procedural question re: rights, disclosure, "speedy trial"

[goldnucs]

What is the name of your state? AZ

I was "arrested" for DUI after being pulled over for speeding on 7/21. I was never informed of my rights (the entire incident was tape recorded according to the arresting officer). I was permitted to be driven home by a friend after having blood forcibly removed by a court-ordered warrant, following my refusial to voluntarily submit.

I contacted the Pima County Sheriff's Dep't on 7/27 (ten days later) and was told it would take about another 4 weeks to receive the analysis back. I phoned again on 8/16 (7 weeks total now), and was informed that they still didn't have the results back and to check back in another month. I spoke to J-2 Labs to arrange for an independendent test if and when the blood ever arrived.

I was arraigned this past Friday, 8/20 at which time I was scheduled for a pre-trial conference on 9/29 and a jury trial on 12/14.

Interestingly, the "DUI Jury Trial Scheduling and Standard Disclosure Order" which I received at my arraignment reads "the State is ORDERED to disclose to the defendant within thirty days", all reports, blood test analysis with chain of custody, videotapes, audiotapes, HGN logs, photos, etc. It states that "If you do not have an attorney, you are required to obtain disclosure......30 days from today."

I just got off the phone with the Pima County Attorney's office and requested the disclosure per the form I received at my arraignment. I was told it would not be available until the day of my PTC. I recited the line from the form which reads " Pursuant to ARCP 15.1(a).........the State is ORDERED to" provide all disclosure "to the defendant within 30 days", and I was told that that "law has been changed! When I asked about what would happen if the blood results were not available at the time of the pre-trial and that I had been told that it could be 3-4 more weeks before I could get my sample independently-tested, the women at the PCAA said it could be 9 months to a YEAR before they had the results back. I stated that that seemed contrary to my right to a speedy trial to which she replied that she could not comment.

My questions then are, 1] Is it legally "reasonable" to have to wait nine months to a year for blood analysis or might this constitute a violation of my right to a speedy trial, should my trial be delayed pending the blood analysis; 2] Is it accurate that ARCP 15.1(a) has been "changed" within the past six months, and if it has, why do the court forms not reflect such change, and if I had to sign the "DUI jury trial scheduling and standard disclosure order" and abide by its content, why shouldn't the State; and lastly, 3] what are the implications of not being read my rights and on whom is the burden of proof?

Thx for any help.

 

[ptlmejo]

My questions then are, 1] Is it legally "reasonable" to have to wait nine months to a year for blood analysis or might this constitute a violation of my right to a speedy trial, should my trial be delayed pending the blood analysis; 2] Is it accurate that ARCP 15.1(a) has been "changed" within the past six months, and if it has, why do the court forms not reflect such change, and if I had to sign the "DUI jury trial scheduling and standard disclosure order" and abide by its content, why shouldn't the State; and lastly, 3] what are the implications of not being read my rights and on whom is the burden of proof?

1] As far as the speed of the test is concerned, it's not the fault of the state or the police as to the delay from what I can tell of your post, therefore, I don't see how they would be held accountable.

2] Since I have no idea what rule 15.1(a) used to look like, the current version is attached below for your review.

3] Unless the police were asking incriminating questions designed to elicit an incriminating response, your rights do not need to be read to you. If you're thinking "they why can they draw blood," the answer is called Implied Consent.

 

[ptlmejo]

16A A.R.S. Rules Crim.Proc., Rule 15.1

a. Initial Disclosure in Felony Cases. Unless otherwise ordered by the court or provided by local rule, at the arraignment, or at the preliminary hearing, whichever occurs first, the prosecutor shall make available to the defendant all reports containing items listed in Rule 15.1(b)(3) and (4) that were in the possession of the attorney filing the charge at the time of the filing.


TEXT b

b. Supplemental Disclosure; Scope. Except as provided by Rule 39(b), the prosecutor shall make available to the defendant the following material and information within the prosecutor's possession or control:


TEXT b (1)
(1) The names and addresses of all persons whom the prosecutor intends to call as witnesses in the case-in-chief together with their relevant written or recorded statements,

TEXT b (2)
(2) All statements of the defendant and of any person who will be tried with the defendant,

TEXT b (3)
(3) All then existing original and supplemental reports prepared by a law enforcement agency in connection with the particular crime with which the defendant is charged,

TEXT b (4)
(4) The names and addresses of experts who have personally examined a defendant or any evidence in the particular case, together with the results of physical examinations and of scientific tests, experiments or comparisons that have been completed,

TEXT b (5)
(5) A list of all papers, documents, photographs or tangible objects that the prosecutor intends to use at trial or which were obtained from or purportedly belong to the defendant,

TEXT b (6)
(6) A list of all prior felony convictions of the defendant which the prosecutor intends to use at trial,

TEXT b (7)
(7) A list of all prior acts of the defendant which the prosecutor intends to use to prove motive, intent, or knowledge or otherwise use at trial

TEXT b (8)
(8) All then existing material or information which tends to mitigate or negate the defendant's guilt as to the offense charged, or which would tend to reduce the defendant's punishment therefor.

TEXT b (9)
(9) Whether there has been any electronic surveillance of any conversations to which the defendant was a party, or of the defendant's business or residence;

TEXT b (10)
(10) Whether a search warrant has been executed in connection with the case;

TEXT b (11)
(11) Whether the case has involved an informant, and, if so, the informant's identity, if the defendant is entitled to know either or both of these facts under Rule 15.4(b) (2).

TEXT c

c. Time for Disclosure. Unless otherwise ordered by the court, the prosecutor shall disclose the materials and information listed in Rule 15.1(b) not later than:


TEXT c (1)
(1) For cases in Superior Court, 30 days after arraignment.

TEXT c (2)
(2) For Limited Jurisdiction Courts, at the first pre-trial conference.

TEXT d

d. Prior Felony Convictions


TEXT d (1)
(1) In a felony case, at least thirty days prior to trial, or thirty days after a request from the defendant, whichever occurs first, the state shall make available to the defendant a list of the prior felony convictions of witnesses whom the prosecutor intends to call at trial.

TEXT d (2)
(2) In a misdemeanor case, at least ten days prior to trial, the state shall make available to the defendant a list of the prior felony convictions of witnesses whom the prosecutor intends to call at trial.

TEXT d (3)
(3) In a felony case, at least thirty days prior to trial, or thirty days after a request from the defendant, whichever occurs first, the state shall make available to the defendant a list of the prior felony convictions that the prosecutor intends to use to impeach a disclosed defense witness at trial.

TEXT d (4)
(4) In a misdemeanor case, at least ten days prior to trial the state shall make available to the defendant a list of the prior felony convictions that the prosecutor intends to use to impeach a disclosed defense witness at trial.

TEXT e

e. Additional Disclosure upon Request and Specification. Unless otherwise ordered by the court, the prosecutor shall, within thirty days of a written request, make available to the defendant for examination, testing and reproduction the following:


TEXT e (1)
(1) Any specified items contained in the list submitted under rule 15.1 ( b) (5).

TEXT e (2)
(2) Any 911 calls existing at the time of the request that can reasonably be ascertained by the custodian of the record to be related to the case.

TEXT e (3)
(3) Any completed written reports, statements and examination notes made by experts listed in subsections (b)(1) and (b)(4) of this rule in connection with the particular case.

TEXT

The prosecutor may impose reasonable conditions, including an appropriate stipulation concerning chain of custody to protect physical evidence produced under this section or to allow time to complete any examination of such items.


TEXT f

f. Disclosure by Prosecutor. The prosecutor's obligation under this rule extends to material and information in the possession or control of any of the following:


TEXT f (1)
(1) The prosecutor, or members of the prosecutor's staff, or,

TEXT f (2)
(2) Any law enforcement agency which has participated in the investigation of the case and that is under the prosecutor's direction or control, or,

TEXT f (3)
(3) Any other person who has participated in the investigation or evaluation of the case and who his under the prosecutor's direction or control.

TEXT g

g. Disclosure by Order of the Court. Upon motion of the defendant showing that the defendant has substantial need in the preparation of the defendant's case for material or information not otherwise covered by Rule 15.1, and that the defendant is unable without undue hardship to obtain the substantial equivalent by other means, the court in its discretion may order any person to make it available to the defendant. The court may, upon the request of any person affected by the order, vacate or modify the order if compliance would be unreasonable or oppressive.


TEXT h

h. Disclosure of Rebuttal Evidence. Upon receipt of the notice of defenses required from the defendant under Rule 15.2(b) the state shall disclose the names and addresses of all persons whom the prosecutor intends to call as rebuttal witnesses together with their relevant written or recorded statements.


TEXT i

i. Additional Disclosure in a Capital Case.


TEXT i (1)
(1) The prosecutor, no later than 60 days after the arraignment in superior court, shall provide to the defendant notice of whether the prosecutor intends to seek the death penalty. This period may be extended for thirty days upon stipulation of counsel. Additional extensions may be granted upon motion of the state and approval of the court.

TEXT i (2)
(2) If the prosecutor files notice of intent to seek the death penalty, the prosecutor shall at the same time provide the defendant with a list of aggravating circumstances the state will rely on at the aggravation hearing in seeking the death penalty.

TEXT i (3)
(3) The prosecutor, no later than 30 days after filing a notice to seek the death penalty, shall provide to the defendant the following:

TEXT i (3) (a)
(a) The names and addresses of all persons whom the prosecutor intends to call as witnesses to support each identified aggravating circumstance at the aggravation hearing together with any written or recorded statements of the witness.

TEXT i (3) (b)
(b) The names and addresses of experts whom the prosecutor intends to call to support each identified aggravating circumstance at the aggravation hearing together with any written or recorded statements of the expert.

TEXT i (3) (c)
(c) A list of any and all papers, documents, photographs or tangible objects that the prosecutor intends to use to support each identified aggravating circumstance at the aggravation hearing.

TEXT i (3) (d)
(d) All material or information that might mitigate or negate the finding of an aggravating circumstance or mitigate the defendant's culpability.

TEXT i (4)
(4) The trial court may enlarge the time or allow the notice required in Rule 15.1(i)(3) to be amended only upon a showing of good cause by the prosecution, or upon stipulation of counsel and approval of the court.

TEXT i (5)
(5) Within 60 days of receipt of the disclosure required under Rule 15.2(h)(1), the prosecutor shall disclose to the defendant the following:

TEXT i (5) (a)
(a) The names and addresses of all persons whom the prosecutor intends to call as rebuttal witnesses on each identified aggravating circumstance together with any written or recorded statements of the witness.

TEXT i (5) (b)
(b) The names and addresses of all persons the state intends to call as witnesses at the penalty hearing together with any written or recorded statements of the witness.

TEXT i (5) (c)
(c) The names and addresses of experts who may be called at the penalty hearing together with any reports prepared by the expert.

TEXT i (5) (d)
(d) A list of any and all papers, documents, photographs or tangible objects that the prosecutor intends to use during the aggravation and penalty hearings.

 

[goldnucs]

1] As far as the speed of the test is concerned, it's not the fault of the state or the police as to the delay from what I can tell of your post, therefore, I don't see how they would be held accountable.

2] Since I have no idea what rule 15.1(a) used to look like, the current version is attached below for your review.

3] Unless the police were asking incriminating questions designed to elicit an incriminating response, your rights do not need to be read to you. If you're thinking "they why can they draw blood," the answer is called Implied Consent.

_________________________________________________________________

1] why is it they can't be held accountable?! When I get my blood tested at my doctor's, the results are available w/i a few days; at a hospital, w/i minutes. If, in order to comply with my right to a speedy trial, the State needs to hire a lab who's procedures can conform to constitutional requirements, then, by God, they'd better! It's not like the fines they dispense don't cover it; and if they don't, then raise 'em. They have no problem raising my taxes at their whim. Just don't tell me "It's not the fault of the state or the police as to the delay" and "therefore, I don't see how they would be held accountable." The State has an obligation to do whatever they have to to ensure they don't violate my constitutional rights!

2} Thank-you for posting the RULE. My question still remains, however. If I must sign and abide by the conditions set forth on their form, why don't they have the same obligation. Either correct the form (big expense, no doubt), or play by the same rules I have to.

3) the police were real 'nice' to me with confusing answers, until i refused to submit. Then they became REAL threatening. And I do not blieve "Implied Consent" includes the forcibale removal of my bodily fluids by court order.......In no way was my consent implied.......it was blatently DENIED!

regards

 

[sailor]

Procedural Question

What is the name of your state? AZ

I was "arrested" for DUI after being pulled over for speeding on 7/21. I was never informed of my rights (the entire incident was tape recorded according to the arresting officer). I was permitted to be driven home by a friend after having blood forcibly removed by a court-ordered warrant, following my refusial to voluntarily submit.

I contacted the Pima County Sheriff's Dep't on 7/27 (ten days later) and was told it would take about another 4 weeks to receive the analysis back. I phoned again on 8/16 (7 weeks total now), and was informed that they still didn't have the results back and to check back in another month. I spoke to J-2 Labs to arrange for an independendent test if and when the blood ever arrived.

I was arraigned this past Friday, 8/20 at which time I was scheduled for a pre-trial conference on 9/29 and a jury trial on 12/14.

Interestingly, the "DUI Jury Trial Scheduling and Standard Disclosure Order" which I received at my arraignment reads "the State is ORDERED to disclose to the defendant within thirty days", all reports, blood test analysis with chain of custody, videotapes, audiotapes, HGN logs, photos, etc. It states that "If you do not have an attorney, you are required to obtain disclosure......30 days from today."

I just got off the phone with the Pima County Attorney's office and requested the disclosure per the form I received at my arraignment. I was told it would not be available until the day of my PTC. I recited the line from the form which reads " Pursuant to ARCP 15.1(a).........the State is ORDERED to" provide all disclosure "to the defendant within 30 days", and I was told that that "law has been changed! When I asked about what would happen if the blood results were not available at the time of the pre-trial and that I had been told that it could be 3-4 more weeks before I could get my sample independently-tested, the women at the PCAA said it could be 9 months to a YEAR before they had the results back. I stated that that seemed contrary to my right to a speedy trial to which she replied that she could not comment.

My questions then are, 1] Is it legally "reasonable" to have to wait nine months to a year for blood analysis or might this constitute a violation of my right to a speedy trial, should my trial be delayed pending the blood analysis; 2] Is it accurate that ARCP 15.1(a) has been "changed" within the past six months, and if it has, why do the court forms not reflect such change, and if I had to sign the "DUI jury trial scheduling and standard disclosure order" and abide by its content, why shouldn't the State; and lastly, 3] what are the implications of not being read my rights and on whom is the burden of proof?

Thx for any help.

I don't know the answers to all your questions, but I do hope you have a good lawyer. It sounds like you will need one. As far as the forced withdrawal of your blood goes, you may have violated your privileges to drive for a while. If Arizona is in the States Drivers Compact, and most states are any more, then it means you, when you were issued your Arizona DL agreed and understood you would willingly submit to a breath analyser test. If you do not, and the officers have to take your blood by force, are automatically admitting guilt to being under the influence. I'm not a lawyer, and the law may not be stated exactly as I have said, but it is the law and sometimes that question is asked on your driver's license test. God Bless and good luck

 

[ptlmejo]

1] why is it they can't be held accountable?! When I get my blood tested at my doctor's, the results are available w/i a few days; at a hospital, w/i minutes. If, in order to comply with my right to a speedy trial, the State needs to hire a lab who's procedures can conform to constitutional requirements, then, by God, they'd better! It's not like the fines they dispense don't cover it; and if they don't, then raise 'em. They have no problem raising my taxes at their whim. Just don't tell me "It's not the fault of the state or the police as to the delay" and "therefore, I don't see how they would be held accountable." The State has an obligation to do whatever they have to to ensure they don't violate my constitutional rights!

Just skimming the 16A ARS post, I don't see where your case would pertain to that. Unless I missed the section (which is possible), it appears that it only applies to felonies and greater...I'm assuming your OWI is not a felony. Correct me if I'm mistaken.

2} Thank-you for posting the RULE. My question still remains, however. If I must sign and abide by the conditions set forth on their form, why don't they have the same obligation. Either correct the form (big expense, no doubt), or play by the same rules I have to.

Perhaps it hasn't taken effect as of yet, or perhaps it doesn't apply in your particular case. Someone else may be able to field that question for you as I am unfamiliar with AZ law.

3) the police were real 'nice' to me with confusing answers, until i refused to submit. Then they became REAL threatening. And I do not blieve "Implied Consent" includes the forcibale removal of my bodily fluids by court order.......In no way was my consent implied.......it was blatently DENIED!

Implied Consent happens the second you sign the driver's license application and hand it over to the DMV clerk for your license issuance. In short, it states that if you are ever stopped on suspicion of OWI, the police are authorized to take an evidentiary chemical test...whether this be breath, blood, or urine (varies by jurisdiction as to the test). So, yes, your consent was implied because you were operating a motor vehicle after being issued a license.

 

[CdwJava]

Additionally blood CAN be forceibly drawn as an exception to the warrant requirement under the 4th Amendment. Because the body us metabolizing (i.e. destroying) blood every minute, the courts have realized that blood must some time be taken immediately to preserve the evidence. Thus, unless state law or agency policy specifically forbids it, we CAN hold someone down and forcibly draw blood even without their cooperation.

It happens ... particularly when people think if they refuse all tests they will skate on at least the criminal aspect of DUI.

Carl

 

[goldnucs]

Just skimming the 16A ARS post, I don't see where your case would pertain to that. Unless I missed the section (which is possible), it appears that it only applies to felonies and greater...I'm assuming your OWI is not a felony. Correct me if I'm mistaken.

A DUI with a BAC in excess of 1.5, in the state of Arizona, is considered a felony. I don't know whether or not my DUI is felony as my blood analysis remains unavailable and, as referenced to above, may not be available for nine months to a year. So.........beats the hell oughtta me!

 

[OG_of_Crime_Law]

Procedural Rights On Dui

I was "arrested" for DUI after being pulled over for speeding on 7/21.

ARRESTED is one of those funny words that gets bandied about because one is never sure when it happens. Handcuffs don’t necessarily mean you have been arrested. Maybe you were just detained which can be 48 hours most places unless you’re an ENEMY COMBATANT in which case you can be DETAINED INDEFINITELY (thanks to the PATRIOT ACT). Sounds like you were in custody and being detained while they took your blood (more on that below).

I was never informed of my rights (the entire incident was tape recorded according to the arresting officer).

Without being read your rights (Ernesto Miranda v. Arizona 1966) nothing you said can be offered into evidence against you. In fact, under the FRUIT OF THE POISONOUS TREE Rule, any evidence found by the police as a result of what you said under interoggation is also INADMISSIBLE.

HOWEVER, being read your Miranda Rights only becomes an issue if the State wants to offer into evidence anything you said while you were in custody and under interrogation by the police. If the State feels it can win its case against you without the illegally obtained admission/evidence, a Miranda violation will not get the case DISMISSED. Also in Berkemer v. McCarty 1984 it was ruled that questioning of a motorist at a traffic stop does not constitute a reading of Miranda Rights.

Actually, YOU HAD THE RIGHT TO REMAIN SILENT THE MOMENT YOU CAME INTO CONTACT WITH THE COP. A ruling as of July 2004 (due to terrorist actions) said that you at least have to give the police your name, etc., but outside of that you don’t have to answer anything else.

I was permitted to be driven home by a friend after having blood forcibly removed by a court-ordered warrant, following my refusial to voluntarily submit.

The court-ordered warrant + your implied consent trumps your refusal to give the blood voluntarily. This end run around your rights got accomplished in South Dakota v. Neville, 1983 which ruled that it doesn’t violate your Fifth Amendment rights against self-incrimination to force a driver to submit to an alcohol test; and by your IMPLIED CONSENT in exchange to drive on your state’s roads. That happened when you accepted the DL. Nice, huh?

I contacted the Pima County Sheriff's Dep't on 7/27 (ten days later) and was told it would take about another 4 weeks to receive the analysis back. I phoned again on 8/16 (7 weeks total now), and was informed that they still didn't have the results back and to check back in another month. I spoke to J-2 Labs to arrange for an independendent test if and when the blood ever arrived.

Here, the best thing you could have done was to have gone and gotten an independent blood test done at a hospital (emergency room) or doctor ASAP.
Blood testing is not perfect. It is a good weapon the police/state has against you but it’s defensible (sample taken with after swabbing skin w/an alcohol solution for example, can contaminate the sample prior to removing it; or the sample can create its own alcohol fermenting in the test tube; or via the blood sample fermenting sitting around waiting to be tested in a busy lab for some times days or weeks as the case may be with you—wall of which can be called into evidence as a DEFENSE).

I was arraigned this past Friday, 8/20 at which time I was scheduled for a pre-trial conference on 9/29 and a jury trial on 12/14.

Interestingly, the "DUI Jury Trial Scheduling and Standard Disclosure Order" which I received at my arraignment reads "the State is ORDERED to disclose to the defendant within thirty days", all reports, blood test analysis with chain of custody, videotapes, audiotapes, HGN logs, photos, etc. It states that "If you do not have an attorney, you are required to obtain disclosure......30 days from today."

I just got off the phone with the Pima County Attorney's office and requested the disclosure per the form I received at my arraignment. I was told it would not be available until the day of my PTC. I recited the line from the form which reads " Pursuant to ARCP 15.1(a).........the State is ORDERED to" provide all disclosure "to the defendant within 30 days", and I was told that that "law has been changed! When I asked about what would happen if the blood results were not available at the time of the pre-trial and that I had been told that it could be 3-4 more weeks before I could get my sample independently-tested, the women at the PCAA said it could be 9 months to a YEAR before they had the results back.

Well, it seems the above regulations are where they got you in terms of requesting the information. The DUI in your case is being treated as a FELONY. Thus, the law is saying that you can get the independent test on or around 9-23-04, 30 days after your request of 8-23-04: (unless it’s changed) (Big thanks to PTLMEJO for posting the law). The DA office also just doesn’t like you having the nerve to represent yourself, peeking into the law, etc. You’ve got nerve. Thus, they give you a hard time. That’s what you’re encountering.

But I wouldn’t get too twisted about this procedural snafu. The Attorney’s Office is legally obligated to fess up with any information that can help you including the police report and lab tests. The blood test lab report can be argued against at trial. So don’t get driven crazy with cause you can’t get it. REPEATING: IT WOULD HAVE BEEN REAL NICE IF YOU HAD GOTTEN YOUR OWN BLOOD TEST DONE SOMEWHERE ELSE AS SOON AS POSSIBLE AFTER THEIRS.

ARCP 15.1(a) Initial Disclosure in Felony Cases. Unless otherwise ordered by the court or provided by local rule, at the arraignment, or at the preliminary hearing, whichever occurs first, the prosecutor shall make available to the defendant all reports containing items listed in Rule 15.1(b)(3) and (4) that were in the possession of the attorney filing the charge at the time of the filing.

TEXT d (1)
(1) In a felony case, at least thirty days prior to trial, or thirty days after a request from the defendant, whichever occurs first, the state shall make available to the defendant a list of the prior felony convictions of witnesses whom the prosecutor intends to call at trial.

I stated that that seemed contrary to my right to a speedy trial to which she replied that she could not comment.

My questions then are, 1] Is it legally "reasonable" to have to wait nine months to a year for blood analysis or might this constitute a violation of my right to a speedy trial, should my trial be delayed pending the blood analysis;

No violation here. Your right to an INDEPENDENT ANALYSIS is different from your right to KNOW THE RESULTS (which you will at the PRE-TRIAL per 30 days after your request on 8-23-04). Thus, it certainly can be as long as 9-12 months later for you to do that independent testing. This has no bearing on the Speedy Trial Act of 1974 which says: “Trial must commence within 70 days from the date the information or indictment was filed, or from the date the defendant appears before an officer of the court in which the charge is pending, whichever is later.” 18 U.S.C. § 3161(c)(1). Thus, THIS IS WHY YOUR TRIAL DATE FALLS ON 12-14-04.

And let’s be clear about SPEEDY TRIAL. It really means a SPEEDY HEARING, especially, if you are in jail/detention. The Speedy Trial Act provides that once you have been arrested or detained, a defendant is entitled to a court HEARING within 100 days. This does NOT mean a bench or jury TRIAL. Instead it simply means that while you are in jail or on bail, the court must schedule an APPEARANCE every 100 days. BIG DIFFERENCE in terms of your right to a SPEEDY TRIAL as so many think.

Is it accurate that ARCP 15.1(a) has been "changed" within the past six months, and if it has, why do the court forms not reflect such change, and if I had to sign the "DUI jury trial scheduling and standard disclosure order" and abide by its content, why shouldn't the State;

Doesn’t appeard to have changed. It seems more that you and the women at the PCAA were arguing apples and oranges. What you really wanted was the RIGHT TO KNOW the results, while they were responding to the REQUEST FOR AN INDEPENDENT ANALYSIS rules. Your effectiveness for independent testing is essentially shot until a year later (notwithstanding some maneuvering by a good defense lawyer to get it independently tested during trial or on appeal or some such).

3] what are the implications of not being read my rights and on whom is the burden of proof?

AGAIN FROM EARLIER: If the State feels it can win its case against you without the illegally obtained admission/evidence, a Miranda violation will not get the case DISMISSED. Also in Berkemer v. McCarty 1984 it was ruled that questioning of a motorist at a traffic stop does not constitute a reading of Miranda Rights.

Of course, the BURDEN OF PROOF is on the state. Though most prosecutors know that juries are prejudicial against someone being accused of being a drunk driver. You still may lose your license for a year for REFUSAL. But see what the STATE RECOMMENDATION is. If it’s a FIRST OFFENSE, they may just recommend community service, etc.Good luck my friend

“They say Lady Justice is blind but I do believe the old girl is peeking.”

 

[goldnucs]

OG,

I haven't had a chance yet to really "absorb" your reply but I wanted to thank you the time you took and for all the info you provided. I'm gonna review it all now, over an ice cold beer, and get back with you ASAP. In just my quick initial first read, I caught some very interesting points which may present very "interesting" defenses such as the alcohol swabs they used during the blood draw procedure. I'm in a wheelchair and the cop drew my blood while I was sitting on my wheelchair lift as the air from passing traffic rocked my van. Not only did he miss my "perfect" veins a couple of times before retrying with a thinner needle and butterfly, but he accused me of intentionally flinching as the reason for his difficulty in obtaining the speciman.

Anyway, thanks again and I hope you'll stick around.

rick

 

[goldnucs]

ARRESTED is one of those funny words that gets bandied about because one is never sure when it happens. Handcuffs don’t necessarily mean you have been arrested. Maybe you were just detained which can be 48 hours most places unless you’re an ENEMY COMBATANT in which case you can be DETAINED INDEFINITELY (thanks to the PATRIOT ACT). Only in America; LOL! Sounds like you were in custody and being detained while they took your blood (more on that below).

I was never informed of my rights (the entire incident was tape recorded according to the arresting officer).

Without being read your rights (Ernesto Miranda v. Arizona 1966) nothing you said can be offered into evidence against you. In fact, under the FRUIT OF THE POISONOUS TREE Rule, any evidence found by the police as a result of what you said under interoggation is also INADMISSIBLE. I assume that would include any audio and/or videotape.

HOWEVER, being read your Miranda Rights only becomes an issue if the State wants to offer into evidence anything you said while you were in custody and under interrogation by the police. If the State feels it can win its case against you without the illegally obtained admission/evidence, a Miranda violation will not get the case DISMISSED. Also in Berkemer v. McCarty 1984 it was ruled that questioning of a motorist at a traffic stop does not constitute a reading of Miranda Rights.

Actually, YOU HAD THE RIGHT TO REMAIN SILENT THE MOMENT YOU CAME INTO CONTACT WITH THE COP. A ruling as of July 2004 (due to terrorist actions) said that you at least have to give the police your name, etc., but outside of that you don’t have to answer anything else.

I was permitted to be driven home by a friend after having blood forcibly removed by a court-ordered warrant, following my refusial to voluntarily submit.

The court-ordered warrant + your implied consent trumps your refusal to give the blood voluntarily. This end run around your rights got accomplished in South Dakota v. Neville, 1983 which ruled that it doesn’t violate your Fifth Amendment rights against self-incrimination to force a driver to submit to an alcohol test; and by your IMPLIED CONSENT in exchange to drive on your state’s roads. That happened when you accepted the DL. Nice, huh? Yeah, lovely; although I really don't recall relinquishing my righs at the time I obtained my DL in 1972!

I contacted the Pima County Sheriff's Dep't on 7/27 (ten days later) and was told it would take about another 4 weeks to receive the analysis back. I phoned again on 8/16 (7 weeks total now), and was informed that they still didn't have the results back and to check back in another month. I spoke to J-2 Labs to arrange for an independendent test if and when the blood ever arrived.

Here, the best thing you could have done was to have gone and gotten an independent blood test done at a hospital (emergency room) or doctor ASAP.
Blood testing is not perfect. It is a good weapon the police/state has against you but it’s defensible (sample taken with after swabbing skin w/an alcohol solution for example, can contaminate the sample prior to removing it; or the sample can create its own alcohol fermenting in the test tube; or via the blood sample fermenting sitting around waiting to be tested in a busy lab for some times days or weeks as the case may be with you—wall of which can be called into evidence as a DEFENSE). Now you're really on to something here! I wanted to see exactly what the State had in the way of evidence before I went to the expense of retaining an expensive attorney. I figured if they had me on the BAC, they had me; case closed. You just opened up a whole new set of possiblities!

I was arraigned this past Friday, 8/20 at which time I was scheduled for a pre-trial conference on 9/29 and a jury trial on 12/14.

Interestingly, the "DUI Jury Trial Scheduling and Standard Disclosure Order" which I received at my arraignment reads "the State is ORDERED to disclose to the defendant within thirty days", all reports, blood test analysis with chain of custody, videotapes, audiotapes, HGN logs, photos, etc. It states that "If you do not have an attorney, you are required to obtain disclosure......30 days from today."

I just got off the phone with the Pima County Attorney's office and requested the disclosure per the form I received at my arraignment. I was told it would not be available until the day of my PTC. I recited the line from the form which reads " Pursuant to ARCP 15.1(a).........the State is ORDERED to" provide all disclosure "to the defendant within 30 days", and I was told that that "law has been changed! When I asked about what would happen if the blood results were not available at the time of the pre-trial and that I had been told that it could be 3-4 more weeks before I could get my sample independently-tested, the women at the PCAA said it could be 9 months to a YEAR before they had the results back.

Well, it seems the above regulations are where they got you in terms of requesting the information. The DUI in your case is being treated as a FELONY. NO! My charge is a misdemenor. Thus, the law is saying that you can get the independent test on or around 9-23-04, 30 days after your request of 8-23-04: (unless it’s changed) (Big thanks to PTLMEJO for posting the law). You lost me here. The "DUI Jury Trial Scheduling and Standard Disclosure Order" which I received at my arraignment reads "the State is ORDERED to disclose to the defendant within thirty days" (of the arraignment), all reports, blood test analysis with chain of custody, videotapes, audiotapes, HGN logs, photos, etc. It states that "If you do not have an attorney, you are required to obtain disclosure......30 days from today." The The DA office also just doesn’t like you having the nerve to represent yourself, peeking into the law, etc. And I feel really bad about that You’ve got nerve. Thus, they give you a hard time. That’s what you’re encountering. Again, so far all I've done, besides wasting two hours at an arraignment where the Judge entered an automatic Not Guilty plea on my behalf, was to place a phone call to the DA's office to request my disclosure per the Order.

But I wouldn’t get too twisted about this procedural snafu. The Attorney’s Office is legally obligated to fess up with any information that can help you including the police report and lab tests. What twists my chain is that I was told I couldn't have ANYTHING (except for the Police Report which I could pay for and obtain at the Sheriff's Dep't, though they did not tell me that), until "the morning of the Pre-trial Conference". The blood test lab report can be argued against at trial. So don’t get driven crazy with cause you can’t get it. Nevertheless, I remain in awe and utter disbelief that it may be nine months to a year before the blood test results are even available! I spend about six months a year in Mexico, but it'll be fine planning my life around a trial date which could be a year or two away. (I realize of course that the longer the delay, the better my chances are of beating the rap). REPEATING: IT WOULD HAVE BEEN REAL NICE IF YOU HAD GOTTEN YOUR OWN BLOOD TEST DONE SOMEWHERE ELSE AS SOON AS POSSIBLE AFTER THEIRS. Yep; excellent advice. Will keep that in mind for the next one.

ARCP 15.1(a) Initial Disclosure in Felony Cases. Unless otherwise ordered by the court or provided by local rule, at the arraignment, or at the preliminary hearing, whichever occurs first, the prosecutor shall make available to the defendant all reports containing items listed in Rule 15.1(b)(3) and (4) that were in the possession of the attorney filing the charge at the time of the filing. I'm fairly certain, and will verify, that the rules for CIVIL procedure, in this regard, are the same.

TEXT d (1)
(1) In a felony case, at least thirty days prior to trial, or thirty days after a request from the defendant, whichever occurs first, the state shall make available to the defendant a list of the prior felony convictions of witnesses whom the prosecutor intends to call at trial.

I stated that that seemed contrary to my right to a speedy trial to which she replied that she could not comment.

My questions then are, 1] Is it legally "reasonable" to have to wait nine months to a year for blood analysis or might this constitute a violation of my right to a speedy trial, should my trial be delayed pending the blood analysis;

 

[goldnucs]

CONTINUED:

No violation here. Your right to an INDEPENDENT ANALYSIS is different from your right to KNOW THE RESULTS (which you will at the PRE-TRIAL per 30 days after your request on 8-23-04). Thus, it certainly can be as long as 9-12 months later for you to do that independent testing. OK; you lost me here. First, I can't even get the independent analysis until the blood sample is returned from the lab which could take from nine months to a year. My PTC is scheduled for less than a month from today. Thus my "Right / ability to obtain an independent analysis" must coincide with my "Right to know the results", as I cannot even obtain my sample for testing until they receive the results. The two testtubes are supposedly kept together. This has no bearing on the Speedy Trial Act of 1974 which says: “Trial must commence within 70 days from the date the information or indictment was filed, or from the date the defendant appears before an officer of the court in which the charge is pending, whichever is later.” 18 U.S.C. § 3161(c)(1). Thus, THIS IS WHY YOUR TRIAL DATE FALLS ON 12-14-04. If they can't obtain my blood analysis report within the next nine months to a year, how can I be tried prior?

And let’s be clear about SPEEDY TRIAL. It really means a SPEEDY HEARING, especially, if you are in jail/detention. The Speedy Trial Act provides that once you have been arrested or detained, a defendant is entitled to a court HEARING within 100 days. This does NOT mean a bench or jury TRIAL. Instead it simply means that while you are in jail or on bail, the court must schedule an APPEARANCE every 100 days. In other words, its feasible that I could die of old age before I am ever tried! BIG DIFFERENCE in terms of your right to a SPEEDY TRIAL as so many think.

Is it accurate that ARCP 15.1(a) has been "changed" within the past six months, and if it has, why do the court forms not reflect such change, and if I had to sign the "DUI jury trial scheduling and standard disclosure order" and abide by its content, why shouldn't the State;

Doesn’t appeard to have changed. It seems more that you and the women at the PCAA were arguing apples and oranges. What you really wanted was the RIGHT TO KNOW the results, while they were responding to the REQUEST FOR AN INDEPENDENT ANALYSIS rules. No, I simply called to request compliance for disclosure per the ORDER that the State deliver same within thirty days of the date of my arraignment (8/20/04). Even If I acknowledge that I cannot obtain my blood speciman for nine months to a year, why should they not make available the remaining disclosure within the prescribed thirty day time frame? She told me I could pick it up no earlier than the morning of my PTC. Your effectiveness for independent testing is essentially shot until a year later (notwithstanding some maneuvering by a good defense lawyer to get it independently tested during trial or on appeal or some such). ???
3] what are the implications of not being read my rights and on whom is the burden of proof?

AGAIN FROM EARLIER: If the State feels it can win its case against you without the illegally obtained admission/evidence, a Miranda violation will not get the case DISMISSED. Also in Berkemer v. McCarty 1984 it was ruled that questioning of a motorist at a traffic stop does not constitute a reading of Miranda Rights.

Of course, the BURDEN OF PROOF is on the state. Though most prosecutors know that juries are prejudicial against someone being accused of being a drunk driver. You still may lose your license for a year for REFUSAL. I will have my DL suspended automatically for one year pending determination at a MVD hearing scheduled for 9/8. But see what the STATE RECOMMENDATION is. If it’s a FIRST OFFENSE, they may just recommend community service, etc.Good luck my friend [/B] Arizona has set minimum sentencings for convictions including 24 hours in jail, a fine, MADD meetings, and more. There are no "slaps on the hand" issued here anymore.

 

[OG_of_Crime_Law]

Procedural Rights Part Deux

YOUR RIGHT TO KNOW -VERSUS-YOUR RIGHT TO INDEPENDENT ANALYSIS
OK; you lost me here. First, I can't even get the independent analysis until the blood sample is returned from the lab which could take from nine months to a year. My PTC is scheduled for less than a month from today. Thus my "Right / ability to obtain an independent analysis" must coincide with my "Right to know the results", as I cannot even obtain my sample for testing until they receive the results. The two testtubes are supposedly kept together.

Reading this again it appears 30 days after arraignment would put the Prosecution's obligation to disclose the results of the blood test by 9-20-04 which falls in line with your date of arraignment of 8-20-04, putting your ARRAIGNMENT at 9-29-04. That 9-day differential the courts have already ruled does not constitute a serious DELAY OF TRIAL, nor does it constitute a
REFUSAL TO YOUR RIGHT TO KNOW. Your desire to perform your own INDEPENDENT TESTING is one thing. Your Right to know is another. I know that may be tricky and frustrating as hell. But that's the line we're dealing with here. They're not the same. You wanna know what the police have in terms of the blood test they did with you. And you will--WITHIN the prescribed time limits per this law below. On the other hand you want to perform your own Independent Analysis with your blood. Well, they seem to be saying that within the scope of procedure you won't be able to do for at least 9-12 months. Having said that, you may be able to Motion to Preserve which FORCES the prosecution to keep evidence safe long enough for the you to run your own tests. Check with the PD or your counsel of choice.

TIME FOR DISCLOSURE
TEXT c

c. Time for Disclosure. Unless otherwise ordered by the court, the prosecutor shall disclose the materials and information listed in Rule 15.1(b) not later than:

TEXT c (1)
(1) For cases in Superior Court, 30 days after arraignment.

TEXT c (2)
(2) For Limited Jurisdiction Courts, at the first pre-trial conference.

What twists my chain is that I was told I couldn't have ANYTHING (except for the Police Report which I could pay for and obtain at the Sheriff's Dep't, though they did not tell me that), until "the morning of the Pre-trial Conference". And they would be within their PROCEDURAL RIGHTS to not release until the morning of the Pre-Trial. At the Pre-Trial you'll find out what the BAC was from the test. At that point, you can decide if they've GOT YA. If they do, get with the prosecution and work it out.

You lost me here. The "DUI Jury Trial Scheduling and Standard Disclosure Order" which I received at my arraignment reads "the State is ORDERED to disclose to the defendant within thirty days" (of the arraignment), all reports, blood test analysis with chain of custody, videotapes, audiotapes, HGN logs, photos, etc. It states that "If you do not have an attorney, you are required to obtain disclosure......30 days from today."

Okay, so what im saying is what i said above regarding DISCLOSURE: 30 days from your arraignment is 9-20-04 or 9-29-04 including reasonable amount of delay. This isn't a VIOLATION within the scope. But as i said a Motion to Preserve may be something to keep in mind.

Along with your PD or counsel of choice, see what's up in the Pre-Trial with the BAC. At least you'll know if it's a shut-out for the prosecution or if you should go further.

Good luck

"They say Lady Justice is blind but i do believe the old girl is peeking."