Over a century ago, the Indiana Supreme Court in Webb v. Baird, 6 Ind. 13 (1853) , formally recognized the right to an attorney for a person accused of a crime.  However, the court did not base its decision on constitutional law.  Rather, it determined this right was grounded in "the principles of a civilized society." 

Since Baird, courts have vastly expanded the right to counsel beyond just appointing an indigent person a lawyer.  Specifically, a person has the right consult with an attorney, indigent or not, even before trial.  A person has a right to the assistance of counsel at any stage of an investigation or custody. 

In Arizona, the right to counsel comes from four sources.  First, the right to counsel was established in the United States Constitution.  The Fifth Amendment of the United States Constitution states: "No person shall...be deprived of of life, liberty, or property without due process of law..."  See also Fourteenth Amendment, U.S. Constitution.  Moreover, the Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right...to have the Assistance of Counsel for his defense."

Second, the right to counsel is also codified in Arizona's Revised Statutes.  Arizona Revised Statutes section 13-114 states: "In a criminal action [the] defendant is entitled...[t]o have counsel."

The Arizona Rules of Criminal Procedure is the third place that provides for a person's right to counsel.  Rule 6.1(a) of the Arizona Rules of Criminal Procedure states:

A defendant shall be entitled to be represented by counsel in any criminal proceeding, except in those petty violations such as traffic violations where there is no prospect of imprisonment or confinement after a judgment of guilty. The right to be represented shall include the right to consult in private with an attorney, or the attorney's agent, as soon as feasible after a defendant is taken into custody, at reasonable times thereafter, and sufficiently in advance of a proceeding to allow adequate preparation thereof.

Finally, the fourth area of law that guarantees the right to counsel is the Arizona Constitution.  Article II, section 4 states: "No person shall be deprived of life, liberty, or property without due process of law."  Furthermore, Article II, section 24 provides: In criminal prosecutions, the accused shall have the right to appear and defend in person, and by counsel..."

These four sources of law combine to guarantee a person's right to an attorney.  However, the exact moment when a person is entitled to an attorney and the circumstances under which the person is able to contact an attorney depend on the specific facts of the case.

T.I. arrested on weapons charges and in Jail

The rapper is to appear in court today

T.I. was arrested in his hometown of Atlanta, Georgia this weekend and charged with possession of illegal weapons.

The rapper, whose real name is Clifford Harris, was arrested in a parking lot where he was allegedly attempting to pick up machine guns and silencers his bodyguard had purchased for him.

The arrest came as a result of an investigation that began earlier in the month in which Harris‘ bodyguard was allegedly purchasing machine guns for the rapper, who is a convicted felon, and therefore unable to legally purchase them himself.

Authorities said that additional firearms were found in his vehicle and in his suburban Atlanta home, reports the Associated Press.

The arrest came hours before the rapper was scheduled to perform at the Black Entertainment (BET) Hip-Hop Awards in Atlanta, where he was nominated for nine awards and won two.

T.I. is expected to make his initial court appearance to answer the charges today (October 15).”

Field sobriety tests are any one of several roadside tests that can be used to determine whether a suspect is impaired.  These psychophysical tests are performed on DUI suspects to assist an officer in the decision to make an arrest.  In theory, these tests directly assess impairment by focusing precisely on the human capabilities needed for safe driving. 

The procedures for conducting field sobriety tests are put forth by the National Highway Traffic Safety Administration (NHTSA).  NHTSA is a federal agency charged with reducing deaths and injuries from motor vehicle crashes.  They also attempt to fight drunk driving.  The are responsible for the field sobriety testing guidelines.  They base their procedures on scientific studies.  However, NHTSA does not conduct their own studies.  Rather, the studies are done by those who write grant proposals and are given monetary compensation.  Moreover, none of the studies  supporting the NHTSA Standardized Field Sobriety Testing Manual are "peer reviewed."  This is the process of subjecting an author's scholarly work, research or ideas to the scrutiny of others who are experts in the same field.

"If you are going through hell, keep going."
- Sir Winston Churchill (1874-1965)

The goal of every criminal defense attorney is to win.  However, in some cases the facts are so difficult to overcome, even an experienced defense attorney cannot envision winning.  This mindset is almost always fatal to a case. 

Nothing great ever came about easily.  You must believe that you can have success in order to be successful.  While you need to be realistic about the case to advise your client properly, you still must start the case with the mindset that you can win.  You cannot forclose on the possiblity of success.

Here is a real life example from one my cases.  The allegations were my client was driving a car and as it entered an intersection he struck a police officer.  Not a car carrying a police officer, but a police officer standing in the intersection directing traffic.  Prior to driving, it was also alleged that he drank a substantial amount of alcohol.  The police basically stated that he was so drunk that after the accident he was vomiting alcohol.

These are horrible facts.  It would be ridiculous for an attorney to think he could win this case.  Well I did have this case.  It may have been ridiculous for me to entertain the possibility I could win the case.  However, we did win.

Don't me get wrong, when I first heard the facts I knew exactly how difficult a case this would be to win.  I had no illusions about this case.  This kind of case has an extremely low probability of success (which I explained in detail to the client.)  However, I made myself keep the mindset that I would look for a way to win.  Even if it was highly probable the only thing I would be able to accomplish was to mitigate the sentence, I would not start the case with that attitude.

Moreover, when the client came to my office I explained that he was charged with Aggravated Assault, a class 2 felony. The presumptive term in prison was 10 years. I also explained that based on the facts he had told me there was a strong probability of a conviction. However, I told him I would take the case and try to find a way to win.   

Several months, and countless hours later, the case was dismissed.  As I stated above, nothing great ever comes easily.  And more importantly, no great achievement ever looked like it would be easy, or even possible, at the beginning.

Results like this case are few and far between.  I tell people never to hire an attorney with the expectation that he/she can get the same results as this case.  This expectation is simply unrealistic.  However, I do tell them the lesson I learned from this case: if the attorney does not have the mindset that he can win the case, then it is unlikely that he ever will win. 

P.S. The officer ended up just fine.

According to the Arizona Department of Transportation's Motor Vehicle Division, an ignition interlock device is:

...slightly larger than a cell phone and is wired to your vehicle's ignition.  The device...requires your breath sample before the engine will start.  If the ignition interlock device detects alcohol on your breath, the engine will not start.  As you drive, you are periodically required to provide breath samples to ensure the continued absence of alcohol in your system.

When the Arizona Certified Ignition Interlock Program requires the uses of a Certified Ignition Interlock Device (CIID) following a period of driver suspension / revocation, you must have one installed by a company that is authorized by the Department of Motor Vehicles (MVD).  Moreover, the MVD will monitor drivers required to have the device installed.  A person will also receive a replacement driver's license with "Ignition Interlock" written on it.

After the device is installed, the CIID must be calibrated and inspected by a certified installer every thirty (30) days for the first three months and then every other month for the duration of the installation requirement.  Drivers who do not comply with the CIID requirements are reported to MVD and may have the period for use extended.

In almost all DUI cases the police officer will make an arrest without an arrest warrant.  To make a lawful arrest the police officer must have "probable cause" to believe the person was driving under the influence of alcohol (DUI).  Arizona has codified this probable cause requirement in Arizona Revised Statute §13-3883. 

Arizona courts have defined probable cause as "such a state of facts as would lead a reasonable man of ordinary caution or prudence to believe and consciously entertain a strong suspicion of guilty." State v. Emery, 131 Ariz. 493, 642 P.2d 838 (1982).  When the constitutional validity of an arrest is challenged, the court must decide if the facts available to the officer at the moment of arrest “warrant a man of reasonable caution in the belief” that an offense has been committed. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).  In DUI cases, the determination to arrest is based on the what the officer has observed at the time of arrest.  At that time, was it reasonable for him to believe the person was driving under the influence of alcohol?

However, a warrantless search is presumptively unreasonable under the 4th amendment “subject to only a few specifically established...exceptions.” State v. Fisher, 141 Ariz. 227, 686 P.2d 750 (1980).  The same holds true to Article 2 §8 of the Arizona Constitution. State v. DeWitt, 184 Ariz. 464, 910 P.2d 9 (1996).

In order for a police officer to make an arrest for DUI he must have actually observed specific symptoms of impairment.  After making these observations, it must be reasonable for the officer, based on his training, to make the arrest.  A mere hunch or unsupported suspicion is not enough to make an arrest.  The facts surrounding any field tests performed at the scene will be strongly considered in making the determination of probable cause.

As of September 19, 2007, Arizona has new penalties for a first time DUI conviction.  Under the new law, the penalties vary based on the blood alcohol level of the person.  Here are some of the changes the legislature has made for a person convicted of a first offense DUI with a blood alcohol concentration of above a .08 and below a .150.  

The potential jail remains the same as it did before the new law went into effect.  The minimum amount of incarceration is one (1) day and the maximum is six (6) months.  The way to avoid the one day of jail is to either get the case dismissed or reduced to a charge other than DUI.  Moreover, the penalties still include a mandatory alcohol and drug screening.  Based on the results of the screening the person can receive education and treatment.  The amount of education and / or treatment is discretionary. 

Some of the most onerous penalties concern the person's drivers license. There are three primary ways that a person's drivers license can be impacted.  First, as part of every DUI investigation the police will perform some type of chemical test.  The test is usually in the form of blood, breath or urine.  If the test results shows the person had a blood alcohol concentration above a .08, then the Motor Vehicle Division (MVD) of the Arizona Department of Transportation will be notified.  Upon receipt of the results, MVD will suspend the person's driving privileges for a period of ninety (90) days.  However, after the first thirty days (30) days a person may be eligible for a restricted driving permit.  The permit allows a person to go to and from work or school.

If the person is not suspended by MVD (usually because they prevailed at an MVD hearing or the officer failed to notify the MVD of the test results) and is then convicted of a DUI charge, they will receive a ninety (90) day suspension as a result of the conviction.

The second way that a person's privilege to drive will be effected is that a DUI conviction will put eight (8) point on their driver's license.  Eight points means that a person must attend Traffic Survival School.  Moreover, any additional points could trigger an additional suspension.

The third, and potentially the most harmful, MVD consequence from a DUI conviction is the mandatory ignition interlock device.  The new law requires that everyone who is convicted of DUI must place an interlock device in any automobile they drive.  The new law requires that a first time DUI offender drive with this interlock device for a minimum period of twelve (12) months.

 For a complete listing of the penalties for a first time DUI offense please visit www.arizonaduicenter.com.