January Myth of the Month – I Don’t Need an Attorney

Legal Advice PhotoOn an earlier post, I talked spoke about Miranda and that the officer’s failure to read Miranda rights on arrest is ordinarily not enough to dismiss the case.  However, even when a person is told the right to an attorney, a lot of people will still not exercise the right!  This is shocking because immediately consulting with an attorney, even while still under investigation by the police, can be extremely helpful.  So this leads me to this month’s myth: I don’t need an attorney. If charged with a crime, even a misdemeanor, you can almost always benefit from having an attorney.

Some attorneys will use over-the-top scare tactics—for example, telling prospective clients that they can expect six months jail for a regular first offense DUI.  Although the consultation is “free” these attorneys make sure the client doesn’t leave without paying over $5,000 for continued representation…or else!  Although a great way to secure business, this tactic is completely unreasonable and prevents the client from making a truly informed choice.

Because of a few bad attorneys doing it all wrong, I understand why some people accused of the crime are hesitant to have a consultation.  However, the truth is a brief 30-60 minute consultation with a knowledgeable attorney is incredibly valuable.  There can be a lot going on that is overwhelming and having an attorney by your side is necessary to not only help defend your case, but keep you well-informed.

If charged with a crime, call defense attorney Matt Maerowitz for a free consultation at 602-912-5897.

Image courtesy of by Stuart Miles at FreeDigitalPhotos.net

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Myth of the Month – Ignorance of Facts v. Law

Confused Mistake of FactThe whole myth of ignoring the law as a possible (albeit mistaken) defense to prosecution is probably now dispelled. By now a lot of people have heard of the old phrase, “ignorance of the law is no defense.” In fact, Arizona criminal law specifically states that ignorance of the law does not relieve a person of criminal liability.

On the other hand ignorance of a fact may be a defense for an offense that requires a guilty mind. See ARS § 13-204. For example, say you are in possession of an item that you did not realize was stolen. This may be a defense to theft, which requires a culpable mental state. However, a mistake of fact does not mean that the State will not attempt to pursue criminal charges. Nonetheless, it is important to know that a mistake of a particular fact can be a defense as it functions differently from a mistake of law.

It is difficult to determine what defenses may be available without discussing the particular situation with a criminal defense attorney. If you are charged with a crime, call attorney Matt Maerowitz for a free consultation at 602-912-5897.

Image courtesy of Master isolated images at FreeDigitalPhotos.net

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Arizona Supreme Court Issues Opinion Regarding Marijuana DUIs. How does Dobson v. McClennen change the DUI landscape?

On November 20, 2015 the Arizona Supreme Court issued Dobson v. McClennen an important opinion in the marijuana DUI arena. Although the Court took a middle-ground approach in considering the State’s and Defendant/Petitioner’s arguments, it now allows the Arizona Medical Marijuana Act (AMMA) to be used in a marijuana DUI case. For the vast majority of marijuana DUIs prosecuted in Arizona, this case does not mean a whole lot. However, this does modify the November marijuana DUI myth of the month.

A defendant charged with marijuana DUI now has a defense if both: (1) the defendant was using marijuana pursuant to a medical marijuana card under AMMA and (2) the marijuana or its metabolite was in a concentration insufficient to cause impairment. This is certainly a positive step for defendants, and in my opinion, society. It is important to note that the decision does NOT allow someone to drive while under the influence of marijuana, even with a card. Additionally, a defendant is tasked with the burden of proving the marijuana is in an insufficient quantity to cause impairment, which may be an uphill battle requiring expert testimony.

If you have been charged with a marijuana DUI find out if you have a defense by calling attorney Matt Maerowitz for a free consultation at 602-912-5897.

Posted in Criminal Law, DUI, Marijuana | Tagged | 10 Comments

DUI Myth of the Month – The Curious Case of Marijuana DUI

Marijuana LeafIn Arizona, you can be convicted of a DUI if driving while a drug is in your system. For prescription drugs, there is a defense to DUI if the driver has a drug in his or her system but was taking the drug as prescribed by a doctor. In such cases, a patient may still get a DUI but the State must prove that the driver was impaired. However, marijuana is still treated differently even if the driver has a medical marijuana card.

Under the current state of the law, it makes ZERO difference whether you have a medical card or not for purposes of DUI. In other words, so long as there is an active metabolite of marijuana in your system while driving, you are guilty of DUI. Sometimes, this can be difficult to determine because a person who has recently smoked marijuana, but no longer high may sometimes have no signs of impairment for the task of driving. Unlike alcohol where there is a consensus that all people are impaired at a level of .08 or higher, there is no such consensus when it comes to marijuana. Nonetheless, it is illegal to drive if the marijuana metabolite hydroxy-THC is still lingering in a person’s system.

As a result, even if using marijuana as a qualified patient, you cannot drive regardless of whether impaired or not. Given the strong smell of marijuana even a routine civil traffic stop may quickly turn into a marijuana DUI once the officer approaches the vehicle. Importantly, the consequences of a marijuana DUI are particularly harsh and includes mandatory jail and a one-year revocation of a person’s driver’s license.

If you have been charged with a marijuana DUI, call defense attorney Matt Maerowitz for a free consultation at 602-912-5897.

Image courtesy of Paul at FreeDigitalPhotos.net

*NOTE: A couple weeks after writing this, the Arizona Supreme Court changed the marijuana DUI landscape allowing a new, but limited defense.  See my post on the recent change: https://maerowitzlaw.com/2015/11/25/arizona-supreme-court-issues-opinion-regarding-marijuana-duis-how-does-dobson-v-mcclennen-change-the-dui-landscape/

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October DUI Myth of the Month – Arrested for DUI? I thought I Passed the Tests!

Officer PointingPrior to making a DUI arrest, a police officer will ask the subject to perform a series of field sobriety tests unless there is a legitimate concern for the subject’s safety. The primary tests are: Horizontal Gaze Nystagmus (eye test), the Walk and Turn, and the One Leg Stand. Occasionally, the officer will request additional tests, but there has not been much peer-reviewed literature suggesting the accuracy of other tests. A lot of people agree to take these tests whether they are sober or not, “If I don’t feel drunk, I’ll be able to pass these, easy peasy.” When someone then gets arrested for DUI, he or she is a bit shocked thinking all the tests were passed except perhaps the breathalyzer. However…

If you have been arrested for DUI, you probably failed the tests.

In many respects, these tests are designed to make you fail as law enforcement look for various signs that they do not tell you about while performing the tests. For example, one of the tests, the Walk and Turn, the officer asks the subject to take nine heel-to-toe steps forward, turn and nine steps back. Sounds easy enough right? However, simply “completing” this test upright is not enough to pass…not even close. The officer is looking for eight different “clues of impairment” and only need to observe two in order to conclude that you “failed” the test. For example, missing heel-to-toe even on just one of the eighteen steps is one of the clues and if just one more of the other seven clues is presented, it is counted as a failure (a few of the other clues include stepping off the line, even when imaginary; starting the test too soon; and making an improper turn).

Needless to say, these tests are not easy. Importantly, if the officer incorrectly observes the clue or fails to properly administer the test, the results become suspect but may still be difficult to challenge. I know exactly what the officers are looking for and I would still be hesitant to take any of the tests sober!

It is worth noting, that refusing the field sobriety tests may be used against you in Court. State ex rel. Verburg v. Jones, 211 Ariz. 413, 415, 121 P.3d 1283, 1285 (App. 2005). However, officers need probable cause to make an arrest and sufficient evidence of a DUI is sometimes lacking without test results. As a result, it is typically advisable to politely decline to take any pre-arrest tests and immediately request an attorney.

If you have been stopped or arrested for DUI, call defense attorney Matt Maerowitz for a free consultation at 602-912-5897.

Image courtesy of vectorolie at FreeDigitalPhotos.net

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September DUI Myth of the Month – I Wasn’t Even Driving!

Keys in IgnitionAlthough DUI typically stands for Driving Under the Influence, a defendant does not actually need to be driving to be found guilty of a DUI! Arizona law prohibits driving or being in actual physical control while under the influence of drugs or alcohol. In fact, the penalties for being in actual physical control are the same as driving.

Actual physical control is a heavily litigated and evolving area of Arizona law. Arizona courts use a variety of facts in determining whether someone is in actual physical control of a vehicle. For example, if the engine is running and the vehicle is near a roadway, that might suggest the person in the vehicle is in actual physical control of the vehicle. On the other hand, if the key is nowhere near the ignition and the car is in a parking lot or driveway, a person is more likely to be using the car as a shelter.

In 2009, the Arizona Supreme Court in State v. Zaragoza listed 13 factors in making the actual physical control determination and acknowledged there may still be even more factors! A lot of actual physical control cases, particularly at lower BAC levels are taken to jury trial to consider these many factors. Because there is so much to consider in an actual physical control case, having a defense attorney knowledgeable about the recent developments in the law is important.

If you or someone you know has been charged with DUI for being in actual physical control of a vehicle, call defense attorney Matt Maerowitz for a free consultation at 602-912-5897.

Image courtesy of winnond at FreeDigitalPhotos.net

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Criminal Law Myth of the Month – It took almost a year to press charges! Don’t I have the Right to a Speedy Trial?

There is a large confusion regarding the right to a speedy trial. Although it is true that defendants charged with a crime have a right to a speedy trial, people often get this right confused with a separate legal concept called the “statute of limitations.”
Courtroom Sketch
Frequently people talk about how they have been charged with a crime that got dismissed without prejudice, then many months later they were facing the same charge again. There are several reasons a charge gets dismissed without prejudice. One of the more common reasons is that the prosecutor is awaiting certain evidence before going forward. This is particularly common in DUI cases when the post-arrest test conducted is blood, yet the defendant is still charged before the blood results are available. This may also be the case if the prosecutor is investigating more serious charges.

In a misdemeanor case, so long as charges are filed within one year of discovering the offense or six months of dismissal without prejudice (whichever is later), the statute of limitations is satisfied. For most felonies, the statute of limitations is seven years. It is a Defendant’s duty to keep their address current because if a Defendant is out-of-state or the address cannot be reasonably ascertained, time may be excluded from the statute of limitations and a warrant may be issued.

This can be a difficult concept for people to understand and often means potential criminal charges may be looming for quite some time. It is not until after a Defendant is charged that the right to a speedy trial applies. The right to a speedy trial requires, in most cases, a trial to be held within 5-6 months after a Defendant’s initial court appearance. However, this time limit may be extended depending on the type of case and the reason for the delay.

Although it is extremely rare for there to be any violation of either the right to speedy trial or statute of limitations, it is very important to have an attorney review what can sometimes be complicated issues. In one of my biggest victories to date, there was a genuine problem with the statute of limitations that ultimately led to my client’s charges being dismissed with prejudice. Importantly, this result would likely not have occurred without my involvement in the case.

If you have been charged with a crime, call defense attorney Matt Maerowitz for a free consultation at 602-912-5897.

Image courtesy of vectorolie at FreeDigitalPhotos.net

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AZ DUI Law Myth of the Month – Misdemeanor v. Felony

Press Justice SystemArizona is known to have some of the toughest DUI laws in the country. As a result, many people unfamiliar with the law assume that DUI in Arizona is a felony.

Although Arizona DUI law is particularly tough, in most cases, DUI is not a felony. In fact, a DUI only becomes a felony in one of four circumstances:

  1. DUI while license is suspended
  2. DUI while a child under 15 is in the car
  3. DUI while required to have an interlock device
  4. Third DUI within seven years.

In such instances, the DUI is called an aggravated DUI and is processed in superior court as a felony. In all other instances, DUI is a misdemeanor. That being said, any DUI should not be taken lightly. In fact, the penalties for DUI in Arizona are particularly severe and as discussed in a previous post, Arizona law does not even require a blood alcohol level above a 0.08 to be found guilty. Moreover, a person convicted of DUI will usually be required to pay over $2000 to the court in fines and assessments alone. This is in addition to mandatory minimum jail time, substance abuse classes, and, in most cases, a requirement to have an interlock device installed on your car.

It is important to be well-informed when proceeding in a DUI case. The sooner the better as some consequences of DUI, will be imposed immediately after simply being charged. Hiring an attorney such as myself is important as I assist clients accused of DUI with both the MVD process and the criminal court process.

Call DUI defense attorney Matt for free consultation: 602-912-5897.

Image courtesy of Stuart Miles at FreeDigitalPhotos.net

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Criminal Law Myth of the Month – Miranda

If the police don’t read me my Miranda rights, my case will get dismissed right? Unfortunately, in most circumstances, Miranda does not go that far.

Miranda onPolice Officerly applies to statements during a custodial interrogation, meaning the police do not have to read you your rights until you are in custody. See State v. Zamora, 220 Ariz. 63, 67 (App. 2009). In fact, even if the police fail to read you your rights, that will only mean that any incriminating statements you make after being in custody cannot be used against you—all statements made before are still fair game!

In most circumstances, this means that by the time police are required to read you your rights, they already have, or at least think they have, enough evidence to reasonably believe that a crime has been committed and that you committed it. Of course, once read your Miranda rights, you should never add fuel to the fire by failing to exercise your rights. Always, exercise your right to remain silent and ask to immediately speak to an attorney. It shocks me when I hear people, after being advised of their rights, they nonetheless continue to answer police questions – waiving rights.

Never assume a police will “let you off” easy in a criminal investigation by being honest and upfront with the police. That might happen in a civil case, but not in a criminal one. This doesn’t mean you have to lie, nor should you. Instead, simply say “I invoke my right to remain silent” or “I would like to remain silent.” At that point the police are not allowed to ask any more questions unless otherwise authorized.

Importantly, you still have rights even before the police tell you about them! That’s why even before you are arrested you should still request to speak to an attorney before you answer any questions.

If you are being questioned by the police or charged with a crime, you should immediately call attorney Matt Maerowitz at 602-912-5897. You have nothing to lose by calling, and the consultation is free.

Image courtesy of vectorolie at FreeDigitalPhotos.net

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Setting Aside an Arizona Criminal Conviction

Having a criminal conviction, even a misdemeanor, on your record can difficult. For many it has long-lasting consequences, particularly when seeking employment.

FortunatelJustice Scaley, Arizona has a way to minimize the impact, and many people do not realize that they may be eligible to have their conviction/s set aside. This is the closest thing to expunging a conviction that Arizona has to offer. Although this will still show up on a background check, it will show as being “set aside” and no longer as a conviction.

A set aside basically realizes that good people make mistakes or have made a decision to turn their life in a positive direction. Although it can still be used against you if charged again with a crime, a set aside is nonetheless incredibly important for purposes of employment, professional licenses, seminars, and schooling. For many criminal convictions, including DUI, a set aside application can be submitted once all conditions of sentencing and probation have been completed.

I have successfully drafted several set aside applications and normally charge a particularly low flat fee for such services. Separate jurisdictions treat applications differently, and I handle the application process a little differently depending on the court. For many jurisdictions, I will draft a proposed order for the judge to sign upon granting a set aside application. For all of my clients, I provide the order from the judge granting the set aside. This can be helpful because it allows you to show a current or prospective employer a signed order from the judge stating that the charge and accusations against you should be treated as if dismissed.

Call me, criminal defense attorney Matt Maerowitz at 602-912-5897 for a free consultation to discuss the process and find out whether you may be eligible for a set aside.

Image courtesy of Kittisak at FreeDigitalPhotos.net

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