July 5, 2014

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"The best way to deal with a DUI checkpoint is to be prepared for it. Lack of preparation or knowledge of your rights can lead to a false arrest, and violations of your rights."

A Case of False Arrest at a DUI Checkpoint

One spring evening, 61 year old, Michael Wilhelm found himself in a DUI Checkpoint Line-up operated by Cape Coral Police. He was not driving impaired or under the influence of any alcohol or drugs. He asked to take a breath or blood test because instead of Field Sobriety Roadside tests (FSTs), because he was recovering from opened heart surgery. But the officers instead administered the field sobriety tests. Michael Wilhelm was arrested following the FST roadside test even before a breath test was taken. Police finally decided to do a breath test, while Wilhelm was still placed under arrest. Then while the police were preparing for the breath tests, Wilhelm began complaining of severe chest pains. He was taken to the hospital. There he requested the blood test to prove that he was not under the influence of drugs or alcohol. The hospital complied with his request. The DUI blood tests were all negative. The criminal charges were finally dismissed. He filed suit against the city and police and spent the next two years of his life in civil litigation. The case was finally settled for a meager $18,750.00 in Wilhelm's favor. This was one of two DUI checkpoint cases for false arrests that ran concurrently against the city at that time over false arrests that took place at DUI Checkpoints.


Overview

There's no hiding the fact that checkpoints exist to seek out impaired drivers and criminal activity that may be in progress. Yet, even though you may not be driving impaired, or engaging in a crime, being stopped at a roadblock can be not only inconvenient, but uncomfortable, and stressful. It's natural and common for even unimpaired drivers to become anxious while in a DUI roadblock line-up. Some drivers experience a heightened sense of anxiety, and nervousness, in absence of severe medical conditions. They may fumble, or unknowingly do or say things that can often incriminate themselves. This can sometimes lead to false arrests of unimpaired drivers.

The best way to handle yourself at a DUI checkpoint, and to avoid a false arrest is to be prepared. One part of preparation is knowing your rights, both state laws and your Constitutional Rights. For example, according to guidelines by the National HIghway Traffic and Safety Administration (NHTSA) not everyone is a candidate for roadside field sobriety testing, including those medically or physically unable due to a serious medical condition or recovery from surgery. It's uncertain as to why the police officers did not recognize that the driver in the case illustration was not a candidate. In any event, the driver tried and was arrested unjustly, due to his performance of the FST as judged by the police. States may vary with regard to field sobriety testing. In Arizona, the suspect has the right to refuse, which we will discuss in more detail below. It is unknown if they were optional but the driver was not aware of his right to refuse.

In this article we will outline some important rights you have at a DUI checkpoint; 7 Tips to avoiding false arrest; and what to do and what to expect if you find yourself in a check-point line-up.


Arizona DUI Checkpoints - Constitutionality and Guidelines

The US Supreme Court has held that DUI Sobriety Checkpoints are Constitutional. Despite this, at least 11 states prohibit them under their State Constitutions, impose limitations, or lack authority to conduct them. But in Arizona they are legal and the state recognizes their Constitutionality. In a Checkpoint stop the police can make a lawful stop in absence of having "reasonable suspicion" that a crime is in progress or has occurred, in order to pull you over.

Arizona has also, adopted many of the National Highway Traffic and Safety Administration (NHTSA) Guidelines. One of the guidelines calls for the selected stops to be made in some sort of mathematical sequence such as every car, every other car, 3rd car and so on. The NHTSA guidelines also require that the formal checkpoint be decided in advanced by city or county officials in coordination with law enforcement agencies; take place in a designated location, and be widely announced to the public using a variety of media resources, and signs visible to the public as they approach.

A DUI Checkpoint stop is different than a routine pullover stop by police due to one important element. In a routine stop, constitutional law requires that the police officer have a "reasonable suspicion" that a crime has occurred or is in progress. In other words, the officer can't just pull you over because they have a "hunch" that someone is a red sports car, playing loud music must be driving drunk. Such a stop as described would be unconstitutional or unlawful. If an arrest ensues as a result of such a stop, the driver would have a defense for suppression of any evidence that was gathered after the stop occurred by police. The driver's attorney would file a motion to suppress the evidence. If the presiding judge agrees to the unconstitutionality of the stop, any breath or blood tests or other evidence would be prohibited from being used against the driver in court. This usually leads to dismissal of charges.


Your Constitutional Rights at a DUI Sobriety Checkpoint

If you are stopped at a roadblock, you will be asked to produce your driver's license and registration. This is a lawful request at a checkpoint. You are required to provide it this information as well as any other routine ID and residential information.

But you should know that license and auto registration is not the only thing the officer is looking for. They are also observing your attitude, behavior, response, and your ability and coordination skills in the process of providing it. That is part of their investigation at the stop, and the officers are trained to look for certain cues of impairment. The problem is that some of these cues may be mistaken for severe anxiety or nervousness, medical conditions, fatigue, and other circumstances, besides driving impaired due to alcohol or drugs.

If the officer asks you to step out of your vehicle, or pulls you out of the line traffic to question you further, you must comply. Failure to comply with their instructions will result in other criminal charges, for example, disorderly conduct.

The police may decide ask you to participate in a DUI Standard Field Sobriety Tests (FST). These are not mandatory by law in Arizona. Most criminal defense attorneys will advise you to politely refuse the FSTs. This is because they are often inaccurate; may be difficult for unimpaired drivers to pass; and are often biased. The bias originates from the fact that the officer determines whether or not the driver is a candidate, and not all driver are according to the NHTSA guidelines. The police are also the instructors, administrators, and graders of the tests. If instruction, or administration was improper, or testing influenced by a variety of potential factors, the results are usually inaccurate.

Next the police may ask you to participate in a breath test. You can also refuse this test as well. But you should know there are civil consequences. Refusal of the tests results in a one year loss of driving privileges, even if you were not impaired. Also, the prosecution can use your refusal against you at trial. If the police have "probable cause" given other evidence available they can order a warrant from the judge on call, to draw your blood to test it for drugs or alcohol without your consent. Usually, you will be taken to a nearby police or command station where the blood will be drawn by trained and certified phlebotomy personnel.


7 Tips Avoid Raising "Reasonable Suspicion" or False Arrest

Of course, it goes without saying the safest way to avoid raising reasonable suspicion; probable cause; and avoiding arrest is to drive unimpaired, and not under the influence of toxic drugs or alcohol. But even that won't guarantee you that you will not be falsely accused or arrested. Knowing your rights, and how to handle yourself during a checkpoint stop, however, will decrease your chances of a false arrest. Here are 7 important tips which include some important rights Constitutional protections:

• Try to stay as calm as possible. Keep in mind this is routine and everyone in the line is going through the same thing. You are not a suspect, just a number in the line-up.

• Do not joke around with the police, or complain about the checkpoint or being stopped. Try to remember the police officer is just doing his or her job. Be polite, courteous and respectful.

• Before you get to the checkpoint, instruct all passengers to remain quiet through the entire process. It is your future and freedom on the line. However, sometimes the police will attempt to engage in conversation with the passengers, especially if the officer suspects underage 21 drinking violations. The officer does not have the right to begin questioning them, but does have the right to interact with them. However, this is a known strategy used to prompt suspects to talk and say something that will incriminate them.

• Make sure your Driver's License and Vehicle Registration are valid and current. Upon request by the officer, you must provide your driver's license, vehicle registration. You must also answer routine ID and resident questions. Produce your license and registration as requested timely and without question. Always know where your Driver's License and Registration on your person or in the vehicle, so you do not have to fumble, or become frustrated if they cannot be located.

• Often, the officer will begin to engage in cordial discussion with you as the driver. You do not have to say where you have been or where you are going. Do not offer any information about having had any alcohol or drugs or when you did last, if you did either recently, days or weeks ago. You don't have to tell them when you last ate, drank or slept. Do not offer information about any medical conditions you may have, over-the-counter or prescription medications you may have in your possession to treat them. Remember what may seem innocent as far as questions and answers may lead to self-incrimination.

• The Fourth Amendment protects a person from unlawful search and seizures unless they voluntarily consent to the search; the police have warrant to search; or officers have "Probable Cause" to believe they will find evidence suggestive of criminal activity. You should never voluntarily consent to a search or seizure of your vehicle or anything inside of it, without a warrant for probable cause. Refuse politely, and respectfully, and explain that you are familiar with the protections provided by the Constitution related to search and seizures to vehicles. If the officer persists in the search, you must remain calm and non-combative. Never raise your voice, or physically try to stop them. To do so, may prompt them to use force if they feel they have probable cause to proceed with the search. Failure to follow this advice may result in physical harm to you by police, and additional criminal charges. These may include but are not limited to disorderly conduct, felony assault, obstructing justice, or other charges. You can always deal with the unconstitutional search after the incident through a criminal defense or civil rights attorney depending on the circumstances.

• The driver is in control, and must set the rules. Never allow passengers to have or carry opened alcoholic beverage containers in your vehicle. Let them know your rules in advance of leaving for your destination. Simply explain that you do not wish to transport opened alcohol containers, drugs, or drug paraphernalia in your vehicle. It's not easy to say to a friend, especially in light of peer pressure. But it's your responsibility as the driver to enforce your rules.


Chandler AZ and East Valley Task Forces/Saturation Patrols Announced

The State of Arizona has continued to see impaired driving incidents rise sharply over the last 7 years. Even more alarming is the fact that average Blood Alcohol Content (BAC) level of those arrested has been to the Extreme (0.15 percent BAC). Prescription drug DUI charges have also continued to rise, as well as underage drinking. The most recent statistics reported by Mothers Against Drunk Driving (MADD) reveal that there were 227 drunk driving fatalities in 2012, which represented nearly 28 percent of all Arizona traffic fatalities. This was also a 7 percent increase from the prior year.

As a result the Arizona Governor's Office of Highway Safety (AGOHS) along with law enforcement agencies, city and county officials throughout the state have combined efforts, and additional resource funding to increase police presence, to combat impaired driving.

The Chandler AZ Police Department announced its DUI task force for the July 4the weekend. It began on Thursday July 3rd and will run through Saturday July 5, 2014. Chandler, Mesa, and Gilbert AZ officers will also be conducting East Valley saturation patrols in all three cities during this time, in select locations. Saturation patrols are organized patrols consisting of an overwhelming number of officers, within designated locations and cities seeking out impaired drivers, under the influence of drugs or alcohol.

The DUI Command Posts for the tri-city effort will be set up at 1950 S. Country Club Drive in Mesa AZ. Expect checkpoints and saturation patrols can be expected at areas that will be holding lawful and formal firework displays; roadways to popular swimming, parks, and other water recreation such as the Salt River, and Lake Pleasant.

Continue reading " Yes, You Have Constitutional Rights at an Arizona DUI Checkpoint " »

January 21, 2014

Determining who will prosecute; Differences between Arizona, Federal laws and penalties.

m16-shadow-201674-m.jpgA Phoenix AZ man was recently sentenced to 25 years in prison for charges of methamphetamine possession with intent to distribute; and prohibited possession of a firearm. The suspected was prohibited from possessing a firearm because of a prior felony conviction on his record.

In another recent case Phoenix police and federal agents from Homeland Security raided two houses and seized five pounds of meth, heroin and marijuana, 7 kilos of cocaine, and 12 weapons (rifles and handguns). The houses were within 1,000 feet of a high school. Neighbors were unaware of the criminal activity. However, four suspects were booked for narcotics possession in a drug free school zone, as well as weapons offenses.

We will refer to these illustrations to outline differences between state and federal investigations, laws, penalties, and the burden of proof held by the prosecution at both levels below.


Arizona V. Federal Laws and Prosecution

Weapons and drug trafficking charges may be brought in federal court. This exposes a person to mandatory minimum sentences. Sometimes both state and federal criminal laws apply, but often serious drug offense may be prosecuted at a Federal level. Generally, the Federal Government prosecutes the larger scale drug crimes, including drug trafficking, and offenses involving more sophisticated and organized illegal drug activity. The Federal Government generally decides if they will prosecute the drug charged in violation of The United States Code (USC) Controlled Substances Act.

The Federal Government also prosecutes large scale drug trafficking offenses involving drug crimes committed across state lines, or involve multi-state operations. In December 2013, the Drug Enforcement Administration (DEA) announced on its combined efforts with Arizona law enforcement officials that uncovered a 1.6 million dollar drug laundering operation. So it is common for both the State and Government to partner together for purposes of the investigation itself. Other agencies are commonly involved including Homeland Security and Counter Narcotics Alliance as part of the investigations involving major drug offenses.

Though state laws vary, in general, Federal punishments are usually more severe than the penalties at the state level. If the state prosecutes the State Penalties apply. Generally, if the Federal Government conducts the investigation and prosecution the defendant will be exposed to the more harsh federal mandatory sentencing guidelines and penalties.

Under Federal law, it is a federal crime to possess a firearm "in furtherance of" a drug trafficking crimes. The burden of proof required by the State to convict the defendant lies with the State of Arizona in this case. The State prosecution must prove "beyond a reasonable doubt" that the firearm was possessed with the intent to advance or promote the commission of the drug-related offense.

Regarding federal drug charges and gun possession, there must be a connection between the guns and the offense. In other words it's not enough for the prosecutor to simply point to the possession of the firearm and possession of the drugs. In the case described above, the prosecutor would need to show how the rifles and handguns were connected to possession of the illegal drugs. For example, he or she would need to show that they were carried in case competitors tried to steal the drugs or in case where the "drug deal went south" so to speak.

Sometimes to bridge a gap in the evidence, the prosecutor will call an experienced detective who is an expert on drug dealing to testify that drug dealers used their guns to intimidate competitors and protect their business. This has been insufficient in past cases where the detective is unable to present his or her methods and principles in a reliable, consistent fashion. The credibility of this type of "expert" can be challenged by an experienced criminal defense attorney.

Federal law also prohibits anyone who has been previously convicted of a felony (a crime punishable by imprisonment for more than a year) from possessing a firearm or ammunition. A felon who possesses a gun may be punished with 10 years in prison. Federal law also restricts gun possession for those who have been convicted of misdemeanor domestic battery.


Arizona Drug Crimes and Weapons Laws

While Arizona has less stringent laws related to gun possession in some ways. However some provisions are stricter than others. Violations of Weapons laws under A.R.S. 13-3102 can be very serious alone and those convicted are exposed to harsh penalties.

In Arizona, possession or use of a firearm during the commission of a felony drug offense and is as a Class 4 felony. All felonies in Arizona expose a defendant to prison terms, large fines, and felony criminal record if they are convicted.

In the second illustration above, multiple Arizona criminal law violations resulted in what is know as "aggravated factors" under Arizona sentencing guidelines. This includes a drug crime committed within a school safety zone which is within 1,000 feet of a school or its grounds. This offense subjects a person to increased punishments under A.R.S. 13-709 sentencing guidelines in violation of A.R.S. 13-3411.

In addition, possession of illegal drugs which exceeded the "Threshold Amounts" in violation of A.R.S. 13- 3401. (36) for each of the drug classifications heroin, meth, marijuana and cocaine. Drug convictions involving quantities exceeding the Threshold Amount call for aggravated prison terms. The higher the quantity found to be over the Statutory Threshold Amount, the longer the prison sentencing terms.

Certain weapons are wholly prohibited in Arizona, including short barrel shotguns and bombs. Carrying a concealed weapon without a permit (or carrying a deadly weapon into certain places like school grounds or an election polling place) is a Class 1 misdemeanor. The least serious type of felony is a Class 6 felony. Selling or transferring a deadly weapon to someone who is not allowed to have a deadly weapon qualifies as a Class 6 felony. Such an offense can be punished by up to 1 year in prison.

If a person discharges a firearm in an occupied area in order to further gang activity or give a firearm to someone else knowing they will use it in commission of a felony, you may be punished by up to 3 ½ years' imprisonment for a Class 3 felony. In the second real life incident described at the beginning of this post, anyone who gave or sold the guns to the men who possessed the guns and drugs knowing they would use it as protection while drug trafficking, could be punished for a Class 3 felony.

Arizona also has random gunfire laws, better known as "Shannon's Law" under A.R.S. 13-1307, named after a teenager who was killed by random gunfire in Arizona. If a person shoots a firearm into or within the limits of any municipality in Arizona, they will face Class 6 felony charges, whether or not anyone is physically harmed as a result of the firearm being randomly discharged.

Continue reading "Federal v. State Prosecution of Drug and Gun Possession Charges " »

November 13, 2013

Robberies need not be as epic as Bonnie and Clyde's to be some of the most serious crimes under law.

makin-change-680711-m.jpgWhen I heard this story on the local news about "Bonnie and Clyde" style robbery suspects being arrested in Arizona, I stopped to reflect upon an image of "Bonnie and Clyde's" get-away car I had seen several years ago, on display in Nevada.

Bonnie and Clyde, the historical crime duo, were killed in their get-away car which had been riddled with over 100 bullets in 1934. Because of their violent cross country crime spree, they were considered highly dangerous. So authorities decided to capture them dead instead of alive.

As I studied the bullet riddled car, and some shredded and tattered clothing they had been wearing at the time of their death, I felt this overwhelming sense of terror and sadness. It was an eerie. I was saddened by the thought that in some way people looked at the vehicle and other related items as trophies, and as for Bonnie and Clyde themselves, they were remembered as icons.

But why? I suppose it was the "One person's villain is another person's hero" syndrome. As I looked around the room, I saw newspaper clipping, stories, and photos framed from 1932 to 1934. They followed events of the cross-country crime spree, and violence. Finally, the last photo I noted was taken immediately following Bonnie and Clyde's death, taken of them as they lay lifeless by the vehicle. It was difficult to look at.

No, these were no trophies. There were no heroes. These were symbols of tragedy, and consequences of crimes that to this day, have not ceased to exist.

At the same time, I saw a failed criminal justice system..."Wanted dead or alive" is how the posters read. Regardless of how serious or violent the crime they were entitled to a fair trial by jury, under the United States Constitution. Whether they deserved a fair trial or not, was irrelevant.

Robberies need not be as epic or dramatic as those committed by Bonnie and Clyde to be considered some of the most serious crimes under law. Robbery convictions in Arizona and call for the serious penalties with life long penalties. If a gun or deadly weapon is possessed, even if it is not used, it is charged as "Armed Robbery" in violation of A.R.S. 13 § 1904. Armed Robbery is a Class 2 felony, the most severe, just short of Class 1 felonies that are reserved for the most serious of crimes, homicide. Aggravated criminal penalties can result in life in prison.

Robberies were committed at businesses in the Phoenix metropolitan area, 5 of them in Gilbert, 3 in Mesa and 2 in Chandler. A thirty-year-old male and his twenty-seven year old wife were arrested and accused of working as a team to rob businesses. The husband had lost his job, the unemployment check hadn't arrived, and they had four minor boys to feed.

In order to commit the robberies, the husband would stand in line like a prospective customer and then, once he reached the front of the line, grab money out of the register. His wife would wait in the van with their four sons.

Under A.R.S. §13-1902, "robbery" is defined as taking property from another's body or immediate presence and against their will, where the defendant threatens or uses force against them in order to coerce the person to release the property. Robbery is more serious than theft because it involves violence or the threat of violence.

Continue reading "Bonnie and Clyde Style Robberies in Arizona" »

November 9, 2013

Burglary of firearms of any value is a felony in Arizona; depending on the value and other aggravated circumstances, convictions can result in lifetime prison sentences..

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Like something out of the Hollywood movies like "Ocean's 13" or "Gone in 60 Seconds", recently three thieves stole 13 military style rifles from C-3 Arms, a gun shop in Phoenix.

The burglary was videotaped with surveillance cameras, but the thieves were wearing bandanas and tee shirts over their faces. The three men got the front doors open, cut a security cable and removed the rifles worth about $12,000 from the store. There was additional damage to other guns worth about $12,000. The trio drove away in a white Chevy pickup.

The owner of the gun store was surprised that it took only 2 minutes for the burglars to break into the strict security system. Each gun had a serial number etched onto it. The public is being asked for tips and there is a $6000 reward for capturing the thieves and the stolen guns. The police believe the stolen guns will be used in future crimes.

If caught, the thieves will probably be charged with burglary and theft. In Arizona, criminal burglary is entering or remaining inside a building without the owner's authorization, dwelling or fenced lot with the intent to commit a crime. Theft of items worth less than $1000 is usually charged as a misdemeanor. However, theft of guns are charged as felonies regardless of the value of the guns, and in this case, because the guns were valuable, the charges and potential sentencing will be more severe.

Continue reading "Gone in Two Minutes: Burglary of Assault Weapons in Arizona " »

October 28, 2013

all-you-can-drink-860700-m.jpgDrug, and Liquor Law Violations Top the List

Arizona State University recently released its crime statistics for 2012.

The university has four campuses: Tempe, West campus, Polytechnic Campus, downtown Phoenix and ASU Colleges at Lake Havasu City. The report shows crime statistics for 2010, 2011, and 2012. According to the ASU report, the Tempe campus has experienced the most crime over the past year.

The most commonly committed types of crimes were liquor law violations referred for disciplinary action. The 2012 numbers were down from 2011 and 2010, but they were still high. On the Tempe campus, there were 884 liquor law violations on campus property and 863 liquor law violations on residential facilities in 2012. On West Campus there were 39 liquor law violations on campus and 39 at residential facilities in 2012. On Polytechnic Campus, there were 29 such violations on campus properties and 29 at residential facilities in 2012. On the downtown Phoenix campus, there were 62 liquor law violations on campus and 62 at the residential facilities in 2012. The ASU Colleges at Lake Havasu City just opened in 2012 and there were no violations reported. In total there were 2007 liquor law violations at all the campuses. This is lower than the national average for drinking in college.

Although you might think that the most common liquor law violation is driving under the influence, DUIs are expressly not included in the category in the report. The report specifies that instead this category encompasses violations (or attempted violations) of laws prohibiting: the manufacture, sale, transportation, and possessing of intoxicating liquor, as well as maintaining unlawful drinking places, bootlegging, operating a still, furnishing liquor to an underage person, using a vehicle to illegally transport liquor, drinking on a public conveyance.

Continue reading "Recent ASU Crime Statistics Released " »

September 30, 2013

Police crack down on violence, assaults and disorderly conduct in Arizona bars.

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Most people visiting a bar in Maricopa County, don't intend to commit a crime, or get in a fight with another customer, it often ends up that way. Alcohol or drugs can easily impact judgment and behaviors, and things can quickly get out of hand, and escalate to violence, assault, and worse.

As part of the Safe and Sober Campaign efforts still underway in Tempe, and East Valley Cities, Police and Maricopa County Deputies are monitoring bars closely to prevent violence, and other crimes, and make arrests.

Earlier this year, the actor Jason London (perhaps best known for his role in Dazed and Confused) got into a bar brawl in Scottsdale, Arizona and punched a bouncer as well as police officers. He was left with visible injuries and claimed he was the victim.

Arizona prosecutors charged him with assault--assaulting a peace officer is a serious felony. However, before trial, he reached a plea deal with prosecutors who dropped the assault charge in exchange for him pleading guilty to the much lighter charge of disorderly conduct. He was ordered to attend an alcohol treatment program and pay fees.

What constitutes disorderly conduct in Arizona? This subjective charge describes all kinds of behavior that law enforcement officers believe are inappropriate for a particular public setting. It can include scenarios like the drunken bar brawl described above. Arizona Revised Statutes (ARS 13-2904) lists these other acts as disorderly conduct:

• Engages in fighting or violence or disruptive behavior
• Makes an unreasonable amount of noise for the situation
• Employs abusive communication such that it's likely to provoke another person to retaliate physically
• Makes any protracted commotion, utterance or display with the intent to prevent the transaction of the business of a lawful meeting, gathering or procession
• Refuses to obey a lawful order to disperse issued to maintain public safety in dangerous proximity to a fire, a hazard or any other emergency
• Recklessly handles, displays or discharges a deadly weapon or dangerous instrument.

Continue reading "Disorderly Conduct and Bars don't Mix " »

September 12, 2013

High profile recruits brought in from MCSO. Sheriff vows to stay "as long as it takes."

police-car-126271-m.jpgTempe Police resources are stretched past their limits. Residents and students are fed up with living under the threat of increasing violence, and crime. Over the past year, there have been a number of startling and significant acts of violence, including aggravated assault and similar crimes in Tempe, at Arizona State University and areas nearby. Some of these crimes have been associated with excessive alcohol intake by students, including both perpetrators of violence and their victims.


Crime Suppression Operation Details

Alcohol related crimes including DUI, underage drinking, drug crimes disorderly conduct, Aggravated Assaults, and other criminal offenses have plagued ASU, and Tempe. Among them, the most serious crimes have ended in death. These crimes, especially violent and dangerous crimes have become so problematic that the Police Chief, Tom Ryff has requested assistance and resources from the Maricopa County Sheriff's Office (MCSO) Sheriff Joe Arpaio has agreed to provide resources and to team up with Tempe Police to combat the out-of-control crime in Tempe AZ. Beginning this evening The Maricopa County Sheriff's Department will begin a "Crime Suppression Operation" But this time with the help of Deputies and Officers from MCSO. There is even talk that the campaign will last the remainder of the fall 2013 semester.

If you thought you saw a lot of police officers in the area, during last months "Safe and Sober" campaign which was said to include an historical number of officers, prepare to see a lot more than that in this sting. One can expect to see Tempe Police Officers and MCSO Deputies on many streets, sidewalks, horseback, bicycles, motorcycles, squad cars, vans, in and around bars, and parties. They will be looking to prevent violence, disorderly conduct, alcohol related offenses and to make as many arrests as possible.

The command post for the operation will be set up at the Tempe Fire Station Training Facility near the cross streets of University and Dorsey, beginning Thursday September 12, 2013. Sheriff Joe Arpaio vows to continue the sting "as long as it takes to get campus partying under control".


Law Enforcement Focus: Underage Drinking, Disorderly Conduct, and Violent Crimes


Aggravated Assault is a Felony and considered a violent crime against a victim. All victim crimes call are serious and call for harsh punishments if convicted in Arizona. Violent Crimes have become rampant in Tempe AZ. Assault and Aggravated Assaults involving students and Tempe residents have been alarming and on the rise. Last week, for example, a 19-year-old male student was assaulted near Apache Boulevard and Rural Road, in Tempe AZ.

A surveillance video shows that several young men encountered the student in a lobby and then three of them forced him to get into an elevator. Two of them stepped inside the elevator. The student tried to fight back, but he was brutalized. When the door opened a few floors up, a witness saw two young men standing over the victim with blood on their hands. The victim was left unconscious and ultimately needed to have his broken jaw wired shut.

The victim, believed to be a member of a fraternity on probation, was also very drunk when the police contacted him at the hospital. He couldn't remember much about what had happened nor who had beaten him. The Tempe police department has made statements suggesting that the rise in violent activity on the ASU campus is linked to alcohol use. The fraternity to which the victim belonged was on probation because officials believe a fraternity member threw a bottle of liquor into a fire and burned two girls. One of the perpetrators in this case is also believed to be a member of a different fraternity.


The Link between Alcohol and Violence


The link between alcohol and violence is not entirely clear. However, a number of separate findings suggest that young people especially should be very conscious of how much alcohol they consume. For certain personality types at least, there is a risk of more severe violence as a result of drinking.

According to the National Institute on Alcohol Abuse and Alcoholism, there is a greater risk for violence among young adults ages 18-30 than in any other age group. Lab research dating back 15 years shows that intoxicated persons are more aggressive than sober people. While alcohol was not found to be an instigator of violence, the more drinks a male consumed in the study, the more severe the injury to himself and to others. Alcohol may be a facilitator of particularly aggressive behavior though it may not cause it.


Aggravated Assault Laws and Criminal Penalties in Arizona


The beating such as the one described in this article would likely to be charged as felony aggravated assault. While many assaults are misdemeanors, under Arizona law, a person can be charged with aggravated assault if someone "knowingly, recklessly, or intentionally" causes a serious physical injury to someone. There are a number of other specific circumstances that elevate an assault to aggravated assault, including use of a deadly weapon, causing disfigurement or impairment or a bodily organ, or committing assault while a victim is bound.

Criminal Charges of Aggravated Assault in violation of A.R.S. 13-1204 can range of charges from Class 6 felony (least severe) to Class 2 felony (most severe). A Class 6 aggravated assault conviction can lead to prison terms from 18 months to 3 years. A Class 2 aggravated assault conviction, however, can lead to a prison term of 7 to 21 years. Class, 5, 4, and 3 aggravated assault offenses are punished with terms of imprisonment between these two poles. Aside from imprisonment, a perpetrator of aggravated assault can be fined up to $150,000 and, depending on the severity of the injuries caused, victim restitution.


Other Consequences of violent crime convictions


Legal battles are just the tip of the iceberg when it comes to consequences of a conviction. The severity of the punishments in an aggravated assault conviction can affect you if you are a college student or any other person. A felony conviction can affect your ability to finish college and go to graduate school, reduce your employment opportunities, particularly in professions where background checks are conducted such as law and teaching, impact your ability to possess a gun, and result in significant social stigma. Felony criminal records follow a person for many years into the future. They also result in loss of some civil rights that person who otherwise enjoy such as loss of the right to vote, and the right to possess or carry a firearm. A person convicted of an aggravated assault many also be ordered by the court to pay restitution to the victim in the form of medical bills, or property damage. The defendant may also be sued in civil court by the victim for damages or by the victim's family in the event the incident leads to death of the victim.

Continue reading "Tempe Police Begin Aggravated Assault, Alcohol Related Crime Sting Tonight" »

September 4, 2013

Stakes are high for DUI, and Underage Drinking; Consequences extend beyond criminal charges.


disco-658252-m.jpgStarting August 15, 2013 nine agencies joined to form a "Safe and sober" campaign task force. The Campaign began at the beginning of the ASU fall semester, and lasted three weeks to end on September 1, 2013, of Labor Day Weekend.

The Law Enforcement Agencies that joined together and included efforts of Maricopa County Sheriff's Office, Arizona Department of Public Safety, Governor's Office of Highway Safety, Tempe, Mesa, Gilbert, Chandler, and Scottsdale Police Departments. The campaign included enforcement of liquor laws as well as educating the community about traffic, bicycle and pedestrian safety and the dangers of youth alcohol consumption, and enforcing nuisance/party ordinances.

Within the first three days, there were 867 citations, 371 arrests, 1421 stops, and 91 total DUI arrests in violation of A.R.S. 28-1381. Of these there were a disturbing number of minor in possession of alcohol arrests (111 such arrests) in violation of A.R.S. 4-244 of Arizona criminal code. The second weekend saw 486 arrests. Over the first two weekends, there were 857 arrests, with 319 for minors in possession of alcohol. Over Labor Day weekend alone, there were 656 DUI arrests; 126 of the Labor Day arrests were for Drug DUI in violation of A.R.S. 28-1381 A (1) & (3).


Arizona Misdemeanor DUI Laws and Penalties - First Offenses

All impaired driving arrests in Arizona are serious. The average Blood Alcohol Content (BAC) for those charged with DUI during the campaign exceeded 0.15 percent, which means makes it even more serious. Extreme DUI charges in violation of the Arizona Extreme DUI Laws A.R.S. 28-1382 (.15 percent or greater) carries harsher penalties. Some of those arrests fell under the Arizona Super Extreme DUI laws (.20 percent or greater), and carry the most severe Misdemeanor DUI penalties. Generally DUI charges that involve higher BAC levels call for longer the incarceration terms. First Office Minimum Misdemeanor DUI penalties call for 10 consecutive day jail terms; first offense Extreme DUI sentences call for 30 consecutive day jail terms; and first time Super Extreme DUI convictions call for 45 consecutive day jail terms. Other penalties for first time DUI convictions include fines, fees, and assessments that range from $1750.00; Suspension of driver's license for a minimum of 90 days; use of Ignition Interlock Device on the Defendant's Vehicle 6 to 18 months once driving privileges are reinstated; participation in mandatory alcohol/substance abuse screening, counseling, or treatment, probation, or community services.

Arizona is a "Zero Tolerance" state, meaning it is illegal for a person under the age of 21 to be found with any spirituous liquor in their system. Convictions for Underage 21 consumption of alcohol also results is usually a misdemeanor punished with a criminal record, a $500 fine and court costs, community service plus 2 years suspension of your driver's license. Possession of alcohol by a minor is another charge with similar penalties. It permits a minor to be charged for being close to alcohol and having it accessible.

Underage 21 DUI penalties are particularly harsh. Unlike adult DUI charges, which are usually brought for actually being impaired to the slightest degree, or having BAC of .08 while driving, a minor may be charged for driving with just one drop of alcohol in his or her system. A Class 1 misdemeanor, under age DUIs are punishable with $1500 in fines and costs, up to 10 days in jail, loss of driver's license for up to 2 years, and community service. Nine of the 10 days in jail can be suspended if a defendant agrees to complete an alcohol treatment program.


Collateral Consequences of DUI or Alcohol Related Convictions

Adult DUI Convictions - Consequences of any DUI convictions for adults often reach far beyond criminal sentencing and have adverse impacts on many areas of a person's life and family. Some consequences can include loss of residency; loss of income; loss of job or ability to get a job; inability to obtain auto or health insurance; high surcharges or premiums and even non-renewal of insurance; and a criminal record that will follow them for years into the future.

Minor Consumption and Under Age 21 DUI Convictions- The consequences of a DUI or Minor Consumption conviction can reach far beyond even the devastating criminal penalties. Other consequences are social stigma, expulsion from school, and a criminal record. The last is especially serious because it means every time a minor is asked about his or her criminal record when applying for college, graduate school or a job, he or she will have to disclose the information and explain what led to the conviction for a DUI. Consequences of a conviction can also result in an athlete being suspended from athletics; loss or denial of scholarships; or financial assistance programs.

Continue reading "East Valley "Safe and Sober" Campaign Nets 1,513 DUI Arrests " »

August 20, 2013

A conviction could send a person to prison for the rest of their lives.

photo_801_20060112.jpgThe West Desert task force is a joint task force for the U.S. Border Patrol, U.S. Immigration and Custom Enforcement's Homeland Security Investigations and the sheriff's department. It aims to fight drug and human smuggling in the west desert region of Arizona, which historically has been a major drug trafficking corridor. In the past few years, the government has found that none of these agencies single-handedly could make a dent in the trade in that region and accordingly, a task force was put together.

The task force discovered five abandoned vehicles full of marijuana near Ventana recently. There were 683 bundles worth $7.2 million that weighed almost 14,500 pounds. The vehicles were seized and the Drug Enforcement Administration (DEA) took over the marijuana.

If you are caught transporting quantities of marijuana (even if significantly less marijuana than what happened in the above-mentioned seizure), the penalties can be very harsh. In a case such as this, most likely the federal government would pursue prosecution in federal, rather than court. While the punishments in Arizona state court can be severe, the ones meted out in federal court are far worse.

For example, trafficking in 1000 kilograms or more can lead to a sentence of not less than 10 years or more than life in federal court. That means there is a mandatory minimum sentence of 10 years for this crime--a federal judge cannot use his or her discretion to look at a person's otherwise good character or the fact that it could be their first offense, if that is the case, to impose a lighter sentence than 10 years. If death or serious bodily injury is caused in connection with trafficking there is a mandatory minimum of 20 years.

Arizona is a state known for being tough on crime. Trafficking or drug transportation is one of several marijuana offenses punished by the state. Others include possession, sale, distribution, and manufacturing. A person can be charged with trafficking either if they are stopped by the police while driving with large quantities of drugs in the car or if they are caught moving separately packaged quantities of marijuana in amounts to be sold. In most cases if a suspect is charged with trafficking, they are also coupled with other charges including possession or distribution.

Trafficking two pounds or more of marijuana into Arizona is a Class 2 felony with a sentence of 2-8.75 years imprisonment, and a minimum fine of $750. If someone is allowed to serve out probation rather than imprisonment, he or she will have a mandatory sentence of 24 hours of community service. Trafficking more than 2 pounds of marijuana is a felony with a potential sentence of 2-12.5 years imprisonment and a $750 fine. If significantly more than two pounds of marijuana is seized and the police suspect the person was carrying this amount into Arizona from across the border or another state, they may be charged in federal court.

Arizona as a border state, and its many freeways that lead to the border mean that a person may run a greater risk of being stopped and charged with drug trafficking than in several other states. If you are charged with a drug trafficking offense, the first thing you should do is contact an experienced drug trafficking defense attorney, to discuss your matter and options for defense.

Depending on the facts, including aggravated factors, repeat offenses, or seriousness of the circumstances, a conviction could send a person to prison for the rest of their lives. By law a defendant has the right to defend their charges and hire a qualified criminal defense attorney to legally represent them in defense of the charges.

Additional Resources

Arizona Criminal Code Sentencing Chart
Arizona Constitution
Mesa Police Department


Continue reading "Marijuana Trafficking Penalties in Arizona" »

July 23, 2013

Drivers with Marijuana in their vehicle, who consent to search may be easier to prosecute than those who expressly refuse.

542938_officer_on_duty.jpgMost people understand that they have a Fourth Amendment right under the United States Constitution to be free from unlawful searches and seizures. They may know that the police must usually have probable cause to get a warrant and must have a warrant to search a car or home. They may also know that the police cannot use evidence obtained illegally, in violation of a defendant's constitutional rights. Violations of a person's Fourth Amendment Rights involving search and seizures in drug crimes, may compromise the State's ability to prosecute a suspect.

Today we will take a closer look at what the Fourth Amendment protections, as they apply on a practical level with an illustration. Here's common question: "If I'm driving around with several pounds of Marijuana in my vehicle, do I have the right to refuse the request of a police officer who wants to search my car without a warrant?"

The Supreme Court has ruled that people have less expectation of privacy in their cars than in their homes and therefore there are several conditions under which it may be acceptable to search a car without a warrant. But the most obvious scenario in which police can legally search your car is if you give consent.


Exceptions to the Need for a Police Search Warrant

Consent is an "Exception" to the general rules governing search and seizure. So a consensual search is one where a person agrees to let the police search their vehicle without a warrant to do so.

The Supreme Court held that so long as a reasonable person would feel free to disregard the police officer and go about his or her business, the encounter is a consensual one. In reality, however, most drivers would not feel comfortable refusing a police officer that had pulled them over and wanted to search the vehicle. In some instances a driver with marijuana in the trunk of his car who expressly refuses to consent to a search may have a stronger case than one who consents to the search. Police officers must have a probable cause to search or a reasonable suspicion of illegal conduct before searching in order to use any evidence gathered.

Alongside consent, another exception to the rule against warrantless searches and seizures is the "plain view doctrine". This applies if, for example, the police pull you over because you made an illegal lane change and then see marijuana you planned to sell sitting in the back seat or see a pipe in the front passenger seat next to you. In either of those cases, the court would use a three-prong test:

(1) Was the officer lawfully present?
(2) Did the officer have a lawful right of access to the object?
(3) Was the incriminating character of the perceived object apparent?

If the answer to all of these questions are "yes" then the plain view doctrine exception will apply, and a warrant is not needed. In the situation described, the police officer had a right to stop you about your illegal lane change and could see the incriminating marijuana or pipe in the car. Therefore, this evidence could be used against you at a trial for marijuana possession or sales.

The stop itself, by police requires "reasonable suspicion" that a violation of the law has occurred or is in progress. On the other hand, if the marijuana was inside a backpack on the floor of your car and the police officer stopped you in absence of "reasonable suspicion" the plain view doctrine might not be applicable, and the stop itself may be unconstitutional.

Another exception to the search warrant rule is the "search incident to arrest." This exception might arise in the previously described scenario if the police decided to arrest you for a DUI because you were clearly intoxicated and talked about a gun. In the process of arresting you, they might pat you down for weapons. If you are carrying bags of marijuana somewhere on your person, it will be found in a search incident to your arrest and will be admissible in a trial for marijuana possession. The police may also use finding the marijuana as a reason to search the rest of your car.

On the other hand, if nothing suspicious was found on your person and you were placed in a police car, the Arizona Supreme Court determined in 2007 that the police may not come back to your car once the arrest is over and search it without a warrant.


Overview of Search Warrants

These principals described above are broad, and it is an in an area of law that has changed over time. These protections continue to be tested and challenged in courts throughout the country. Current technology makes it relatively easy for police to obtain a warrant within a few minutes, but they must still have probable cause to get one. A number of law enforcement agencies use electronic search warrant programs to request one from a judge on call. They simply complete a form including information describing their justification of "probable cause". It is within a matter of minutes that the judge reviews the request and approves or denies it electronically.

If you are arrested for marijuana possession or sales, an experienced criminal defense attorney may be able to look at the circumstances in detail to determine whether the evidence was obtained legally or not. Contact the experienced criminal defense attorneys of the Law Offices of James Novak at 480-413-1499 for more information and a powerful defense.

Continue reading "Violations of "Search and Seizure" Laws: How they Impact Prosecution " »

July 8, 2013

A person will face "Dangerous Offense" Aggravated Assault charges if a deadly weapon is displayed or used in a crime.

1329263_pistol.jpgAn assault charge may be brought as a Misdemeanor or Felony (Aggravated). A person may be guilty of misdemeanor assault if they put someone in fear of bodily harm, touch someone with the intent of physical injury, or cause any physical injury to someone.

An assault charge will be elevated to a felony assault, a more serious charge, if they commit simple assault and any of eleven enumerated circumstances are present. Among these circumstances include: a serious personal injury results, a deadly weapon is used, or the assault is made on a law enforcement officer.

Recently in Arizona, a man allegedly threatened to kill a couple during a home invasion. Fortunately, neither was hurt. It was reported in the news, that the man broke into the house wearing only blue jeans and a blonde wig and carrying a gun. At some point the husband was able to retrieve his own gun and he shot the man who broke in.

The suspect ran from the scene and hid in a woman's house nearby before the authorities caught him. He will face two counts of aggravated assault with a deadly weapon or dangerous instrument, two counts of kidnap-apprehension of injury and one count of burglary.

If the man in this case had come in without a gun, threatening to kill the husband and wife, he would be facing fewer potential penalties. In such a case, he might be charged with simple assault and burglary for placing the couple in fear for their life. In cases where a deadly weapon is involved, penalties can be very severe depending on the defendant's prior record.

Many aggravated assaults are charged in spite of no actual injury to the victim. If convicted, a person guilty of committing an offense such as the this one described, will still be exposed to long term mandatory prison sentencing, despite the fact they were not injured. Even a first-time offender may face 5-15 years in prison. However, someone who had been convicted of a "dangerous offense" even once before could face 10-20 years in prison For a third conviction, a defendant could be penalized with a prison term of 15-25 years.

Arizona has followed a mandatory sentencing scheme for decades. It requires mandatory prison for people found guilty of a second felony or people who are guilty of "dangerous crimes". A person may be guilty of a "Dangerous Offense" under A.R.S. 13-105 (13) if a deadly or dangerous weapon is used, or displayed as a threat in a criminal offense. This includes, of course, guns, but also knives and cars and anything else intended to be used as a dangerous weapon.

In addition to mandatory minimum sentences for crimes like aggravated assault with a deadly weapon, a court may consider aggravating or mitigating factors in meting out a sentence. Mitigating factors might include a lack of a criminal record, good character, or model background. For example, if the man described above was a straight A college student with no prior felony or misdemeanor arrests and a background of charitable work, an experienced criminal defense attorney could argue that he should receive the minimum sentence for aggravated assault available to him. Similarly, a defense attorney who was able to show a connection between a troubled childhood and the aggravated assault might also be able to argue for the lowest possible sentence.

Continue reading "Assault, Felony Assault, and "Dangerous Offense" Laws and Sentencing" »

June 26, 2013

Driving under the influence of a legal drug in Arizona is not solely a defense for DUI.

1421532_pills_drugs.jpgLast year, the Arizona Department of Public Safety revealed that prescription drugs were increasingly being found in the blood and urine tests of individuals who have been pulled over or arrested in Arizona and suspected of DUI. Prescription drug abuse is a common problem all over the United States, but Arizona had the sixth highest prescription drug abuse rate for 2010-2011 of all the states.

Because they are prescribed by a doctor, people often do not realize that misused or abused prescription drugs can be as dangerous as illegal recreational drugs like heroin or cocaine. It is important to be aware, however, that you can be charged in Arizona with driving or being in physical control of a vehicle while on certain prescription drugs, or while a "metabolite" of the drug is in your body. Recent Arizona case holds that it does not matter whether you are actually impaired by the drug.

Even if you appear to be driving safely, the State can prove your guilt simply by proving that any drug that is listed on the schedule of "dangerous drugs", "narcotic drugs", or "prescription-only drugs" were in your system. Under Arizona Revised Statute 28-1381, there is a narrow safe harbor defense to a "driving on prescription-only drug charge" under A.R.S.28-1381 D: This is the case, if you were using a drug as prescribed by a licensed medical practitioner, including doctors, dentists, podiatrists and osteopaths. That means you can use this defense if you took the amount that was prescribed by a physician, but you may not be able to use it if you took more.

In a prescription drug case last year, the appellate court was asked to explain just what was entailed by this defense. Several issues were in question: Does the burden of proof to show beyond a reasonable doubt that the prescription drug use was not justified--also called a justification defense? Or is it the responsibility of the person accused to mount an affirmative defense in which he must prove that he did not abuse prescription drugs, but used them according to a doctor's directions? Or is the lack of a prescription or use of the drug against what a prescription says a key element of the crime? If it is a key element of the crime, it is something the State must prove in order to secure a guilty verdict.

The defendant was initially charged in municipal court for driving with Methadone, Klonopin and Ritalin (prescription-only drugs) in his body. The latter of these two are drugs that are commonly taken daily in order to treat psychiatric conditions like ADD and anxiety. Like illegal recreational drugs, however, these common prescription drugs can have powerful effects on one's attention span, motor skills and focus. Klonopin is sometimes even taken to treat insomnia.

Fannin challenges the superior court's holding that A.R.S. § 28-1381(D) creates an affirmative defense requiring him to prove by a preponderance of the evidence that he was using the drug as prescribed by a medical practitioner.

The municipal court ruled that the defendant had to make an initial showing that provided by a preponderance of the evidence that he was taking the drugs as prescrbed by a medical practitioner under the law. If successful, only then would the burden of proof shift to the State to show "beyond a reasonable doubt" that he was not. The State filed a special action petition with the superior court challenging the municipal court's ruling. The superior court agreed with the State that the defendant was raising an affirmative defense, which attempts to excuse a defendant of the criminal action, for which they would otherwise be held accountable. By doing this, it places the burden of proof on the defendant.

The defendant appealed, asking the appellate court to answer the question of what kind of defense the safe harbor for prescription drugs was. The appellate court reasoned that the defense here was an exception to the general rule that it is a crime to drive with prescription-only drugs in one's system. But the court established that A.R.S. 28 - 1381 (D) was in fact an Affirmative Defense. But the defendant failed to mount an Affirmative Defense. Relief was not granted on that basis.

Continue reading "Prescription Drug DUI - Laws, and Defenses " »

June 19, 2013

Assault and related victim crimes carry the most severe penalties of all crimes in Arizona

1108004_hand_srb_1.jpg
Violent crimes continue to plague Tempe AZ, especially on, and near Arizona State University (ASU). Tempe Police reported #911 and other calls for help had increased by 97 percent in 2012 over 2011, and arrests in criminal incidents continue to rise in 2013.
Incident reports and service calls for criminal violations in and around ASU are taxing Tempe and ASU Police resources.

Police report that the type of crimes that have increased include violent crimes, assaults, binge drinking, underage drinking, disorderly conduct, and criminal property damage. At least two deaths this year were reportedly linked to violence between fraternity rivals, while many others were seriously injured. Many of these are crimes against victims and carry the harshest sentencing of any crimes in Arizona.

Tempe officials are proposing ordinance changes making it easier to crack down on off-campus parties, while local police agencies seek out and making arrests for underage drinking laws, assaults, and other violent crimes.

Assault Crimes may be charged as Misdemeanors under A.R.S. 13-1203 or Aggravated Felonies A.R.S. 13-1204, depending on circumstances and nature of the offenses.

A person may be found guilty of misdemeanor assault in Arizona if they do one of the following:

(1) Intentionally, knowingly or recklessly injure someone else's body;
(2) Intentionally give someone else a reason to fear they will be harmed;
(3) Knowingly touch another person in order to provoke, injure or insult the person.

Misdemeanor assault may be punished with up to one year in prison and maximum fines of $2,500. You may also have to pay restitution to the victim.

A prosecutor may elevate a misdemeanor assault to an aggravated (felony) assault charge in eleven different circumstances. Felony aggravated assault carries significantly greater penalties than misdemeanor assault. For example, felony aggravated assault may be punished with 15 years of imprisonment, as well as the stigma of a felony conviction, loss of a professional license, ineligibility to own or possess a firearm and many other harsh consequences.

A few of the eleven circumstances in which a defendant who is 18 years old or older may be charged with aggravated assault include those where he: causes "serious bodily harm", uses a weapon or dangerous instrument, enters a private home with the intent of committing the assault, assaults someone who is 15 years old or younger, or assaults people of certain professions while they are working (including teachers, nurses, prison officials, fire department members, and paramedics).

Felony aggravated assault may also be charged if someone commits one of the forms of simple assault described above and also intentionally or knowingly prevents "the normal breathing or circulation of blood of another person by applying pressure to the throat or neck or by obstructing the nose and mouth either manually or through the use of an instrument", and a domestic relationship exists. In other words, this special type of aggravated assault can be charged against someone who attempts to strangle a domestic partner.

A few weeks ago, the Court of Appeals ruled on a case involving both simple assault and aggravated assault. In the case, a couple was arguing via text messages. When the male partner came home, he grabbed the woman, knocked her head, and squeezed her neck. Later he pressed his arm against her throat and told her to leave.

The male partner was charged with aggravated assault for strangling her, simple assault for knocking her head, and also for trying to stop her breathing a second time. The jury convicted him of the first and last charge. He was sentenced to eight years in state prison.

The defendant appealed on the grounds that the charge of aggravated assault related to strangulation was unconstitutionally vague (among other reasons). He claimed that nobody in Arizona could know what the statute meant by "normal" breathing or circulation and he referred to the state's own expert who testified that it was difficult to say what "normal" breathing was, even in medicine.

The defendant also argued that his due process rights were violated because all three forms of simple assault were included within the aggravated assault charge. He further argued that the jury should have been instructed as to which type of assault he had committed.

The appellate court explained that even though "normal" is a relative term, it is not unconstitutionally vague. Plainly read, the statute prohibits stopping another person's normal or typical breathing. The court also explained that this type of aggravated assault is a unique offense, not just another variation on the eleven circumstances that turn simple assault into felony aggravated assault. Ultimately the court affirmed the defendant's sentence.

In many cases, these crimes have been serious and resulted in felony charges. Penalties are severe if convicted. Criminal penalties can include jail or long term prison sentencing; large fines, fees, assessments; restitution; counseling, probation, or community services, victim restitution, and other court ordered penalties. But the consequences are much broader than criminal penalties. A student may be suspended or expelled from school or athletic teams, lose scholarships, residency status as a US Citizen, termination from their job or lose opportunities for future employment, become ineligible for school loans, and have a criminal record, lose driving privileges, and lose other rights that they currently enjoy.

Continue reading "Tempe, AZ a City under Assault with Crime " »

June 9, 2013

Impact of Maryland v. King Ruling on Arizona: What it gives and what it takes.

1220700_dna_sequence.jpgPrivacy rights were outweighed by law enforcement interests in the United States Supreme Court's June 3rd ruling in Maryland v. King. In this case, the Court was divided 5-4 over the question of DNA sample collection. All states and the federal government require convicted felons to submit DNA samples to law enforcement. But this was the first case to look at whether even those who are merely arrested (and assumed innocent until proven guilty) can be required to submit their DNA to law enforcement.

The Supreme Court ruled that states may--without a warrant-- routinely collect DNA samples from people arrested for a "serious crime." This was a highly anticipated ruling because it is the Court's first on the privacy of genetic information. The ruling focused on Maryland's law, which requires DNA sampling of those arrested for serious crimes, supposedly for the purpose of identifying them. However, the case's language was so broad that it opened the floodgates for all states to permit DNA sampling of people arrested, even if they are arrested only on a minor charge.

The case arose from a criminal defendant's appeal after he was convicted for a felony only because the Maryland police were able to match his DNA in a federal database. After the defendant was arrested for assault, the police swabbed the defendant's cheek to get a DNA sample and they submitted the sample to a federal DNA database. The swab was not necessary to prove the assault.

The federal database to which the sample was submitted matched the defendant's DNA to DNA collected from a crime scene six years earlier. Because of the routine cheek swab, the defendant was convicted of the earlier serious crime.

The Maryland Court of Appeals threw out the defendant's conviction on the grounds that a cheek swab violated Fourth Amendment rights against illegal search and seizure. Usually the State must obtain a warrant if it wants to conduct any kind of invasive physical testing. The State appealed the appellate ruling.

The Supreme Court's majority opinion, written by Justice Kennedy, compared DNA sampling of the arrested to fingerprinting which is legal. The Court overturned the Court of Appeals. Justice Kennedy wrote that states could collect DNA from people arrested for "serious offenses."

The majority opinion reasoned that Maryland's law supported the well-established and legitimate governmental interest of identifying people in custody as opposed to solving crimes. The majority also reasoned that a cheek swab is minimally intrusive from a physical perspective.

Justice Scalia, joined by three liberal justices, wrote the dissent. He warned, "As an entirely predictable consequence of today's decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason."

This ruling impacts all people in states that authorize DNA testing, including Arizona. At present, Arizona's law enforcement is able to collect DNA from anyone imprisoned for a felony offense, including those on probation. However, Arizona has also passed legislation to allow for the collection of DNA from those who are merely arrested, not convicted, of a serious crime.

This group includes those who are arrested for certain sexual offenses, burglary, prostitution, and other serious, violent or aggravated offenses. Although this group represents a relatively narrow number of criminal defendants now, as Justice Scalia pointed out the Supreme Court's ruling is broad enough that states could widen the net of people who are required to submit to DNA sampling. As Justice Scalia suggests, in the future, DNA sampling may be part of police booking procedure even in traffic cases.

Additional Resources

DNA Laws Database
Mesa Police Department
Mesa Municipal Court

Continue reading "US Supreme Court Rules No Warrant Needed to Collect DNA if Arrested " »

May 31, 2013

No "substantial penalties" can be imposed as a result of exercising their Fifth Amendment Rights


1921_sweet_lips.jpgMost people know they have a Fifth Amendment right not to be forced to incriminate oneself. This right encompasses not only the right not to speak about something that might lead you to actually admit to wrongdoing, but also the right to not have the court infer that your silence is itself an admission of guilt.

No substantial penalties can be imposed as a result of exercising your Fifth Amendment right. Moreover, if a defendant chooses to remain silent during sentencing, his silence is not to be taken as either an admission or a lack of contrition. However, if a defendant chooses to express remorse during sentencing, his statement can be used by the sentencing judge as a mitigating factor--a reason to be more lenient.

In an appellate case heard earlier this year, the rule against self-incrimination was applied to the issue of how a defendant's silence can affect sentencing. In that case, the defendant (a woman) was on trial for major felony charges and was convicted.

Before sentencing, the trial judge said he would not put her on probation because the probation officer had reported she would not make statements about her offense during the investigation. Therefore, the probation officer had concluded she would not be able to participate in any counseling or treatment diversion program which required frank communication.

The defendant appealed, arguing that the trial court had improperly sentenced her to a two-year prison term instead of placing her on probation or suspending the sentence. In her view, the prison term violated her Fifth Amendment right against self-incrimination because it punished her refusing to talk about the details of her case with a probation officer.

The appellate court explained that in this case the defendant was neither entitled to probation nor to have her sentence suspended. Probation was a sentencing alternative, rather than a right. These were matters over which the trial court had discretion. Appellate courts give deference to the trial judge's opinion about what seems necessary to rehabilitate a defendant.

The appellate court reasoned that a sentencing court was not prevented from considering a defendant's silence regarding the offense in determining whether he or she could be rehabilitated through probation. In this case, the trial court had grounded its assessment in the probation officer's report as to her unwillingness to talk about the offense even for purposes of rehabilitation.

The appellate court found that the sentence imposed was among those available by statute and therefore could not be considered a "substantial penalty" for silence or exercise of a Fifth Amendment right. The defendant in the instant case had relied on a Fifth Amendment case. In that case, a probationer was not required to answer certain polygraph questions because the court ruled he was entitled to assert the Fifth Amendment with respect to questions that could implicate him in future criminal matters.

The court reasoned that even a probationer would be required to answer questions relating to a past offense for which he was given probation. The defendant had refused to answer questions and had not intimated they might incriminate her in future criminal proceedings.

Additional Resources

Arizona Sentencing Chart
Maricopa County Criminal Procedures

Continue reading ""Remaining Silent" under the Fifth Amendment Should Not Infer Guilt " »