Is Your Defense Lawyer Being Honest With You?

Some defense lawyers have a bad habit of over promising and under delivering. Many times a potential client will come to me and tell me how a different defense lawyer they met with promised them all kinds of things. Sometimes the promise is a better plea, and other times the promise is a dismal of a case. In reality no honest or ethical defense lawyer can promise an outcome in a criminal case. The reason is that there are too many variables. The variable range from the facts of a given case, to who the prosecutor is, to who the judge is or who the jurors are.

A good and honest defense lawyer will explain to a client or a potential client that they can’t make any guarantees. I have lost potential clients over the years because I would not promise them a certain outcome. I have had potential clients tell me they would hire me only if I guaranteed a dismissal.

Another area where a good defense lawyer will be honest with the client is when it comes to giving bad news. I don’t like to give bad news to clients but I know it is part of my job. I have heard stories of unethical lawyers simply choosing not to give their clients bad news and leaving the clients in the dark. A good and ethical lawyer will not only give good news to their clients but also bad news that may be hard to hear. If I have a bad case with bad facts and I know it will be difficult to win at trial I tell my clients. I don’t sugar coat the news because that is not helpful to my client.

In my experience most of the defense lawyers in Phoenix, and in the Phoenix greater metro area are honest and would never be dishonest with their clients but unfortunately there are bad apples. There are bad apples in every profession and the profession of criminal defense lawyers is no different.

Questions to ask a DUI Lawyer Before Hiring Them in Arizona

Knowing which lawyer to hire for your DUI is a major decision. Making the correct decision can have a major outcome on the case and be the difference between no jail and jail or the difference in thousands of dollars in fines. The first question you should ask a lawyer is if they are actually a DUI lawyer? If a lawyer tells you they do mostly civil law but do a few DUI cases a year they are probably not the right person for your case. Ask the lawyer how many DUI cases they handle a year. If the person tells you they only do a handful of cases that is probably not the right person for you also. I tell my clients that I handle several hundred DUI cases a year and this tells potential clients several things. First, it tells them that I know the process and will be able to walk them through it. Second, it tells them that I probably know the latest laws.

Another important question to ask a a potential lawyer for your DUI cases is how long have they been practicing in the field of DUI. An attorney may have 20 years experience but if that experience is in a different area of law how will that help your in your DUI. By asking the two simple questions of a prospective DUI attorney you will be better off.

Dealing with Police During DUI Stop in Arizona

A common question I get from people worried about being charged with a DUI in Arizona is what they should do if stopped by the police for suspicion of DUI. The first thing you should do is be nice to the police officer. If you are rude and or hostile this will not help your situation. The more combative you are the more agitated the officer will be with you. I once had a client that threw his keys as far as he could when the officer asked for the keys, this is not helpful. Remember that the officer is taking mental notes on how you are acting. If you are rude and or disrespectful your actions will be noted and will make their way into the officer’s report. If you wouldn’t want a jury hearing about how rude you were, there is a simple solution, don’t be rude.

Being polite to the officer does not mean you should give up your rights. It is important that you know your rights and exercise them. The first thing to remember is that you are better off not doing any of the field sobreity tests. The tests are not your friends and they are designed for you to fail them. There is a lot of published science on how the tests are designed for you to fail them. Most people would have a hard time doing the tests sober. You should provide the officers with your driver’s license, insurance, and registration. Obviously, if you don’t have the documents this will be a problem.

At some point the officer will probably ask he or she can draw your blood. Some police departments still rely on breath tests, but most of the major cities have switched to blood. The reason for the switch is that blood is more accurate. Under Arizona law you should submit to the blood draw. If you do not you could lose your license for a year even if you are not convicted of a DUI. If you don’t submit to the blood draw the officer will usually obtain a warrant. Once the warrant is obtained the officer can take your blood. If the suspect is being difficult they will be strapped into a chair and have the blood taken by force.

As always the less information you volunteer to the officer the better off you will be. The officer will usually say they are just trying to figure out what is going on and are not looking to charge you with a DUI. This is usually not true. Trying to talk your way out of the bad situation you are in is rarely a good idea. Keep your composure, keep calm and contact a good DUI lawyer.

Understanding Felony DUI Charge in Arizona

Most often when a person is charged with a DUI in Arizona it is a misdemeanor. There are times, however, when a DUI can be charged as a felony. A felony is defined as any crime that can be punished by over one year in jail. If a person has been convicted of two prior DUI in the past seven years the charge can be a felony. Also, if a person gets a DUI charge while their license is suspended the charge can also be a felony. With this type of felony charge a prosecutor has a lot of discretion as to whether they want to charge the DUI as a felony or a misdemeanor.

The full statute is below:

28-1383. Aggravated driving or actual physical control while under the influence; violation; classification; definition

A. A person is guilty of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs if the person does any of the following:

1. Commits a violation of section 28-1381, section 28-1382 or this section while the person’s driver license or privilege to drive is suspended, canceled, revoked or refused or while a restriction is placed on the person’s driver license or privilege to drive as a result of violating section 28-1381 or 28-1382 or under section 28-1385.

2. Within a period of eighty-four months commits a third or subsequent violation of section 28-1381, section 28-1382 or this section or is convicted of a violation of section 28-1381, section 28-1382 or this section and has previously been convicted of any combination of convictions of section 28-1381, section 28-1382 or this section or acts in another jurisdiction that if committed in this state would be a violation of section 28-1381, section 28-1382 or this section.

3. While a person under fifteen years of age is in the vehicle, commits a violation of either:

(a) Section 28-1381.

(b) Section 28-1382.

4. While the person is ordered by the court or required pursuant to section 28-3319 by the department to equip any motor vehicle the person operates with a certified ignition interlock device, commits a violation of section 28-1381, section 28-1382 or this section.

B. The dates of the commission of the offenses are the determining factor in applying the eighty-four month provision provided in subsection A, paragraph 2 of this section regardless of the sequence in which the offenses were committed. For the purposes of this section, a third or subsequent violation for which a conviction occurs does not include a conviction for an offense arising out of the same series of acts. The time that a probationer is found to be on absconder status or the time that a person is incarcerated in any state, federal, county or city jail or correctional facility is excluded when determining the eighty-four month period provided in subsection A, paragraph 2 and subsection E of this section.

C. The notice to a person of the suspension, cancellation, revocation or refusal of a driver license or privilege to drive is effective as provided in section 28-3318 or pursuant to the laws of the state issuing the license.

D. A person is not eligible for probation, pardon, commutation or suspension of sentence or release on any other basis until the person has served not less than four months in prison if the person is convicted under either of the following:

1. Subsection A, paragraph 1 of this section.

2. Subsection A, paragraph 2 of this section and within an eighty-four month period has been convicted of two prior violations of section 28-1381, section 28-1382 or this section, or any combination of those sections, or acts in another jurisdiction that if committed in this state would be a violation of section 28-1381, section 28-1382 or this section.

E. A person who is convicted under subsection A, paragraph 2 of this section and who within an eighty-four month period has been convicted of three or more prior violations of section 28-1381, section 28-1382 or this section, or any combination of those sections, or acts in another jurisdiction that if committed in this state would be a violation of section 28-1381, section 28-1382 or this section is not eligible for probation, pardon, commutation or suspension of sentence or release on any other basis until the person has served not less than eight months in prison.

F. A person who is convicted under subsection A, paragraph 3, subdivision (a) of this section shall serve at least the minimum term of incarceration required pursuant to section 28-1381.

G. A person who is convicted under subsection A, paragraph 3, subdivision (b) of this section shall serve at least the minimum term of incarceration required pursuant to section 28-1382.

H. A person who is convicted of a violation of this section shall attend and complete alcohol or other drug screening, education or treatment from an approved facility. If the person fails to comply with this subsection and is placed on probation, in addition to the provisions of section 13-901 the court may order that the person be incarcerated as a term of probation as follows:

1. For a person sentenced pursuant to subsection D of this section, for an individual period of not more than four months and a total period of not more than one year.

2. For a person sentenced pursuant to subsection E of this section, for an individual period of not more than eight months and a total period of not more than two years.

I. The time that a person spends in custody pursuant to subsection H of this section shall not be counted towards the sentence imposed if the person’s probation is revoked and the person is sentenced to prison after revocation of probation.

J. On a conviction for a violation of this section, the court:

1. Shall report the conviction to the department. On receipt of the report, the department shall revoke the driving privilege of the person. The department shall not issue the person a new driver license within one year of the date of the conviction and shall require the person to equip any motor vehicle the person operates with a certified ignition interlock device pursuant to section 28-3319. In addition, the court may order the person to equip any motor vehicle the person operates with a certified ignition interlock device for more than twenty-four months beginning on the date of reinstatement of the person’s driving privilege following a suspension or revocation or on the date of the department’s receipt of the report of conviction, whichever occurs later. The person who operates a motor vehicle with a certified ignition interlock device under this paragraph shall comply with article 5 of this chapter.

2. In addition to any other penalty prescribed by law, shall order the person to pay an additional assessment of two hundred fifty dollars. If the conviction occurred in the superior court or a justice court, the court shall transmit the monies received pursuant to this paragraph to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the monies received pursuant to this paragraph to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer. The state treasurer shall deposit the monies received in the driving under the influence abatement fund established by section 28-1304. Any fine imposed for a violation of this section and any assessments, restitution and incarceration costs shall be paid before the assessment prescribed in this paragraph.

3. Shall order the person to pay a fine of not less than seven hundred fifty dollars.

4. In addition to any other penalty prescribed by law, shall order the person to pay an additional assessment of one thousand five hundred dollars to be deposited by the state treasurer in the prison construction and operations fund established by section 41-1651. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.

5. In addition to any other penalty prescribed by law, shall order the person to pay an additional assessment of one thousand five hundred dollars to be deposited by the state treasurer in the public safety equipment fund established by section 41-1723. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.

K. After completing the period of suspension required by section 28-1385, a person whose driving privilege is revoked for a violation of subsection A, paragraph 3 of this section may apply to the department for a special ignition interlock restricted driver license pursuant to section 28-1401.

L. Aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs committed under:

1. Subsection A, paragraph 1, 2 or 4 of this section is a class 4 felony.

2. Subsection A, paragraph 3 of this section is a class 6 felony.

M. For the purposes of this section, “suspension, cancellation, revocation or refusal” means any suspension, cancellation, revocation or refusal.

Importance of Giving Entire Story to Your Defense Lawyer

One of the things that can be most harmful to my client’s case is when the client is not honest with me. There are different reasons why clients will sometimes bend the truth when speaking with their defense lawyers. Sometimes the client is embarrassed and feels awkward about telling the facts to their lawyer. Sometimes the client is not honest because they think bending the truth will somehow help their case.

There are several bad things that can, and do occur when clients are not honest with their lawyers. First, the lawyer can’t do everything to the best of their ability if they don’t have all the information. In Arizona this often occurs in DUI cases. A client that doesn’t give the full story can hamper my ability to properly defend them. There have been countless times over the past seven years where I could have done more in DUI cases if they client had been honest with me from the start. Besides DUI cases I have also had clients not be honest with on the issue of probation. A lot of the time the only way I know that my client is on probation is if they tell me. If the client keeps the information from me it can greatly harm their case.

Being honest with your defense lawyer can be difficult for the reasons stated above but always remember that your lawyer is on your side and that the more honest you are with them the more they will be able to help you.