DUI & Traffic
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