KINGMAN - A local man says Mohave County Superior Court has no jurisdiction in prosecuting him for driving under the influence.
Rex Carl Sagely, 60, was arrested shortly after midnight on Jan. 2, after a deputy with the Mohave County Sheriff's Office said he observed Sagely's gray Ford pickup swerve into the other lane while traveling northbound on Patsy Drive.
Sagely was taken into custody after deputies performed a field sobriety test. Sagely refused a breath-analysis test while at the Sheriff's Office and was transported to Kingman Regional Medical Center, where his blood alcohol content tested at .147, nearly twice the legal limit.
Sagely's January arrest was his third DUI arrest in the last year. He was arrested last August and September by Mohave County Sheriff's deputies and each time refused the breath-analysis tests. Those cases are still open.
At an evidentiary hearing Thursday, Sagely, who is serving as his own attorney, said he believed the search warrant used to obtain his blood was not signed by a judge before the sample was taken at the hospital. The deputy who arrested Sagely testified at the hearing that he obtained the judge's signature before transporting Sagely to the hospital. He said he may have made copies of the warrant before taking it to be signed.
Sagely said the copy provided to him by the deputy was not signed. Judge Rick Williams said it was possible Sagely was provided with a copy of the warrant made before it was signed by a judge and denied the defense's motion to suppress the blood evidence.
Sagely has filed several motions to have the case thrown out of court before it goes to trial. Sagely joined the Little Shell band of Chippewa Indians five years ago. He said that as a member, he is subject to the tribe's laws, not the state of Arizona's laws.
"I realized I didn't have the rights Native American have," he said.
Sagely cancelled his Arizona driver's license in March 2008 and obtained an international identification card, which he said negates his driving contract with the state of Arizona.
The court says it has jurisdiction in cases that occur on non-tribal land regardless of the defendant's heritage.
Richard Neal, assistant attorney for the tribe, said the court is pre-empting the tribe from enforcing its own law.
"We're entitled to the revenue, not the state of Arizona," Neal said. "The only reason the state is prosecuting is for the revenue."
Sagely admits to having about three to four drinks prior to being pulled over, "but that was sometime prior to getting onto the highway," he said. He said the state has failed to provide him with copies of the original tickets, along with other documents such as copies of federal treaties with Native Americans.
"Denying me the tickets denies me a fair trial," Sagely said.
Williams said Sagely could still conduct pre-trial witness interviews without the original tickets. He also said many of the documents requested by Sagely are "arcane documents" not relevant to the trial and are not in the possession or control of the state.
"I realize there is a difference in opinion in what the defense feels is relevant and what the court feels is relevant," Williams said.
Neal said Williams is "rubber-stamping motions made by the prosecution."
"We know he's going to deny it (defense motions) before he's even heard it," Neal said.
Source
Wednesday, October 28, 2009
Thursday, October 15, 2009
Know Your DUI Expert
Let me tell you a tale of two contrasting DUI cases. Both where the attorney and I have worked together in the past. One where the attorney prepped with me in advance, and the second when the attorney didn't
In the first case, based on incredibly good performance on a dash-board patrol camera, the defense attorney was able to asked me questions that lead the jury to have enough reasonable doubt for a full acquittal. That's impressive enough on most DUI cases, in this case the defendant was charged with:
1) Impaired to the slighted degree
2) BAC over 0.08 within 2 hours of driving
3) BAC over 0.150 within 2 hours of driving (AZ Extreme DUI)
4) BAC over 0.200 within 2 hours of driving (AZ Super Extreme DUI)
The attorney in this case is arguably one of the best litigating DUI attorneys in the southern Arizona area. The evidence against the subject was a blood reading of 0.265.
In the second case I wasn't prepped properly for trial. I had read the case material, and in my case notes I had written that the case seemed very weak, and the subject's (who's blood reading was a 0.146) best possible outcome was very likely a regular DUI charge.
There was a lot of documented behavior in the case that would lead to very poor jury appeal.
The issue in the case was that the blood draw occured over 3 1/2 hours after driving. The attorney got me on the stand and made sure I was aware (and the jury was aware I was aware) of the time line of the case. The theory of the case for the defense was that a retrograde extrapolation (a back calculation/prediction of the subjects BAC earlier in time) can't be done from 3 1/2 hours after the time of driving.
His question was something of the effect of - Isn't it true that there is no way to give a reasonable scientifically accurate retrograde extrapolation 3 1/2 hours after driving, and with no eating or drinking history?
My answer was something to the effect of - "Accurate scientific and retrograde extrapolation" are oxymorons. Be that as it may, without an eating and drinking history, in Arizona it is still generally accepted to retrograde back to the time of the stop +2 hours. Some police scientists might go an hour, others might even go a half hour, but 2 hours would be fine, but we have to remember that based on the literature, the individual's calculated BAC could over-estimate their actual BAC by as much as 10% if they aren't fully absorbed at stop +2 hours.
This wasn't the answer the attorney was expecting, and it basically tanked his case.
Always remember to talk to your expert before they get on the stand. The state's expert can hurt your case, but your own expert can destroy it even quicker if you don't know what their opinions are, and you make assumptions.
Source
In the first case, based on incredibly good performance on a dash-board patrol camera, the defense attorney was able to asked me questions that lead the jury to have enough reasonable doubt for a full acquittal. That's impressive enough on most DUI cases, in this case the defendant was charged with:
1) Impaired to the slighted degree
2) BAC over 0.08 within 2 hours of driving
3) BAC over 0.150 within 2 hours of driving (AZ Extreme DUI)
4) BAC over 0.200 within 2 hours of driving (AZ Super Extreme DUI)
The attorney in this case is arguably one of the best litigating DUI attorneys in the southern Arizona area. The evidence against the subject was a blood reading of 0.265.
In the second case I wasn't prepped properly for trial. I had read the case material, and in my case notes I had written that the case seemed very weak, and the subject's (who's blood reading was a 0.146) best possible outcome was very likely a regular DUI charge.
There was a lot of documented behavior in the case that would lead to very poor jury appeal.
The issue in the case was that the blood draw occured over 3 1/2 hours after driving. The attorney got me on the stand and made sure I was aware (and the jury was aware I was aware) of the time line of the case. The theory of the case for the defense was that a retrograde extrapolation (a back calculation/prediction of the subjects BAC earlier in time) can't be done from 3 1/2 hours after the time of driving.
His question was something of the effect of - Isn't it true that there is no way to give a reasonable scientifically accurate retrograde extrapolation 3 1/2 hours after driving, and with no eating or drinking history?
My answer was something to the effect of - "Accurate scientific and retrograde extrapolation" are oxymorons. Be that as it may, without an eating and drinking history, in Arizona it is still generally accepted to retrograde back to the time of the stop +2 hours. Some police scientists might go an hour, others might even go a half hour, but 2 hours would be fine, but we have to remember that based on the literature, the individual's calculated BAC could over-estimate their actual BAC by as much as 10% if they aren't fully absorbed at stop +2 hours.
This wasn't the answer the attorney was expecting, and it basically tanked his case.
Always remember to talk to your expert before they get on the stand. The state's expert can hurt your case, but your own expert can destroy it even quicker if you don't know what their opinions are, and you make assumptions.
Source
Monday, September 28, 2009
New DWI laws take effect Saturday
Three new laws targeting driving while intoxicated take effect on Saturday, Louisiana State Police announced today.
The laws offer stiffer penalties to drivers who refuse to take a breath test; make driving with a suspended driver’s license a crime punishable with mandatory jail sentences; and limit defense questioning of police officers during administrative hearings for driver’s license suspension.
The laws, passed during the 2009 Legislature, are:
HB 445 - Strengthens the penalties for refusing to submit to a breathalyzer exam. As a condition of receiving a driver’s license, all Louisianans agree to provide a breath sample when properly requested. blood alcohol content can be the most important piece of evidence in the trial, but without it, prosecution is very difficult. Louisiana has one of the highest rates of refusal to submit to a breathalyzer in the nation. In fact, the national average for refusal of the test is 22.4 percent, but in Louisiana, it is 39 percent.
Laws to require drivers to submit to the breathalyzer are being strengthened nationwide. Refusal is now a distinct crime in 16 states and six states actually use warrants to forcibly obtain blood samples from drivers who refuse. In Arizona, this has decreased refusals from
With this new law, drivers’ license suspension penalties for refusing the breathalyzer will double from 180 days to one year on the first offense – and increase from 18 months to two years on the second offense.
These laws have been found to reduce DWI recidivism and the number of fatal crashes. In fact, he said research shows that license suspensions can reduce fatal crashes by up to 9 percent, which could translate to saving 35 lives in Louisiana in just one year.
SB 166 - Creates a law so that driving without a license that has been suspended due to a DWI arrest or conviction, is in and of itself a criminal offense with mandatory jail time. This new law provides real penalties for those drivers who continue to drive even after their license has already been suspended due to a DWI.
Source
The laws offer stiffer penalties to drivers who refuse to take a breath test; make driving with a suspended driver’s license a crime punishable with mandatory jail sentences; and limit defense questioning of police officers during administrative hearings for driver’s license suspension.
The laws, passed during the 2009 Legislature, are:
HB 445 - Strengthens the penalties for refusing to submit to a breathalyzer exam. As a condition of receiving a driver’s license, all Louisianans agree to provide a breath sample when properly requested. blood alcohol content can be the most important piece of evidence in the trial, but without it, prosecution is very difficult. Louisiana has one of the highest rates of refusal to submit to a breathalyzer in the nation. In fact, the national average for refusal of the test is 22.4 percent, but in Louisiana, it is 39 percent.
Laws to require drivers to submit to the breathalyzer are being strengthened nationwide. Refusal is now a distinct crime in 16 states and six states actually use warrants to forcibly obtain blood samples from drivers who refuse. In Arizona, this has decreased refusals from
With this new law, drivers’ license suspension penalties for refusing the breathalyzer will double from 180 days to one year on the first offense – and increase from 18 months to two years on the second offense.
These laws have been found to reduce DWI recidivism and the number of fatal crashes. In fact, he said research shows that license suspensions can reduce fatal crashes by up to 9 percent, which could translate to saving 35 lives in Louisiana in just one year.
SB 166 - Creates a law so that driving without a license that has been suspended due to a DWI arrest or conviction, is in and of itself a criminal offense with mandatory jail time. This new law provides real penalties for those drivers who continue to drive even after their license has already been suspended due to a DWI.
Source
Tuesday, September 15, 2009
Florida DUI manslaughter charges for 15 year old driver
Naples, FL - In March of 2009, tragedy struck in Southwest Florida when a sixteen year old boy was killed in an accident. The driver of the vehicle, then 15 year old Karina Campbell of Naples had an alcohol level of .165, which is more than double the legal alcohol limit for adult licensed drivers.
It is illegal for minors to consume alcohol at all, let alone drive after drinking. If convicted, Campbell faces up to 15 years in jail. However, when you compare this case to Donte Stallworth's, one might surmise that she is likely to get 30 days in jail and a year suspension from school.
"This will be a good test for the justice system in Florida," said Arizona DUI Lawyer Stewart Bergman, who has handled serious vehicular crimes, including manslaughter. "When you look at the Stallworth sentence, it should give her attorneys a pretty compelling argument."
But there are some things that make this case potentially more egregious than Donte Stallworth's case. First is the fact that her victim was young. Second is the fact that he put his trust in her. Third is the fact that she shouldn't have been drinking at all. Fourth is the fact that she was not a licensed driver. And finally, according to reports by the Florida Highway Patrol, she was driving at 70 miles per hour in an 30-mph zone.
There are also reports that Campbell was unremorseful after the accident, and continued to drink, and reports that contradict that. Whatever way you look at this, it is a tragedy for both kids and both families.
We will continue to follow this story as more information becomes available.
Source
It is illegal for minors to consume alcohol at all, let alone drive after drinking. If convicted, Campbell faces up to 15 years in jail. However, when you compare this case to Donte Stallworth's, one might surmise that she is likely to get 30 days in jail and a year suspension from school.
"This will be a good test for the justice system in Florida," said Arizona DUI Lawyer Stewart Bergman, who has handled serious vehicular crimes, including manslaughter. "When you look at the Stallworth sentence, it should give her attorneys a pretty compelling argument."
But there are some things that make this case potentially more egregious than Donte Stallworth's case. First is the fact that her victim was young. Second is the fact that he put his trust in her. Third is the fact that she shouldn't have been drinking at all. Fourth is the fact that she was not a licensed driver. And finally, according to reports by the Florida Highway Patrol, she was driving at 70 miles per hour in an 30-mph zone.
There are also reports that Campbell was unremorseful after the accident, and continued to drink, and reports that contradict that. Whatever way you look at this, it is a tragedy for both kids and both families.
We will continue to follow this story as more information becomes available.
Source
Friday, August 28, 2009
New Texas DWI law weak on offenders compared to Arizona
Get ready for a tougher time if you are arrested for a Texas DWI. On September 1, 2009 it will be a whole new ball game for people arrested in Texas for certain impaired driving charges.
The new law greatly expands the number of people who can potentially sign search warrants to obtain blood draws. It also gives police officers a stronger and more persuasive voice in demanding that DWI suspects submit to a blood or breath test.
In cases where a persons suspected of DWI has caused an accident the new law says that the person shall be required to submit to a blood or breath sample.
Each year in Texas too many people lose their lives to drunk drivers. Authorities hope that this new law will give prosecutors and police officers an edge.
"We have had search warrants in Arizona DUI cases for years," said prominent Arizona DUI Lawyer Stewart Bergman. "Arizona's law goes one step beyond the new Texas DWI law and allows officers to get a search warrant even when there is no accident. The net effect is that it is extremely rare to see a case here in Arizona where there isn't a blood test, a breath test, or both."
Since blood is the only chemical test that can really be forced, Bergman expects that as more states enact laws like Arizona's, DWI defense attorneys across the nation will get better at defending blood draw cases. "Arizona is ahead of the curve nationally," he explained, "as Arizona DUI defense lawyers haven't had the luxury of straight refusal cases in a very long time." A straight refusal case is where the DUI suspect won't submit to a chemical test and the police officers lack the power, through a search warrant, to secure the evidence.
While states like Arizona may look at the new Texas DWI law and conclude it has no real teeth, the law does greatly expand the authority of officers in certain circumstances. "I expect that each year they will tighten it a little more," said Bergman. "Once prosecutors get a sense of how powerful DWI search warrants are, they will lobby to expand them to other types of DWI cases."
Only time will tell, but history in states like Arizona supports Mr. Bergman's prediction. For now, starting on September 1, 2009, Texas police officers' jobs will be a little easier in the worst type of DWI cases.
Source
The new law greatly expands the number of people who can potentially sign search warrants to obtain blood draws. It also gives police officers a stronger and more persuasive voice in demanding that DWI suspects submit to a blood or breath test.
In cases where a persons suspected of DWI has caused an accident the new law says that the person shall be required to submit to a blood or breath sample.
Each year in Texas too many people lose their lives to drunk drivers. Authorities hope that this new law will give prosecutors and police officers an edge.
"We have had search warrants in Arizona DUI cases for years," said prominent Arizona DUI Lawyer Stewart Bergman. "Arizona's law goes one step beyond the new Texas DWI law and allows officers to get a search warrant even when there is no accident. The net effect is that it is extremely rare to see a case here in Arizona where there isn't a blood test, a breath test, or both."
Since blood is the only chemical test that can really be forced, Bergman expects that as more states enact laws like Arizona's, DWI defense attorneys across the nation will get better at defending blood draw cases. "Arizona is ahead of the curve nationally," he explained, "as Arizona DUI defense lawyers haven't had the luxury of straight refusal cases in a very long time." A straight refusal case is where the DUI suspect won't submit to a chemical test and the police officers lack the power, through a search warrant, to secure the evidence.
While states like Arizona may look at the new Texas DWI law and conclude it has no real teeth, the law does greatly expand the authority of officers in certain circumstances. "I expect that each year they will tighten it a little more," said Bergman. "Once prosecutors get a sense of how powerful DWI search warrants are, they will lobby to expand them to other types of DWI cases."
Only time will tell, but history in states like Arizona supports Mr. Bergman's prediction. For now, starting on September 1, 2009, Texas police officers' jobs will be a little easier in the worst type of DWI cases.
Source
Monday, July 13, 2009
AZ Drunk Driving Lawyer
The public's outlook on AZ DUI (Driving Under the Influence) and Arizona Drunk Driving Law has altered dramatically over the past several years. DUI is no longer viewed as an unavoidable consequence of commuting.
More and more, Drunk Driving in AZ is looked at as a completely preventive crime and, is a serious offense with severe penalties. Mandatory Arizona jail or prison time, harsh fines, license suspension or revocation, probation or parole and raised insurance costs are some consequences of being convicted of DUI. In 2006, over 90,000 people DUI / DWI charges were filed in Arizona. However, research shows many people arrested and charged with DUI are not guilty because they did not have too much to drink, but they did not have an experienced AZ Drunk Driving Lawyer by their side.
Oftentimes, Arizona police officers who are overzealous, not trained correctly, or who otherwise make mistakes, incorrectly discover a driver who has been drinking is driving while under the influence. Field sobriety tests can be incorrectly administered and misinterpreted. Breath and blood alcohol testing equipment may fail or be improperly used. DUI suspects can be treated unfairly, leading to important constitutional rights not being given, where a knowledgeable AZ Drunk Driving Lawyer can assist you in court.Source
Monday, July 6, 2009
Arizona Criminal Defense Lawyer Joshua S. Davidson
As a Phoenix Criminal Defense Lawyer, Joshua S. Davidson knows the ins and outs of the criminal justice system and applies his knowledge and experience to each and every case he receives. Having been a former prosecutor, he knows how the system works and can maximize your chances of getting a dismissal or having your charges reduced. A seasoned felony prosecutor, Joshua S. Davidson has conducted over 70 trials to a jury, and has also tried hundreds of cases before judges. Well known among judges and prosecutors, he holds a reputation for passionately and aggressively fighting for every client, and he strives to meet those expectations with every case he takes.
Before becoming a Criminal Defense Attorney, Joshua S. Davidson was a prosecutor responsible for all types of criminal offenses, including murder, molestation, DUI, domestic violence, aggravated assault and drug cases. Much of his time was spent in the Major Crimes Division of the Maricopa County Attorney's Office where he handled felony domestic violence cases. As a prosecutor, Joshua S. Davidson argued dozens of motions to dismiss and completed over 70 jury trials, involving charges ranging from DUI to murder.
DUI charges in Arizona can be very harsh. With his wide range of legal knowledge and ability, Mr. Davidson can provide you with an efficient and effective defense when you are in need of a Phoenix DUI attorney. Your case could greatly benefit from the help and experience of a seasoned defense attorney. Joshua S. Davidson will work tirelessly on your behalf in order to help enhance your chances of a positive outcome in your case.
Source
Before becoming a Criminal Defense Attorney, Joshua S. Davidson was a prosecutor responsible for all types of criminal offenses, including murder, molestation, DUI, domestic violence, aggravated assault and drug cases. Much of his time was spent in the Major Crimes Division of the Maricopa County Attorney's Office where he handled felony domestic violence cases. As a prosecutor, Joshua S. Davidson argued dozens of motions to dismiss and completed over 70 jury trials, involving charges ranging from DUI to murder.
DUI charges in Arizona can be very harsh. With his wide range of legal knowledge and ability, Mr. Davidson can provide you with an efficient and effective defense when you are in need of a Phoenix DUI attorney. Your case could greatly benefit from the help and experience of a seasoned defense attorney. Joshua S. Davidson will work tirelessly on your behalf in order to help enhance your chances of a positive outcome in your case.
Source
Subscribe to:
Posts (Atom)