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Gordon Thompson
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What is a Felony DUI in Arizona, #8, State v. Cahill

The purpose of this series of podcasts is to discuss the facts, legal issues and sentences imposed in Arizona felony DUI cases so people can have an understanding of how individuals can be found guilty of Felony DUI and what sentences can be imposed.

The cases discussed in this series are primarily based on memorandum decisions issued by the Arizona Court of Appeals. Memorandum decisions are only binding on that individual case and are not legal precedent for other cases. However, their discussion of the facts, legal issues presented and sentences imposed are a good guide for what it takes to be found guilty of a felony DUI in Arizona, and what the sentences imposed could be. Keep in mind almost all of these cases arose from the defendant’s appeal after a Felony DUI trial. Sentences for Felony DUIs which are resolved by plea agreement are often less than those imposed after a jury trial.

State v. Cahill, No. 1 CA-CR 14-0165 (8/13/15).

FACTS:
A police officer was dispatched to check on a person in a car at a gas station parking lot. The officer found the defendant asleep in the driver’s seat of a car with the engine running. The officer knocked on the window, startling the defendant, who sat up and “hit the steering wheel like as if someone would honk the horn.” The officer said the defendant was obviously confused because he reached for the gearshift, but then reached up and turned the ignition key while the engine was already running.

The defendant told the officer he was a chauffeur and was waiting to pick up a customer, and volunteered that he had been arrested earlier that morning for DUI. The defendant admitted that he had taken Ativan, a prescription medication, and said he had gotten the Ativan from a client.

The defendant performed poorly on two field sobriety tests and was arrested. When searching the vehicle the officers found three prescription bottles, including one for Ativan.
At the police station the defendant voluntarily spoke with a drug recognition expert officer, and participated in other sobriety tests.

The defendant also provided a urine sample, which tested positive for methamphetamine and amphetamine.

The defendant was charged with Felony Aggravated DUI. The defendant’s case went to jury trial and the defendant failed to appear for the last day of the trial.

LEGAL ISSUE:
On appeal the defendant raised two issues of what he contended were prosecutorial misconduct occurring in the prosecutor’s closing arguments.

First, the defendant contended the prosecutor had improperly stated the Actual Physical Control law in a couple of ways. The concept of Actual Physical Control includes several factors a jury can consider in making their determination that the person was or was not in Actual Physical Control. Those factors include, was the engine running and where was the defendant seated in the vehicle. In his closing the prosecutor characterized two of the factors as more important than the others and the defendant contended that by law none of the factors was more important than the other. The defendant also alleged when the prosecutor said that the purpose of the law is to keep impaired persons from driving, that also was an improper misstatement of law. The Court of appeals rejected both of those arguments from the defendant.

Second the defendant contended the prosecutor had improperly vouched for the evidence and the officer’s credibility. “Prosecutorial vouching” occurs (1) when “the prosecutor places the prestige of the government behind its evidence” and (2) “where the prosecutor suggests that information not presented to the jury supports the evidence.” The court of appeals said neither had occurred in the case.

The court of appeals affirmed the verdict and sentence.

SENTENCE:
The defendant was subsequently arrested on the warrant issued when he failed to appear for the last day of trial and sentenced to concurrent prison terms of five months, with fifty-one days of presentence incarceration credit and three years of probation.

The memorandum decision is available by link, along with the transcript/podcast of this recording.

Gordon Thompson
https://gordonthompsonattorney.net/
https://gordonthompsonattorney.net/blog/

#DUI #CriminalLaw #DUIBlog

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What is a DUI in Arizona, No. 6, State v. White Eyes

The purpose of this series of podcasts is to discuss the facts, legal issues and sentences imposed in Arizona Felony DUI cases so people can have an understanding of how individuals can be found guilty of Felony DUI and what sentences can be imposed.

The cases discussed in this series are primarily based on memorandum decisions issued by the Arizona Court of Appeals. Memorandum decisions are only binding on that individual case and are not legal precedent for other cases. However, their discussion of the facts, legal issues presented and sentences imposed are a good guide for what it takes to be found guilty of a felony DUI in Arizona, and what the sentences imposed could be. Keep in mind almost all of these cases arose from the defendant’s appeal after a Felony DUI trial. Sentences for Felony DUIs which are resolved by plea agreement are often less than those imposed after a jury trial.

State v. White Eyes, No. 1 CA-CR 14-0162 (5/19/15).

FACTS:
A Maricopa County Sheriff’s Office detective responded to a noise complaint at a bar. As the detective was leaving the bar his attention was drawn to a blue vehicle in the parking lot. He engaged in a conversation with Defendant, who was sitting in the driver’s seat, and learned her driver’s license was suspended. The detective advised Defendant not to drive, and proceeded to leave the area. Approximately five minutes later, that detective observed the defendant driving the vehicle and initiated a traffic stop. The detective immediately noticed the odor of alcohol emanating from the defendant and she had bloodshot, watery eyes, slurred speech, and swayed while speaking. The defendant admitted having consumed two pitchers of beer earlier in the evening. During the HGN test, Defendant exhibited six of six signs of impairment. The detective also asked Defendant to perform additional field sobriety tests, but she refused because of a knee injury. The defendant was arrested and submitted to a blood draw, which indicated a blood alcohol concentration of 0.07%.

The defendant was charged with Aggravated DUI and was found guilty of the offense at trial.

LEGAL ISSUE:
No legal issues were discussed in the decision.

SENTENCE:
The trial court ordered Defendant to be incarcerated for four months, which she satisfied with her presentence incarceration credit. The trial court also placed Defendant on supervised probation for a period of three years following her release from custody.

The memorandum decision is available by clicking the link below, along with the transcript/podcast of this recording:

https://gordonthompsonattorney.net/what-is-a-dui-in-arizona-no-6-state-v-white-eyes/

Gordon Thompson
https://gordonthompsonattorney.net/
https://gordonthompsonattorney.net/blog/

#DUI #CriminalLaw #DUIBlog

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7/8/16 Going forward from today, I will be posting on my Google+ Business Page at:

https://plus.google.com/u/0/b/114484808596415546312/+GordonThompsonAttorneyPhoenix

I invite you to add my Business Page.

Thank you,

Gordon

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Defendant whose attorney was assisted by law student was not denied effective assistance of counsel.

In Arizona, some law students can appear in court and participant actively in the proceedings pursuant to Arizona Supreme Court Rule 38. To be eligible to appear, the law student must file a certification with the court stating they meet certain requirements. In cases representing felony defendants a supervising attorney must be present at all times and the defendant must consent in writing to have the law student represent them.

In State v. Demirus Ananda Kopeke, No. 2 CA-CR 2015-(6/29/16) the defendant was charged and convicted at trial with a felony. In the course of the representation defendant’s attorney, who was always present, was assisted by a law student who told the court he was appearing on the defendant’s behalf as a certified limited practice student pursuant to Rule 38(d)(5). The law student and the attorney both substantially participated in arguing the motions, some of which the court granted and others it denied. The case proceeded to a jury trial, at which the defendant’s attorney and the law student were again present. The law student gave the opening statement, cross-examined several of the state’s witnesses, and conducted the direct and redirect examination of the defendant. The defendant was convicted and sentenced after trial.

On appeal the defendant pointed out the law student had not filed the required certification with the court, nor had obtained the defendant’s written permission to represent her. Because of these errors the defendant contended she had been denied her constitutional right to competent attorney.

The court of appeals disagreed, stating that at all stages of the proceeding a licensed attorney was present and represented her, thus her constitutional right to competent counsel had been fulfilled. However, the court also said its ruling against the defendant did not mean the lack of a signed consent was a minor problem, but should be taken seriously.

The case may be found at:
https://www.appeals2.az.gov/Decisions/CR20150308opinion.pdf

If you’ve been charged with DUI or another criminal offense, getting help from an experienced and knowledgeable lawyer is one of the best things you can do for your case. Gordon Thompson has been practicing criminal and DUI law since 1979, and has used his vast experience to help countless people charged with DUI and other criminal offenses get the best result. Call Gordon Thompson now, 24/7, so he can put his many years of experience to use and help you get the best result for your DUI or criminal case. #DUI #Criminal http://www.gordonthompsonattorney.net/

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What levels of alcohol or drugs make somebody guilty of DUI in Arizona? My name is Gordon Thompson, and that is the topic of this podcast:

http://www.gordonthompsonattorney.net/podcast/dui-alcohol-levels-in-arizona/

If you’ve been charged with DUI or another criminal offense, getting help from an experienced and knowledgeable lawyer is one of the best things you can do for your case. Gordon Thompson has been practicing criminal and DUI law since 1979, and has used his vast experience to help countless people charged with DUI and other criminal offenses get the best result. Call Gordon Thompson now, 24/7, so he can put his many years of experience to use and help you get the best result for your DUI or criminal case. #DUI #Criminal

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Elements of Felony Shoplifting include Two Prior Convictions, and Defendant Not Entitled to a Bifurcated Trial on the Prior Convictions

In Arizona felony shoplifting includes two prior convictions within the past five years as elements of the offense. As is relevant, 13 A.R.S. § 1805(I) provides: “A person who . . . commits shoplifting and who has previously committed or been convicted within the past five years of two or more offenses involving burglary, shoplifting, robbery, organized retail theft or theft is guilty of a class 4 felony.”

In State v. Monica Lara, Arizona Court of Appeals No. 1 CA-CR 15-0506, (7/5/16), the defendant was charged with and convicted of felony shoplifting based on two prior convictions. Before trial the defendant filed a motion in which she contended the alleged prior convictions were not elements of the offense but rather sentence enhancements. If she was correct then the jury would only hear about her then-current case and, if guilty, then the court would determine the validity of the prior convictions in a second trial; if the priors were proven, they could be used to enhance (or make worse) the sentence. This is known as a bifurcated, or two-part trial. If she was not correct, then the jury would hear evidence about the prior convictions. The trial court denied her motion and she was convicted at trial.

On appeal the trial court agreed with the trial court and affirmed the defendant’s convictions. In doing so the court of appeals said that the language of the statute makes clear the elements of the offense the prosecutor must prove include that the defendant has two prior convictions. Therefore the jury must be told about the prior convictions and the defendant is not entitled to a bifurcated trial. The court analogized to the felony DUI statute which makes it a felony to be guilty of DUI with two prior convictions within the past seven years.

The opinion may be found at:

http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2016/CR15-0506.pdf


If you’ve been charged with DUI or another criminal offense, getting help from an experienced and knowledgeable lawyer is one of the best things you can do for your case. Gordon Thompson has been practicing criminal and DUI law since 1979, and has used his vast experience to help countless people charged with DUI and other criminal offenses get the best result. Call Gordon Thompson now, 24/7, so he can put his many years of experience to use and help you get the best result for your DUI or criminal case. #DUI #Criminal http://www.gordonthompsonattorney.net/

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Multiple convictions arising from a single, uninterrupted course of Resisting Arrest violate the Double Jeopardy Clause

The Double Jeopardy Clauses of both the United States and Arizona Constitutions prevent multiple convictions for the same conduct arising from the same incident.

In State v. Jurden, Arizona Supreme Court, No. CR-15-0236-PR, (7/1/16), the defendant was charged and convicted for two violations of Arizona’s resisting arrest statute, 13 A.R.S. §2508. The conduct at issue was the actions of the defendant in resisting two officers who were simultaneously attempting to arrest him for one incident. The defendant went to trial and was convicted for two counts of resisting arrest, one for each officer.

On appeal the defendant contended that one of the two convictions violated the Double Jeopardy Clause of the United States Constitution. The Arizona Supreme Court agreed with the defendant’s position and vacated one of the convictions.

The court said the legislative history of the statute did not make the statute’s purpose very clear and it was a close question. However, after analysis the court in effect said the statute’s primary purpose was to prevent resisting arrest against the State as a whole and was not to prevent persons resisting arrest by individual officers (the defendant was also charged with two counts of aggravated assault against the officers and convicted of one count, and that was not at issue on the appeal). In effect under the statute the victim is the State as a whole and not the individual officers attempting to make the arrest. As the defendant’s conduct under the statute was a crime against one entity, namely, the State as a whole and not against the two separate individual officers, the defendant could not be convicted for two counts arising from the same incident.

The case may be found at:

http://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2016/CR150236PR.pdf

If you’ve been charged with DUI or another criminal offense, getting help from an experienced and knowledgeable lawyer is one of the best things you can do for your case. Gordon Thompson has been practicing criminal and DUI law since 1979, and has used his vast experience to help countless people charged with DUI and other criminal offenses get the best result. Call Gordon Thompson now, 24/7, so he can put his many years of experience to use and help you get the best result for your DUI or criminal case. #DUI #Criminal http://www.gordonthompsonattorney.net/

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Is there any way to avoid jail time in Arizona for misdemeanor DUI? My name is Gordon Thompson, and that is the topic of this podcast:

http://gordonthompsonattorney.net/blog/is-there-any-way-to-avoid-jail-time-in-arizona-for-misdemeanor-dui/

If you’ve been charged with DUI or another criminal offense, getting help from an experienced and knowledgeable lawyer is one of the best things you can do for your case. Gordon Thompson has been practicing criminal and DUI law since 1979, and has used his vast experience to help countless people charged with DUI and other criminal offenses get the best result. Call Gordon Thompson now, 24/7, so he can put his many years of experience to use and help you get the best result for your DUI or criminal case. #DUI #Criminal
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