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Warrantless Blood Draws

Tue, 25 Aug 2020 00:50:19 GMT

DuMond Disclosure Volume 5 | By Alissa Warren | August 25, 2017

When can law enforcement take my blood?

The right for the Police to request or require that you give any sample: blood, breath, or urine, is governed by the United States Constitution, specifically the Fourth Amendment, which outlines your rights in situations involving a search or seizure of your property or person, and the Fourteenth Amendment, which applies those same rights to actions by state governments. Before the police may take your blood, they must have either: 1) Your express consent; 2) A warrant; 3) A valid exception or exclusion to the warrant requirement.

Why is blood such a big deal?

Blood sample collection has been determined by the United States Supreme Court to be an invasive procedure. McNeely (2013) 133 S.Ct. 1552; Birchfield (2016) 136 S.Ct. 2160. As opposed to breath or even urine testing, both of which involve no invasion to the body, blood testing requires forced entry into a vein to obtain the sample, and the Supreme Court has thus held that it is subject to more constitutional protections than breath or urine testing, especially when all tests are testing for the same thing. Thus, police must have a warrant, or obtain your express permission, in order to take a sample of your blood for testing purposes, such as for blood alcohol content (BAC) or drug metabolites. However, there are certain exclusions to this requirement, under which police may still obtain a warrantless blood sample.
One of these exclusions is where an individual is receiving treatment at a hospital or other medical facility, and blood is collected in the process of treating or diagnosing the patient. In other words, if hospital staff are already accessing your blood for a medical purpose, police are then allowed to ask for an additional sample of that blood for their own testing purposes. Even if you are unconscious and therefore unable to “expressly consent” to treatment, if a “reasonable person” would consent to the treatment (for example, if it saves your life, or conveys some other substantial treatment benefit) then the collection of blood is still lawful without a warrant. Courts have held a very low standard on this. For example, a cut lip will bleed “profusely” despite very little actual blood loss. And because it is on the face, a “reasonable person” would ostensibly desire treatment [stiches] in order to prevent scarring. Therefore, a blood draw in such a case, without other evidence to the contrary, has been held to be lawful absent a warrant.

Do I have any defense if the police took my blood without a warrant?

Even if police have collected your blood and claim it was pursuant to a valid medically-necessary blood collection at a hospital or other treatment facility, you may still have a valid defense. Your attorney can subpoena the hospital record to verify whether the blood obtained was, in fact, collected during an already-in-process medical blood collection. Timing is key. If police collected your blood at 8:00 and claim it was a lawful warrantless seizure because your blood was already being collected in the course of your treatment, the record may refute this claim if hospital staff did not issue any bloodwork orders until 8:20, and the collection by hospital staff occurred at 8:25. Additionally, our firm has recently discovered that the hospital record released to you, the patient, does not contain all of the information necessary to determine such a timeline. The only way to obtain the full medical record is by subpoena. For this reason, if you have been charged with an offense and believe that a claimed medical blood draw may have in fact been an unlawful search and seizure in violation of your Fourth Amendment rights, you should contact DuMond Law as soon as possible in your court process. Without the full medical record, judges may make assumptions as to what likely occurred in your treatment. The only way to overcome a law enforcement officer who claims his warrantless blood draw was lawful is to refute it with documented treatment evidence.

So if they took my blood and didn’t have a warrant, I’m golden?

There may be other factors to consider. Any time law enforcement obtains your blood without a warrant or your express permission, that collection may be challenged; however, the Court will look at the complete picture, not just one factor. Did they have time to obtain a warrant, or would a judge declare the situation was so extreme as to make a warrant unnecessarily time-prohibitive or burdensome? Today, Police have computers in their vehicles and body microphones, therefore dispatch is almost always readily available, and thus it may be difficult for police to prove an exigency which rises to the level of allowing a warrantless search and seizure such as a blood draw. Was the officer certified in alternative testing procedures? Did he have that equipment available? If an officer is certified to administer a breath test, and a breathalyzer was in his vehicle, he will have a more difficult time proving to the court that your blood was necessary to his investigation. If the same information can be obtained from two different tests, the least invasive test is presumed to be sufficient, absent extraordinary circumstances.

These are just a few of the possible defenses available. Our Constitution protects individual citizens in such cases for the very reason that if law enforcement officers must resort to breaking Constitutional law in order to enforce statutory law, the justice system is no longer a system at all. At DuMond Law, we can review the facts of your case and determine your best option for a successful outcome.

The Dos and Don’ts of DUI Stops

Tue, 25 Aug 2020 00:34:14 GMT

DUI DOs AND DON’Ts

By Courtney Sullivan, Esq.

With today’s availability of quick and cheap ride share options such as Uber or Lyft, it can be very easy to get home after a night of drinking without encountering law enforcement. However, those of you who like to indulge in a glass of wine at dinner or have one beer at a friend’s house probably don’t even think you’re risking a DUI when you hop in your car to head home for the night. Unfortunately, in Arizona, you could be on your way to a pit stop in a DUI van even if you’ve only had a couple drinks and feel fine [1] . (Refer to our previous blog post all about DUIs, including “slightest degree” and presumptions here ) Especially if you’re driving at night; even more especially if you’re anywhere near Scottsdale. (“Night patrol” or “DUI squads” are a real thing, people!)

If you do find yourself on the side of the road with an officer approaching your window, there are several things that you should and should not do in order to protect your rights and ensure the process goes as smoothly as possible. Chances are, you’ve seen enough cop shows or heard the old adage that you should “refuse everything.” (Or try dancing – just kidding). In Arizona, however, sometimes refusing can backfire on you. Here is a step-by-step rundown of a typical DUI stop and arrest, and some sage advice to get you through it.

1) The Traffic Stop

You can avoid being stopped by law enforcement if before you get in the car, you make sure all of your lights are on and functioning properly, if you obey traffic laws and the speed limit, and if you keep your hands off your phone and your eyes on the road. So many drivers are stopped for simple vehicle issues or minor traffic violations that wouldn’t even faze an officer in the daylight. Quick note: if you are turning left onto a roadway with multiple lanes, make sure you turn into the CLOSEST lane! The too-wide-of-a-left-turn folly is a surefire way to catch a cop’s eye if it’s after 8 pm. Also, you are perfectly entitled to minor swerving but you cannot let your tires drift over any lane lines, even for a millisecond. Now that you know how to not get stopped, here’s what you should and should not do in the event that you actually do get stopped.

DO:

– Pull over as quickly and safely as possible. The officers are trained to monitor how long it takes you to come to a complete stop, while watching for how quickly you brake, whether or not you signal to pull over, whether or not you turn on your hazard lights, and if you stop in a reasonable location.

– Turn on your hazard lights. Especially if you are stopped on the side of a main roadway. Ideally, you would be stopped in a parking lot or off of the roadway, but this is not always possible.

– Have all of your documents ready. They will immediately ask you to provide your driver’s license, proof of registration, and proof of insurance. They are trained to document how well you respond to this and if you have any issues fumbling with your documents. As soon as you stop your car, gather your documents so you can hand them to the officer as soon as he gets to your window. However, DO NOT make too many sudden movements inside of the car so as to cause alarm to an approaching officer. You should have your registration and insurance together in an easily accessible area (center console, preferably) so that you can quickly grab everything without making suspicious looking movements. If it’s nighttime, turn on your interior light so the officer can easily see you and determine you are not making any potentially dangerous movements. If you prefer to have zero contact with the officer, check out these tips from an attorney in Florida who devised a genius plan to avoid any contact. As far as I know, this has not been tested here in Arizona, but it’s definitely worth a shot!

DO NOT:

– Commit any traffic violations attempting to stop. This may sound like common sense, but drivers will often see those lights and immediately cut to the right side of the road without signaling, and the officers are trained to watch for any additional moving violations during the stop.

– Block a roadway or park over parking lines. Make sure you pull over as far away from traffic in the safest location you can possibly get to. You do not want to put yourself, other drivers, or the officer in any danger. Do not park at an odd angle, stop on the left shoulder, or pull into a parking lot and cover 3 spaces at once.

– Refuse to stop or keep driving. Officers understand if you need to travel a bit to find a good location to stop safely, but do not keep driving for an extended period of time. Immediately display your intention to stop by signaling and slowing down, and come to a stop as quickly and safely as possible. It goes without saying that you should never, ever, attempt to flee from the police. There will probably be a entire other blog post just on that subject someday.

2) Officer Contact

It can be nerve-wracking to see an officer walking up to your vehicle and you may have 100 different thoughts going through your head. But again, they are trained to watch you for certain behaviors at this point, and your goal is to give them as few reasons to arrest you as possible.

DO:

– Stay in the car. This may sound like common sense, but sometimes people will believe it’s helpful to get out and meet the officer. You can never be too careful! It’s best to sit in your car and wait for the officer to approach you. Make sure and keep your seat belt fastened to avoid any potential additional seatbelt citations as well.

– Start recording. If you wish to document the encounter and have a passenger, have them turn on the camera to their phone and set it in the cup holder or somewhere with a clear view. If you believe you are not impaired, it is also pertinent to show your face on the video so that your eyes are visible and you can be heard speaking clearly. Although a passenger does not always have the best vantage point during any field sobriety tests, it is best to keep the camera rolling throughout the entire stop.

– Speak politely. If you choose to follow the Florida Method, simply sit in your car and do not say a word. If the officer threatens you to speak or you will be arrested, simply request to speak to an attorney before making any statements. If you do speak, be polite and cooperative and try not to set forth any defensive or aggressive tone.

– Provide requested documents. You should have these ready. Hand them to the officer when asked. (We should back up here to the very beginning and note – always make sure you have your current insurance and registration IN your vehicle at all times! And if you change your address or name, get a new license within 2 weeks!) [2]

DO NOT:

– MAKE ANY ADMISSIONS. This one cannot be emphasized enough. It is NOT HELPFUL to “be honest” and tell the officer you’ve had “one or two beers” (as is a very common statement for DUI defendants to make). All you are doing is giving them probable cause to arrest you for DUI. All you say is “I request to speak to an attorney prior to answering any questions, and I will not respond without being read my Miranda [3] rights.” The officer should stop asking you questions at that point. If the officer reads your Miranda rights, say, “Yes, I understand and I decline to answer.”

– Say where you are coming from. Especially if that place happens to be a bar or a party. You may believe that “dinner with friends” sounds innocuous, but to an officer, it sounds like “drinking and dinner.”

– Make apologies. Saying “I’m sorry” makes you sound guilty of something.

3) Field Sobriety Tests

In the event an officer believes there is probable cause to investigate you for DUI, he will ask you to step out of the car and submit to field sobriety tests. The way they ask is typically very polite and innocent, along the lines of, “I just need to look at your eyes really quick and make sure you’re safe to drive, okay?” This is actually him initiating his DUI investigation and the “eye test” – officially called HGN for Horizontal Gaze Nystagmus – is the first test they administer. Once that’s over, they want to move on to the rest and it can happen so fast you have no idea what’s going on.

DO:

– Request to speak to an attorney before submitting to tests. You can easily make this call on your own, but if you are confused or uncomfortable then absolutely ask to call an attorney. They may or may not let you call someone right then and there, but they won’t ask any more questions or make you do testing until you have the opportunity.

– Declare any medical issues. They will ask if you have any eye or head injuries or medical disabilities. If you have anything wrong with your head, eyes, back, or legs/feet, tell them and tell them clearly so that it is documented. Field Sobriety Tests are not valid if certain medical conditions exist. Inner ear issues such as ear infection, sinus infection, or even a cold, can throw off your equilibrium and create artificial nystagmus.

DO NOT:

– Submit to any tests you do not want to. This goes without saying, but it is up to you whether you complete field sobriety tests. They are designed for people to fail, and even sober people could potentially “fail” them. There is no consequence for declining to submit to field sobriety tests, and this will limit the amount of evidence against you in the case. The downside, however, is they may end up arresting you anyway. NOTE: This only applies to Field Sobriety Tests (roadside standing/walking/eye tests) – read on for advice about blood and breath tests.

– Speak or move during instructions. If you do elect to perform the tests, you must stand there in the starting position and listen to all of the instructions before you can move. If you move or ask a question or get yourself out of the starting position before you begin the test, it is a mark against you.

4) Arrest

If you are arrested, it will be okay. DUI suspects are typically processed and released to a cab or a sober friend within a couple of hours. You will be taken to a station or DUI van and the officers will photograph you and take your fingerprints, take a blood and/or breath sample from you, and attempt to interview you.

DO:

– Request to speak to an attorney prior to processing. If you’ve already asked and haven’t had the chance to call one yet, or if you haven’t asked yet, now is the time. Officers will give you time to yourself with either your cell phone or a station phone to make phone calls. Take any advice you receive from your attorney.

– Politely decline to answer any questions. If an officer reads your Miranda rights to you and begins asking questions, simply state you decline to answer and they will stop questioning you. Again, making admissions DOES NOT HELP YOU. Do make sure you provide your name and personal identifying information they ask for, as refusing to answer those questions may get you an interference citation on the side.

DO NOT:

– Ask to be let go or try to make some kind of deal with them. If you’re in the back of a police car, the show’s over. There is no wheeling and dealing in this situation. Just get through it.

– Resist arrest or become argumentative. It only gets worse if you fight it.

– MAKE ADMISSIONS. This bears repeating because the officers will definitely keep asking you how much you had to drink until you cave. Don’t cave.

5) Admin Per Se

There is a set of rules under Arizona law known as Admin Per Se . This is what governs whether or not you lose your license for a DUI and for how long. The officer must read this form to you and ask whether you consent to blood or breath tests. Long story short: consent to the tests. If you don’t, you’ll lose your license for an entire year. If you do, you lose it for 90 days but may be able to get a restricted license after 30 days. The laws regarding the process for explaining these terms to DUI subjects changed recently, making it more difficult for the officers to help you understand what it all means [4] , so have it in your head to just say yes and you’ll be in better shape.

DO:

– Consent. They’re going to get your blood whether you consent or not, and if you refuse, you lose your license for 12 months rather than 3. If they get a warrant and you still refuse, you’re looking at a Violation of a Court Order citation as well.

* Caveat: If you have declined all previous tests, you may want to refuse here. You may still end up with the suspension, but if you have not made any admissions and the officer has no other evidence of impairment, there will be very little probable cause on which to base a search warrant. So it is possible to eventually fight the suspension as well as the admissibility of the blood draw as a search warrant issue.

– Request to speak to an attorney. If you want to ask first, tell them you will consent but you wish to call an attorney prior to testing. (Only do this if you haven’t already called one).

DO NOT:

– Refuse to answer a straight “yes” or “no.” Believe it or not, not answering either way is considered a refusal. If you aren’t sure, call an attorney.

- Refuse to submit. Even if you’re scared of needles. Unless you don’t need to drive anywhere for a year.

6) Blood and Breath Test

The law enforcement officer who arrested you will need to collect some sort of sample from you to be able to test the level of alcohol in your blood within 2 hours of driving. This will usually be done by a blood test, sometimes breath, or sometimes both. These are the tests to which the Admin Per Se refers, so it is in your best interest to consent.

DO:

– Submit to the testing. Keep your license. You know the drill by now.

– Ask to be released for an independent test. You will receive an admonition about your right to an independent blood test. If you can manage, get yourself to a hospital immediately upon release to have your blood tested independently. You will have the opportunity later on with the same sample the law enforcement officer took, but it is always better to get your own test.

7) Interview

If you have not yet requested to speak to an attorney, the officer will attempt to interview you. These questions are intended to retrieve more admissions from you and evidence to help support the fact that you were driving while impaired within 2 hours.

DO:

– State you decline to answer. You have the right to remain silent. Use it!

DO NOT:

– MAKE ADMISSIONS. Thought I would really drive that point home one more time.

Be Careful, be safe and be knowledgeable. If you have been stopped and investigated for DUI, call us at 602-803-4975for a free consultation! We handle DUI cases all around Arizona and can help you get the best result possible for your situation.

[1] A.R.S. §28-1381 is Arizona’s DUI statute. Refer to the link to see the different levels of DUI as well as sentencing requirements.

[2] You can easily apply for a new license without stepping foot into MVD! Visit www.servicearizona.com for help.

[3] Miranda v. Arizona, 384 U.S. 436 (1966) is a landmark case regarding your rights when under arrest. Read it here .

[4] State v. Valenzuela, 237 Ariz. 307 (Ariz. Ct. App. May 26, 2015).

Release Conditions in Maricopa County

Wed, 20 Apr 2016 16:32:39 GMT

DuMond Disclosure Volume 2 | By: Samantha DuMond, Esq. | April 20, 2016

Your loved one has just been arrested for an alleged crime or has been in custody unable to be released. What just happened? What is going to happen?

Your loved one was just arrested – Now what?

In Maricopa County, when an individual is arrested for an alleged crime, they must be seen in front of a judge within 24 hours of the arrest for a hearing called their “Initial Appearance.” This hearing is the first step in the criminal procedure process. Four important things are done at this hearing:

Your loved one is informed of the charges.
They are advised of their right to an attorney. If the Court finds they cannot afford an attorney, a public defender will be appointed to them.
Their conditions of release are established.
Another court date is set for the next proceeding.

Initial Appearance Court – Commonly referred to as “IA Court” is held at 4 ^th Avenue Jail, located at 201 S 4 ^th Ave, Phoenix, AZ 85003, every day including weekends and holidays for Maricopa County Charges and City of Phoenix Charges.

Maricopa County: IA Court times are held every 3 Hours (2am, 5am, 8am, 11am, 2pm, 5pm, 8pm, and 11pm).

City of Phoenix: Initial Appearance Court is held daily at 10am and 4pm.

There are television monitors located at the 4 ^th Avenue Jail where family members can watch the Initial Appearance Court and see when their loved one is in front of the judge receiving their release conditions.

The following cities hold their own Initial Appearance for charges out of other city courts: Avondale, Chandler, Gilbert, Glendale, Mesa, Scottsdale, and Tempe.

It can take from two to fifteen hours from the time of arrest, depending on the arresting agency, to complete their own processing, transporting, and booking into 4th Avenue Jail.

Release conditions – When will my loved one get out of jail?

The purpose of setting release conditions is to ensure that an individual will show up for their future court dates. The judge considers many factors when setting release conditions including but not limited to:

Nature and seriousness of the charges;
Residency;
Family and employment ties;
Financial resources;
Victim involvement;
Flight risk;
Safety of the community
Other factors particular to the circumstances

There are four types of release conditions the judge can order:

Nature and seriousness of the charges;
Residency;
Family and employment ties;
Financial resources;
Victim involvement;
Flight risk;
Safety of the community
Other factors particular to the circumstances

1) Release on Own Recognizance (ROR) – Meaning your loved one is released to simply return for their next scheduled court date without any other conditions. In this instance, you do not have to do anything. The jail will begin processing your loved one to be released.

2) Release to a Third Party – Meaning your loved one will be released to someone else, usually a family member or competent adult, who will be responsible for making sure they return for their next court appearance. (This is most often seen with young adults who are released to the custody of their parents)

3) Release to Pre-trial Services – Pre-trial Service Programs are county, state, government, or nonprofit agencies that help the court make bail decisions. They provide risk assessments and recommendations to the court. In some cases, supervised release of the defendant to the program, for those who would otherwise have not been eligible for release or able to make bond. They work closely with the court and the defendant to assure the defendant does not pose a threat to the community, and will appear for their next court date. Pre-trial services can also include drug and alcohol monitoring and or electronic monitoring as conditions of release.

For the above listed three types of release, you do not have to do anything. The jail will begin processing your loved one to be released without any action on your part.

4) Release on Bond – A bond is essentially collateral that is given to the court to ensure that a person returns for his/her future court dates. If you have the entire bond amount in cash, then you can post your loved one’s bond directly with the court. The court will hold the money throughout the duration of your loved one’s case. If the person out on bond does not violate their release conditions, and does not fail to show up to future court dates, then 100% of your cash money will be returned back to you once the case is over.

However, the courts only accept cash. If you do not have that kind of cash available, then you may need the assistance of a bond company to bail your loved one out. Bonding companies or bail bondsman will typically allow you to give them non-cash collateral (car titles, houses, jewelry, and other valuable items) that cover or equal the value of the bond plus a small percentage of cash (usually 10% of the bond). In return, the bond company posts the entire bond to the court so that your loved one can be released. The difference between posting directly with the court and posting with a bond company is that your money will all be returned to you by the court if everything goes right, but a bonding company keeps the 10% cash you give them as profit for their services.

*Judges can also impose multiple release types; they do not have to choose just one. For example, a judge can set a bond and also require that a person report to Pre-trial Services.

The bond amount was set at an amount you cannot pay or your loved one is being held non-bondable – What should you do?

If you cannot afford the bond or your loved one is being held non-bondable then you will want a defense attorney to file a Motion to Modify Release Conditions or a request for a Simpson [1] Hearing. In these motions, the defense attorney is requesting that the Court re-examine the facts surrounding the case and give reasons why a bond should be issued or reduced. An oral argument or a hearing will take place for the judge to hear from the prosecutor and the defense attorney before making a decision.

The attorneys at DuMond Law, PLLC have had great results in securing bond reductions and in obtaining bonds for defendants being held non-bondable. In some instances, the bonds have been reduced by 50-90%. Here are a few of our recent victories in this area:

CR2015-002585-001 State v. Bean et al. Release conditions set for a $100,000 Bond. DuMond Law, PLLC was successful in obtaining a bond reduction to $10,000.
CR2015-123000-001 State v. Thomas. Release conditions set for a $7,500 Bond. DuMond Law, PLLC was successful in obtaining a bond reduction to $2,500.
CR2014-130862-001 State v. Cota. Our Client was initially held non-bondable and sat in custody for eleven months before hiring DuMond Law. Within three weeks of retaining our firm, a hearing was requested, held, the State failed to meet their burden, and Mr. Cota’s released conditions were changed to an $18,000 Secured Appearance Bond.

You or your loved one has received a summons in the mail – Now what?

A Summons with the date and time of the initial appearance is sent to individuals not in custody. The individual is required to appear at the date, time, and location located on the summons. The Initial Appearance Judge will follow all of the same procedural requirements for this hearing as an individual in custody.

Having an attorney represent you at this hearing is highly recommended, as your release conditions will be set. If a bond is ordered, you will be taken into custody until the bond is posted. Defense attorneys can argue for you to be released on your own recognizance or to pre-trial services instead of a bond at this hearing.

The attorneys at DuMond Law will work with the prosecutor before the hearing to determine a recommendation to the Court for release conditions. All cases are different and each case depends on its own individual facts, but in many cases, we have been successful in working out release conditions to allow defendants to be released on their own recognizance or released to Pre-Trial Services. These results, if obtained, will avoid your loved one from being taken into custody at their Initial Appearance Hearing and help you avoid the stress, burden, and worries that are associated with finding the money to get them bonded out.

If you have received a summons in the mail or a loved one has just been arrested, contact the attorneys at DuMond Law today (602-803-4975) for a free consultation.

[1] Simpson v. Owens, 207 Ariz. 261 (Ct. App. 2004).