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State v. Mr. S (DMC No. 7911)

Mr. S was observed by a homeowner parked in front of his house and throwing what appeared to be garbage outside of the car, onto the homeowners lawn. Because it was 9:00pm at night, the homeowner called the Police. When the Police arrived, they observed Mr. S car with a flat tire and damage to the right side. Mr. S was in the passenger seat and had a cell phone in his hand. The engine was running in order to run the air conditioner (it was still 100 degrees outside), as it was summer time.

Mr. S appeared to be very intoxicated, and Police arrested him for DUI and searched the vehicle and found 1 empty and 1 partially full Vodka bottle. Mr. S. stated that he had blown his tire and had called AAA for assistance earlier in the night. Because Mr. S had a prior misdemeanor DUI convictions and his license was suspended, he was charged with Felony Aggravated DUI under Arizona Revised Statute ARS 28-1383(A)(2)

At Trial, we presented evidence that he had called AAA a couple of hours prior to the Police arriving. In addition, the Police could not prove whether he drank after driving or before (since the bottles were in his car). Lastly, we argued that he was in the passenger seat, therefore he was not in “actual physical control” of his vehicle. The Jury returned not guilty verdicts on all charges, thus sparring Mr. S. from going to Prison. Because his BAC was so incredibly high (a .461 BAC – *not a typo), we refer to it on our website as “this is not a typo”. The Prosecutor who handled this case has earned the nickname from his coworkers of “typo”.

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DM Cantor

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