By Cary L. Lackey, Esq. of The Law Office of Cary L. Lackey, P.C. on December 22, 2016.
As I am sure that most of you have heard, around 2:45 a.m. on Monday, December 19, 2016, hours after flying back from the NFL Arizona Cardinals vs. Miami Dolphins game, (now) former Arizona Cardinals’ (and current New England Patriot) wide receiver, Michael Floyd was arrested by Scottsdale Police Officers after being found asleep behind the wheel of his SUV in a left-hand turning lane of a street near downtown Scottsdale. If you haven’t seen the video yet, TMZ Sports has a pretty good copy of it, here.
The sports media world has been abuzz about the ramifications of Mr. Floyd’s arrest, and what it means pursuant to their interpretation of Arizona DUI law. I will attempt to make sense of Mr. Floyd’s current predicament (from what I can glean of it, fact-wise, from media sources) viewed through the prism of the applicable Arizona DUI law that I am familiar with.
From what has been reported by The Arizona Republic, Mr. Floyd submitted to a blood-alcohol test requested by Scottsdale Police officers, and the BAC (or blood-alcohol content) was found to be .217. Arizona’s “legal limit” is .08, so Mr. Floyd’s BAC was almost 3 times the limit. That’s no bueno.
From all indications, so far, it appears as though Mr. Floyd’s case has been (or will be) filed in the Scottsdale City Court and will be prosecuted by the Scottsdale Prosecutor’s Office – one of THE most inflexible prosecuting agencies in the metro-Phoenix area, in my humble opinion.
“Super” Extreme DUI WITH a Prior Conviction (Yikes!)
In Arizona, DUI’s with a BAC over .150 to .200 are classified as “extreme” DUI’s, pursuant to A.R.S. § 28-1382. With Mr. Floyd’s BAC over .200 (at a .217), he is in the category commonly referred to as “super extreme” DUI. To make matters worse, Floyd purportedly had a DUI conviction back in 2011 when he was in college at the University of Notre Dame in South Bend, Indiana, so IF (and that can be a big “if,” discussed in greater detail below) the Scottsdale City Prosecutor’s Office can “prove up” Floyd’s 2011 Indiana prior conviction for DUI, that ups the ante considerably as far as DUI penalties under Arizona law are concerned.
Assuming that the Scottsdale Prosecutor’s Office can prove up the 2011 Indiana DUI prior conviction, pursuant to A.R.S. § 28-1382(E)(1), since it is within 7-years of this most recent DUI, Mr. Floyd is looking at 180-days in jail, 90-days of which must be served consecutively. In addition, he must perform at least 30-hours of community restitution (i.e., community service – which shouldn’t be too hard, as the NFL has a ton of community service options to choose from), his driver’s license will be revoked for 1-year, but he CAN apply for a special ignition interlock restricted driver’s license after 45-days.
The “Good” News
Ostensibly, Floyd is looking at 90 consecutive days in jail, 180-days total. The good news is that all of that jail time need NOT be served behind actual, jail cell bars. The sentencing Judge has the option (following the request of Mr. Floyd’s defense counsel) of sentencing Mr. Floyd to 36-days of actual jail (20% of 180 days). Of these 36-days, Mr. Floyd can do 34 of them (minus the weekends) on work release, meaning, that he’d be allowed to “go to work” 12-hours every day, returning to the jail for the other 12-hours, Monday through Friday, until 34 of the 36 days have been served. Up front, he HAS to serve 48-hours (2 days) in jail. The remaining 144 days can be served via home detention, where Mr. Floyd would be required to wear an ankle bracelet and be monitored through a device that would ensure that he kept a curfew (with allowances to go to work), and was not drinking at home.
How This Could Work…Or NOT
Mr. Floyd is a unique case when it comes to his “job” – he’s not a regular Joe with a lunch pail who heads off to his construction site or cubicle, Monday through Friday – he’s a highly paid, highly specialized, professional athlete.
Mr. Floyd would almost certainly have to serve his jail sentence during the off-season. I believe that there’s an argument that off-season work outs in the gym and/or on the football field would constitute “work,” making him work-release eligible. The problem is going to be finding a jail facility, out-of-state, that would allow him to serve his work release jail time. If he can, it would probably be easiest to do the time during the off-season here in the Phoenix metro area, as there are several professional training facilities to choose from that service professional athletes in all sports during their respective off-seasons.
Once Floyd gets past the work release jail-time hurdle, it shouldn’t be THAT big of a problem getting his home detention transferred to whatever state his camp is in, should the jail sentence run into the Patriot’s training camp schedule.
Worst Case Scenario
As I read about Mr. Floyd’s predicament, the specter of that 2011 Indiana prior DUI conviction loomed large in my thinking. I wondered whether Mr. Floyd actually took the time to get his driver’s license (whether from his home state of Minnesota or maybe Indiana, if he was licensed there) reinstated after the 2011 Indiana DUI conviction. If Mr. Floyd did get his license reinstated, then applied for and received an Arizona driver’s license, then he should be good to go.
Usually, the Scottsdale Police are pretty good about checking the status of a person’s driver’s license, even if it is from out-of-state. IF Mr. Floyd did NOT get his Minnesota (or Indiana) driver’s license reinstated after that 2011 conviction, then he could not have received an Arizona driver’s license, and there would be a suspension on his privilege to drive that would follow him to Arizona (and to Scottsdale on December 19, 2016). If THAT happened, Mr. Floyd would be staring down the barrel of an Aggravated DUI, which is a Class 4 felony (not a misdemeanor), pursuant to A.R.S. § 28-1383. The worst part about an Aggravated DUI is that a person convicted of it is NOT eligible for probation until 4-months in the Arizona Department of Corrections (prison, not jail) has been served. There is NO work release available for prison time – it is straight time, 24-hours in, day for day, until 85% of that 4-month sentence (minus any back time) has been served.
Light at the End of the Tunnel?
As hinted at previously, sometimes, prosecutors have great difficulty “proving up” prior convictions. In order to “enhance” a person’s sentence, they have to prove, beyond a reasonable doubt, to a jury, that, essentially, the person on the prior conviction record is the same person before the Court in the instant case (usually done by way of fingerprint analysis), that the prior conviction for DUI in the one state has the same elements as a DUI conviction in Arizona, and that the “record” on the prior conviction received from the one state complies with Arizona Rule of Evidence 902 (if it purports to be, as many do, a “self-authenticating” document from another state Court).
Since this is a “high profile” case, a lot of eyes are going to be on the Scottsdale Prosecutor’s Office. As I have said, that office has a reputation amongst most practitioners that I know (and experienced by me, personally) to be extremely inflexible when it comes to negotiating plea agreements. With that being said, if there IS, by chance, something not quite right with that Indiana prior, the prosecutor MAY make a deal. In Mr. Floyd’s case, if there is a way to get down to a “regular” extreme DUI (non-“super”) without a prior conviction, that would save him a considerable amount of time (and would probably be the best case scenario on a plea). Most likely though, I’m thinking that with a good lawyer (Mr. Floyd, I AM available…) he may have a shot at a “super” extreme with NO prior (IF there’s an issue with the Indiana prior), which would make him eligible for A.R.S. § 28-1382(I) (or, better known amongst Arizona DUI attorneys as “subsection I”), where he could receive as little as 14-days of jail (with 12-days on work release) if he agreed to be placed on probation, and install an ignition interlock in his vehicle for 12-months.
Believe it or not, “super” extreme DUIs with an allegeable prior DUI conviction are fairly rare. Most folks wind up with a “regular,” non-extreme DUI after driving poorly with a few drinks, and the aftermath becomes an “eye opening” experience that is not repeated. Super extreme DUIs with a prior convictions, on the other hand, are THE most harshly treated misdemeanors on the books under Arizona law, with a ton of mandatory requirements. Part of the reason for the harsh treatment, I believe, was the legislature’s belief that people with higher BAC levels need to be treated more severely than others. I like to think that people with higher BAC levels need the most help.
I’m not trying to preach, but I have unfortunately seen (and represented) many people with high BAC levels on DUIs. Most of the enlightened ones realize that they have an issue with alcohol, and seek all of the help that they can get. Many go on to put the ordeal behind them, and go on to live productive lives. Some, unfortunately, don’t – and wind up with felony DUIs, prison sentences, or worse (vehicular homicides, their own deaths by drinking and driving – or just drinking). With a second DUI within 5-year and a BAC level almost 3 times Arizona’s legal limit, I sincerely hope that Mr. Floyd realizes that he needs help, and that he GETS that help. I haven’t touched on the NFL discipline that Mr. Floyd is CERTAIN to face, but mandatory treatment is a big part of it. I hope Mr. Floyd takes to the treatment, and is able to put this ordeal behind him and continue to lead a healthy life.