Never admit to drinking to a Navajo police officer!
Should you ever find yourself the target of a DUI investigation, never admit to drinking to a Navajo police officer. Pursuant to the Navajo Bill of Rights and the prohibition against self-incrimination, you are not required to answer such an incriminating question. 1 N.N.C. § 8. If you did admit to drinking while being investigated for DUI the police may or may not be able to use your so-called “admission” to drinking. The Navajo Supreme Court has held that for the prosecution to use a defendant’s admission against them in trial, there must have been a valid written waiver of interrogation. “[T]he police…must provide a form for the person in custody to show their voluntary waiver. They must also explain the rights on the form sufficiently for the person in custody to understand them. Merely providing a written English language form is not enough. The sufficiency of the explanation in a Navajo setting means, at a minimum that the rights be explained in Navajo if the police officer or other interviewer has reason to know the person speaks or understands Navajo. If the person does not speak or understand Navajo, the rights should be explained in English so that the person has a minimum understanding of the impact of any waiver. Only then will a signature on a waiver form allow admission of any subsequent statement into evidence. Navajo Nation v. Rodriguez, 8 Nav. R. 604, 616 (Nav. Sup. Ct. 2004).
It is insufficient for the prosecution to rely on a defendant’s admission alone to prove DUI. Navajo Nation v. Murphy, 6 Nav. R. 10, 15 (Nav. Sup. Ct. 1988)
Plead “not guilty” at arraignment, and do obtain a Navajo licensed counselor!
The worst thing you can do is to plead guilty at your first court appearance before having the benefit of speaking to a Navajo licensed counselor that is familiar with Navajo criminal defense law. It is a herculean task to successfully appeal a plea agreement of guilty or no contest. Your first setting in court will likely be your arraignment, this is where the judge reads the criminal charges against you, and asks for you to make a plea of either guilty/no-contest or not guilty. For most purposes “guilty” and “no contest” are the same thing.
Do not enter a plea of guilty or no-contest at arraignment! Do enter a plea of not guilty! And do demand a jury trial, as well!
When someone is released from a Navajo jail they are instructed on their release form to return to the local Navajo district court shortly thereafter, whereupon if the police have filed the criminal complaint with the court, the defendant is served a copy of the criminal complaint. Quite often the criminal complaints aren’t yet filed with the court, and the defendant is told of the statute of limitations and that they may later be served a summons for arraignment.
You only have 15 days from arraignment to demand your right to a jury trial!
There is a short but critical deadline you must preserve concerning your right for a criminal jury trial on the Navajo Nation. “The defendant may demand a jury trial at the time of the arraignment or within 15 days thereafter or it will be deemed waived. The demand may be made orally at the arraignment or shall be in writing if made after arraignment. If made orally, the judge or the clerk of the court shall note the demand in writing in the court file, including the date of the demand.” Rule 13 Nav. R. Cr. P.
Do not give up your right for a jury trial! The courts are sometimes strict with this 15 day rule. “For the smooth and efficient management of the expanding dockets of the Navajo courts, there must be a time limit beyond which the right to a jury trial is deemed waived.” Eriacho v. Ramah Dist. Court, 8 Nav. R. 617, 624 (Nav. Sup. Ct. 2005). If you demand a jury trial past this deadline, it will be at the discretion of the judge.
Despite this allowance for the use of juries in criminal trials on the Navajo Nation, the Navajo Public Defender, in general, does not routinely demand jury trials. Sometimes the Public Defender is appointed after this 15 day deadline has passed. Should that happen to you, still do attempt to preserve your demand for a jury trial, but know that depending on the judge your demand for a jury trial may be denied.
Is it a DWI or DUI?
Frankly, it doesn’t matter, as they both mean the same thing. The Nation interchanges both terms, but according to the wording in the statute, it’s called DUI.
“It is unlawful for any person who is under the influence of intoxicating liquor or drugs to drive or be in actual control of any vehicle within the territorial jurisdiction of the Navajo Nation.” 14 N.N.C. § 707(A)
What breath alcohol score constitutes DUI on the Navajo Nation?
If someone is arrested for DUI, they are required to submit to a breath alcohol test. If the breath alcohol test is refused the defendant “shall” have his driving privileges suspended by the court for a year. (This is in addition to whatever penalty the state driver’s license issuing bureau may impose.) 14 N.N.C. § 715
The Navajo Nation defines being under the influence of intoxicating liquor as having a breath alcohol score of .08 or above. There is a presumption that someone isn’t DUI if their breath alcohol score is .05 or below, and if it is more than .05, but less than .08 it “may be considered with other competent evidence in determining the guilt or innocence of the defendant.” 14 N.N.C. § 716
What will happen if I’m convicted of DUI on the Navajo Nation?
First offenders of DUI are defined as someone that hasn’t had a prior conviction within the preceding 24 months, and third offense offenders of DUI are defined as someone that has had two prior convictions within the preceding 36 months. 14 N.N.C. § 707(F), (G)
For a first offense there is a mandatory minimum sentence of 24 consecutive hours in jail. There is also a fine of “not less” than $300.00. The court “may” order the offender to “not less” than 8 hours “nor more” than 24 hours of community service. 14 N.N.C. § 707(F), (C). The sentence for someone that has 2 DUI convictions within the preceding 24 months is a mandatory minimum of 30 days in jail, and for someone that has 3 DUI convictions within the preceding 36 months, there is a mandatory minimum sentence of 6 months incarceration. There is also a fine of “not less” than $500.00 for these subsequent offenses. The court may also order the defendant to supervised treatment for any DUI conviction. The court may also order the driver’s license surrendered and report the DUI conviction to the state licensing bureau. 14 N.N.C. § 707(C), (D), (E), (F), (G)
Notwithstanding the above mandatory minimum sentences, the court “may…if he or she is employed and can continue his or her employment, to continue that employment for not more than 12 hours per day nor more than 6 days per week…he or she shall be allowed out of jail long enough to complete his or her actual hours of employment…” 14 N.N.C. § 707(I)
What evidence is required to prosecute someone for DUI on the Navajo Nation?
You must be an enrolled member of a federally recognized Indian tribe for the Navajo police to arrest you, and, in general, the stop must have occurred on tribal land. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978); See also Duro v. Reina, 495 U.S. 676 (1990); “Duro fix” at Indian Civil Rights Act (25 U.S.C. § 1301)
The test results of the field sobriety test known as the Horizontal Gaze Nystagmus (“HGN”), aka the eyeball bounce, is most likely not going to be admissible in the trial against you. “[W]ithout any evidence of its scientific basis,” it cannot, at least alone, be used to support a conviction for DUI. Navajo Nation v. Badonie, 9 Nav. R. 9, 12 (Nav. Sup. Ct. 2006). (This somewhat mirrors New Mexico’s take on the admissibility of the HGN in DUI/DWI prosecutions. For comparison, see State v. Torres, 127 N.M. 20 (1999))
The odor of alcohol and dirty clothes on a person, coupled with a single weave across a center line, does not warrant sufficient evidence for the Navajo police to make a lawful arrest for DUI. “The Navajo police have available equipment to test the level of a defendant’s intoxication.” If the Navajo police desire to convict persons of DUI, “care should be taken to to establish the requisite amount of proof. The amount of proof required in a criminal case, including traffic violations, is proof beyond a reasonable doubt.” On the Navajo Nation, proof of intoxication is required, and the evidence of intoxication is obtained through a breath alcohol test. Navajo Nation v. Carty, 1 Nav. R. 296, 298 (Nav. Ct. App. 1978)
Don’t despair, but don’t delay either! Call the law office today to schedule a consultation.
If you or a loved one has been arrested for DUI on the Navajo Nation, do not delay to call immediately to schedule a consultation. As you can see, you have rights which can be quickly lost if not acted upon. Mr. Klopfer has been practicing DUI criminal law since 2004, and has been licensed to practice in the Navajo courts since 2007. Protect your job and your future. Don’t go it alone, call Mr. Klopfer today to make that consultation, (505) 722-9331.