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AZ Governor Jan Brewer (not) Arrested for DUI

The Merriam-Webster Dictionary defines “Hypocrisy” as “a feigning to be what one is not or to believe what one does not; especially : the false assumption of an appearance of virtue or religion.” Hypocrisy is the subject of today’s blog.

On May 4th, 1988 Arizona DPS Officer Alley (Badge No. 2854) responded to a minor traffic accident on Interstate 17 near milepost 211.7. There, he found a woman with a strong odor of an alcoholic beverage, flushed face, watery and bloodshot eyes. She had “think-tongued” speech and her eyes demonstrated a “poor reaction to light.”

Officer Alley asked the woman what happened and she responded “someone hit me in the rear and I hit the van.” The officer asked her how much she had to drink that night and the woman responded “one scotch.”

As Officer Alley proceeded with his investigation, he noted that the rear of the woman’s car had “no evidence of contact by another vehicle.” He was also unable to discern any skid marks. Officer Alley elected to do a HGN Field Sobriety Test (Horizontal Gaze Nystagmus eye test) on the woman and he determined that her alcohol concentration was above .10 (the legal limit in 1988). He called for another officer and DPS Officer Bush arrived (Badge No. 4011) and took over.

Just prior to Officer Bush’s arrival, Officer Alley noted a sign on the floor board of the back seat which had been attached the rear window and had come loose during the accident. The sign read “ARIZONA STATE SENATOR.” Officer Alley relayed this information to Officer Bush.

The woman was then asked to do more field sobriety tests, but she complained of ankle pain. She tried the tests anyway and did poorly on the One-Leg-Stand, Finger-to-Nose, Rhomberg Modified and Walk-and-Turn tests. The officer then conducted another Horizontal Gaze Nystagmus eye test and again concluded that she was above a .10 alcohol concentration.

Realizing that arresting a State Senator was something that he should report to his supervisors, Officer Bush notified Sgt. Fitch (#861) of the circumstances. Sgt. Fitch met Officer Bush at a 7-11 parking lot with the handcuffed State Senator in the backseat of his patrol car. They called Sgt. Rodgers (#1598) to notify him of the situation. In turn, Lieutenant E. Felix (#682) was notified by police dispatch.

The woman was brought to the University Station where she was to speak to Lieutenant Felix about “administrative matters.” She was polite and cooperative and stated that she only drank two scotches (as opposed to her earlier statement of only consuming one) and was not drunk. After speaking with Lieutenant Felix, he and Sgt. Rodgers drove her to her residence at 68th and Union Hills Road.

Arizona law provides immunity from arrest to legislators while the Legislature is in session. It does not, however, provide immunity from prosecution. Charges could have been filed at any time within one year from the date of the incident. The Maricopa County Attorney’s Office elected not to prosecute her.

So, how does a 1988 DUI-Accident investigation have any relevance 25 years later? The woman–State Senator Janice K. Brewer went on to become Arizona Governor Janice K. Brewer in 2009. She presided over one of the biggest crack-downs on drunk driving in Arizona history. The Arizona Governor’s Office of Highway Safety relentlessly pursues the prosecution of even minor drinking offenses. Mandatory jail time, thousands of dollars in fines and license loss are just a few of the things that await someone convicted of DUI in Arizona–yet our governor walked away unscathed.

And that’s the subject of today’s blog. And that’s hypocrisy.

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James Nesci

James Nesci

James Nesci often defends cases well into the .30 blood-alcohol range. He has caught more than one police officer lying during cross-examination and some police officers have even refused to grant pretrial interviews to him without a prosecutor or their own counsel present. He was one of the lead attorneys on the Intoximeters® RBT-IV breath-testing issue in Southern Arizona which resulted in the suppression of breath tests in over 7,000 cases and the removal of the RBT-IV from the streets of Arizona. He also spear-headed the effort to obtain the manufacturer’s source code and software for the CMI Intoxilyzer 8000. Although the source code was never obtained, he almost single-handedly ground 90% of all DUI prosecutions within the City of Tucson to a halt for nearly three years and obtained breath test suppressions and dismissals in hundreds of DUI cases. In addition to “traditional” DUI cases which involve alcohol, Mr. Nesci is a recognized expert on the defense of DUI/Drugs cases. Whether they be legal-over-the-counter-medications, prescription medications or illicit drugs, such DUI cases are far more complex and present cutting-edge issues for the courts. He is qualified to administer Standardized Field Sobriety Tests under National Highway Traffic Safety Administration & International Association of Chiefs of Police Guidelines. In 2006, he was appointed Regent of the National College for DUI Defense, Inc. He was formerly the chair of the Curriculum Committee for the NCDD. Currently, he is the State Delegate Coordinator, a member of the Amicus Committee, Treasurer of the NCDD, Member of the Executive Committee and served as an oral argument judge for the Board Certification Committee. Mr. Nesci is the author of Arizona DUI Defense: The Law & Practice, a legal treatise written for DUI defense attorneys and published by Lawyers and Judges Publishing Company (now in its third edition) []. In 1999 Mr. Nesci became a Sustaining Member of the National College for DUI Defense []. In 2001, he was Board Certified by the National College for DUI Defense, Inc., which is a is recognized by the American Bar Association. He is one of only three Board Certified attorneys in the State of Arizona, and one of less than fifty Board Certified attorneys in the nation (as of January, 2012). Mr. Nesci has lectured from coast-to-coast for such organizations as The University of Arizona James E. Rogers College of Law, Arizona State University College of Law Alumni Association, University of Mississippi CLE Department, South Texas College of Law CLE Department, Arkansas Association of Criminal Defense Lawyers, Arizona Attorneys for Criminal Justice, Arizona Public Defenders Association, California Attorneys for Criminal Justice, City of Phoenix Public Defender's Office, Colorado Criminal Defense Bar, Florida Association of Criminal Defense Lawyers, Indiana Public Defender’s Council, Kansas Association of Criminal Defense Lawyers, Louisiana Association of Criminal Defense Lawyers, Maricopa County Bar Association, Maricopa County Public Defender's Office, Maryland Criminal Defense Attorneys Association, the Mexican-American Bar Association at Loyola, the National Association of Criminal Defense Lawyers, the National College for DUI Defense, the Nebraska Criminal Defense Attorney’s Association, the Nevada State Bar Association, the New York State Bar Association, the Ohio Association of Criminal Defense Lawyers, the Pima County Bar Association, the Pima County Bar Association Young Lawyer’s Division, the Texas Criminal Defense Lawyers Association, the Tucson City Public Defender’s Office, the Tulare County (California) Public Defender’s Association, the Utah Criminal Defense Lawyers Association, and the Washington Foundation for Criminal Justice. He has taught seminars on the subjects of Ethics, 4th Amendment Law, Drug Recognition Evaluations (DUI-Drugs/DRE), Cross-Examination, Trial Tactics, Jury Selection, Field Sobriety Testing, Driving Behavior, Blood Alcohol Calculations, Opening & Closing Arguments, Source Code Litigation, Frye & Daubert Challenges, Intoxilyzer 8000 Operator’s Course, Headspace Gas Chromatography, Blood and Breath Testing. He has represented former Supremes lead singer Diana Ross and Tampa Bay Buccaneers' Tight-End Jerramy Stevens on Extreme DUI charges and fitness guru Richard Simmons on an assault charge. Mr. Nesci lives in Tucson with his wife and twin daughters. He is an honorably discharged veteran of the U.S. Navy where he spent much of his time working as an electrician in the Philadelphia Naval Shipyards. His interests are traveling, fine wines, vintage port and fast cars. He is an amateur race car driver, an accomplished mechanic, and a Corvette fanatic.

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