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Author Archives: 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.

Blood Tests Found Unreliable in 11 Felony DUI Cases

Major problems at the Scottsdale, Arizona Crime Lab will help to clear at least eleven people charged with felony DUI and possibly hundreds more charged with misdemeanor DUI. Several defense attorneys put in approximately 1,500 hours of work (largely pro-bono) to expose inaccurate results of blood tests and poor scientific procedures at the Scottsdale Crime Lab. Last Thursday, August 21st, Judge Jerry Bernstein of the Maricopa County Superior Court suppressed blood alcohol results in eleven felony drunk driving cases. Judge ... Read More »

Medical Marijuana Card Doesn’t Protect Drivers in AZ

A Medical Marijuana Card will not protect you from a DUI in Arizona. To understand why the card will not protect you, you must first understand three things: (1) Arizona Law, and; (2) the definition of a “prescription,” and; (3) the legal definition of “marijuana” in Arizona. The Law In Arizona, a driver can be charged with DUI/Drugs in two ways. The first way is easy enough to understand–if you are driving anywhere in the state while under the influence ... Read More »

Can a DUI Conviction be Expunged in Arizona?

Can a DUI Conviction be Expunged in Arizona? Mandatory jail time, fines, ignition interlocks and license loss are direct effects of a DUI. There are many indirect effects as well, such as increased insurance rates and the inability to rent a car. One of the most severe indirect effects, however, is having a permanent criminal record. In Arizona, there are two records that you have to be concerned with: Arizona Department of Transportation, Motor Vehicle Division (ADOT/MVD) and the Supreme ... Read More »

NTSB wants to lower DUI Limit to 0.05

Have 2 Drinks, Drive & Go to Jail  The NTSB has announced today (May 14, 2013) that they are seeking to lower the prohibited blood alcohol content for DUIs from 0.08 to 0.05 across the nation. Of course, they announced this on the anniversary of the worst drunk-driving accident in U.S. history. On May 14th, 1988 a drunk driver collided with a school bus full of children returning from a church-outing on Interstate 71 near Carrolton, Kentucky killing 24 children, ... Read More »

How do the police test for alcohol in a blood sample?

How do the police test for alcohol in a blood sample? Keep in mind that a police-administered blood test creates an estimate of the amount of alcohol that is in a blood sample. Like all estimates, it can be accurate or inaccurate, depending upon the circumstance. The police crime labs use head-space gas chromatography with a flame ionization detector to analyze blood samples. It is a very well-respected and reliable method of testing blood for alcohol, but the people who ... Read More »

What should I do if I receive a photo-ticket in Arizona?

What should I do if I receive a photo-ticket in Arizona?  You have four options upon receiving a photo-ticket in the mail, in Arizona (other state’s laws may be different). The first option is to accept responsibility and pay the ticket. Be aware that such tickets may carry points which add to your insurance-risk and costs. The second option is to attend traffic school, if you are eligible (you may attend only once every two years). This avoids points being ... Read More »

Do the police have to read Miranda Rights to me, when I am arrested?

Do the police have to read Miranda Rights to me, when I am arrested? The short answer is “No.” The triggering event for Miranda Rights is whether you are in custody or not. If you are not in custody, the police can ask you whatever they want to ask, and if you give an incriminating response, they can use it against you in a court of law. That’s why the police will sometimes conduct criminal investigations over the phone. A ... Read More »

Prosecutors Attempt to Limit Defenses

What started as a seemingly routine and innocuous motion by the prosecutors in the Tucson City Court has now grown into a major breath-testing battle which will be played out in the Arizona Supreme Court and will affect the admissibility of every breath test in Arizona. Estimated breath test results are subject to many variables–which is why they are “estimates” and not hard numbers. Variables can be divided into two major categories: Machine Variables and Human Variables. Machine Variables are ... Read More »

How do machines test for alcohol in breath?

Although three types of breath-testing estimators are approved for use in Arizona, the police only use one–the Intoxilyzer 8000© made by CMI, Incorporated, in Owensboro, Kentucky. The Intoxilyzer 8000 uses Infrared Spectroscopy to analyze breath to create and estimated breath alcohol content. It does this by first projecting infrared (IR) light through a sample chamber at two IR detectors with only ambient air in the chamber. It measures the amount of IR light that strikes the detectors and sets up ... Read More »