Interview with KTAR’s Jay Lawrence

October 26, 2010 by Lawrence Koplow  
Filed under DUI

This past Sunday I was interviewed by local radio station KTAR's Jay Lawrence on a number of Arizona DUI issues, including:

  • current Arizona charges and penalties,
  • changing enforcement standards for DUI charges based on jurisdiction (Scottsdale, for example),
  • measurement and testing,
  • drug-based DUI charges - both legal prescription and illegal,
  • differing charges while a child is in a vehicle, and
  • timelines for resolution of DUI charges.

The entire interview, along with my answers to various phone-in questions, is now available as a downloadable podcast, starting at the 11:00 minute mark.

Many thanks to Jay Lawrence and KTAR for having me.

The Dirty Little Secret (of Arizona DUI First Offense)

August 25, 2010 by Lawrence Koplow  
Filed under DUI

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

The DUI With No Driving – Part 1

July 21, 2010 by Lawrence Koplow  
Filed under DUI

 

DUI stands for driving under the influence. However, years ago Arizona, like many other states, changed its DUI laws to cover situations where the person was not actually driving. Instead, to be guilty of DUI, a person just needed to be "controlling" a vehicle. The classic example is the vehicle stopped in the middle of the road and the driver is passed out drunk. That is an obvious case of someone controlling a car without driving.

However, there are many situations, where it is not so obvious that a person is "actually controlling" a car. There has been a growing debate regarding as to what it means to be "controlling" a car in a DUI case. For example, people can legally use their car as a shelter after they have been drinking alcohol.  Someone who sleeps in their properly parked car after getting drunk is not "controlling" their car for purposes of Arizona DUI law. However, if they put the key in the ignition to turn on the air condition, does that action create a DUI? The Arizona Supreme Court Case recently attempted to end the debate in the case of State v. Zaragoza.

Zaragoza was convicted on an Aggravated DUI charge after he was found at an apartment complex:

•    Sitting in his car
•    The engine was off
•    His hand on the wheel, and
•    The keys in the ignition,
•    Alcohol in his system

Zaragoza claimed that he had no intention to drive, but only to sleep in his car. He claims the reason the keys were in the ignition was to roll down the window, and turn on the radio. 

He appealed his conviction based on the argument that the jury was provided inappropriate instructions regarding the law of actual physical control of vehicle.

The Arizona DUI statute does not define what “actual physical control” of a vehicle is, and there have been varying types of jury instructions on the meaning of this phrase through-out the courts. 

The Arizona Supreme Court took this case, and attempted to clarify the law’s definition. They stated that actual physical control has nothing to do with the intent of the driver to move or use the vehicle, but the actual and imminent danger to the him/her self or others at the time alleged to have control. This means that all facts must be looked at together in order to appropriately determine if there was an actual or imminent danger.

The Court also held that in this case, the instructions did not mislead the jury, but that they may have misstated the law. Because of the variations in instruction, and the result of Zaragoza's case, the Arizona Supreme Court decided to provide a new jury instruction for future cases.

The new instruction will be published in Part II of the blog post.

If you need assistance or additional information about an Arizona DUI case, please contact the Koplow Law Firm Online or by phone at (602) 494-3444.

Lawrence Koplow

 

Scottsdale DUI: Home Detention Is Here (Almost)

July 9, 2010 by Lawrence Koplow  
Filed under DUI

I was in the Scottsdale City Court yesterday when I heard a Judge discussing the much anticipated Home Detention Program.  It appears that they have finally implemented the program.  Here are the minimum qualifications based on the information I was given at court.

  • The date of your offense must be after May 27, 2010; and
  • You must start your self-surrender date on or after October 1, 2010

There may be some exceptions to the time restrictions if your attorney can demonstrate a serious medical condition. Since the program is so new (as a matter of fact, several of the court clerks did not even know it had be approved yesterday) I am sure there will be some additional details and restrictions.  In addition, keep in mind: (1) admittance into the program is not automatic.  The judges have already hinted that not everyone will be receiving the benefit of this program; (2) there will still be an initial term of jail for anyone accepted into the program.  Thus, this program is for lengthier terms of incarceration.

If you need assistance or additional information about a Scottsdale DUI case, please contact the Koplow Law Firm Online or by phone at (602) 494-3444.

Lawrence Koplow

 

Scottsdale DUI: Home Detention Update

June 10, 2010 by Lawrence Koplow  
Filed under DUI

While the City of Scottsdale has approved a home detention program, it has not released any of the program's details. The most anticipated detail is the start date. As of yesterday, the start date has not been released. There has been speculation that it may not start until the end of summer. However, no one really knows. As soon as the details become available I will post them here.

Scottsdale DUI: Changes in the Scottsdale Courts

February 22, 2010 by Lawrence Koplow  
Filed under DUI

What is going on in Scottsdale?  In the last 30 days two judges have been let go by the City Counsel.  What is coming next? 

Best DUI Blog Posts: December 2009

December 16, 2009 by Lawrence Koplow  
Filed under DUI

I am starting a new list of the best DUI blog posts for the past month.  I am admittedly stealing the idea after reading Kevin O'Keefe's Best In Law Blogs.  However, as I am one of Kevin's clients, I don't think he will mind (as long as the check clears.)  Here are the posts that I found most interesting for the past month:

 If there are any DUI lawyers that think I should have put their post here, let me know. 

Thanks,

Lawrence

When Lawyers Attack

December 15, 2009 by Lawrence Koplow  
Filed under DUI

Last night I am reading Gideon’s blog and I see a post with the title: “This Seattle DUI lawyer is a Douchebag.” As someone who loves a good fight, I started reading. Here is the beginning of the post:

So normally I don’t write posts like this, because I don’t give flyin’ rat’s ass. But lately, I’ve seen a string of hits in my Google Alert for “public defender” (yes, that is one way I keep up with relevant news) from some “let me help you on the internet by giving out free advice” sites.

The most recent one popped into my RSS reader this evening and it followed the same tenor of the others: Don’t opt for a public defender because they’re overworked, don’t have resources, etc. In other words, the same BS that smarmy “defense lawyers” use to scare clients into giving them money…

Towards the end of the post, Gideon concludes:

The problem is that sites like these come up on the first page of a Google search for something like “should I hire a private lawyer or keep my public defender” (and trust me, I get a lot of hits with similar search terms).

Another site that comes up? New lawyer darling Avvo.

So yeah. Douchebag.

Gideon, you had me at douchebag. More importantly, as someone who only does private work, I completely agree with your position. I know plenty of public defenders that do an outstanding job. Moreover, if I were going to make my own top ten list of attorneys you don’t want to represent you – you would not find even one public defender on it.

 

Arizona Extreme DUI: The Out of State Visitor Dilemma

November 18, 2009 by Lawrence Koplow  
Filed under DUI

The harsh penalties for an Arizona extreme DUI conviction have been well chronicled in this blog.  However, what happens when we apply these penalties to people who were only visiting Arizona and charged with DUI?

One could take the view: who cares?  When people come to "our state" and commit crimes, they deserve whatever they get.  On the other hand, you could look at what I believe are the unintended effects of these penalties on visitors to Arizona.  Moreover, these unintended consequences really demonstrate the disconnect between what should be the goals of the law (deterrence) and the means (more jail) used to carry out those goals.

Here are some basic facts.  First, for obvious reasons, we get a lot of visitors to Arizona.  Second, we have DUI laws and enforcement that are much stricter than in most states. And third, despite the promise that increased penalties (i.e. jail time) would prevent DUI offenses, it appears law enforcement agencies are still arresting the same amount (or more) of people for DUI.  If there is a reader of this post who has some statistic showing my third premise is incorrect, please post it in the comments and I will publish it.  However, I am doubtful that anyone will find such a statistic.  In addition, I contend that the increased DUI penalties fail to deter both in-state and out-of-state visitors.  Thus, visitors to Arizona, lots of visitors to Arizona, are getting charged with DUI offenses.

Let's add the penalties for an Arizona extreme DUI conviction to the equation.  For a first time extreme DUI offense (i.e. blood alcohol result of .150 and below a .200), even if the judge believes you are the best person on the planet, the minimum sentence is 30 days jail.  Combine this with certain prosecuting agencies that offer a plea agreement of 30 days jail (or close to it), and out-of-state visitors have a real problem.

For the Arizona resident, 30 days jail is a tremendous burden.  However, at least with work release, you should be able to keep your employment.  If you live in California and are sentenced to 30 days jail in Arizona, your job (your career) is now in jeopardy.  How many employers are going to say "sure, take thirty days off to go serve a jail term in Scottsdale, no problem?"  This misdemeanor offense can have penalties that could ruin someones livelihood.

Here are the solutions we have found in the past.  An out-of-state visitor can request an order to do their jail in their home state.  That request is almost always granted.  However, the judge will tell you it is "your" responsibility to find a jail in your home state that will comply with the incarceration order.  In my experience, the average person can find a jail that will take them for a day or two, but 30 days - good luck!  To solve this problem, we have had to employ former law enforcement officers and had them assist with getting our clients accepted into the facility.  Even using this method, it is still difficult.  Moreover, how many people can afford this service?

The other option is going to trial.  If you can convince the jury that your blood alcohol concentration was merely over .08 but below .150, then the minimum jail is reduced to one (1) day.

In sum, Arizona has set up a terrible dilemma for out-of-state visitors charged with extreme DUI.  My experience is that prosecuting agencies have little sympathy for the unique problems they face.  The reality is law enforcement takes the attitude - "its your problem - deal with it."  Dealing with it may be a lot harder for out-of-state visitors.

If you need legal advice for a specific problem, you must consult with an Arizona Criminal Defense Attorney. For more information about Arizona Criminal Law or a specific legal problem, please contact Koplow & Patane Online or by phone at (602) 494-3444. 

 

 

How accurate is blood testing for alcohol?

October 28, 2009 by Lawrence Koplow  
Filed under DUI

The truth of the matter is we don’t really know. Most labs in the Phoenix Arizona area claim to be accurate within 5%. That means if your blood result came back at .08, then the true result can be anywhere from 5% lower or 5% higher.

Other scientific organizations claim 5% is not a realistic range of accuracy. For example, the American Academy of Forensic Sciences claims that the accepted range of accuracy is 10% higher or lower.

After interviewing toxicologists over 100 times, doing a substantial number of DUI trials with blood results at issue, I am convinced that the accuracy is totally dependent on the procedures used by the lab, and most labs overstate their accuracy.

To support my conclusion, I need to explain how blood testing with a gas chromatograph works. At its most basic level, gas chromatography simply compares known alcohol concentrations to unknown blood samples. A blood tester does not inherently know what a blood alcohol concentration (BAC) is. You must calibrate it every time you do a test. You teach the machine what a .08 is by putting known alcohol concentrations into it, and essentially build a ruler.

Most labs in the Phoenix area put four known alcohol concentrations into the blood tester to build their ruler. These known concentrations are called calibrators. It is important to remember these calibrators are water based. That is, they are known alcohol concentrations in water. See the graphic below for an illustration.


As you can see in the example, there are four points on the ruler. The blood tester simply connects the dots on the ruler. If the four places on the ruler are accurate, then you should have a fairly accurate ruler. However, many labs make their own calibrators, and there is no way to know how accurate the ruler really is. There is no outside agency auditing their work. All we have is their word that they are accurate.

In addition, while it is a good first step to be able to build a ruler using water and alcohol, we are not testing alcohol in water in DUI cases. We are testing alcohol in blood. In science, we need to take into account what is known as the matrix effect. Simply put, water and blood are not the same substance. Water does not have red blood cells, white blood cells, plasma, virus, and bacteria. In order to measure alcohol in blood, we need a blood-based ruler. However, law enforcement labs do not actually use a blood-based ruler. This is where the procedures of the lab really make a difference.

Labs will use a known concentration of alcohol in blood and compare it to their water-based ruler. This is known as a calibrator. This procedure may be acceptable if done enough times with an accurate blood based sample.

Here is the problem. There are very few companies that make the blood based alcohol concentrations, they are not accurate, and some labs use only one calibrator (not four like the water-based.) When the blood-based alcohol sample comes from the manufacturer, there is an insert. The insert tells you that the stated blood alcohol concentration is just a target value. It states that the known concentration it is really just a range. For example, I recently had a case with a blood-based control with a target value of .182. However, upon reviewing the insert that came with the sample, according to the manufacturer, .182 could be anywhere between a .166 and a .198. Thus, the ruler used is not as accurate as we would like it to be. That is a tremendous range when we are trying to determine someone’s true blood alcohol concentration. The picture below illustrates what the blood-based ruler looks like with only one this one known value.


As you can see, you can’t build a ruler with only one point on a line. Thus, with using only one known value, your ruler just is not very accurate – unlike the water-based ruler. The less accurate your ruler is, the less accurate your test result will be. Consequently, the true range of accuracy could be significantly greater than even 10%.
 

 

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