Will Khabibulin's DUI Land "The Wall" In Tent City?

According to one legal expert there is a good chance that Nikolai Khabibulin will pay a visit to Tent City.  Khabibulin was arrested February 8th in Scottsdale, Arizona after being pulled over for traveling 70 miles per hour in a 45 miles per hour zone.  Khabibulin failed a field sobriety test - his attorney later failed in his attempt to have the test thrown out on a constitutional basis - and consented to a blood test, which returned a blood-alcohol level of .16.  Initially charged with DUI, the charges were upgraded to Extreme DUI by the Maricopa County Prosecutor.  Khabibulin's initial trial date was postponed, and the second scheduled trial was again postponed because of a crowded court docket.  Khabibulin's defense team had originally chosen a trial by jury, which meant the newest trial date was set for September 29th.  After being informed that a bench trial could be heard on August 27th, Khabibulin's attorney changed his mind and went with the bench trial instead

Following the news about the arrest and subsequent legal maneuverings has become a cottage industry on Edmonton blogs and talk radio, and misinformation has flourished.  Thus, I decided to speak with Tempe-based Attorney David Maletta from The Law Offices of David Michael Cantor, the leading DUI Defense Firm in the state of Arizona.  Maletta, now a defense attorney, was once a prosecutor, having served as an Assistant Attorney General in the state of Arizona.  During the course of our conversation, Maletta clarified a number of issues surrounding the Khabibulin case.


Since the latest news in the case centered around Khabibulin's attorney changing tactics and choosing a bench trial, I asked about the differences: "It's normally about the speed of the trial.  A jury trial is considerably longer, typically about two days," Maletta said.  "A bench trial, on the other hand, is typically about three hours.  The acquittal rates are higher in jury trials as well."  Maletta brought up an interesting point about choosing a bench trial: "If the defendant has a strong case, he may choose a bench trial so as not to introduce a jury to the mix."

We talked about the differences in sentencing between a DUI and an Extreme DUI and the major difference is jail time.  "The mandatory miniumums for a DUI and an extreme DUI are dramatically different," Maletta said.  "A DUI is a misdemeanor with twenty-four hours in jail, alcohol counseling, an interlock device placed on the vehicle, fines, probation, and a ninety-day driver's license suspension." 

Dark times ahead, dark times behind.  Content © 2009 Getty Images  Photo by Doug Pensinger

Since he mentioned that a DUI was a misdemeanor, I asked him about Extreme DUIs.  Many fans and some talking heads have suggested that an Extreme DUI is a felony, but Attorney Maletta noted that "an Aggravated DUI is a felony, but an Extreme DUI is still a misdemeanor.  Extreme DUIs carry a mandatory minimum of thirty days in jail, with a maximum of six months in jail, alcohol counseling, an interlock device placed on the vehicle for one year, fines, probation, and a ninety-day driver's license suspension."

If Khabibulin is convicted, he will spend at least thirty days in jail.  I asked Maletta if that time would be spent in a prison or a city lockup.  In some jurisdictions, that might be the case; in fact, "in some jurisdictions, home arrest might be an option," Maletta said.  But not in Maricopa County: "DUI convicts serve their sentence in Tent City at the County Jail.  It's an outside jail, where men sleep in army tents."

Tent City, referred to as "an American gulag", is the outdoor extension of the Maricopa County Jail.  The facility is a giant pen, enclosed by chain link fencing and razor wire, where prisoners are housed in army surplus tents.  The prisoners sleep, eat, and live outdoors in the Arizona weather.  Prisoners are forced to wear striped uniforms, pink underwear and pink socks and they are fed a diet of expired foodstuffs.  The facility has been the subject of complaints, protests and investigations since inception.

"There is a chance that a convict can qualify for work release during their stay - they can spend up to to twelve hours per day, five days a week on work release, but they must return to Tent City every day and they must spend two full days per week in Tent City," said Maletta.

As I was in the middle of a question about the vigilance of local officers when it came to seeking DUI arrests, Maletta jumped in: "Officers here are overly aggressive in pursuit of DUIs.  The real problem in this state is evidence."  People outside of Arizona might be surprised, even shocked, to know that officers are not required to film DUI stops.  While it's commonplace all over the continent for police to record video and audio of stops, Arizona doesn't have this same minimum level of evidential requirements.  "Dash cams aren't required in DUI stops.  Neither the stop itself or the field sobriety test are videotaped, and no audio is taken," said Maletta. 

I brought up the motion that Khabibulin's attorney made to exclude the sobriety test as evidence based on the back injury that the goaltender was rehabilitating.  "It may have been his back, but we won't know," Maletta said.  "Officers can and do exaggerate these stops because there is no tape of the stop.  And I may be a defense attorney now, but I was a prosecutor once.  This is a real tragedy."

Nikolai Khabibulin's future as an NHL player is tenuous at best at this point.  If he's convicted, his jail time may run into training camp, or worse, the regular season.  The possibility exists that the Oilers could use this circumstance to end their contract with the old goalie, but General Manager Steve Tambellini has been unwavering in his support of Khabibulin since the charges were brought to light, making that outcome less likely. 

The questions now center around the outcome of Khabibulin's trial.  If the outcome is negative, can Khabibulin avoid jail time?  If he can't, can he avoid Tent City?  And what about the Oilers?  Will they continue to offer unwavering support, even in the face of a media circus and images of their starting goaltender in an outdoor prison?


Many thanks to Attorney David Maletta and The Law Offices of David Michael Cantor for both their time and patience in answering my questions about the charges and upcoming trial.

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