Gordon Thompson

These cases discuss decisions issued by the Arizona Court of Appeals. Most are memorandum decisions. Memorandum decisions are not legal precedent for other cases. Memorandum decisions are a good guide for what it takes to be found guilty of a felony DUI in Arizona.  They also show what the sentences could be. Almost all these cases arose from the defendant’s appeal after a Felony DUI trial. Sentences for cases ended by plea agreement are often less than those imposed after a jury trial.

State v. Driggs, No. 2 CA-CR 2024-0057 Filed January 7, 2026

The defendant was charged with Aggravated DUI.  The charges were he was driving while impaired and over .08% while his license was suspended and separately, with 2 prior convictions in the past 84 months.

FACTS

The defendant was pulled over for excessive speed. The officer determined that the defendant had a revoked Colorado license. The officer observed exhibited signs and symptoms of impairment. The officer noticed many of the typical signs of impairment, including slurred speech, and “droopy,” “watery [,] and bloodshot” eyes. The defendant agreed to participate in field sobriety tests. During the HGN eye test, the officer observed that both of the defendant’s eyes exhibited a lack of smooth pursuit. There were empty bottles of alcohol in the defendant’s vehicle which he said he consumed. The defendant initially agreed to participate in a preliminary breath test (PBT); however, he did not provide enough air in the machine, and he eventually stated he “wouldn’t do it.”  The defendant was then arrested.

The arresting officer started a 15 minute “deprivation period” while he transported the defendant to the police station. At the station, the defendant was administered an Intoxilyzer breath test that registered a blood alcohol level over .10%.  After being advised of his Miranda rights, the defendant said he had started drinking at 11:00 a.m., “took four shots from the open bottle of . . . whiskey” at his residence, and left for the bar “where he had two more shots,” a beer, and a glass of wine.

The case went to trial where the above information was presented to the jury.  A Colorado law enforcement officer also testified that defendant was convicted of two separate DUIs in October 2015 and that he was on felony parole.  Evidence was also presented the defendant’s Colorado driver license was revoked.  At trial, the arresting officer checked that the defendant did not have access to any food or alcohol, that he had not vomited, and that at 2:50 a.m. the officer had begun the fifteen-minute “deprivation period” while transporting the defendant to the police station.  This is important because if a person does vomit or drink during the 15-minute deprivation period it can affect the test results.

During the “deprivation period,” the defendant was handcuffed and seated behind the officer in the police vehicle. Once at the police station, a breath alcohol test was conducted by another officer, while the arresting officer continued watching the defendant. The first breath sample was taken at 3:13 a.m. and the result was .111 BAC, and the second result at 3:20 a.m. was .112 BAC.  A forensic scientist testified that if an individual “burps up stomach content into his mouth and then swallows it down without notifying the officer . . . or the officer noticing,” the breath alcohol test would not be invalidated because “a burp” has “to actually re-gurge”.

After the State rested the defendant made a Rule 20 Motion for dismissal.  Under Rule 20(a)(1), the court must enter a judgment of acquittal on any offense charged . . . if there is no substantial evidence to support a conviction.  Substantial evidence ‘is proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant’s guilt beyond a reasonable doubt. The defendant’s Rule 20 motion was denied.

The jury found the defendant guilty. The court then sentenced the defendant to a ten-year prison term, with credit for 482 days.

APPEAL

On appeal the defendant argued his Rule 20 dismissal motion should not have been denied.  He also argued the breath tests should not have been admitted into evidence because of a possible problem with the deprivation period.  The court of appeals held that based on this evidence the denial of the Rule 20 motion was not error.  The court of appeals also ruled there was no evidence of an actual problem with the deprivation period and so the breath test results were properly admitted into evidence.

The conviction and sentence were therefore upheld.

Gordon Thompson

For more information about Arizona DUI and criminal law issues please contact Gordon Thompson who has used his experience to write a blog on topics of interest. You can also chat with Gordon about your specific questions.

Domestic Violence is a serious matter. Having said that conduct which is not necessarily violent can be classified as “Domestic Violence.

When police respond to a 911 Call regarding Domestic Violence they can charge a person for one or more domestic violence crimes. A very common charge is Disorderly Conduct alleging “Seriously Disruptive Behavior” under 13 A.R.S. § 2904(A)(1).

13 A.R.S. § 2904(A)(1)  says, “A. A person commits disorderly conduct if, with intent to disturb the peace or quiet of a neighborhood, family or person, or with knowledge of doing so, such person: 1. Engages in fighting, violent or seriously disruptive behavior.”

“Seriously Disruptive Behavior” is a somewhat vague term and can apply to many actions. Perhaps mindful of that, the Arizona Supreme Court in In Re Julio L. limited “Seriously Disruptive Behavior” to be “of the same general nature as fighting or violence or conduct liable to provoke that response in others and thus to threaten the continuation of some event, function, or activity.” In short, the behavior must be either violent or likely to provoke a violent response.  If there is no element of violence, then it is not a violation of 13 A.R.S. § 2904(A)(1).

This issue recently came up in the Court of Appeals case of Settlemeyer v. State, No. 2 CA-SA 2025-0081 Filed 1/15/26.  In Settlemeyer, the defendant and her husband were divorcing but still living together. The husband, a law enforcement officer, was on call and away from their home when he was called into work. He returned home to retrieve his equipment.

The defendant had barred their home’s front door and deactivated the garage door, preventing the husband from entering. The defendant had left the husband’s vest and uniform in his patrol vehicle but had not left a necessary radio battery and long-sleeved shirt, and he was delayed for ten to fifteen minutes while the defendant retrieved those items.  Once the husband obtained his equipment, he called 9-1-1 and waited for police to arrive before reporting for duty.

The defendant was charged in the Marana Town Court with a violation of 13 A.R.S. § 2904(A)(1).  Although the case was not specifically described as “Domestic Violence,” the Marana Town Court records say it was Domestic Violence.  The case was tried in a bench trial. The judge found the defendant guilty and said it was because the defendant had intentionally prevented the husband from entering the home and “thereby disrupted his ability to get to work on that day.” The court made no mention of violence. The defendant was then sentenced to probation and counseling, as required by 13 A.R.S. § 3601.01.

The defendant exercised her right to appeal to the Superior Court, and that court affirmed her conviction and sentence.

Under normal circumstances that would be the end of a municipal court case because a defendant has no right to a further appeal. A defendant, however, can file in the Court of Appeals what is known as a petition for Special Action.  In such petition the petitioner asks the Court of Appeals to take the case because of some unusual circumstances.  Whether the Court of Appeals accepts the petition and takes jurisdiction or not is entirely up to the court, and it often does not.

In Settlemeyer the defendant’s petition alleged the evidence was insufficient as a matter of law to be a violation of 13 A.R.S. § 2904(A)(1).  Since there was no evidence the defendant engaged in violent behavior nor behavior likely to provoke a violent response, she had a good argument.  The Court of Appeals accepted the defendant’s petition.

The Court of Appeals went on to reverse the conviction. In doing so the court said:

”Although the husband was unable to readily enter his garage or home, the defendant’s conduct is not analogous to a violent act and would not have reasonably warranted a violent response on his part. Nor was the disruption sufficient to stop his activity—The husband was delayed only briefly and was quickly provided with the equipment he needed. And The husband’s decision to wait for police to arrive after calling 9-1-1 rather than report for duty suggests that he was not seriously disrupted by the defendant’s conduct. Any inconvenience the defendant caused was simply not substantial enough to constitute criminal conduct.”  Since there was no violence there was no basis as a matter of law to convict the defendant.

What follows is strictly my personal opinion.

The Settlemeyer decision is a memorandum decision. That means it cannot be cited as legal authority. The case, however, is an important case.  Convictions are rarely reversed when the issue is sufficiency of the evidence. Additionally, the Court of Appeals rarely accepts special action petitions from a municipal court conviction when the issue is the sufficiency of the evidence.

I further believe the court only accepted the petition because the evidence clearly did not show the defendant commit a violation of .13 A.R.S. § 2904(A)(1).  The Supreme Court’s opinion in In Re Julio L.  is biding law and very clear in what that law is. There cannot be a violation of 13 A.R.S. § 2904(A)(1), “Seriously Disruptive Behavior” unless the defendant either engages in violence or in conduct likely to provoke a violent response.

The evidence in Settlemeyer did not come close to meeting the Supreme Court’s clear standard.  Domestic Violence is a very serious matter and to say a minor inconvenience without more is a crime trivializes the seriousness of domestic violence.

Domestic violence can have immediate and lifelong consequences.  Although I do not know if it happened in this case, normally at the first court appearance the judge orders the defendant not to go back to the scene of the incident, which could mean the defendant’s home. Other actions can include suspension of Fingerprint Clearance cards, which occupations such as Nurses and Teachers are required to keep valid as a condition of employment.

Because of the seriousness of domestic violence charges prosecutors and courts should follow law as clearly stated by our Supreme Court.

Gordon Thompson

For more information about Arizona DUI and criminal law issues please contact Gordon Thompson who has used his experience to write a blog on topics of interest. You can also chat with Gordon about your specific questions.

Website:  https://www.GordonThompsonAttorney.net

In Arizona it may be possible to prove you’re not guilty of a Pharmacy Prescription DUI without calling a witness.

I’m Gordon Thompson DUI & criminal attorney for 46 years.

In Arizona a person is guilty of a Prescription Drug DUI if a Prescription drug is impairing the person to slightest degree. If impaired, then they are guilty if they have a prescription drug in their blood. It is however an affirmative defense that they have taken that drug as prescribed by a medical professional.

An affirmative defense is one which the defendant must prove by the standard of preponderance of the evidence, which means more likely than not. The question then is how does the defendant meet their burden of proof that they took the drug as prescribed?

The State must first present evidence that there was an active prescribed drug in the blood sample obtained by the police from the defendant. This evidence is produced through the testimony of the crime lab analyst (criminalist) who did the testing. The State’s lab test results almost always report the quantity of the active drug found in the defendant’s blood. The criminalist is also often familiar with the drug and its effects.

Once the State has presented this evidence the burden shifts to the defendant to show the drug was taken as prescribed by a medical professional.

One way to prove the drug was taken as prescribed is to have the medical professional testify they prescribed the drug and, given the level found in the defendant’s blood sample, the defendant would have taken it as prescribed. This method can be hard to use because medical professionals do not like to testify in court.

A second way is by one of the Rules of Evidence, with or even without a witness.  Pharmacy  Prescription Records contain most of the information the defendant needs to prove they took the drug as prescribed. By law Pharmacy Records must show who was the prescribing medical professional and instructions as to how it is to be taken, that is the frequency and dosage. Pharmacy Prescription Records are out of court statements, known as Hearsay. Hearsay is inadmissible unless the particular statement falls into an exception to the Hearsay Rule. Pharmacy Prescription Records can be admissible as an exception to the Hearsay Rule. The Pharmacy Records must be kept in the normal course of business by someone whose job is to make the Record.  Pharmacy Business Records are kept by the Pharmacy’s Custodian of Records.

The defendant can have the court issue a subpoena duces tecum directing the Custodian to appear at trial with the Pharmacy Prescription Records. The Custodian usually knows nothing of what is discussed in the Records and can only testify these are the requested Pharmacy Prescription Records. Pharmacy Prescription Records, however, are also admissible without actually having the Custodian testify in court. In response to the subpoena duces tecum, the Custodian can sign a certificate stating these are the requested Pharmacy Prescription Records and then send the Records to the court or the defendant’s attorney. The Pharmacy Prescription Records are then admissible without the custodian, unless the prosecutor can show the Records are not trustworthy.

According to the Towns case, Pharmacy Prescription Records are trustworthy.  This is because the pharmacy has a duty to keep accurate Pharmacy Prescription Records and failure to do so can result in loss of the pharmacy license and even jail. Therefore, Pharmacy Prescription Records are admissible as an exception to the Hearsay Rule.

The defendant’s attorney can then use Pharmacy Prescription Records to meet the defendant’s burden that it was more likely than not the defendant took the drug as prescribed. They can do so by asking the State’s criminalist if given the quantity found in the defendant’s blood sample the defendant could have taken the drugs as prescribed? If the criminalist says Yes, then the defendant has met the burden of showing the drugs were taken as prescribed and has done so without calling any witnesses of their own. Even better, the State’s witness has in effect said the defendant has met his burden of proof.

You may ask what if the criminalist says, No. That would be a problem, however in Arizona defendant’s attorneys have the right to interview witnesses prior to trial and so the attorney should know that prior to trial. If so then the defendant can call their own expert witness to say Yes, which is all right, however it is better to have the State’s criminalist say it.

Gordon Thompson

For more information about Arizona DUI and criminal law issues please contact Gordon Thompson who has used his experience to write a blog on topics of interest. You can also chat with Gordon about your specific questions.

Website:  https://www.GordonThompsonAttorney.net

For Arizona THC marijuana DUIs official Federal Government reports may be the best defense.

I'm Gordon Thompson DUI Attorney and I have been a criminal attorney for 46 years.

In 2020, the Arizona voters passed Proposition 207 (Prop 207) legalizing the use of marijuana.  That initiative changed THC marijuana DUI trials.

Before Prop 207 at trial the defendant had to prove he had a marijuana medical card and he was not impaired.  Now the defendant does not have to prove anything.  The State must prove he is impaired by the THC.

In § 7.2 (page 16) Prop 207 also said there can be no per se limit for THC in the blood until scientific research conclusively shows all people are impaired at a certain level. Scientific evidence does not conclusively show such a limit.  What this means is in Arizona there are no per se or automatic limits for THC like .08% for alcohol.

Without THC limits jury trials are more wide open than alcohol DUI trials. The jury must look at other evidence, including scientific evidence, to decide if the defendant was impaired.

Often in THC DUI trials the State has an expert witness testify about scientific studies regarding the signs of THC impairment which show the defendant is guilty. The defendant now can use the same witness to show he is not guilty.

One evidence rule, Arizona Rules of Evidence Rule 803(18) allows statements from studies which the witness agrees is from reliable authority to be read into evidence. See State v. West, 238 Ariz. 482, ¶ 70.  All State DUI expert witnesses agree that the National Highway Traffic Safety Administration (NHTSA) is reliable authority and so statements from NHTSA articles can be read into evidence.

The 2017 NHTSA article, Marijuana Impaired Driving, has several statements which are helpful for defendants. Those include:

“Studies that have been conducted do not show that the level of THC and the degree of impairment are closely related” (Page 12)

“There are currently no evidence-based methods to determine marijuana impaired driving.” (Page 18)

Therefore, the defendant can use the state’s expert witness to give jurors these statements and more from the Federal Government (NHTSA) to show the State’s evidence is not based on science and there is reasonable doubt.  This sounds much better coming from the State’s witness.  Thus, some of the best evidence to help defendants to show they are not guilty may come from the Federal government.

Gordon Thompson

For more information about Arizona DUI and criminal law issues please contact Gordon Thompson who has used his experience to write a blog on topics of interest. You can also chat with Gordon about your specific questions.

Website:  https://www.GordonThompsonAttorney.net

Legal Points

The 4th Amendment to the U. S. Constitution protects individuals from unreasonable searches and seizures.  Law enforcement officers ‘seize’ individuals by temporarily detaining them during traffic stops. Officers “can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot.’  An officer’s reasonable suspicion arises from both the combination of the officer’s perception of the facts and his understanding of the applicable law. Courts determine whether an officer had reasonable suspicion based on the totality of the circumstances, viewed in consideration of the officer’s training and experience.   “Although a mere ‘hunch’ does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause. The reasonable suspicion standard for traffic violations in A.R.S. § 28-1594: “A peace officer may stop and detain a person as is reasonably necessary to investigate an actual or suspected traffic violation.

Driving 70 in posted 75 while in the middle lane of a freeway is a traffic violation

On 11/28/25 in State v. Alvarez-Soto, The Arizona Supreme Court held that driving in the middle of 3 lanes in at speed of 70 in a posted 75 on the I-10, was an actual or suspected traffic violation and so an officer’s stop of the vehicle was justified.

28 A.R.S. § 721.B,  says in part:

B. On all roadways, a person driving a vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing shall drive the vehicle in the right-hand lane then available for traffic or as close as practicable to the right-hand curb or edge of the roadway.

In the case the defendant was driving 70 in the middle lane.  An SUV passed the defendant in the right lane.  The officer stopped the Defendant for violating A.R.S.  § 721(B) because by being passed by the SUV the defendant was driving less than the “speed of traffic,” in violation of the statute.  The court’s opinion did not say how the “speed of traffic” could be determined by the speed of exactly 1 other vehicle.  It also said, “The phrase “normal speed of traffic at the time and place and under the conditions then existing” in § 28-721(B) provides no quantitative metric. Thus, reasonable minds may differ about its interpretation and application.” This means drivers have no objective way of determining if they are in violation of the law.  If the test is the speed of other vehicles, if other vehicles going 80 pass a vehicle going the legal maximum of 75 is the driver going 75 in violation of the statute? There was no evidence the defendant was impeding any traffic.  Although there were other indicators of driving which could have been used to show reasonable suspicion the court focused on the 28 A.R.S. § 721.B violation.

Conclusion

A driver loses her constitutionally protected right to be free if she is driving in a manner which could be an actual or suspended traffic violation. Driving 70 in a posted 75 could be such a violation although a driver has no objective way of knowing what a legal speed is.

Gordon Thompson

For more information about Arizona DUI and criminal law issues please contact Gordon Thompson who has used his experience to write a blog on topics of interest. You can also chat with Gordon about your specific questions.

A DUI in Arizona is what a jury says it is. All DUI defendants have either a constitutional (Felony) or statutory (Misdemeanor) right to a jury trial.  By looking at appeals from convictions we can see the facts that lead to that jury unanimously deciding, beyond a reasonable doubt, the defendant was guilty. We can also see any legal arguments the defendant may have that he was wrongly found guilty, either because there was not enough evidence to convict or that the trial judge made some error which denied him the right to a fair trial.

These appeals are only from convictions based on guilty verdicts. The State cannot appeal from a not guilty verdict and so these appeals do not show what juries thought was not enough evident to convict a defendant.

In Arizona it is a Class 4 Felony to Drive the Wrong Way on a Highway While Impaired (28 A.R.S. § 1383.A.5).  Although as of the date of this blog (12/4/25) there is a legal question as to what roadways are included in the definition of “highway”, a controlled access road, such as I-17 and Loop 303, is clearly a “highway.”  In State v. Reyes, a jury decided what is a Wrong Way Felony DUI.

FACTS

Around 4:30 a.m. on September 16, 2023, a "wrong-way detection alarm went off," alerting a traffic operations specialist that a vehicle had entered the Loop 303.

Through a live camera feed, the specialist identified the vehicle as a white pickup truck, reported the situation to law enforcement, and relayed the truck's movements to the dispatcher.

The specialist only lost sight of the truck for a few seconds as he switched between different camera systems and did not observe any other white pickup trucks in that section of Loop 303.The truck continued southbound in the northbound lanes, migrated to the right (the northbound "fast lane"), slowed down, and eventually stopped and completed a U-turn.  The truck then exited Loop 303 from the same exit ramp where it originally entered, proceeded straight across the intersection, and rejoined the northbound lanes of Loop 303.

911 calls from two motorists reported a wrong-way driver who observed a pickup truck going southbound in the northbound lanes. At trial the State used the call recordings but did not have the callers testify in court.  A DPS trooper located the white truck, observed it swerving and weaving, and performed a traffic stop at 4:35 a.m.  The driver who was the defendant had bloodshot eyes, slurred speech, and an unsteady gait. He also offered his passport when asked to provide his driver's license.  2 breath samples showed blood alcohol content ("BAC") was 0.148% and 0.149%.

The jury found the defendant guilty. The judge then sentenced the defendant to the mandatory minimum sentence of probation with 4 months in state prison.

TRIAL ISSUE

The defendant appealed from the conviction. He contended that by permitting the State to use the 911 calls at trial, the judge violated his right to a fair trial as protected by the Fourteenth Amendment Due Process.

The State only disclosed the contents of the 911 calls 2 weeks before trial and so the defendant had insufficient "time before trial to try and locate these witnesses. Possible exculpatory evidence is now unavailable." Over the defendant’s objections the judge allowed the State to present the 911 calls to the jury.

COURT OF APPEALS DECISION

The court of appeals denied the defendant’s appeal.  In doing so the appellate court held the 911 call recordings did not provide "crucial" or "critical" evidence against Reyes; instead, the recordings merely supported the other evidence presented by the State and cannot reasonably be considered foundational, "critical", evidence.

The court also said, “The State presented video evidence of Reyes entering the exit ramp and testimony from the specialist who observed the white truck driving the wrong way on the freeway. Neither the specialist nor the trooper observed any other white trucks on the freeway, and the trooper told the jury about his observations of Reyes' impairment, as well as the BAC results.”  Also, the 911 recordings were disclosed 12 days before trial, which gave the defense enough time to pursue any possible leads from the 911 for possible defenses.

Gordon Thompson

For more information about Arizona DUI and criminal law issues please contact Gordon Thompson who has used his experience to write a blog on topics of interest. You can also chat with Gordon about your specific questions.

Website:  https://www.GordonThompsonAttorney.net

Arizona can be a very harsh state for Criminal & DUI cases.  A defendant in Navajo County recently found out how harsh in a recent Court of Appeals decision.

In March 2023, the defendant was involved in a car crash in which his four-year-old son suffered a serious physical injury.  The State charged the defendant with multiple felony offenses arising out of the collision.

Just over a week later, an officer with the Navajo County Sheriff’s Office served the defendant with a summons to appear in the criminal matter, handing the paperwork to him face-to-face.  The summons noted the criminal case number, listed the charges and stated, “YOU ARE HEREBY SUMMONED to appear before [the Navajo County Superior] Court at Holbrook, Arizona in Division 3 at 9:00 AM on MONDAY APRIL 10, 2023.” The summons warned Tafoya that a warrant would be issued for his arrest should he fail to appear.  Tafoya did not appear for his arraignment on April 10, 2023, and the court issued a warrant for his arrest.

That same day the County Attorney’s office filed a felony failure to appear charge (F.T.A.), which is a class 5 felony.  One week later, a Holbrook police officer arrested the defendant.  During the arrest, the officer asked Tafoya, “you know you had court, right?” and Tafoya responded that he “put in a motion to get it dismissed.”  But no such motion was filed.

The County Attorney’s office filed an Allegation of Prior Convictions with the court. The effect of filing the allegation was to eliminate probation as a possible sentence and to increase the possible sentence ranges.  The County Attorney was not required to file the allegation, and easily could not have filed the allegation.

The F.T.A. charge went to a jury trial at which the defendant testified. He explained that he did not read the summons or understand that it related to criminal charges against him, assuming instead that it had to do with his then-pending case with the Department of Child Safety (“DCS”).  The defendant testified he had no prior felony failures to appear however he did have one misdemeanor failure to appear in 2020.

The jury returned a guilty verdict.  The court then sentenced him to a minimum term of four years imprisonment, with credit for 108 days of incarceration. The defendant must have had at least two allegeable prior felony convictions because a 4-year sentence for a class 5 felony could only be possible if the defendant had 2 allegeable prior convictions.

It is important to note defendant was convicted and sentenced to 4 years in prison for the act of not appearing at exactly one court date.  Moreover, that court date was for the arraignment, at which the defendant is simply advised of the charges and conditions of release are set. The court date was not for a jury trial, when witnesses and jurors would have had to be present and therefore would have been inconvenienced when the defendant failed to appear.

Additionally, judging from the facts it would have been easy to simply find and arrest the defendant on the original charges and hold him in custody until the trial. The Sheriff’s Department personally served the defendant and so had an idea where he could be found. The Holbrook police arrested the defendant one week after the failure to appear.

Even if guilty the defendant did not have to be sentenced to 4 years in prison. As stated above 4 years is only possible if the defendant has at least 2 prior felony convictions and the County Attorney files an allegation of prior convictions. Had the State not filed allegations of prior convictions the defendant would have been eligible for probation with no jail.

It is also important to note that this 4-year prison sentence for failure to appear at one court date will cost the people of Arizona over $150,000 to pay for the costs of the defendant’s incarceration.

Lastly, from public court records the defendant appears to have been found not guilty of the most serious charges, Aggravated Assault. Gordon Thompson

For more information about Arizona DUI and criminal law issues please contact Gordon Thompson who has used his experience to write a blog on topics of interest. You can also chat with Gordon about your specific questions.

A defendant’s Aggravated DUI and Theft charges were properly joined for trial.

The Facts

The Tempe Police Department received a report of a stolen vehicle. The vehicle was reported to and be in a certain area. The police stopped the vehicle and eventually the defendant was identified as the driver. The defendant appeared to be impaired. The police got a blood sample from the defendant.

Trial Court Proceedings

The defendant was first charged with felony theft of the vehicle.  The police received the blood test results which showed methamphetamine and fentanyl. The defendant then was also charged with Aggravated DUI.

The County Attorney asked the court to have the charges joined together for a trial. The Arizona Rules of Criminal Procedure allow separate charges arising from the same incident to be joined. The reason is to avoid having to present the same evidence in two separate trials together.

Joinder is permitted if the offenses are:

of the same or similar character;

based on the same conduct or otherwise connected in commission or

alleged to have been part of a common scheme or plan.

The defendant objected to Joinder. He alleged because he alleged severance (keeping the charges separate) not joinder was needed to promote a fair determination of his guilt or innocence for each offense.  The idea is the jury hay be unfairly prejudiced against him if it hears he has two separate types of charges.

The court granted the County Attorney’s request for joinder.  The defendant failed to then file a separate severance motion. That motion is required under the rules.

The jury found the defendant not guilty of theft but guilty of Aggravated DUI.

Court of Appeals Decision

The court of appeals denied defendant's appeal regarding the joinder of his DUI and theft cases was denied. The court said joinder was not a mistake, The court affirmed the conviction and sentence.

The defendant’s failed to submit a separate motion for severance meant the issue was not preserved for appeal. An issue not properly preserved can be still be considered on an appeal if the what happened in the trial court was “fundamental error”.

“Under fundamental error review, the defendant bears the burden to establish that:

(1) error exists,

(2) the error is fundamental, and

(3) the error caused him prejudice.

Error is fundamental when it “goes to the foundation of the defendant’s case, takes away a right that is essential to the defendant’s defense, or is of such magnitude that the defendant could not have received a fair trial. In short it is a very heavy burden.

The court said there was not only no fundamental error but even if the issue had been preserved, no error.  Joinder is appropriate when the two charges (Theft & DUI) arose from the same incident.

That rule may be logical but for a defendant it stacks the odds against him,

Schwab appealed his convictions for DUI, arguing the court erred in joining his DUI case with his theft case.  The court found no fundamental error in the joinder decision.

Gordon Thompson

For more information about Arizona DUI and criminal law issues please contact Gordon Thompson who has used his experience to write a blog on topics of interest. You can also chat with Gordon about your specific questions.

DUI case studies provide practical insight into how particular DUI cases are resolved.  These case studies are for misdemeanor DUI cases only.  Felonies are far different and are not discussed in my case studies.

These case studies are important because they are real-life situations. The studies not just hypothetical possibilities. What is also important is I do not just describe the cases. I also include my thoughts and actions as the case progressed. The cases are a sample of what I have been doing on a day-to-day basis for 46 years.

Here are several principles I keep in mind as I handle an individual case:

1. For felony DUIs you need a reason to try the case; for misdemeanor DUIs you need a reason not to try the case.

Felony cases are far more serious because the outcomes can be much worse after trial. I remember a case 30 years ago which another lawyer had. It was a felony DUI, and the defendant’s license was suspended because he forgot to pay the reinstatement fee from his first DUI. If he had only paid the reinstatement fee, the case would have been a misdemeanor and if guilty likely 30 days in jail. There was no bad driving and the defendant was stopped for a suspended license plate. There were no breath or blood tests. The mandatory minimum sentence was 4 months in prison.  I do not know what the plea offer was, but it probably was the minimum of 4 months. The defendant lost at a jury trial. The prosecutor and probation department recommended the 4-month minimum. The judge said on balance the defendant was not a bad guy, and then gave him the presumptive sentence of 2.5 years. The defendant may have had good reason to try the case, but he ended up with a much worse sentence by doing so.  Although a judge doing something like this is not as common as it was 30 years ago, it is always a possibility the outcome of a felony case can be much worse after trial.

For misdemeanor DUIs, many times the offer is plead to the most serious charge. For example, if a test result is less than .15%, to plead to a regular DUI charge; or, if the test result is more than .15%, to plead to an Extreme DUI charge. If that is true, then many times after a jury trial the sentence is the same as the plea offer. The sentence could always be worse but rarely is, and an experienced attorney knows when this might be. If there was an accident the sentence could be worse. The question then is why not try the case, what is there to lose?

Felonies you can lose a lot, misdemeanors, not very likely.

2. If you do not know the answer, that means you do not know the answer.

Over my 46 years of practice this has been an important point to remember, most particularly in jury trials.  A lawyer can make an educated guess as to what will happen at trial but it is exactly that, a guess. Guesses can turn out wrong and so a lawyer must always be open to that possibility. All lawyers, including me, have tried cases thinking I would win, or lose, and then the opposite happens. A lawyer must always be open to the possibility they could be wrong. A lawyer should be very careful saying they know what will happen.

3. Trials often have elements of irrationality.

To serve as a juror one must appear to be fair and impartial.  Jurors are also instructed to decide the case based on the facts presented at trial, and not to use information they know from outside the trial. I was once a juror myself, and what surprised me when we deliberated is how quickly the other jurors went off on tangents. They tried to decide the case with facts that had nothing to do with what was presented at trial, and I had to gently remind my fellow jurors what they were talking about was not evidence presented at trial.  Of course, the judge and lawyers had no idea the jurors were doing this and therefore could not have addressed those points during the trial. I as a lawyer could remind them to stick to the facts presented at trial, and this was true because I know the criminal jury instructions well. On this case, without me, the jurors could have decided the case based on facts not presented at trial. A trial lawyer needs to keep this in mind and although it is hard to do, anticipate the irrationality.

These are a few of my thoughts about cases and trials. I invite you to review my case studies to see what actually happens in real life.

Please keep in mind, nothing I have said here or in the case studies is legal advice for anyone else.

Gordon Thompson

For more information about Arizona DUI and criminal law issues please contact Gordon Thompson who has used his experience to write a blog on topics of interest. You can also chat with Gordon about your specific questions.