Your DUI Case is Two Years Old: Three Things You Do.
During the COVID pandemic courts here in Arizona, in Pima County and in Tucson were temporarily closed, limited or cancelled. Almost all matters, especially for those out of custody, were continued interminably. For some time there were no jury trials, at all, no evidentiary hearings, sometimes not even any pretrial conferences. Cases languished. If you have one of those cases—one that has been pending for over a year. here’s some positive thoughts about what you can productively do.
Statutory Speedy Trial Rights & Rules
Pursuant to Ariz.R.Crim. P. 8.2 all “out of custody matters” must proceed to trial within 180 days of “arraignment.” Pursuant to Rule 8.6 however, time is very often “excluded” from the 180 day time limit, even during normal times, in reality to allow the prosecutor more time to provide disclosure, and ostensibly to give the defendant a chance to engage in discovery, complete interviews of police officers, enter and complete plea negotiations with the prosecutor.
Arizona’s own Disclosure Deadlines, contained at Rule 15.1 by its own explicit language requires that at or before the time of the first pretrial conference (or ten days after arraignment), the prosecutor must provide police reports, police video and audio records, chemical testing results, and other basic information. Hint: We always request it as well and invoke the time limits of Rule 15 so that we’ve made a written record of having requested the information, and asked for it in a timely fashion.
This means that when you get to your first pretrial conference and basic disclosure like police reports, blood results, video are missing, you or your lawyer can ask the judge to “include” Rule 8 time against the 180 limit (if you are out of custody. If you are in custody shorter time limits apply).
In reality, this seldom happens And some judges will bend over backwards to give the state additional time, despite what the rules say, and at the same time pressure the defendant to make a decision.
And some judges, as a default position, are inclined to “exclude” time, especially early in the case, where the prosecutor has not provided mandated timely disclosure. So it is incumbent upon you or your lawyer to apprise the judge that the prosecutor has not lived up to his/her obligations under Rule 15 and that you are asking that time be included.
As an aside: It doesn’t hurt to ask for a disclosure “deadline” More on that later.
Covid & Suspension of Ariz.R.Crim.P, Rule 8
In 2020 , the Arizona Supreme Court by special emergency order suspended a number of important criminal law procedural rules including the Speedy Trial Rule contained at Ariz.R.Crim.P 8. However, that emergency administrative Supreme Court order suspending Rule 8 Speedy Trial Rights expired on March 31. See Arizona Supreme Court Administrative Order No 2021-187 (Replacing Administrative Order 2021-172) at § III(1)-(2). Note that “After March 31, 2021” time is only excluded from “individual cases or groups of cases” due to “trial calendar congestion” or because of the ongoing health emergency.
In other words, time is presumptively running, the speedy trial 180 day clock is presumptively ticking, on your case after March 31, 2021. And at this point, that’s almost a year ago.
In these older cases, it may be that the purpose for the delay after March 31, 2021 was that no jury trials were available, or the trial judge declined to set jury trial or evidentiary hearing despite the defendant’s request. In those cases, there is arguably a position to be taken that the Rule 8 Time Clock has long run.
Invoking Speedy Trial Rights
There is nothing in the language of Rule 8 itself that specifically requires you to invoke the provisions of rule 8 or demand a “speedy trial” in accordance with Rule 8. But as a matter of practice and procedure, it has been deemed not fair for a defendant to purposely “lay in the weeds” and spring a Rule 8 has run argument after time has run.
But in the case of COVID, it is only fair to be able to argue that since 2020 and until 2021 it has been impossible to invoke Rule 8 because it was suspended.
Thus, if the continuances in your case were occasioned in whole or in part, after March 31, 2021 by reason of the court’s continuance, especially where the defendant is asking over and over for a jury trial, bench trial, or evidentiary hearing, and the court has declined to set one repeatedly, despite requests because of Covid, it is only fair to ask that at least some Rule 8 time after March 31, 2021 be included against the 180 day time limit.
In some cases the prosecutor will not have done a Rule 8 calculation, but at some point you should do your own and attach it to a Motion to Dismiss for Rule 8 Violation, if appropriate.
Asking for a Settlement Conference
Especially in those cases where there is a Speedy Trial issue occasioned by court delay coupled with requests by the defendant for a trial or evidentiary hearing, unheeded, it may make some sense to ask for a settlement conference before a settlement judge to air Rule issues. . Although the settlement judge on her own has no unilateral power to bend the prosecutor to her will, the settlement conference can be a useful opportunity to air the Rule 8 grievances, and test the State’s resolve and counter arguments against time inclusion.
These are extraordinary times. When however, courts begin to untangle unworkable backlogs, and press defendants’ feet to the fire with renewed energy, it may be useful to remind courts and prosecutors in appropriate cases that Rule 8 time limits may have run some time ago, and it may be high time, in the spirit of clearing the back-log, to reach a resolution rather than litigating Rule 8 issues. I hope this helps.
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About Michael Harwin
Michael’s skill and experience have been recognized repeatedly. He holds an A-V 5/5 preeminent rating by Martindale Hubbell. He has been named one of the top lawyers in Arizona by Southwest Superlawyers, and one of the best lawyers in Tucson by Tucson Lifestyle Magazine. He also has been named one of the best lawyers in the United States by BestofUS.com , and given the highest rating possible by AVVO, 10/10 Superb. Amazon Books