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Criminal Defense Arizona: Canines & The Fourth Amendment

Criminal defense in Arizona is continuously worried about illegal search and seizures and the Fourth Amendment. The law of canine sniffing stands primarily on four U.S. Supreme Court cases: Terry v. Ohio, United States v. Place, City of Indianapolis v. Edmond and Illinois v. Caballes. These cases have put searches, suspicion, seizures and sniffs in the context of the Fourth Amendment and are extremely important to criminal defense in Arizona.

Terry v. Ohio
Two men hover around a street corner, seemingly waiting for no one. They pace up and down the block and stare in a store window. A law enforcement officer suspects that the two men are contemplating a robbery. The officer decides to investigate but lack probable cause. He identifies himself as a police officer and makes reasonable inquiries. The officer then conducts a carefully limited search of the men’s clothing in an attempt to discover weapons.

This case has had a huge effect on criminal defense in Arizona because the Supreme Court validated this conduct. The Court held that the tempered act of an officer who in the course of investigation had to make a quick decision about protecting him and others from danger.

United States v. Place
In the case of United States v. Place, the Supreme Court held that a 90-minute holding of luggage was unreasonable, as was the police officer’s failure to tell the defendant where their luggage was going, how long it would be held and how it would be returned. Impermissibly, the seizing had intruded on both the defendant’s interest with proceeding in his itinerary and his interest in his luggage. This case had a great effect of criminal defense in Arizona. At the same time, the Supreme Court was careful to emphasize that, although the Constitution did not allow such seizure of the luggage, exposure to a highly trained canine would not constitute a search.

The Court pointed out that the canine sniff does not require the opening of luggage, which also had a drastic affect on criminal defense in Arizona. The court added that the manner in which the information is obtained through a canine sniff is less intrusive than a typical search. No other investigative procedure is able to gather information so carefully and reveals a degree of information that is considered so modest. Thus, in spite of the fact that a canine sniff tells the officers something about the content of the luggage, the information that is obtained is limited. Although, seizing the individual’s luggage was not permitted, subsequent exposure to a highly trained canine did not constitute a search under the meaning of the Fourth Amendment.

City of Indianapolis v. Edmond
The case of City of Indianapolis v. Edmond also had a drastic effect on criminal defense in Arizona. In this case the city was operating checkpoints on random roads in an effort to block unlawful drugs. The Supreme Court held that stopping an individual’s vehicle is a seizure with the meaning of the Fourth Amendment and is unlawful without probable cause, which was lacking in this case. The Courts decision that the walk-around was invalid because it had arisen from a roadblock that violated the fourth amendment had a great effect on criminal defense in Arizona

Illinois v. Caballes
The decision in Illinois v. Caballes stemmed from an Illinois state trooper’s stop of a motorist for speeding and greatly affected criminal defense in Arizona. Concededly the stop was based on probably cause and was considered lawful. A second trooper soon arrived with his narcotics-detection dog and walked this dog around the care while the first officer wrote a ticket. When the dog alerted the troopers to the trunk they searched it and found marijuana.

Finally, the moment had arrived to put some bite into the dictum in Place, i.e., that a canine sniff is not a search; a ruling that again had a drastic effect on criminal defense in Arizona. A divided supreme court held that, due to the fact that the dog sniff was performed only on the exterior of the care while the motorist was legally seized for speeding, any intrusion of his privacy expectations did not infringe about his rights. During a concededly lawful stop, a dog sniff reveals that only the location of contraband passes muster under the Fourth Amendment.

This article has discussed the major Supreme Court case that affect canine sniffs and the fourth amendment and how these cases affect criminal defense in Arizona. These four cases all have different rulings on the Fourth Amendment and determine how law enforcement officers are allowed to conduct searches and seizures.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about an Arizona Criminal Defense, visit our site.

Possible Defenses for DUI, DWI, Extreme DUI in AZ

There are many defenses to DUI in AZ, DWI, & Extreme DUI charges. Don’t believe the prosecutor-there are very few hopeless cases. A DWI or DUI in AZ conviction has lifelong consequences, and-depending on the facts surrounding the individual case-Dismissal or Acquittal is Possible. This article will discuss possible defenses for DUI, DWI and Extreme DUI in AZ.

Below is a partial list of Possible Defenses for DUI, DWI, or Extreme DUI in AZ:
“No Reasonable Suspicion to Stop” Officers are not permitted to stop or detain someone based on pretexts regarding race, religion, gender, age, sexual preference nor on a host of other possible unjustifiable reasons.

“No Actual Physical Control” If a person has had too much to drink, pulls off the roadway, leaves the engine running with the A/C or heater on, and attempts to “sleep it off”, then they are not in “actual physical control” of their vehicle and are not guilty of DWI or DUI in AZ.

“No Probable Cause for Arrest” If an officer did not have probable cause that a person was actually under the influence of alcohol, then the arrest will be invalidated (i.e. if the Field Sobriety Tests (FSTs) were improperly administered). The National Highway Traffic Safety Administration (NHTSA) has set forth guidelines regarding FSTs. The tests should not be given if the suspect:

  • is 50 pounds or more overweight
  • is 65 years of age or older
  • has any back, hip, leg, knee, or ankle injuries
  • has any disability effecting balance
  • is wearing shoes with heels two (2) inches or higher

Remember, you always have the right to refuse Field Sobriety Tests (i.e., the “physical” tests). Do not believe the Officer if he tells you otherwise!

If the Horizontal Gaze Nystagmus (HGN) or “eye test” was given by an officer not yet certified to give that test, it will be inadmissible in a DUI in AZ case.

Note: if the only basis for arrest is refusing to perform FSTs, then the arrest will be invalidated.

“Denial of Right to Counsel” When arrested for DUI, DWI, or Extreme DUI in AZ, upon requesting a DUI in AZ Lawyer, the police must get you to a phone as soon as it is reasonably possible. If they ignore your request, or wait too long, this could be grounds for dismissal. (See also THE RIGHT TO REMAIN SILENT-USE IT! Section).

“Inaccuracy of the Breath or Blood Testing Device” The AZ Department of Health Services (DHS) has set forth rules for the proper maintenance of breath testing devices. They must be calibrated to within a 10% accuracy range every thirty-one (31) days. In addition, the machine goes through a seven (7) test Standard Quality Assurance Procedure (SQAP) every ninety (90) days. If any of the maintenance checks are “out of tolerance”, then all breath tests given during the time interval between the two maintenance checks will be inadmissible. The prosecutor will not point this out for you.

“Retrograde Extrapolation below .08% BAC at Time of Driving” (Or below .15% If Extreme DUI in AZ). It can be shown through a math calculation that any alcohol drank in the last hour prior to being stopped would still be in your stomach and not in your blood system “at the time of driving”. For example, a one hundred and fifty (150) pound man who had a breath test of .15% an hour after he was stopped, yet he drank three beers in the last hour before leaving the bar, it can be shown that his BAC “at the time of driving” was as low as .075%. This number can go even lower due to other factors such as a ten percent variance and inaccurate blood to breath conversion ratios (i.e., “2100-1″) which are inherent to all breath testing devices. As of 7/17/00 the Legislature passed a law stating that this is only a defense to the DUI in AZ charge, not the DWI or the Extreme DWI charges. However, we will be challenging this change in the law as unconstitutional. This has already been successfully reversed in Delaware and Pennsylvania. We are currently challenging this law in the Appellate Courts. See us immediately to discuss the ongoing status of the “BAC at the time of driving” defense.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about a DUI in Arizona, visit our site.

Criminal Lawyers Arizona: Limits on the Sixth Amendment

The U.S. Supreme Court’s decision in Montejo v. Louisiana has been called an assault on the attorney-client relationship by criminal lawyers in Arizona and will greatly affect criminal lawyers in Arizona. Under Montejo officers may now interrogate defendants in the absence of counsel, even after charges have been brought and counsel has been retained or appointed, as long as the defendant waives his or her rights under Miranda.

Montejo, a 5-4 split decision, now overrules the precedent of Michigan v. Jackson, which once held that once a defendant requests the services of criminal lawyers in Arizona at an initial appearance in court, officers may not initiate any interrogation. This Article will examine Montejo and what criminal lawyers in Arizona can do in its aftermath to protect clients’ Sixth Amendment right to counsel. The most important action that criminal lawyers in Arizona can take is to make sure their clients expressly assert their right to counsel by advising them to sign a formal “Assertion of Rights” form. The use of such a form should become a regular part of criminal lawyers in Arizona practice in the federal and state courts.

The Montejo Ruling
Jesse Montejo was arrested on charges of murder, and the court appointed an attorney to represent him at his preliminary hearing. The attorney was not present, however, and before he met with Montejo police visited Montejo at prison. Police asked Montejo to take ride with them and help them find the murder weapon. While the counsel waited for Montejo at the prison, police drove Montejo around and encouraged him to write a letter to the victim’s wife expressing remorse for victim’s murder. Once the letter was completed, police returned Montejo to the prison where he met with his attorney. Montejo was ultimately convicted and sentenced to death.

Montejo’s attorney was incensed that the officers had removed his client for interrogation in his absence. The Supreme Court of Louisiana rejected the attorney’s argument that the letter should be suppressed under Jackson, reasoning that Montejo has not requested counsel but was instead appointed counsel, which will have a drastic of on criminal lawyers in Arizona. Thus the Louisiana Supreme Court concluded that Jackson prophylactic rule barring any police officer-initiated interrogation once a defense counsel has appeared in court and requested counsel did not apply.

The Supreme Court agreed with Montejo that Louisiana’s approach was not workable and would create an arbitrary distinction between a defendant who requests appointment of counsel and a defendant for whom counsel is appointed without any request. However, the Court, after ordering a supplemental briefing on whether the case of Jackson should be overruled, concluded that the protection the case of Jackson provides is unnecessary in light of other existing protections. This ruling is sure to affect the way that criminal lawyers in Arizona will defend their clients.

The crux of Montejo’s reasoning in overruling the case of Jackson is that the antibadgering rule can be triggered only by an express statement made by the defendant requesting the presence of counsel during an interrogation. Merely accepting the appointment of defense counsel or even requesting the appointment of defense counsel is insufficient to show a desire to not speak with police officers without counsel present. This means that defendants must clearly request the services of criminal lawyers in Arizona.

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About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about an Arizona Criminal Lawyer, visit our site.

Criminal Defense Attorney Phoenix: Immigration Consequences

In the case of Padilla v. Kentucky, the U.S. Supreme Court held in a 7-2 decision that “[i[t is quintessentially the duty of counsel to provide his/her client with the available advice about an issue like deportation” and the failure to do so satisfies the first prong of the Strickland analysis regarding ineffective assistance of counsel. In other words a criminal defense attorney Phoenix must notify their client regarding issues of whether or not a plea carries immigration consequences. The court held that “counsel must inform their client whether his or her plea carries a risk of deportation.”

Justice Stevens even provides a practice tip and encourages criminal defense attorneys in Phoenix and other lawyers to consider immigration consequences when engaging in plea-bargaining and to do so creatively.

The Padilla decision simply reinforces existing law in states like New Mexico where counsel already has the responsibility to determine if a client is a citizen, determine the immigration consequences of the crime with which the client is charged and inform the client. But in those states that only found ineffective assistance of counsel where there was clearly incorrect advice regarding immigration consequences or though immigration consequences were collateral to the criminal defense attorney Phoenix case and therefore are not worthy of ineffective assistance analysis, this landmark decision in the Padilla case does expand the duties of criminal defense attorneys in Phoenix and nationwide.

The concurrence of Justice Alito even recognizes that “any competent criminal defense attorney should appreciate the extraordinary importance that the risk of removal might have in the clients determination whether to enter a guilty plea.”

The Supreme Court rejected the argument that immigration consequences are considered “collateral” to the criminal case and therefore not subject to the requirement of effective assistance of counsel and also rejected the notion that only “wrong” advice is ineffective.

Although the Supreme Court holds that where the immigration consequences are mandatory and clear a criminal defense attorney Phoenix or other counsel must so inform the client. The only disappointment of the opinion is the language starting that where the immigration law is unclear, a criminal defense attorney Phoenix can merely advise their client that there is a risk of adverse immigration consequences and tell their client to consult an expert. The issue with this — the client may not have the resources to hire either an immigration lawyer or a criminal defense attorney Phoenix who understands the consequences.

What is clear with the majority opinion’s extensive discussion of professional standards, is that in all cases where the defendant is not an American citizen, counsel has a duty to investigate a clients immigration status as well as the immigration consequences of the particular charges the client may be facing. Only after investigation will the criminal defense attorney Phoenix’s advice differ – it may unclear or clear, depending upon the law.

Throughout the country some public defender offices have hired an expert in the field of immigration and criminal law or banded together with offices to have such backup capability. While Justice Alito’s concurrence goes to great lengths to point out the complexity of immigration law, in fact immigration law is similar to any new area criminal defense attorneys Phoenix face, such as DNA evidence – they either learn the field or hire an individual who knows it in order to represent the client.

The challenge to criminal defense attorneys in Phoenix is to look at each client holistically and see what impact there may be from the criminal charges including immigration as well as other consequences.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about a Phoenix Criminal Defense Attorney, visit our site.

DUI Attorney and Dealing with the DMV in DUI Cases

A DUI attorney can guide you through the complex process of dealing with the Department of Motor Vehicles in cases involving DUI, DWI and Extreme DUI charges. This article will discuss the process of dealing with the DMV in regards to DUI cases and how a DUI attorney can help you understand this difficult process and assist in guiding you through this process.

Blood and Urine Cases:
If your case involved the taking of blood or urine during your DUI arrest, you will need to wait and see if your results come back above or below a .08%. It usually takes anywhere between one (1) and six (6) months to get your results back. If your blood results are above a .08% the officer will forward a request for suspension to the DMV office.

The DMV office will then notify you with a “Corrective Action Notice” (i.e., notice of suspension). The moment you receive this from the DMV, contact a DUI attorney immediately so they can request a hearing on your behalf. This request needs to be done within fifteen (15) days of the date of that suspension notice. What can be confusing is that the Corrective Action Notice will state that the suspension will not go into effect until twenty (20) days after mailing of the notice. Do not let them fool you with this extra five (5) days; you must request a hearing within the fifteen (15) day period.

If you are stopped by an officer after a DUI attorney has requested a hearing, you will not have a yellow copy of a temporary driver’s license in your possession. His computer should reveal that they have requested a hearing on your behalf. If he still writes you a ticket for driving on a suspended license, do not panic. Simply bring it to they DUI attorney and they will take care of it. If he arrests you for driving on a suspended license, you can sue the DMV for not imputing the hearing request into the computer (assuming you were not already suspended prior to your DUI, DWI, or Extreme DUI arrest).

Prior to the actual DMV hearing, if you have retained a DUI attorney, they will have you in for a “Pre-DMV consultation”. At this consultation, a DUI attorney will go over the police report with you in detail and discuss whether it will be necessary for you to appear at the hearing or not. The DUI attorney will also discuss various options regarding whether to “Void” the suspension, or whether to actually “Stipulate” to the suspension in order to receive a “Work Permit”. This will also have ramifications nullifying any potential future suspension with regards to the first offense situations which could result from the criminal case. All of this will have to be discussed one-on-one with a DUI attorney.

Insurance – Additional Punishment for DUI, DWI, Extreme DUI
Until DUI, DWI, or Extreme DUI guilt is established, an insurance company should not–although some do–cancel your insurance coverage. If convicted of a DUI, DWI, or Extreme DUI, you will either be unable to get insurance coverage or you will pay roughly $3000 or more a year, for the next three (3) years, above your current rate.

Some Final Realities on DUI, DWI, Extreme DUI
DUI also includes driving under the influence of drugs. DUI, DWI, & Extreme DUI charges are filed thousands of times every year against people from all walks of life. These charges are serious, but defensible, with assistance from a DUI attorney experienced in DUI, DWI, & Extreme DUI law.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about a DUI Attorney, visit our site.

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