DUI/DWI Information

Been Arrested for a DUI in Phoenix AZ?

Secure the evidence and preserve your shoes!

The first step your DUI attorney should take in preparing your case is to secure the scene and any evidence.

Secure the scene

As soon as you contact your DUI attorney, the attorney should ask you to return to the location where the field sobriety tests were performed. The attorney’s investigator should accompany you if possible. You or the investigator should take photographs of the area to freeze the scene.

Virtually all police reports will claim that the area where the field sobriety tests were administered was a smooth and level area. Often this is not the case. Most field sobriety tests are given at the side of the road or on the sidewalk. Most roads are crowned and most sidewalks are sloped to facilitate water runoff. Rarely is the location truly level. You and the investigator should also check to see what the lighting was like in the area.

Look for phone recordings

Did you make any phone calls from the jail? These calls are often made late at night and the person to whom the call is made is frequently asleep. As a result, all or part of the call may have been recorded on a telephone answering machine or some sort of voice mail.

If any part of the conversation is on the recorder, you should secure the recording immediately. The recording may reveal that your speech was not slurred. When this evidence is available, it proves to be quite powerful in combating any claims of slurred speech.

Check your footwear

Your DUI lawyer should ask about the shoes you were wearing at the time of your arrest. Women sometimes perform field sobriety tests in high heels. Men may have executed the tests in cowboy boots. Balance tests are much more difficult to perform in shoes with an extended heel. Similarly, shoes with little support, such as sandals, also make balance exercises more difficult.

You should keep the shoes in the same condition they were in when you performed the field sobriety tests. If the trial is not going to take place for some time, it may be necessary for you to avoid wearing the shoes again until trial. This preventive step guards against an objection that the shoes are inadmissible because the shoes have changed since the arrest date due to wear.

Find all witnesses

You should provide your DUI lawyer with a list of the names and phone numbers of all persons you had contact with throughout the evening of your arrest. This includes the time period starting a couple of hours before any actual drinking took place.

It is important for your lawyer to contact these persons as soon as possible to inform the potential witnesses of the significance of remembering the evening’s events. Many of the potential witnesses may not know that you were arrested. Asking a witness who was not previously alerted to the arrest to remember the specifics of an otherwise non-descript evening six months after the arrest is asking too much. The prospective witness’s memory must be cemented as soon as possible.

You may be reluctant to have some of the potential witnesses contacted because you do not want them to know you were arrested for drunk driving. This is entirely understandable. However, from a legal perspective, it is preferable for your DUI defense attorney to contact all of the would-be witnesses. If you still decline to let your attorney contact a witness, your DUI attorney may have you sign an acknowledgement that this is against his or her advice.

 

 

 

 
If before your first meeting with your attorney you check off the topics below that are relevant to your case and bring this list to your meeting, you are more likely to relay the important facts to your attorney and learn which issues might be helpful to your defense. The list might also help you remember the facts surrounding your arrest.

Your driving before the stop

__Why do you think the officer pulled you over?
__ Did the officer say why he or she stopped you?
__ Were you cited for any traffic violations?
__ Are there any innocent reasons for the driving behavior that triggered the stop?
__ Do you think the officer saw you leave a bar parking lot?

The traffic stop

__ Where did you stop? Why did you choose that location?
__ What was the lighting like at that time?
__ Did you tell the officer that you had something to drink?
__ How did the officer phrase his request to get out of your car?
__ Did you have any difficulty getting out of your car?
__ Did the officer ever tell you that were free to leave?
__ Did he or she say or do anything you believe was inappropriate?
__ Did you have any passengers?
__ Did anyone witness the stop?

Field sobriety tests

__ Did the officer tell you the field tests were mandatory or threaten you in any way?
__ Did he or she ask you ask you about your health or any disabilities?
__ Did the officer explain or demonstrate the tests?
__ Which tests did you perform?
__ Where did you perform them?

Arrest

__ Was your car searched, and if so, was anything found?
__ At what stage did the officer say you were under arrest?
__ Were you handcuffed?
__ Was a videotape, audiotape, or photo made during the stop?
__ Were you read your Miranda rights?
__ Did you waive your rights, or remain silent?
__ Did you ask for an attorney?

Health at time of arrest

__ Were you dieting when arrested?
__ How much had you slept in the prior two days?
__ Had you taken any medicine recently?
__ Do you have any physical disabilities?
__ Do you have any inner-ear or balance problems?
__ Have you ever suffered a head injury?
__ Do you have GERD, frequent heartburn, or COPD?
__ Do you have diabetes, or any blood or liver disease?
__ Do you have any mental health issues?

Breath test

__ Did you burp or regurgitate during the observation period?
__ How many breath samples did you provide?
__ Did you have any trouble providing a sample?
__ Did the operator interrupt your breathing pattern at any time?
__ Did the operator require you to hold your breath for any length of time before blowing?
__ Were you tested on more than one machine?

Other

__ How many officers were involved in the entire process?
__ Do you know any of their names?
__ Did you post bond?
__ Do you have a prior criminal history, including prior drunk driving arrests?

 

 

Information your DUI attorney will try to obtain

This article lists items your DUI defense lawyer may want to consider obtaining either by independent investigation or by asking the prosecutor for them through formal discovery. These are suggestions only. Your DUI lawyer will have to determine how important each item is for your particular case. There are few, if any, cases in which all of the listed items are necessary.

In deciding what items to gather and how to get them, your DUI attorney will keep in mind that the process of obtaining the material may result in the prosecution garnering the information too. This is especially true if your DUI attorney uses the formal discovery process. Requesting large amounts of discovery may have the adverse effect of causing the prosecution to give your case too much attention.

Breath cases

The following are some items to consider for discovery in a breath case:

  • The officer’s training history on the particular machine used to test you. Sometimes officers transition in from other departments and are not trained on the breath machine in the new department.
  • The current laboratory license.
  • The method the laboratory has adopted or submitted to the state for breath alcohol testing.
  • A copy of the manufacturer’s manual for the breath machine used.
  • Titration records for the simulator solution.
  • Accuracy-check records for two months before and after the date of the test in question. These are sometimes described as calibration check records. They are not, however, records of actually calibrating the machine, they are just a confirmation of the calibration.
  • Logs showing how many persons were tested during the period two months before and after you were tested.

Blood and urine cases

The following are some items to consider for discovery in a blood or urine case:

  • A portion of the blood or urine sample obtained from you. This is generally referred to as a “split.”
  • The methodology used in the analysis (i.e., the operating procedure of the laboratory).
  • Any notes the analyst made during the time of his or her analysis (sometimes called “bench notes”).
  • The results of the controls used in the run. These are known solutions or blanks that are mixed in the run with actual samples.
  • The result of your sample.
  • The actual chromatograms of the test of your sample.
  • Any testing that was done to ensure that other compounds or volatiles were not mistakenly being analyzed as ethanol (sometimes called “specificity/interference” testing).
  • A copy of the “run list.” This list specifies which samples and controls were tested in what order. With automation, a typical run may involve the analysis of 40 different samples.
  • The maintenance records pertaining to the particular device used to measure the blood or urine sample for three months before and after your sample was analyzed.
  • The chain of custody of your sample.
  • A review of the vial your sample was deposited in, or a copy of the information set forth on the vial.
  • Records reflecting any proficiency tests given by an independent organization within the last year to the laboratory and the analyst.
  • Records reflecting any internal proficiency tests given within the last year to the analyst.
  • Any records reflecting any accuracy checks conducted on any vials purchased from a manufacturer.
  • The instructions or checklist used by the phlebotomist for the blood draw, or by the person who obtained the urine sample.

Pointing out the analysis is an automated process

If your case comes to trial, it will be important to let jurors know that your sample was analyzed with a largely automated process. Jurors tend to think that the state gave the defendant’s sample individual attention by having a scientist look at the sample through a microscope. Your DUI attorney will need to disabuse them of this notion early. Often, the analyst conducting the analysis is not even in the room at the time of the run. The following sample cross-examination exposes this point:

DUI defense attorney: You did the analysis of the defendant’s blood?
Analyst: Yes, I did it myself.
DUI defense attorney: When you say you did the analysis yourself, you mean that you operated a machine that did the analysis?
Analyst: Yes, I used a gas chromatograph.
DUI defense attorney: Now, when you used this machine did you only analyze the defendant’s blood, or did you analyze other samples during the run?
Analyst: I am sure there were some others.

The witness is unnecessarily trying to minimize the extent of the run. Witnesses get into problems by shading the truth. The witness has learned that the witness can regularly get away with this behavior, because the attorney is frequently not as knowledgeable about the facts as the witness is.

DUI defense attorney: Not just “some others,” weren’t there 40 other “some others” tested?
Analyst: I think so.
DUI defense attorney: And this takes a couple of hours?
Analyst: About that.
DUI defense attorney: And when you yourself are doing these, you are not always in the room the whole time the analysis is being performed are you?
Analyst: Well, not always the whole time, but it is automated.
DUI defense attorney: So your answer is, you are not necessarily even in the room when the blood analysis is being done?
Analyst: Technically, that’s correct.

All cases

The following are some items to consider for discovery in all cases (blood, breath, urine, or refusal):

  • The police report.
  • The names, addresses, and statements of any witnesses.
  • All persons that you were with before, during and after your arrest.
  • An inspection of the scene. Going to the scene lets your DUI lawyer get a feel for the whole dynamic in the case. Was the officer’s vision of your driving partially obscured? Is the area where the field sobriety tests conducted level? Is the driving error that led to your initial detention common? Many times, motorists make the same driving error in the same location because of the road design. Perhaps everyone crosses over the line when making the same turn that you did. The argument then is that your driving mistakes had nothing to do with drinking and everything to do with poor road engineering. See Secure the evidence and preserve your shoes!
  • Police dispatch tapes.
  • Booking photos.
  • Mechanical inspection of the vehicle if you believe something was wrong with your car.
  • Accident reconstructionist and other accident reports. In serious cases involving major accidents, your DUI lawyer should consult an accident reconstructionist. Obtaining accident reports of other accidents at the same location as yours may help show that it was the roadway, rather than your driving, that contributed to the accident.
  • Prior police reports by the arresting officer. Some police officers write the same observations in drunk driving arrest reports for every defendant they have arrested, and this diminishes the credibility of the officer. Even without this kind of prize, your DUI lawyer can learn a lot by reading other police reports by the same officer. For example, the officer may generally ask the suspect how long he or she slept the night before, but did not do so in your case. Your lawyer can point out that the officer obviously thinks this information is significant, but failed to ask for it in your case. Perhaps if the officer had known that you had but four hours sleep, the officer would have had a different view of your field sobriety test performance.
  • All exculpatory evidence.
  • Your criminal history (“rap sheet”) and the criminal histories of any witnesses.
  • Your driving record. Your DUI attorney needs to know your driving history so that the attorney can advise you of the consequences of a possible plea bargain. Being convicted, even of a lesser charge, can result in an accumulation of driving points that may result in a license suspension. Your attorney will need to keep your point count situation in mind during plea discussions. Your DUI attorney may be able to secure an offense that does not have a point count attributed to it for some other concession.

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