June 2012 Archives

June 27, 2012

"Aggravated DUI" charges are Felony DUI offenses. Misdemeanor DUI charges are elevated to Felonies when specified 'aggravating" factors under law surround it. One of the most reasons a Misdemeanor DUI is charged as felony is due to repeat DUI offenses. A third DUI charge, with two existing DUI convictions in 84 months or 7 years, will result in Aggravated DUI charges.

Aggravating Factors

Aggravated Factors" are those circumstances that elevate a Misdemeanor DUI to a Felony DUI under ARS § 28-1383 and include:

• Two prior DUI Conviction from any state in any state within in 7 years;
• DUI while driving with a suspended or revoked license;
• Drunk driving or driving impaired due to alcohol or drugs, with a minor, age 15 or under, in the vehicle;.
• DUI with accident that causes serious bodily harm to another person;
• DUI manslaughter - When the DUI and Auto accident results in a fatality of another


Felony DUI Penalties for 3rd DUI charge with two conviction in 7 years

Felony DUI charges are a class 4 felony. These convictions call for the following penalties under ARS 28 § 1383:

• 4 months in prison for 3rd DUI conviction/ months in prison for subsequent;
• Fine at least $750
• Assessment fees $3250.00
• Abatement fees
• Evaluation Costs
• Drug or Alcohol Treatment & Counseling Costs
• Probation and associated fees
• Driving Privileges may be revoked for up to 3 years
• Mandatory Court ordered Ignition Interlock Device (IID) 3 added to your vehicle at your expense, following reinstatement of license
• Court ordered drug or alcohol rehab or counseling treatment, and their costs
• Mandatory Community Service
• Criminal Record to include a Felony
• Restitution if an accident or injury was involved
• Other penalties may be apply if the Court deems necessary and appropriate


DUI defense attorney Tempe AZ

If you face Tempe DUI charges, you should consult a qualified criminal defense attorney regarding your matter. They will provide you with information concerning your charges, as well as your defense options. Arizona has harsh penalties for DUI charges. It is important that you understand the consequences before "pleading guilty" without proper legal representation. If you wish to invoke your right to retain an attorney on your behalf, you should "Plead Not Guilty" at your Arraignment. If you are not being represented, you must appear for your Arraignment. Failure to appear will result in a bench warrant for Arrest. If you hire legal counsel, they will advise you further regarding the proceedings. If retained your attorney will protect your rights, defend your charges, and work to get the best possible outcome in your case.

Continue reading "Aggravated DUI - DWI: Factors that raise a Misdemeanor DUI to a Felony" »

June 18, 2012


Criminal Arrest Phoenix AZ.jpg

A Simulated Explosive Device (SED) is a "Prohibited
Weapons" under Arizona Law ARS § 13-3101.
Misconduct with a Prohibited Weapon such as SED is a
Class 5 felony. Knowing and intentional assault to a person
resulting from an SED is a Class 4 felony. All felony offenses in Arizona are
serious, and carry prison time. Here is a closer look at the
definitions, laws, and sentencing resulting from these offenses.

Prohibited Weapon Laws in Phoenix AZ

ARS § 13-3101 (8) (a)(i)(vi)(vii)(viii)(ix): Prohibited Weapons:

Simulated explosives are considered Prohibited Weapons and include (list not all inclusive:

• Improvised explosive devices (IEDs);
• Bombs; grenades, Propellant charged rockets with charges of more than 4 ounces Explosive mine; or other poisonous or incendiary gas;
• Breakable container containing flammable liquids or gases that flash at 150 degrees
• Chemical or combination of chemicals, compounds or materials, that generate gas causing rupture or bursting of a container;
• Any combination of materials designed with the purpose of making any of the items listed above.

Prohibited Weapons Classifications and Sentencing:

ARS § 13-3102. A. (3) Misconduct with Prohibited Weapons:

Simulated explosives are considered "prohibited weapons". A person may be guilty of Prohibited Weapons charges if they manufacture, possess, transport, sell; or transfer a "prohibited weapon".

A person guilty of assault by a Prohibited Weapon is a class 4 felony
And Misconduct with a Prohibited Weapon. Under A.R.S. § 13 -702 Prison Sentencing for
Sentencing for Misconduct with a "Prohibited Weapon"

• 0.1.5 Years Minimum to 3.0 Maximum
• 0. 1 Year Minimum Mitigated to 3.75 Years Maximum Aggravated

Simulated Explosive Devices

ARS § 13-3101. A (3) Explosives Include (in part):

• Dynamite;
• Nitroglycerine
• Black powder;
• Plastic explosives;
• Materials used with the intent of making explosives


ARS § 13 - 3110. (A) (B)
Misconduct involving simulated explosives:

A person may be guilty of Misconduct involving explosives if with the knowledge and intent to intimidate, threaten, harass or terrify another person if they :

• Send or place a simulated explosive device in a public or private place; or

• Display, place or send the simulated explosive in a conspicuous location for collectible, curio, or show purposes without proper labeling; clear and immediate warning, or written notice of its hazard or danger


Simulated Explosive Offenses Classification and Penalties

Misconduct involving simulated explosive devices is a class 5 felony, whether or not injury or. Harm Under A.R.S. § 13 -702 Prison Sentencing for Convictions for Misconduct with simulated explosives may result in:

• 0.75 Years Minimum to 2.0 Maximum
• 0.5 Years Minimum Mitigated to 2.5 Maximum Aggravated


Criminal Defense Attorney for Prohibited Weapons Charges Phoenix AZ

If you have been arrested or charged with possession, use, misconduct or assault with a Prohibited Weapon, you should contact a criminal defense attorney to discuss your matter. You will need to strong legal representation to protect your rights, defend your charges, and help you avoid conviction and prison terms.

Resources Links:

http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/13/03101.htm&Title=13&DocType=ARS

Continue reading "Simulated Explosives: Prohibited Weapons Laws " »

June 14, 2012

Truth-in Sentencing Laws

Arizona Truth-in-Sentencing Laws were passed in 1993 pursuant to Senate Bill 1049, by the Arizona State Legislature. The laws revised Arizona Criminal Code the Truth-in-Sentencing Statutes under ARS § 13 - 101.7. The revised laws effected offenders who committed crimes after January 1, 1994. One of the provisions required a mandated 6 out of every 7 days of time to be served as ordered for a criminal conviction. The laws eliminated parole and many other early releases of inmates from prison, detention or parole, and converted to a more distinct set of mandated guidelines.


Earned Release Credits

Truth-in-Sentencing laws allow for an inmate to be eligible for earned release credits that could reduce their prison sentence up to a maximum 15% of the term for good behavior. Eligibility to earn release credits is based on designated classifications involving the following factors:

• Nature of the criminal offense (violent v. non-violent);
• Inmate's threat to a victim or society;
• Disciplinary Sanctions for prison misconduct;
• Participation in work recommended;
• Participation in alcohol, drug, or other treatment program;
• Engagement in education, and training programs;
• Consistent and continued favorable evaluations

Effects on Probation and Parole in Phoenix AZ

• If a person is eligible for probation, the court may suspend the sentence and all for supervised probation. Probation Violations will result in reinstated to original sentencing of jail or prison and probation revocation.

• Parole is a supervised release outside of prison which takes place after an inmate has completed a portion of their sentence before the term is completed. The Parole Laws prior to January 1 1994 were more liberal, in that a person would be eligible for parole after serving one-half to two-thirds of their sentence. For those serving time who committed crimes prior to 1978 the inmates were eligible for parole after serving only one-third of the originally ordered sentence. Persons who were convicted of offenses prior to January 1, 1994 are still eligible for parole. Under the revised Laws of 1993, eligible parole dates are statutorily pre-determined based on the criminal offense and the laws in place at the time of the crime. The effects of the new law, in most cases, results in a longer prison term actually served before the inmate is eligible for release on supervised parole.

Supervised Community Service

The new Truth-in-Sentencing Laws also include provisions for Community Service, . whic takes place after the completed earned released date. Sometimes, the court will waive community service, and replace it with a term of probation. Community Service is usually made part of the imposed felony sentencing. It occurs in conjunction with the prison term. The number of days of the community supervised program is one day for every seven days of the sentence, as ordered by the court at the time of the initial sentencing.

Criminal Defense Attorney for Felony Charges Phoenix AZ

If retained, your criminal attorney will defend your felony or misdemeanor charges. They will make every effort to get a good resolution in your case. They will defend your charges, and guide you through the criminal justice system stages. You should discuss any concerns you have about the sentencing laws, in the event your charges can not be dismissed.

Article Resources:

http://static.nicic.gov/Library/012259.pdf

http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/13/00604.htm&Title=13&DocType=ARS

http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/13/00101.htm&Title=13&DocType=ARS

Continue reading "Truth-in Sentencing Laws: How they impact actual time served by inmates " »

June 12, 2012
*No Probable Cause to Search Prohibited Possessor's Home for Weapon*

On June 11, 2012, the 9th Circuit Court of Appeals reversed and remanded a conviction involving a firearm found at the home of a prohibited processor (felon). In order for the search to be constitutional under the Fourth Amendment "probable cause" for the search warrant is required. One exception to this would be under an "exclusionary rule" extension known as the "attenuated exception." This exception could have only applied if the connection between the unlawful search and the conviction were weak. But the defendants argued on appeal that the connection between the discovery of the weapon through unconstitutional search and the conviction was too heavily weighted.

The lower district court held, that although there was lack of probable cause, a "good faith" exception was made to all the police to proceed with the unlawful search under the "good faith reliance doctrine" (United States v. Leon).

However, the 9th Circuit Court's opinion reversing the decision felt that the good faith exception that resulted in the search warrant in absence of probable cause failed to meet "fair probability" or even a "as colorable argument" for probable cause that a firearm associated with the homicide at issue, would be found at the search warrant location. Therefore, it was determined that the officers' warrant was unlawful, and the exception to the attenuated doctrine did not apply, and the evidence was obtained illegally. As a result, the firearm and ammunition evidence was suppressed, and all evidence gained following the unlawful search. As a result, the 9th Circuit Court reversed and remanded the conviction for further proceedings.

Exclusionary Rule: Exception Doctrines for Admittance of Criminal Evidence

The Exclusionary Rule or Doctrine disallows prosecution to admit evidence gained unlawfully in violation of the Fourth Amendment of the US Constitution. However, the Supreme Court has recognized some exceptions to this rule in favor of police, prosecution, by the State or Government against a defendant. This Exclusionary Rule has 4 exceptions, that would allow evidence to be admitted in court, that otherwise would not have been allowed because it was gathered unlawfully by police. The exceptions include the following circumstances:

• "Attenuation exception": This allows for evidence to be admitted if the connection between the unlawful search and discovery of the evidence v. the conviction is sufficiently weak;

• Good-faith Doctrine: This exemption allows evidence, obtained unlawfully to be admitted. It applies when police acted in "good faith" by relying on a search warrant, that a "reasonable person" would have considered lawful; but later found unconstitutional.

• The criminal evidence was found as a result of an independent search, not the offense for which the defendant was convicted;

• The evidence would have been found despite the unlawful search

Resources:

http://law.justia.com/cases/federal/appellate-courts/ca9/11-50036/11-50036-2012-06-11.html

http://www.law.cornell.edu/wex/good_faith_exception_to_exclusionary_rule

Continue reading "United States v. Grant, III: 9th Circuit Court of Appeals Reverses Conviction. " »

June 8, 2012

Prohibited Possession or Use of Firearm Laws Phoenix Arizona

Under Arizona Law A.R.S. § 13-3102 a person may be guilty of misconduct with weapons if they knowingly:

1. Possess a "deadly weapon" or "prohibited weapon" and is a "prohibited possessor" as defined under A.R.S. § 13-3101; and/or

2. Transfers or sells a "deadly weapon" to a prohibited possessor or user.


Prohibited Possessors of Firearms

Under A.R.S. § 13-3101. 7. "prohibited possessor" is a person who is:

• Found to be danger to self or to others; disabled or gravely disabled under order; and whose right to possess a firearm has not been restored by Law in Arizona;

• A convicted felon in Arizona or any other state; adjudicated or delinquent of a felony offense; and whose civil right to possess or firearm has not been restored;

• Serving a term of imprisonment in any correctional or detention facility.

• Serving a term of probation for a crime of domestic violence, or a felony offense, parole, community supervision, home arrest, work release or other release while on parole or probation;

• Minors as defined under A.R.S. § 13-3111;

• An undocumented or nonimmigrant alien, in the state or any reason; or who is studying in this state and maintains a foreign residence outside of the USA. Certain exceptions apply to authorized nonimmigrant aliens;

(1) Who have valid and lawful sports hunting licenses issued in the USA;
(2) In the USA to participate in competitive target shooting, sports, hunting or trade show sponsored by the state or national firearms association or
(3) Certain authorized diplomats.


Weapons Crime Penalties for prohibited possessors of firearms

• If a person is found guilty of prohibited possession of a firearm in violation of their probation, it will result in reinstatement of the original sentencing of jail or incarceration, for which they were originally convicted and sentenced; and

• A person found carrying or using a firearm, if they are a prohibited possessor, will be charged with a Class 4 Felony;

• A persons found transferring or selling deadly weapons to a prohibited possessor will be charged with a Class 6 Felony;


Misconduct Involving Weapons Defense Attorney Phoenix AZ

Weapon crimes can be very serious, especially if a crime is committed and involves the use of a gun, or other weapon. A prohibited possessor of a gun will face loss of probation, parole, reinstatement of original sentencing, new and additional prison terms, fines, fees, loss of civil rights or inability to get them restored, if you had a prior felony conviction. If you face any charges involving weapons, you should consult a criminal attorney as soon as possible. If retained, they will preserve your rights, and defend your charges. Depending on the circumstances, there may be defenses that can be used to get charges dismissed or reduced, or factors that will mitigate sentencing.

Continue reading "Gun Laws: Who are Prohibited Possessors? " »

June 1, 2012

Misdemeanor Assault Phoenix AZ

Assault charges may be brought as Misdemeanor or Felony charges. Both are serious offenses in Arizona if convicted. If you were arrested, you have the right to defend your charges. This is the most effective, if you retain an attorney to protect your rights, and provide a defense on your behalf. In order to prosecute the State will need to prove beyond reasonable doubt that you purposefully; intentionally, or recklessly assaulted another person.

Definitions

A person may be guilty of Misdemeanor Assault under A.R.S. § 13-1203 if their conduct knowingly, intentionally or recklessly:
1. Causes physical injury to another person;
2. Places another person in reasonable apprehension of present physical injury; or
3. Touches another person with the intention to insult, provoke or harm them.

Misdemeanor Classifications for Assault

A.R.S. § 13-1203 1. Class 1;
A.R.S. § 13-1203 2. Class 2;
A.R.S. § 13-1203 3. Class 3

Sentencing for Assault in Phoenix AZ

Prison terms to do apply to Misdemeanor convictions in Arizona. However, under A.R.S. § 13 - 707 sentencing can include jail terms of six months in jail for a Class 1 Misdemeanor; Four months in jail for a class 2 Misdemeanor; and thirty days in jail for a class 3 misdemeanor.

Fines and Penalties for Misdemeanor Assaults

Fines for A.R.S. § 13 - 802 Misdemeanor will be ordered by the court of not more than the following amounts for individual convictions (excluding enterprises):

A. Class 1 - up to $2,500.00;
B. Class 2 - up to $750.00;
C. Class 3 - up to $500.00

Other penalties may include assessment fees;, court costs; restitution to the victim; terms of probation; community service and/or anger management counseling.

Burden of Proof

For the Police to make an arrest, they must have "probable cause" to believe that a crime of assault was committed and that the suspect was the one who committed it. An arrest, however is not a conviction. In order to prosecute a person for assault the state of Arizona and its prosecution must prove "beyond a reasonable doubt" that a person's conduct was purposefully intended; with knowledge; or recklessness harmed another person. This means that objective evidence will be needed. Such evidence can include consistent eye witness statements, photos, surveillance footage, DNA testing results and other material evidence.

Assault Lawyer for Defense Phoenix AZ

It is critical that you retain experienced legal representation if you face any type of assault crime. There may be defenses that you are not aware of that if used may lead to a partial or complete dismissal of charges, or reduction of sentencing. Every case has its own set of circumstances, for which certain defenses are effective. You should consult an attorney who defends assault charges on a regular basis, in the jurisdiction where you were arrested, to discuss you matter and defense options. They will advise you further if retained.

Continue reading " Assault: Convictions require "intent" and "knowledge" or "recklessness". " »