Is disrespect towards a police officer a crime?

A person pulled over for speeding displays contempt, directing obscenities at the police officer who asks for his driver’s license. As the driver hands his license over, he continues to be disrespectful and bark out profanity. Can the police officer arrest the driver for disorderly conduct or is the speech protected under the First Amendment? Arizona Revised Statute §13-2904 prohibits the use of “abusive or offensive language or gestures to any person present in a manner likely to provoke immediate physical retaliation by such person.” However, a person has a right to free speech. This right includes the right to engage in offensive expression and criticism of government officials. However, all speech is not protected. The law prohibits the use of “fighting words,” those words that would likely provoke immediate physical retaliation. When interacting with a police officer, what are “fighting words” and what is considered free speech? In deciding, the courts have looked at the position of a police officer, who is trained to deal with the public in very stressful situations, and is trained to remain calm. Yelling “fuck you all” at a police officer; stating “I’m tired of this God damned police sticking their nose in shit that doesn’t even involve them;” and calling the police officer a “son of a bitch,” have all been held as protected speech by various U.S. courts. However, referring to the police officer as a “white, racist motherfucker” and wishing his mother would die and referring to the police officer as a “fucking asshole” and then attempting to spit on the officer have been declared “fighting words,” not protected by the First Amendment.

While the display of an attitude towards a police officer is not going to get you out of a speeding ticket, neither should it land you in jail, as long as your speech is not considered “fighting words.” For more information on issues affecting Arizona criminal defense, please visit my website at www.win-law.com.

I’m charged with a DUI! Can I beat a breath test?

There are some who believe that a breathalyzer test result is the end of the case. They automatically infer guilt based upon the reading produced. Are there ways to combat a breathalyzer reading? Of course there are. Here are but a few. First, the breathalyzer devise may not have been calibrated or working properly. Second, certain ailments such as low blood sugar may be causing chemicals to be produced in the mouth, which the devise inaccurately interprets as alcohol. Third, small particles of certain foods, such as breads, that were previously eaten may be still lodged in the mouth, producing mouth alcohol, which the devise inaccurately displays as blood alcohol content (BAC). Tests have been conducted whereby a completely sober person eats bread and thereafter takes a breathalyzer. Readings as high as .05 have been found just from the bread consumption alone. Fourth, other chemicals the person came into contact with such as paint fumes and gasoline can produce a higher breathalyzer BAC reading. Fifth, elevated body temperature levels caused by sickness or just random fluctuation can cause a mistakenly high breathalyzer reading. These are but a few of the ways a breathalyzer can overstate a person’s actual BAC. Instead of automatically trusting breathalyzer results, maybe we should be asking why anyone trusts these devises at all? Further information on Arizona DUI charges can be found at www.win-law.com.

When Can Law Enforcement Conduct a Search Without a Warrant?

Generally, there are five situations where the law permits law enforcement to conduct a search without a warrant. First, a warrant is not required when law enforcement conducts a search of the person “incident to an arrest.” When law enforcement conducts an arrest, they may search the individual and the area within his immediate control. This is to make sure the individual does not bring with him any weapons or contraband. Secondly, law enforcement may conduct a warrantless search when they stop a vehicle and they have probable cause to believe that the vehicle contains contraband. This exception also includes the right to inventory the contents of a vehicle after the individual is taken into custody. Third, a warrant is not required when law enforcement is in “hot pursuit” of an individual who runs into a house. Forth, the police may seize contraband or other evidence if it is in plain view and they are in a place they are lawfully entitled to be at. Lastly, a warrant is not required when the individual consents to the search.
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Constructive Possession of Contraband

The question often arises as to how a criminal defendant can be convicted of possession of contraband, such as an illegal drug, when he/she was not in actual possession. For example, a vehicle is pulled over for a minor traffic offense. The police officer looks through the window and sees a pipe and what looks like a bag of marijuana sitting on the passenger side floor board. Can both driver and passenger be arrested for possession of marijuana? The answer is yes.

Under the legal concept known as construction possession, a defendant can be convicted of possession if it can be shown, through circumstantial and/or direct evidence, that the defendant knew of the presence of the contraband and had the power to exercise dominion and control over it. Multiple defendants can be in constructive possession of contraband at the same time. What will constitute the power to exercise dominion and control is fact specific to each case. For instance, mere proximity to a controlled substance or presence at the scene is insufficient. There must be other evidence to establish a link between the defendant’s presence where the drugs are found and his right to control the drugs. For example, courts have not found constructive possession where the police found a marijuana pipe in the pocket of a coat lying on the front seat of a car in which the defendant was a passenger. The coat belonged to another passenger. The court held that because the owner of the coat was present in the vehicle, and because the coat and its owner were in the front seat while the defendant was in the back seat, there was insufficient evidence to support an inference that the defendant was in constructive possession of the pipe. In another case, constructive possession was found where drugs were found through a search warrant at the house of the defendant’s mother. In the case, the defendant was observed coming and going from his mother's house in the week before his arrest. Upon execution of the search warrant, the police located clothing and shoes belonging to defendant in a bedroom of the house; two automobile rental agreements in defendant's name and, most telling, a leather bag containing money which matched the money used to fund the drug buy. As can be seen, the outcome of each case will depend upon the facts and how these facts are argued to the judge or jury.

Further information on Arizona drug offenses can be found at my website http://www.win-law.com/