Yep, the police got it wrong. When Tank Johnson was arrested for DUI in Arizona, the process actually worked, sorta.  He will not be prosecuted for DUI in Gilbert. However, even though the police were wrong and he was not above the legal limit, Tank still got canned.

If somebody of Mr. Johnson's statuture and fame loses his job over a DUI arrest, think of what a false arrest does to the average citizen. In Arizona, the police in many jurisdictions including Gilbert, often times charge the DUI even before the blood test result comes back. That, in my opinion, can be very damaging to an innocent person.

The police and prosecutors argue that they have the authority to dismiss cases, and do so when justice requires (as it did in the Johnson case). However, they also have the authority to wait. In Arizona, the statute of limitations for misdemeanor DUI is 1 year.

So why not wait. Save the court's time. Save innocent peoples' jobs. Save a tree. Save attorney's fees.

Would waiting to file until the State actually has incriminating evidence eliminate a percentage of prosecutor positions? Maybe. Judges? Possibly. Defense attorneys? Maybe. But it would serve the greater good.

After all we are "innocent until proven guilty," as the common Arizona jury instruction says. (I think it should read "innocent UNLESS proven guilty.")

So Tank's BAC came back below the legal limit of .08 in Arizona. Didn't stop him from getting canned. It also shows that the police got it wrong.

According to serveral sources, including the Tucson Citizen, AZ DUI taskforces will be out in force this weekend through the 4th of July holiday. This is one of the last major taskforce events before the new Arizona DUI laws go into effect in September. Taskforces typically mean stepped up patrols and more stops, but sometimes no more arrests than usualy.

However, over Memorial Day Weekend in Scottsdale and the Phoenix area in general, the DUI roadblocks were extremely effective in bringing in a high volume of DUI arrests. The best piece of advice I can give as an Arizona DUI lawyer, especially this weekend, is have a designated driver or take a cab, stay safe and avoid facing the very strict potential penalties that an Arizona DUI carries, and avoid having to hire a attorney like me.  Have a good weekend, and a safe one.

Getting a DUI in Phoenix is expensive, and the last thing you want to do is waste money on a lawyer that will not help your case. That is why it is important to know how to hire a quality Phoenix DUI lawyer lawyer rather than just making your decision on the attorney fee alone.

The Phoenix DUI lawyer you choose should be able to justify his fee, and if the explaination does not makes sense, you should interview other Phoenix DUI attorneys until you find the right match. To help clairify your choices and options in regards to hiring a Phoenix DUI defense lawyer, see our primer on how to hire a DUI defense attorney.

Ads by DUI lawyers create confusion by saying "DUI and Criminal Defense." For the unaware, this makes it sound like DUI is not a crime, and the lawyer handles drunk driving cases as well as criminal cases. In reality, DUI is a crime. In Arizona, it can be a misdemeanor or a felony depending on the circumstances. See my explaination of Arizona DUI Law for more information on how drunk driving charges in AZ are classified.

I am often contacted by the press for comments on DUI related issues in Arizona. In the past, I have spoken with them. I suppose that if I trusted the reporter and he/she had an established body of work that exhibits objectivity, then I might comment on the laws in general. After all, I do so in this public forum. However, it is my opinion that it is NEVER a good idea to comment on an ongoing DUI case, especially with famous clients. In my opinion, there is no good press in Arizona for a DUI defendant.

The Tempe DUI van is about efficiency. According to the article, the Tempe police department used to arrest 3 DUIs per night (presumably per officer, because otherwise the numbers don't add up).

Three DUI arrests a night seems like a lot. How is it possible that that many arrests, let alone four arrests, makes it through the relatively small Tempe Municipal Court? It must be because the vast majority of cases are either dismissed or plead out short of trial. Otherwise, doing the math, if even half of the arrests were to result in trials, then each Tempe DUI Officer would be in court roughly every business day of their careers. (Figure each Arizona DUI jury trial takes between one and two days).

This obviously isn't the case. From a defense strategy perspective, it seems that all the defense would need to do with that volume of cases is to set each and every case to trial. It would overwhelm the system and cause a virtual shutdown. Then, either the prosecutors would be forced to dismiss the vast majority of cases, or offer reductions in the charges that are worthwhile for defendants to accept. The other solution would be to hire a lot more judges and prosecutors and build more courtrooms. But then things would probably fall back to the dynamic equilibrium we see now.

These are interesting times as Tempe gets a new DUI van just as Phoenix may be phasing out their breath test program all together in favor of blood.

It's nice to live in exciting times here in Arizona criminal courts.

Quoted from http://www.azcentral.com/news/articles/0622tr-dui0623.html:

Beefed up DUI enforcement yields more arrests

Drunken driving arrests have increased in Tempe for the past several years, but it's not because more people are drinking, officials said.

Tempe police arrested more than 2,500 people on suspicion of drunken driving in 2006. Officials credit better equipment, such as the department's DUI processing van, that allows officers to process DUI suspects at the scene instead of transporting them to a police station.

"Instead of getting three per night, they are getting four per night because the van is mobile and they are out in the street," Traffic Sgt. John Butler said.

He said police are focusing their time more on events that are likely produce drunken drivers. He credited improved training that has helped officers better identify drunken drivers.

Michael Hegarty, the deputy director for the Governor's Office of Highway Safety, said he doesn't know if the number of drunken drivers is increasing, but he believes the only way for the number of arrests increase is if police are sufficiently equipped. The department gave Tempe $180,000 to purchase a DUI van.

"The officers will never outnumber the number of drunks on the roadways, so it's always going to be a resource issue," Hegarty said. "Having more funding and equipment and better training can certainly be a reason that Tempe has seen an increase in DUI arrests."

Because of Tempe's location, police are faced with drunken drivers coming from all directions.

I frequently get the question of what does it take to be "impaired to the slightest degree" in Arizona DUI law. The answer to that question is not cut and dry, and is the reason that many cases go to a jury.

The prosecutor tries to use the breath or blood test to prove that the driving was impaired. However, that test is never taken concurrently with the driving. They try to use the field tests, but the tests may not show imapirment, and are also not done concurrently with driving. There are unlimited alternative reasons why somebody might not be able to stand on one leg for 30 seconds.

So why publicize Mr. Johnson's arrest without first confirming the blood test result? It gives the impression that Arizona prosecutors will proceed with the charges even if the blood test does not exceed the legal limit. While this is certainly technically true, it gives the impression that Arizona is a zero tolerance state (i.e., driving with any alcohol in your system at all is illegal).  That is not the case. In fact, juries are regularly instructed by Judges that it is NOT illegal to drink and drive.

Quoted from http://www.themoneytimes.com/news/20070624/tank_johnson_busted_for_dui_in_arizona-id-105261.html:

Tank Johnson busted for DUI in Arizona - The Money Times

Police in the Phoenix suburb did not reveal the results of the test; however they told the newspaper Johnson appeared impaired and was charged under a state "slightest degree" law allowing drivers to be arrested even if they don't exceed the state blood-alcohol level of .08 percent.

The bust is the latest brush with the law for Johnson, who has been suspended by the NFL for the first half of the 2007 season and spent 60 days in jail for a parole violation.

I have noticed a new trend among Phoenix area DUI officers in testimony. They are starting to answer questions with a simple "that would overstep my area of expertise" to quantify (fill in what ever I happened to be asking about). An example is odor of alcohol on the person's body or breath. In the past, most officers in Arizona would quantify the odor of alcohol by saying either strong, medium or mild. For most officers, this would relate to the proxiimity to the arrestee before they could smell it. For example, 5 feet away and it is strong, but if the officer had to get right in the person's face, then it is mild.

The problem with this type of testimony is that alcohol is essentially odorless, and every officer who wanted to maintain any credibility on the witness stand would have to admit under cross examination that they can not not tell time of drinks, type of drinks, amount of drinks, strength of drinks or impairment from odor.

So the new trend, and maybe they are teaching this in continuing police officer education or something, is to say something like… "my job is not to decide subjectively how strong an odor is. Yes, it was there. But I would not want to give the impression that I can divine impairment or BAC from the smell. It is only my job to decide whether I think the person is impaired to the slightest degree (as is the law in Phoenix and throughout Arizona), and if they are, to arrest them for DUI and let the breath or blood test sort it out.

As a DUI defense attorney, I have a couple of problems with this answer. 1) It shows the cop is more honest, and the worse thing for my clients' cases are honest cops (I can almost always poke holes in the liars' stories). 2) It puts more emphasis on the chemical test, which, if damaging, is not what I want the judge or jury to focus on.

I'm all for officers being honest and straightforward. Heck, I usually make friens with them during cases. But they are being honest at the expense of DUI defendants throughout Arizona.

Now, if this trend of refreshingly honest officers continues, then all the state of Arizona would have to do is pass some DUI laws that make sense, AND start using chemical testing methods that are accurate and don't produce fales highs for alcohol levels, and I would have to find work elsewhere because a Arizona DUI case would be indefensible.

For now, however, I forsee a long future before the above happens, and therefore a fruitful present for me challenging what tries to pass for science in courtrooms in the Phoenix area.

According to an AP report today, it appears that the push to repeal the new law in Arizona DUI cases that would mandate that all first offense DUI convictions have an ignition interlock device regardless of alcohol level.  Currently the law in Arizona requires an interlock for all first offense extreme DUI convictions (.150 or higher alcohol level).

This new law is a major defeat for reason, and a major victory for the ignition interlock device companies. For them business will be good.