DUI & Traffic Defense Attorney
Arizona law states that “alcohol in the breath does not cause impairment; impairment results when alcohol enters the body, is absorbed into the bloodstream, and is transported to the central nervous system.” Guthrie v. Jones, 202 Ariz. 273, 274, 43 P.3d 601, 602 (App. 2002). None of my DUI clients struggle with this concept. Their struggle comes when instead of a blood test, a police officer has administered only a breath test. While breath tests are relatively cheap and much less invasive than an actual blood draw, breath testing suffers from several known flaws. One of the most contested issues in a DUI criminal defense are problems with the breath testing equipment involving the Blood-Breath Partition Ratio (the “Partition Ratio”).
In grade school, we learned that our blood is constantly being re-oxygenated as it passes through our lungs. When a person has alcohol in their blood stream, some of that alcohol escapes into the air sacks of our lungs. Hours after someone has stopped drinking, we can still smell alcohol on their breath because of this alcohol release coming from their lungs. The scientific question has always been: Is there a direct correlation between the amount of alcohol in a person’s blood and breath? This correlation has become known as the Partition Ratio.
In 1952, the National Safety Council’s Committee for Tests on Intoxication (now known as the Committee on Alcohol and Other Drugs) used rather primitive technology to proclaim that the “average” Partition Ratio was 2100 to 1. According to sixty year old science, 2100 milliliters of an average person’s breath sample would have the same amount of alcohol as 1 milliliter of that person’s blood. Common sense tells us that no one individual fits the mathematical “average.” And in spite of the National Safety Council’s disclaimers that individuals have unique and varied physiological components, the lawmakers of most states (including Arizona) wrote the 2100 to 1 Partition Ratio into the DUI statutes as if it were an incontrovertible scientific fact.
We have known for decades that Partition Ratios vary dramatically across the general population (anywhere from a low of 1600 to 1 to a high of 3200 to 1). Not only are we different, but one person’s Partition Ratio can fluctuate significantly over time. A Partition Ratio ten minutes after drinking will change dramatically just thirty minutes later. Because any breath test taken within two hours after driving is admissible in a DUI trial, this scientific fact is especially troubling.
Studies have also shown that just a few degree changes in breath temperature can significantly alter an individual’s Partition Ratio. As a result, if you have a low-grade fever, your breath test gets skewed. Who in Arizona has not been dehydrated at one time or another? Yet, even mild dehydration can significantly alter a person’s Partition Ratio because there is less liquid in the blood stream.
DUI Defense attorneys constantly seek to have our clients treated as individuals in the judicial process. Lawmakers and prosecutors are just as active in treating us as if we have all been forged from the exact same cookie-cutter mold. In August of 2013, the Arizona Supreme Court decided that both general and individual Partition Ratio evidence would be admissible to show the lack of impairment in certain DUI offenses. In State v. Cooperman, 232 Ariz. 347, 306 P.3d 4 (2013), the State argued that the 2100 to 1 Partition Ratio created a legal presumption that the defense can never attack. The Supreme Court rejected this argument by noting that in criminal cases, our state constitution demands that all presumptions are subject to being rebutted with the appropriate evidence. 232 Ariz. at 351, 306 P.3d at 8. Although not applicable to all DUI offenses, Cooperman has been instrumental in bringing more individualized justice to the Arizona DUI courts.
For a scholarly review of the science behind the Partition Ratio, see: Hlastala, Physiological Errors Associated With Alcohol Breath Testing; www.mphlastala.com/Champion.pdf
If you or a loved is ever arrested for DUI Alcohol, please give our experienced DUI Criminal Defense attorneys a call at 480-833-2341.
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Beer for the Taste or for the Buzz September 2014, Mesa DUI Defense Lawyer Blog
As a DUI defense attorney it doesn’t matter why a particular drink is chosen, it is the effect of your choice that matters. So, if beer is the drink you want at the weekend barbeque or while watching the ball game, have you ever wondered whether if it is the alcohol or the taste that makes you crave a cold beer?
In April of 2013, the Indiana University School of Medicine published a study (click here to read) that indicates that beer’s flavor alone (with zero effect from the alcohol) can lead the brain to release dopamine.
Dopamine is a chemical inside the brain that is associated with pleasure. Several studies have linked dopamine to drug and alcohol abuse and, as noted in the Indiana study: “Sensory cues that are closely associated with drug intoxication (such as tastes and smells, or the sight of a tavern) have long been known to spark cravings and induce treatment relapse in recovering alcoholics. Many neuroscientists believe that dopamine plays a critical role in such cravings.”
Each Indiana study participant received a very small amount of his preferred beer over a 15-minute time period. This methodology enabled the participants to taste the beer yet there was “no detectable blood-alcohol level or intoxicating effect.”
Each participant received two brain scans. During one scan, the participant was tasting beer. During the second scan, he tasted Gatorade. “The scans showed significantly more dopamine activity following the taste of beer than the sports drink.” These findings are especially interesting when one considers that “many thought the Gatorade actually tasted better.” The study further noted that the dopamine response was most pronounced in the men with a family history of alcoholism.
The DUI defense lawyers at Rowley Chapman & Barney, Ltd., seek to stay current on this type of research. Knowing what causes people to consume alcohol gives us a better understanding of how these issues affect our clients.
Anyone arrested for DUI, or another related charge, should immediately contact a criminal defense attorney familiar with Arizona DUI laws. For more information about the crime of DUI or about your legal rights, contact Rowley Chapman & Barney, Ltd., today.
Attorney Profile: Brian D. Strong, DUI Defense Attorney
Arizona Criminal Defense Attorney – How Can I be Guilty of DUI Drugs if I Possess a Medical Marijuana Card?
As a criminal defense attorney in Arizona, I am consistently meeting people who are downright distraught and confused to have been charged with DUI Drugs (sometimes referred to as “drugged driving”) when the only drug they were using was medical marijuana.
In Arizona, a prosecutor has three possible methods for proving that a driver has violated the DUI statutes:
- the Individual Analysis;
- the Legal Limit and
- Zero Tolerance.
The Individual Analysis – Because that we all have unique body chemistry and unique tolerance levels, this approach (whether it involves alcohol, drugs or both) is the most factually honest. The bottom line question here is: Was this driver actually impaired (or under the influence) of some substance at the time of driving? Often times, the answer to this question is not easily resolved. This is because almost every indicator of motor skills impairment can be caused by innocent factors. Bloodshot/watery eyes can simply mean an allergy sufferer. Most sober drivers make wide right turns into the wrong lane. Failure to walk a straight line might be because of knee trouble. As a result, most prosecutors dislike the Individual Analysis because it makes them work for a living and has a tendency to result in hung juries or acquittals.
The Legal Limit – In this subsection of the DUI statutes, the Legislature has established a precise limit of alcohol or drugs that are permissible in the human body. In Arizona, the current legal limit for alcohol is .08 percent. Like most states, Arizona does not currently have a legal limit specified for any DUI Drug charge. A small number of states have created such limits. For example, in the State of Washington, five (5) nanograms per milliliter is the legal limit for tetrahydrocannabinol (commonly known as THC – the physiologically active component of marijuana). See, Wash. Rev. Code 46.61.502(1)(b).
Zero Tolerance – In DUI Drug cases, the Legislature has made it illegal for a driver to have any amount of drugs in their system if they do not possess a valid prescription for that drug. This might include a driver who has consumed medication prescribed for a family member or friend or in the alternative, has consumed illegal drugs (for which no prescription is ever available). While alcohol and most illegal drugs are cleaned out of the body within a matter of hours, marijuana metabolites remain in the blood stream for a much longer time frame. Marijuana metabolites are the remnants of THC in the body after it has gone through the process of breaking down the drug. Evan after the body is no longer feeling the effects of THC, there are still modified remnants of it flowing through the bloodstream. For some users, marijuana metabolites can remain in their systems for several weeks, even if the user did not consume any marijuana on the day he or she were arrested for DUI.
Historically, DUI Drugs in Arizona has been a Zero Tolerance statute. Any trace of an illegal drug in one’s system resulted in a DUI Drug conviction regardless of how long ago the marijuana was smoked. Arizona’s Medical Marijuana Act (“AMMA”) has erased the Zero Tolerance standard for those with authorized medical marijuana cards. Specifically, A.R.S. § 36-2802(D) notes that, to obtain a DUI Drug conviction for a person with an authorized medical marijuana card, the prosecutor must prove that the driver was actually “under the influence of marijuana” and, more importantly, “a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.”
The AMMA fails to tell us, however, exactly how much marijuana is too much. In like manner, the White House Office of National Drug Control Policy has asked all states to adopt drugged driving laws with specific limits, but never mentions what specific limit should be set for each drug. See http://www.whitehouse.gov/ondcp/drugged-driving.
In Arizona, the smell of marijuana alone can be enough to give a police officer probable cause to pursue a DUI Drug investigation. Since the odor of marijuana in vehicle upholstery can linger for several weeks, DUI Drugs has become an extremely common criminal charge. And in spite of the express language in the AMMA, many prosecutors are still pursuing DUI Drug cases as if they were pre-medical marijuana Zero Tolerance cases. These prosecutors are actively fighting to keep a defendant’s medical marijuana card excluded from the jury. As a result, should you or someone you love receive a DUI alleging the presence of marijuana, please contact our office immediately to speak with an experienced Arizona DUI attorney.
Attorney Profile: Brian D. Strong, Arizona DUI-Medical Marijuana Attorney
As an Arizona DUI attorney, I routinely represent clients whose blood has been taken without their permission. In some cases, the police officers have obtained a telephonic search warrant. In other cases, the officers simply hold my client down and take blood without a warrant.
The Fourth Amendment to the Constitution provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” Unfortunately, the general warrant requirement is subject to emergency exceptions. In DUI cases, officers have routinely claimed that the natural dissipation of alcohol in the blood makes a warrantless search reasonable under the Fourth Amendment.
Court approval of warrantless blood searches in DUI cases dates back almost fifty years. In 1966, the United States Supreme Court held that a warrantless blood search for a DUI suspect did not violate the Fourth Amendment because the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence. See, Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (emphasis added). Back in the 1960s, an officer needed several hours to obtain a search warrant for a blood draw. Given the metabolization of alcohol in the bloodstream, officers did not want their evidence to completely disappear before a warrant could be obtained.
Even though the Court in Schmerber focused on the unique circumstances of that particular case, over the past five decades, many police officers have functioned under the false assumption that they never needed a warrant to obtain blood for a suspected DUI driver. Other police departments, however, in deference to citizens’ constitutional rights, have utilized modern technology and modified the way search warrants are obtained. Telephonic search warrants are now common, and an officer can use pre-printed forms and an on-call judge to obtain a warrant in 30 minutes or less.
In a recent decision, the United States Supreme Court reaffirmed that officers do not have blanket permission to engage in nonconsensual blood draws without a warrant. See, Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (April 17, 2013) Click Here to Read. In rejecting the government’s request for a bright-line (no warrants are ever needed in a DUI case) rule, the Supreme Court noted that:
- The “invasion of bodily integrity implicates an individual’s most personal and deep-rooted expectations of privacy.” 133 S.Ct at 1558 (citations omitted);
- A person’s blood-alcohol content “naturally dissipates over time in a gradual and relatively predictable manner.” 133 S.Ct. at 1561; and
- “[S]ome delay between the time of the arrest or accident and the time of the test is inevitable.” 133 S.Ct. at 1561.
Given these factors, if obtaining a telephonic search warrant does not “significantly increase” that routine delay, then the Fourth Amendment mandates that a warrant be obtained.
If you have been arrested for DUI and the officers obtained your blood (with or without a warrant), you should always speak with an experience Arizona DUI attorney to make sure your constitutional rights prohibiting unlawful searches have not been violated.
Attorney Profile: Brian D. Strong, Arizona DUI Attorney
As an Arizona DUI attorney, my clients are often puzzled by the arresting officer’s request to gaze deep into their eyes. After all, this is Arizona. “Blood shot and watery” eyes can be simply a sign of allergy season. Arizona DUI cops however, are peering into drivers’ eyes in the hopes of finding something a little more incriminating than a need for over-the-counter medication.
First off, let me emphasize that Arizona law requires a suspected impaired driver to submit to any breath, blood or urine tests that might be requested by the police. Refuse to submit to a requested chemical test and there will be harsh consequences.
Arizona law does not, however, compel a suspected impaired driver to submit to any field sobriety tests. All field sobriety tests, including any tests involving the eyes, must be 100% voluntary. There are no legal ramifications for declining to participate in any field sobriety test.
In retrospect, many of my DUI clients realize that their agreement to perform field sobriety tests was made in haste and ill-advised. Most blame their agreeable nature on their parents. After all, we were all taught as kids to always cooperate with the police. Many of my clients have the mistaken belief that by cooperating, the officer will score their tests more favorably. Then, of course, there are those clients that are so intoxicated at the time of their arrest that the alcohol in their body simply prevents their brain from realizing that their body is, in fact, impaired.
The reality is that DUI officers never score cooperation as a sign of sober driving. And contrary to popular belief, field sobriety tests are never graded pass/fail by the officer. Based on their training, DUI cops are looking for tiny clues of impairment. This is because the legal standard for DUI in Arizona is not “fall down drunk” but impaired to the “slightest degree.” The simple truth is that the more tests you agree to perform, the more indicators of impairment the officer will invariably observe.
This is also true of field sobriety tests involving the eyes – such as the horizontal gaze nystagmus test (HGN). Nystagmus is an involuntary jerking or bouncing of the eyeball. In the impaired driving context, alcohol consumption can hinder the ability of the brain to correctly control eye muscles, thereby causing the eye to jerk or bounce when a person looks to the side without moving his or her head. HGN involves observation of the suspect’s pupil as it follows a moving object (usually a pen or small flashlight), noting for each eye the:
- lack of smooth pursuit,
- distinct and sustained nystagmus at maximum deviation, and
- the onset of nystagmus prior to 45 degrees.
While the science behind HGN can tend to overly impress some jurors, the Arizona Supreme Court has declared that:
The officer may not testify regarding accuracy in estimating BAC from the [HGN] test, nor may the officer estimate whether BAC was above or below .10%. The officer’s testimony is limited to describing the results of the [HGN] test and explaining that, based on the officer’s experience, the results indicated a neurological impairment, one cause of which could be alcohol intoxication.
State ex. rel Hamilton v. City Court of City of Mesa, 165 Ariz. 514, 517, 799 P.2d 855, 858 (1990) (en banc). To Read Click Here
Whenever a DUI arrest has been based totally or in part on HGN, it is imperative that you discuss your case with an experienced DUI attorney. Some officers that conduct HGN have never been properly trained and certified. Even when certified, many officers do not accurately follow the procedures they were taught for administering the HGN test. These, and other reasons, could result in your HGN test being kept from the jury.
If you have been arrested for DUI in Arizona, please call our office where an experienced Arizona DUI attorney can help you navigate the legal system you are facing. We can protect your rights.
Attorney Profile: Brian D. Strong, Arizona DUI Attorney
Over the past decade, almost every state in the Union has enacted a “Move Over” law. These laws seek to reduce injuries to police officers and emergency personnel who are issuing citations or providing medical care on the side of the road. If you do not appreciate the frequent danger these men and women encounter during a simple traffic stop, then type “move over law” into the YouTube search bar. You will be amazed at the things you see.
“Move Over” laws require drivers to change lanes away from a parked emergency/police vehicle that has its lights flashing. If traffic flow prevents a safe lane change, then the driver must slow down sufficiently to permit safe travel alongside the vehicle. Arizona’s “Move Over” law, Arizona Revised Statutes §28-775(E) went into effect in 2005.
If you are unfamiliar with the concept of a “Move Over” law, I highly recommend you visit www.moveoveramerica.com. This website not only explains the law but also contains an interactive map of the entire United States detailing when each state’s law went into effect and the potential consequences for violating that law. While most states (like Arizona) consider the “Move Over” statute to be civil traffic in nature, meaning only a fine or traffic school, there are a few states that impose jail time and mandatory license suspension for violating this law – a handy bit of information to possess before embarking on summer vacation.
In addition to requiring drivers to move over for all parked emergency vehicles, many states require that for a tow truck that has its yellow lights flashing. In an extension of this concept, Senate Bill 1138 currently before the Arizona legislature would require drivers to move over for any vehicle – not just emergency vehicles – that is parked at the side of the road and displaying flashing lights, such as a driver who pulled over to change a flat tire.
If you need advice or assistance with traffic violations please call me at (480) 833-2341.
Attorney Profile: Brian D. Strong, Criminal Defense Attorney