of the offense; just what the state and prosecution needs to convict a suspect.

The 5th Amendment of the US Constitution affords persons protection against self-incrimination. States also provide such protections under their own laws and constitution.

To freely post comments or media about a criminal incident for which a person has been involved, outside of, or against the advice from their criminal defense attorney, will jeopardize their case, and their rights in this regard.

Why Do People Post about their Crimes on Social Media?

Dr. Pamela Rutledge, Director of the Media Psychology Research Center (MPRC) , a non-profit organization that examines all aspects of human experience on social media, and it’s impacts on society. She recently commented in a CNN article on this very subject. She explained there are number of reasons people post about their criminal involvement on Social Media. But in most cases the person posting is looking for a way to feel important. She explained that sadly this need for “bravado” often over powers the concern of being caught.

The Federal Bureau of Investigation reported on similar findings in a recent article entitled “Social Media and Law Enforcement”. They wrote “The structure of social media encourages self-promotion. It offers easy access to an unlimited pool of potential “friends.” Individuals who crave validation can achieve a feeling of connection not available in their offline lives. People who have a desire for attention, notoriety, or fame are attracted to it. To get noticed, they often post entertaining or provocative information…Constraints do not exist for social media”.

Facebook, Twitter, Google Plus and other social media outlets, have become an inherent part of people’s lives and work. Its natural for them to speak their mind. Its second nature to post about anything and everything. But once content or media is posted onto an internet website, or social media forum, it becomes “fair game” to use as evidence against the suspects. User’s comments, videos and photos posted or shared that relate to their involvement in a crime is one of the strongest forms of evidence the police and prosecution can use against a suspect. In essence, a person completes the investigation for the prosecution, in what is considered to be one of the strongest forms of evidence that can be used against them.

Electronic communications on the internet, social media, texting or E-mail are just a few of many ways people implicate themselves in DUI charges and other crimes. Another common place where self-incrimination occurs is at a DUI stop.

If you are stopped for suspected drunk driving in Arizona it is important to resist any temptation you might feel about talking to police, and sharing your side of the story. This generally backfires on a suspect. Unfortunately, your openness, and forthright will not generally defuse your problems. But they will often result in arrest and prosecution.

A confession or admission like the public, like the tragic one described above, can severely jeopardize your criminal defense case in court. The statements you give to the police at the DUI stop, and while being detained can be used as evidence against you.

You may also think because you’re drunk, what you say doesn’t matter or that your attorney can later make an argument that your confession was involuntary. In Arizona, a confession is involuntary if a defendant’s will was overcome under the totality of the circumstances. If the State wants to show the confession was made voluntarily and get it admitted into evidence, the State will put an officer on the stand to testify that the confession was made without threat or coercion or promises of immunity.

Even extreme intoxication does not by itself render a confession involuntary in Arizona, as discussed in the case State v. Londo. In that case, a defendant appealed his conviction for narcotics drug sales or transfers claiming that his admission or confession about swallowing crack cocaine was obtained involuntarily and in violation of his right to remain silent. The court ruled that extreme intoxication could be a relevant circumstance but was not enough on its own to get a confession or admission suppressed altogether.

The Fifth Amendment protects your right to remain silent–this silence cannot be held against you. You should not pick and choose which questions you answer, or a negative inference may be raised with respect to the questions you choose not to answer. A blanket refusal to answer questions will work better. Since you also have right to an attorney and the right to a defense, if you are stopped for drunk driving, you can refuse to answer questions and request access to your attorney.

10 Ways to Protect Yourself from Self-Incrimination

• Invoke your right to remain silent, even if your “Miranda warning” has not been read to
you;
• Refrain from posting comments, videos, or any other communications on any social
accounts or platforms;
• Refrain from texting, or discussing the matter with family and friends;
• If the police contact you for questioning about your alleged involvement in a crime,
politely and respectfully decline to comment;
• Refrain from casual comments with police or authorities, and respectfully ask if you are
“free to leave” if you are not being arrested;
• Refrain from answering questions at a DUI stop about where you’re going, where you’ve
been, what you’ve have had to drink or eat, or any medications you’ve taken;
• Refrain from testifying, or providing any testimony verbal, or written, in absence proper
criminal defense representation;
• Know your rights in order to protect yourself from unlawful search and seizures;
• If you are a bystander, or witness, of someone else’s arrest, remain quiet, and do not
intervene;
• Consult a criminal defense attorney who serves the city where the alleged crime
occurred as soon as possible to discuss your concerns, and defense options.

How to invoke your Right to Remain Silent

Keep in mind that the right to remain silent exists even if you are not under arrest. However, it is not enough to remain silent without invoking your right. To invoke this right, you must either state verbally or in writing that you wish to remain silent. If you fail invoke your right, and simply remain silent, you will be seen as being uncooperative.
Criminal Defense for DUI and Crimes in Phoenix AZ

The relationship you have with your DUI attorney makes it possible to be open and forthright about anything related to the alleged crime, but you should not talk about the case to any other people or make any admissions to them.

If you are arrested, have receive criminal or DUI charges, or there is an outstanding warrant for your arrest, you should consult an experienced criminal defense attorney as soon as possible to discuss your matter and defense options If retained, they will protect your rights and provide an effective defense on your behalf. This will increase your chances of being treated fairly, and obtaining more favorable outcome in your case.

If you are under formal investigation for a serious crime, you also have the option of retaining criminal defense protection. This is known as pre-charge or pre-indictment representation.

Pre-charge representation can sometimes lead to charges not being brought, alternative resolutions to the matter, an additional wall of protection to prevent the suspect from self-incrimination; assures your rights are protected, provide self-surrendering assistance to avoid arrest; enables your attorney to be present in the event you are required to undergo questioning or interrogation; and a host of other criminal defense pretrial benefits.

Contact The Law Office of James Novak at 480-413-1499 for a free consultation, if you face DUI charges in Phoenix, Tempe, Mesa, Chandler, Gilbert and Scottsdale, AZ.

Additional Resources:

• Drug DUI and Super Extreme DUI laws

• Arizona 2012 Statewide DUI Enforcement Statistics

• Mothers Against Drunk Driving

• International Association of Chiefs of Police (IACP) Social Media Survey Results

• Medial Psychology Research Center

• FBI – Social Media and Law Enforcement

More Blogs

Felony DUI Laws and Penalties in Arizona, Phoenix DUI Lawyer Blog, July 1, 2013
Arizona Supreme Court: DUI Partition Ratios Evidence Admissible, Phoenix DUI Lawyer Blog, August 27, 2012

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Arizona prosecutor applauds court ruling in medical pot DUI case

PHOENIX — Maricopa County Attorney Bill Montgomery is happy about an appeals court ruling that says medical marijuana users can still be prosecuted for driving under the influence in Arizona.

The case involved a man who carries a medical marijuana card and was arrested for DUI in 2011. He was acquitted of that charge but convicted on a DUI law that bars people from driving while having a prohibited drug or its compound in their system.

The man claimed Arizona’s 2010 medical marijuana law made authorized users immune from prosecution. The court said no.

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UA receiver Samajie Grant cited on suspicion of DUI

Arizona Wildcats wide receiver Samajie Grant was cited on suspicion of driving under the influence early Saturday morning, hours after helping the UA to a 42-35 win over rival Arizona State.
Grant will not start in Friday's Pac-12 Championship game against Oregon, coach Rich Rodriguez said in a statement to the Star on Saturday evening.
"We were notified earlier today of an issue involving Samajie Grant. After communicating with Samajie, local law enforcement and our athletics administration, we've decided that the appropriate form of action is to make sure Samajie receives counseling and takes part in community-service activities," Rodriguez said. "We're disappointed in Samajie's decision-making, but we expect this to be an isolated incident and he won't be starting in the Pac-12 Championship game."
Grant failed a field sobriety test, said Deputy Tom Peine, a spokesman for the Pima County Sheriff's Department. Grant cooperated with authorities and was cited and released at the scene, Peine said. Grant was pulled over by a deputy on the DUI enforcement unit that was patrolling the area of North Campbell Avenue and East Sixth Street, Peine said.
The deputy noticed a Chevrolet Camaro traveling west on Sixth Street and turning north onto Campbell, Peine said. The deputy observed a vehicle with the license plate lights not working and observed behavior of a possibly impaired driver, he said.
The deputy conducted a traffic stop near Campbell and East Third Street and noted seven people in the vehicle. He also smelled marijuana from the car, Peine said.
Grant was identified as the driver and was asked to exit the vehicle, Peine said.
After failing the field sobriety test, probable cause was found to cite and release Grant for driving under the influence of drugs, minor in possession of spirituous liquor, person under 21 in physical control of a motor vehicle with spirituous liquor, and driving without a valid operator's license, Peine said.
The vehicle was impounded because Grant didn't have a driver's license, Peine said.
Grant, a sophomore from Compton, California, had four catches for 91 yards and two touchdowns in Arizona's win over Arizona State.
UA athletic director Greg Byrne said the athletic department was made aware of the incident Saturday.
"We've been in contact with Samajie and local law enforcement has informed us that he was cooperative during the process," Byrne said. "We're extremely disappointed in Samajie and he will be undergoing counseling and taking part in community service as a result of his actions."

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Arizona leaders tout holiday DUI enforcement

An average of about 4,000 drivers in Arizona have been arrested for drunken driving in the holidays for the past several years, and a host of politicians and police leaders came together on Tuesday with a simple message as the season approaches: Get a designated driver.
The theme has been a constant message for several years from the Governor's Office of Highway Safety, the state agency that provides funding for task forces that operate throughout Arizona, and officials believe the message is paying off.
The number of sober designated drivers that police contact increased by 28 percent in a recent three-year period even as the total number of drivers contacted dropped by about 10 percent, according to data from the Office of Highway Safety.
Gov.-elect Doug Ducey echoed the sentiment when he took to a podium on the Capitol Lawn surrounded by law enforcement officials from around the state. The men and women who enforce the law are the reason Arizona is one of the toughest states in the nation on eliminating drunk driving, he said.
"I want people to enjoy themselves this holiday season, but be responsible," Ducey said. "Make the right choice to not drink and drive."
Police arrested nearly 600 drivers on DUI charges during the Thanksgiving holiday in 2012, among more than 4,000 suspected drunken drivers picked up during the entire holiday season.
Arizona Department of Public Safety Director Robert Halliday said the number increased to nearly 4,400 drivers in the 2013 holiday season, which stretches from Thanksgiving through New Year's Day, partially due to an increase in officers participating in the DUI task forces.

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Arizona Cardinals Draftee Michael Floyd Says DUI Changed his Life

By guest-writer

Michael Floyd, who was drafted last week by the Arizona Cardinals after a successful career as a wide receiver at Notre Dame, recently told reporters that he thought his DUI arrest was a necessary wake-up call that ultimately helped him mature, according to a report from WNDU News.

Floyd’s drunk driving arrest happened late one night in March 2011, when his white Cadillac ran a stop sign just a block from the main entrance to Notre Dame’s campus.

When police arrested Floyd, they found that his blood alcohol content was 0.19, which is more than twice Indiana’s legal driving limit of 0.08.

According to Floyd, as soon as he was arrested, he “thought it was over.” The term “it” apparently refers to his playing career, which was indeed threatened by his off-the-field activities.

Sources say that the DUI arrest was Floyd’s third encounter with police during his brief tenure in South Bend, Indiana. In May 2009, Floyd was cited for underage drinking, and was also cited for the same charge in January 2010.

Before he was able to return to the team after his DUI, his coach, Brian Kelly, set a series of strict guidelines Floyd had to meet in order to be reinstated to the team. Floyd met these conditions, and ultimately had a stellar senior season for the Fighting Irish.

In addition to his success on the field, Floyd earned his degree in sociology just nine months after his arrest. And Floyd contends that the drunk driving incident forced him to reconsider his priorities as a person and a player.

According to Floyd, he recognized during his junior season that he had to meet a higher standard of behavior than the average college student.

In his words, “[b]eing in the spotlight all the time at Notre Dame, it’s hard to go out. You can’t be very social because there’s always stuff out there, plus media and people’s cellphones and such things like that.”

In recognition of these unique difficulties, Floyd says that he “kind of changed my whole” social scene and he and a small group of friends “kept each other in line and watched out for each other.”

Thanks to his efforts to modify his behavior after his brush with the law, Floyd proved to NFL teams that he could be a reliable professional, and he was rewarded for his efforts by being selected as the 13th overall pick in the 2012 NFL Draft.

View the original article here

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Top Australian Golfer Pulled Over for Drunk Driving in Arizona

By guest-writer

A top Austrian golfer spent a night in an Arizona jail after he was arrested on suspicion of driving under the influence of alcohol when he crashed his car into a house, according to a report from the Brisbane Times.

Matthew Giles, a 22-year-old Australian who plays on the PGA’s Nationwide Tour, was allegedly intoxicated when he crashed his car through a wall and reportedly severed a gas pipe, which forced police to evacuate people from several homes in the area.

Sources indicate that Giles faces a felony DUI charge because prosecutors felt that his high level of intoxication and wild behavior amounted to an “extreme” violation of DUI laws.

The accident happened in Gilbert, a town southeast of Arizona, where witnesses reported that they saw the car traveling at a high speed before they heard “screeching tires and a loud crash,” according to a police report.

Giles was reportedly trying to make a left turn at a very high rate of speed when he lost control of his car and slammed into a single family home.

A police spokesperson also told local journalists that the car “car went through a wall in the house, with the front end of the car entering the home itself” and later “hit a gas line, causing a natural gas leak,” which forced an evacuation of nearby homes until authorities could turn off the gas line.

According to sources, it will take about two weeks for scientists to determine the results of the driver’s blood test, but one police officer on the scene claimed that Giles’ performance on field sobriety tests showed that he had “some pretty high impairment levels.”

Miraculously, no one in the house was injured, and Giles and the passenger in his car were also uninjured. Had someone been injured in the crash, Giles would likely face an even more severe punishment.

Interestingly, after his arrest, Giles spent the night in Maricopa County’s 4th Avenue Jail, which is run by the infamous Sherriff Joe Arpaio, who has gained notoriety as “America’s toughest sheriff” thanks to his publicity-friendly practices, such as forcing inmates to wear pink clothing and handcuffs.

Giles was born in Sydney, Australia, but was a star member of the golf team at the University of Southern California from 2007 to 2009. Giles won numerous awards during his college career, including two different All-American honors.

Sources say Giles still plans to play in a tournament next week, but the golfer could be facing serious jail time or hefty financial penalties if he is found guilty of a felony DUI.

View the original article here

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Boston Watches As Shootings In Arizona Leave Six Dead, Representative Gabrielle Giffords clinging to life And Questions About Violent Speech-Attorney Sam’s Take

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