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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 " »

January 30, 2013

The correct way to confront your accuser as afforded under the 6th Amendment of the US Constitution.

Your Legal Rights to Confront Your Accuser or Witness


A defendant has many rights under the State and US Constitution. The 6th Amendment of the US Constitution affords the accused of the right to confront their accuser or witnesses against them.

Under the Arizona State Law A.R.S. 13-114 (3) a person is afforded the right to confront witnesses against them, in a criminal case, as prescribed by law.

It should go without saying, that this does not mean a person has right to physically or directly confront a person, outside of the criminal justice process. It means that a defendant has a right to confront witness against them as part of legal proceedings. This is the most commonly and effectively done through cross-examination of a witness in trial, through the defendant's criminal defense attorney. It involves questioning the witness regarding their testimony.

If these rights are violated, it may lead to suppression of the eyewitness identification or testimony. Violation of this right may lead to suppression of the witness testimony being used as evidence against a defendant.


Challenges to Witness Testimony

The Six Amendment also protects a defendant from being found guilty of a crime, based on "hear say" testimony. Some questions regarding admittance of evidence for example "here say" testimony, the parties may negotiate or decide the matters during evidentiary hearings, or conferences. If the Prosecution and Defense are in disagreement regarding the validity of a particular witness testimony, the judge may rule on whether or not it may be admitted.

Other factors may invalidate a witness statement or prove them less than accurate, before or during trial. Validity of a testimony may be compromised due to such external factors including: influences by other people; obstruction of a witnesses view; length of time that has elapsed since the incident and the testimony; confusion; reduction of recollection of the incident by the witness; unbiased nature of the witness; lack of proper lighting to see the witness; inattention of the witness during the incident, distractions or noise surrounding the witness; stress and other circumstances. In these cases, the defense lawyer may file a motion to suppress that the invalid testimony or identification, from being admitted so that it may not be used against the defendant.

Nonetheless, other material evidence should be always be used to increase the validity of witness identification or testimony. Material evidence may include such things as photographs, surveillance video, fingerprints and DNA comparisons.


Burden of Proof

In absence of a "guilty" plea or conviction, a defendant is guilty until proven otherwise by a court of law. In order to get a conviction, the State of Arizona and Prosecution must prove "beyond a reasonable doubt" that a defendant is guilty of committing a crime.

If the prosecution wishes to use a witness statement or identification against the defendant, their defense attorney will usually examine this identification or testimony to confirm its validity. If the witness identification or testimony raises reasonable doubt due to invalidity, it may lead to suppression of this evidence, and in some cases, a dismissal of charges.


Criminal Attorney for defense of criminal charges in Mesa AZ

Any criminal charges in Arizona can potentially be serious. You should always consult a qualified criminal defense attorney before pleading guilty to any criminal offense. Although you may have been arrested, you are still presumed innocent by law. You have the right to hire a lawyer to defend your charges. If retained, they will protect your rights; make sure you are treated fairly, and defend the charges against you. This will increase your chances of getting a favorable resolution in your case.

Additional Resources:


The 6th Amendment of the Constitution


Arizona State Legislature - Right to Witness Confrontation


Arizona State Legislature - Presumption of Innocence


Arizona Rules of Evidence - Recent Amendments


Mesa AZ Municipal Court


Continue reading "Rights to Confront Your Accuser in Criminal Charges" »

December 17, 2012

Disorderly Conduct also known as "disturbing the peace", is one of the most common criminal offenses. In 2011, police made 17,537 arrests for this offense in Arizona, making it the 4th most common offense in the state.

Most are charged as Class 1 Misdemeanors, which carries a jail sentence. But depending on the circumstances, may be charged as Class 1 felony which exposes a person to harsh prison sentencing.

Disorderly Conduct laws cover a wide range of criminal conduct, which many perceive it as a "catch-all" offense. Others consider it a last resort charge, in those cases where police are annoyed with a person, and have no other applicable charges for which to cite a person. It is often coupled with other offenses such as assault, domestic violence, unlawful discharge of a gun, or resisting arrest.

Disorderly Conduct charges are often vague in nature, making it one of the most challenged criminal offenses in court. Often the suspect was acting within the order of their Constitutional Rights. They are often dismissed for the following reasons:

• Insufficient evidence;
• Lack of consistent credible witness statements;
• Violations in Constitutional Rights;
• Affirmative or Justifiable Defenses were successfully argued.
• Inability of the prosecution to "prove beyond reasonable doubt" that the crime was committed.


A.R.S. 13-2904 Disorderly Conduct Laws


A person is guilty of Disorderly Conduct, if, with intent to disturb the peace and quiet of a neighborhood, person, family, or business, other public or place, with knowledge of doing so commits the following:

1) Engages in fighting, violence or seriously disruptive behavior; and includes public drunkenness resulting in disorderly behavior;
2) Makes unreasonable and disruptive noise; or
3) Uses abusive or offensive language or gestures to against another that is likely to provoke immediate physical retaliation by that person; or
4) Makes commotion of long duration; verbal or physical display with the intent to prevent transactions of a business, lawful gathering, meeting, or procession; or
5) Refusing to comply with a lawful order to disperse for any of the following purposes:

• To maintain public safety;
• If they are within the dangerous proximity to a fire, or other hazard;
• Any other emergency as deemed necessary by civil local, or state officials, or criminal law enforcement entities.

These offenses will be charged as Class 1 Misdemeanors, and expose a person to jail, and other penalties.

A person will also be guilty of Disorderly Conduct if with intent and knowledge, displays or discharges a firearm, other deadly weapon, or dangerous instrument. This offense will be charged as a Class 6 Felony, exposing a defendant to prison, and other harsh penalties.


Criminal Defense Attorney for Disorderly Conduct in Tempe, AZ

Disorderly Conduct charges are not always justified, are often vague in nature. For these reasons criminal defense attorneys can often get them dismissed. You should never plead guilty before consulting an experienced criminal lawyer about your matter. If retained they will evaluate your case and determine what defenses may be used based on your circumstances. They will tell your side of the story; protect your rights; defend your charges; and work to get you the best possible outcome in your case.

Additional Resources:


Disorderly Conduct Laws

Arizona Department of Public Safety - Crime Statistics 2011

Tempe Police Department - Resources

Tempe City Court


Continue reading "Disorderly Conduct Charges: Why they are often challenged and dismissed " »

December 5, 2012

Arizona remains a hub for Meth crimes. Get the facts. Know the consequences..

Throughout 2012, Marijuana laws, and offenses capitalized the news media, and social websites. However, there are other dangerous, illegal drugs, and controlled substances that continue to be used, possessed, manufactured, and transported in Arizona. One of the most dangerous of them is Methamphetamine. .

Almost monthly in 2012 we learned of large and small operating Meth rings and labs discovered in some alarming places. Meth Busts took place in residential homes, where children reside; offices; and mobile lab units. Arrests are frequent, and Arizona prosecutes offenses related to it, egregiously. Meth is classified in Arizona as a "Dangerous Drug". Crimes involving them are prosecuted egregiously. Convictions of any Dangerous Drug offense carry prison terms.


Methamphetamine (Meth) Facts:

Meth is a highly addictive and dangerous drug. According to the National Institute on Drug Abuse, ingesting even small amounts of methamphetamine (Meth) can result in adverse symptoms such as irregular or rapid heartbeat, high blood pressure, and hyperthermia. Long-term abuse of Meth may include anorexia; severe dental problems and gum disease; anxiety, confusion, insomnia, behavior and mood changes that include violence and hostility. Serious and Chronic methamphetamine addictions may result in psychosis; paranoia, hallucinations, disturbing delusions. Overdosing may lead to convulsions, heart failure, stroke, other organ failure, and death. Chronic addiction to Meth has proven to lead to of infectious diseases such as and HIV/AIDS hepatitis B and C due to IV use or high risk behaviors.

Meth may be found in pill, or powder form. Crystal Meth is formed in glass fragments or bluish-white rocks. It has many common street names including but not limited to "Crank", "Crystal", "Glass", "Speed", and "Ice", just to name a few.
Methamphetamine may be obtained through importation by "super labs" or dealers outside the USA; they are also manufactured here in the USA in large or small labs. In Arizona they are often found in ordinary residential neighborhoods, businesses, and in mobile labs.

Meth is illegal in Arizona. Crimes include use, possession, transport, sales, or administration. It also has been known to lead to other criminal behaviors such as theft, burglary, robbery, assault, and other violent crimes.


Arizona State Meth Laws and Penalties

It is illegal in Arizona, and considered a "Dangerous Drug" by Definition (A.R.S. 13-3401) and strict laws pertain to possession, use, sales, transport or administration (A.R.S. 13-3407).

Dangerous Drugs are prosecuted by the state egregiously. Meth is also illegal under Federal Law. It is categorized as a Schedule II stimulant under the Controlled Substances Act. Schedule II Stimulants are recognized as having high abuse potential, with limited medicinal uses in the medical community.

As a border state Arizona is has experienced heavy trafficking of Meth into the country. The Maricopa County Sheriff's office has used Meth-task-force organizations to monitor the desert skies by aircraft along desert corridors. Other police efforts have included aircraft drone surveillance; under cover informants; special camouflage equipment; night vision resources; and community outreach programs to help combat the Meth problem in the valley.


Criminal Defense for Meth Crimes

If convicted, all Meth crimes are classified as Felonies, and generally carry harsh prison sentencing. If you were arrested for a drug crime you still have the right to defend your charges and retain a criminal defense firm on your behalf. If retained, an experienced criminal defense attorney will evaluate the evidence; defend your rights; determine if it is weak or unjust; determine if your rights were violated; and if there are any defenses that can be used to get a favorable resolution to your charges.



Additional Resources:

Arizona State Legislature - Meth Defined as Dangerous Drug


Arizona State Legislature - Dangerous Drug Laws involving Meth


Arizona Drug Enforcement Program


Arizona Substance Abuse Treatment Center Index


Continue reading "Methamphetamine (Meth): The overshadowed truth " »

November 27, 2012

Marijuna Defense Attorney Phoenix, AZ.jpgAlthough imitation Marijuana is readily available, it is still illegal to use or sell in Arizona

Synthetic Marijuana Facts

On Thursday November 23, 2012 local media outlets reported three incidents of synthetic Marijuana poison by high school students from two different schools in Southern AZ. Two of the students were sent to hospital emergency rooms.

Synthetic Marijuana or Imitation Marijuana is a chemically engineered cannabinoids substances or plant material that is said to produce a high similar that of Marijuana if smoked or ingested.

Arizona is in the majority of states in the country that prohibit use, sales, production, and distribution of synthetic marijuana products and other illegal substances.

This is because they have proven to be dangerous, causing severe illness, resulting in emergency hospitalizations, and fatalities. The National Institute on Drug Abuse compares the effects in some cases to poisoning. Health effects include severe anxiety, nausea, vomiting, heart problems, tremors, seizures, hallucinations, paranoia, psychotic episodes, and other serious medical conditions.

According to the American Association of Poison Control Centers incidents of poisonings, and poison control emergency calls increased 50% from 2010 (2915) to 2011 (5741) and continued to increase for 2012.

Despite Health alerts and warnings by Local, State, and Government Agencies, synthetic marijuana continues to be sold and used. Brands marketed and sold as something other than fake or synthetic Marijuana. They may be found under the popular names of:

• "Herbs";
• "Incense";
• "Spice";
• "K2,";
• "Blaze
• "Red X Dawn"

They are usually labeled as Incense and have the words "Not for Human Consumption". They are readily available, and can be purchased at marijuana shops, other retail outlets, and even some convenient stores.


AZ Synthetic and Imitation Drug Laws

Synthetic Drugs are defined under Arizona Law Imitation Substances or Drug Offenses
A.R.S. 13-3451 and include:

• Controlled substances;
• Counterfeit preparations;
• Imitation controlled substances;
• Imitation prescription-only drug;
• Imitation over-the-counter drug

Arizona Laws A.R.S. 13- 3456; 13- 3457, and 13-3458, prohibit use of imitation or synthetic controlled substances; prescription drugs; and over-the-counter (OTC) drugs;

Violations of these laws will result in Class 2 Misdemeanor criminal charges.

Class 2 Misdemeanor charges expose a person to four months in jail; probation; substance abuse education, counseling and treatment; up to $750.00 fines; fees, and costs.

Arizona laws also apply to sales, manufacturing, or distribution of synthetic or imitation drugs under A.R.S. 13-3453; 13-3454; 13-3455; and 13-3459.

Violations of any of these laws will result in Class 6 Felony charges and expose a person to more severe sentencing including prison terms and exorbitant fines.


Arizona Marijuana Laws

Marijuana use, sales, production, and distribution is prohibited under Arizona law A.R.S. 13- 3405, and includes synthetic Marijuana as described in A.R.S. 13- 3401 Drug definitions.

Charges are classified as felonies. The classification of the offense and severity of the offense depends on the quantity of the drug found in a person's possession as well as other factors.



Criminal Defense for Marijuana and Synthetic Marijuana Possessio
n

Many users are misled by the fact that the imitation drugs are readily sold over the counter. However, it is a criminal offense to use, sell, produce or distribute Synthetic Marijuana. If you face any Marijuana drug charges you should consult a criminal defense attorney regarding your matter. If retained, they will make sure your rights are protected; you are treated fairly; and defend your charges. There may be defenses you are not aware of that can lead to dismissal of charges; reduction of sentencing or other favorable resolution in your matter.

Arizona State Legislature Title 13 Imitation Substance or Drug Offense

Arizona State Legislature Title 13 Classifications for Use of Synthetic Drug Charges

National Institute on Drug Abuse

US Drug Enforcement Administration (DEA)

Continue reading "Arizona Teens Hospitalized for Overdosing on Synthetic Marijuana " »

October 11, 2012

United States Supreme Court.jpg"Request made 'unknowingly'; defendant lacked ability to adequately mount a defense" - says Judge

On October 9, 2012, the Superior Court Judge in Maricopa County denied Michael Lee Crane's request to represent himself at trial. Crane is accused three violent robberies and homicides in the Phoenix, AZ.

The defendant claimed the reason he wanted to represent himself was because no one knew his case better than he did. But the reason for the Judge's denial had little to do with knowledge of the case.

But rather, Crane had persistently been disruptive; refused follow or recognize governing authority and law; refused to answer questions; refused to follow substantiated law; refused to comply with the Arizona Rules of Criminal Procedure and Code; and deliberate engaged in serious and obstructionist misconduct

The Judge explained that Crane needed to be able to understand, and follow these rules and follow the Arizona and US constitution. The Judge explained that by not knowing and following these laws and procedures, the defendant did not realize the limits he would place on his defense. But more importantly, his request was denied on the basis that the request for self-representation was not "knowingly" made.


Analysis of Ruling

The Sixth Amendment of the constitution affords a person the right to counsel or the right to defend themselves. And while it is unwise, the court must respect a person's right to refuse attorney representation, even if it to the detriment of the person's defense. For this reason, the Judge did take the defendant's request under advisement. However, the decision is still ultimately at the judge's discretion.

In this Ruling the Judge recognized the right of a person to defend themselves and refuse counsel. However, he explained that this right has limits. The court cited numerous important rulings to refuse to the defendant his request for self-representation:

• A defendant who is persistently disruptive of orderly procedures may lose their right to self-representation U.S. v. Williams 2011; State v Brooks 1989; Smith v State 1998; Wilson v. state 2004; Coleman v. State, 1980;

• Repeatedly arguing with the court on issues that were already ruled on, may be cause for forfeiture of the right to self-representation State v. Hemenway, 2004;

• Self-representation must be balanced against the government's right to a fair trial which requires it to be conducted in a judicious and orderly forum State v. Henry, 1997;

• A trial court has broad discretion in managing the conduct of a trial, and has a duty to properly exercise that discretion State v. Cornell, 1994;

• Even if found competent to waive counsel, and stand trial, the court still has discretion to deny self-representation requests if it believes that the defendant's request was not made knowingly.


Criminal Defense Attorney Mesa, AZ

If you face criminal charges, especially if they are serious, you should always consider retaining a qualified criminal defense attorney to represent you. They will defend your charges, and make sure your rights are protected. They will represent you through all stages of a criminal case; be capable of mounting a defense on your behalf; and worked towards obtaining the best possible resolution to your charges.


Additional Resources:

State of Arizona v. Michael Crane

Arizona Judicial Branch - Rules of Criminal Procedure

Arizona Superior Court - Case Procedures

Continue reading "Judge denies murder suspect's request to represent himself at trial" »

October 3, 2012

Domestic Violence Charges.jpgOctober 2012 marks the 25th anniversary of the observance of National Domestic Violence Awareness Month. Every nine seconds a woman in the United States is beaten. Three women a day in the USA lose their lives. But victims are not limited to women. Victims can be men, children, brothers, sisters, grandparents, or other familial relationship.

The observance was founded by the National Coalition against Domestic Violence. Its goal is to reach out to victims throughout the nation to protect victims, raise awareness, and help end domestic violence.

A wide range of services and activities focused on education, support, and prevention at local, state and national levels. It includes the mourning of those who died as a result of domestic violence, and provides services and support efforts to their surviving children


Identifying Abusive Behaviors

• Controlling behavior;
• Physical abuse;
• Threat or intimidation;
• Isolation;
• Mental or physical neglect;
• Economic abuse or neglect;
• Sexual abuse


Planning for Safety


• Don't allow yourself to be cornered in a room especially a small enclosed area;
• Educate yourself and your children to identify signs and indicators from your abuser that abuse is imminent;
• Discuss safety with your children before any incidents occur including safe places to go, what numbers to call, and safety signals to alert them to act if anything happens;
• Set up emergency signals with a trusted family member or neighbor who lives outside your home;
• Collect important documents, and records that you can access immediately from a safe location on short notice;
• Pack and keep a bag in a safe place that includes clothing, nonperishables, medicines, water, and any needed supplies for you and your children for at least 24 hours;
• Be familiar with local domestic violence shelters in your area, and keep their contact information readily available in the event of emergency.

Local and national supporters are wearing purple ribbons, and conducing "going purple activities". For activities in your area, you can visit your state's Domestic Violence Coalition, official city police website or other national resources.


Domestic Violence Charges

Domestic abuse or violence is a criminal offense, punishable by jail, fines, and counseling. You should know that even victims sometimes are charged or arrested for domestic violence. There are a numerous reasons for this. It can occur if a parent is a witness to domestic abuse or neglect to a child, but does not take any action to report it to authorities or respond appropriately to keep the child safe. It can also occur, if the police arrive, and are uncertain of which person is the aggressor and which is the victim; or if both persons contributed to the incident of aggression, violence, abuse, or neglect.

If you received charges or were arrested, you always consult a criminal defense attorney regarding your matter, before pleading guilty to charges, or appearing in court.


Additional Domestic Violence Support Resources:

National Coalition Against Domestic Violence

Other US Organizations for Domestic Violence Support

Arizona Coalition Against Domestic Violence

State Coalition Contact List


Continue reading "October - National Domestic Violence Awareness Month " »

July 7, 2012

Dring & Keys.JPG •The Laws in Arizona for DUI are strict, harsh, and frequently changing. If you are unrepresented, you are held to the same standard as an experienced criminal defense attorney. This means you will be held responsible for meeting time lines, filing appropriate motions, challenging your charges with the authority of proper legal citation; representing yourself at hearings; following rules of criminal procedures. Winning cases and losing cases, is often the result of a successful argument or challenge of any of these aspects and the different facets of a DUI.

• You may be completely not-guilty of the charges for which you were arrested or on trial, but the prosecution will not "tell your story" or produce any evidence that will help prove your innocence. That is not their job. The prosecutor generally will not point out weaknesses in the State's case against you. Only your criminal defense attorney will look for defenses, mitigating factors or evidence that may lead to a dismissal or reduction in sentencing;

• Any information or answers to questions regarding your charges can result in unintended self-incrimination. You have a constitutional right to remain silent and retain legal counsel to defend your charges, and be present during any questioning or testimony. Representing one's self increases a person's chance of unintentional self-incrimination.

• The Presiding judge can only intervene on motions; plea agreements; granting or prohibiting evidence from being admitted; and sentencing. The Judge can't dismiss the charges without formal or proper legal arguments or challenge is made on the evidence; to the law; or other matters surrounding your case; or there is a "Not-Guilty" verdict returned by the jury.

Arizona DUI laws are strict and penalties harsh. A first time Misdemeanor DUI calls for mandatory jail sentencing Ignition Interlock Device on vehicle; suspension of driver's license; probation, costly fines, fees and assessments. DUI charges result in both criminal charges which are held in criminal court, and civil charges relating to the negative actions on a person's driver's license. A qualified criminal defense firm will protect your rights; defend your charges; make every effort to help avoid jail terms and other harsh sentencing.

Continue reading "DUI Charges: 5 Reasons Why You Need Legal Representation " »

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. " »

May 24, 2012

Police announced that DUI Task Forces were set up on Wednesday May 23, 2012 and will run through Monday May 28, 2012 during the Memorial Day weekend. They are targeting Phoenix and East Valley Cities in Maricopa County have already made arrests for drivers impaired due to alcohol or drugs. A spokesperson for the Governor's Office of Highway Safety reported that 65 police agencies that will be participating in operations, which is strong enforcement.

Arizona has adopted the guidelines from National Highway Traffic and Safety Administration (NHTSA). The guidelines set parameters on organization; administration; a conducting of the stops. This includes which cars to stop. According to NHTSA guidelines the vehicles which will be stopped are pre-determined by city officials or the police. Those vehicles must be chosen by a mathematical formula or sorts, for example, every 3rd vehicle or every other vehicle.

Locations of DUI Task Forces or Checkpoints

Generally the DUI Task forces are set up in areas where high traffic volume is expected. For example in the case of a summer holiday, the Police may set up check points in areas where people may be popular establishments where liquor is sold. This Memorial Day Weekend, some of the DUI Checkpoints include the following areas in Maricopa County:

• Phoenix - Metro and suburbs
• Areas near University of Phoenix Stadium
• Highway leading to Lake Pleasant in Arizona

How to avoid a DUI Task Force Stop

1) The best way to avoid a task force stop is not to drink and drive;

2) Whether you are plan to drive under the influence of alcohol or drugs, it is best to avoid a DUI stop if you can. Not many people enjoy the long lines, or the experience in general. You can check your local media website, police departments, County websites, and even social media outlets on the internet;
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3) NHTSA also requires that signs be readily present and posted near the Checkpoint. Stay vigilant if you should approach one, and take another route if possible;

4) If you did not plan to drink and drive, but find you are in that position, call on a friend or family member or taxi to take you home;

5) If you know in advance you will be consuming liquor, make plans in advance for a designated driver, or alternative arrangements to get home safely. Judgment decisions are always more prudent when a person not under the influence of alcohol or drugs.

DUI Lawyer Phoenix AZ

If you are arrested for DUI in Phoenix AZ, you should consult a criminal defense attorney to discuss your matter and defense options. Arizona has strict laws and hrsh penalties for DUI. You will need a legal advocate to represent you in court. There are defenses that can be used combat DUI charges. With experienced and effective legal representation you will increase your chances of getting a good outcome in your case

Continue reading "DUI - DWI Task Forces: Early Start-up and Strong Presence Phoenix and East Valley Cities " »

November 22, 2011

10 Things Police Don't Tell You about Phoenix DUI Sobriety Checkpoints.

Article Written By: James Novak, Experienced Phoenix DUI Lawyer, & Criminal Defense Attorney

This time every year, Phoenix DUI lawyers and criminal defense attorneys start getting pretty busy with DUI violations, and other criminal charges that result from drinking and driving, or other offense that can stem celebrations or gatherings. One thing to expect is Arizona DUI sobriety check points. Phoenix DUI checkpoints are pre-determined and announced by city officials and law enforcement agencies. Not only are the locations of the DUI sobriety checkpoints decided in advance, but so are the vehicles they decide to stop. Federal laws adopted by Arizona, require that which vehicles to stop, be based on a mathematical formula. For example, it could be every third or fourth vehicle, or every vehicle. The only way to be 100% certain you won't be stopped if you find yourself in a DUI roadblock line is the obvious: Avoid drinking and driving; and avoid driving impaired to the slightest degree, due to alcohol, drugs, or any other toxic substances that would impair your ability to drive in Arizona. If that is not possible, then read on to learn how to survive the DUI stop:

1. Stay away.
Before you leave for your destination, find out in advance where the planned Phoenix, Tempe, Mesa, Chandler, Gilbert, Scottsdale DUI roadblocks will be. Officials must announce DUI sobriety check point locations in advance. Check your local media and news sources; official law enforcement, DPS, Maricopa County, and other Social Media outlets, websites, blogs. Then take a detour.

2. Make your Arizona driver's license and registration accessible to you in the vehicle. When the police stop a vehicle at a DUI check point, they will ask you for your driver's license and vehicle registration. They are not just looking to see if your driver's license is current and valid; or to make sure you're not driving a stolen vehicle. They are also observing your demeanor, any unusual fumbling; or lack of controlled motor skills they may cause them to investigate you further for Arizona drunk driving or DUI. Produce your license and registration timely and without question.

3. Stay calm and in control. The Phoenix police or DPS officers always expect people to be a little nervous at a DUI stop, even if they have nothing to hide. But being overly nervous or over gesturing is a red flag to them that something's up;

4. Don't joke around. Refrain from joking, laughing or chattering to the police or other passengers in the vehicle with you. Heads up passengers....this includes you too. In fact, you should alert all passengers that you are approaching a DUI checkpoint that silence and respect is necessary, and throughout the process.

5. Get off the cell phone and refrain from texting. While in line or at the actual DUI stop, stay focused; pay attention; and listen to what is being asked of you by the police.



6. Don't complain about the Phoenix DUI checkpoint or being stopped. Remain respectful and polite to the officers. Treat them how you would want to be treated if the tables were turned.

7. Give them only the information they are requesting. Don't offer information about where you've been; where you are going, what you've eaten, or what you have been drinking, or anything of that nature. What may seem to you as harmless or innocent "elevator conversation" may actually cause them to question you further. A respectful greeting is sufficient such as "Good evening officer", "Hello officer", "Thank-you Officer" and the like.

8. Don't offer any information about medical conditions or medications you have. And especially do not offer information regarding prescription or over-the-counter medications you may have consumed or that may be in your possession. To do so, may cue the officer's to investigate you further for a Phoenix Drug DUI or Medication DUI. In Arizona you can get a DUI if you are "impaired to the slightest degree" by legal non-prescription drugs. You may not be aware that certain medications you purchased from a local drug store for aches, pain, allergies, headaches or other reason, contained ingredients that impaired your driving.

9. Don't allow passengers to carry or consume alcoholic beverages while in your vehicle. When you step up to be the designated driver, you get to make the rules. The rules are to protect you and them. It's your license and your freedom is on the line. Your job is to be sober and get them to their destination safely. Their job is to ride by your rules. When you make the rules and your riders abide them, everyone wins and you're the "Most Valuable Player".

10. If you are charged with DUI, consult an experienced Phoenix DUI lawyer as soon as reasonably possible regarding your matter. Arizona DUI, drunk driving, or DWI charges carry some of the most severe penalties in the Country. You will need a good Phoenix criminal attorney to defend your charges; protect your rights; and fight for a dismissal or other favorable outcome.

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October 13, 2011

You should know the difference between two particular AZ Criminal Laws:
"One may lead to a dismissal of charges: the other a conviction"

Article by: James Novak, DUI & Criminal Defense Lawyer Arizona

Good AZ Criminal Defense Attorneys - Choose the Right Defenses
Arizona has two criminal laws that may involve defenses of "not having knowledge". The wrong one if used as a defense would result in a disastrous outcome for the defendant. The other if used effectively, under right circumstances, may lead to a dismissal of DUI or criminal charges. That is why it is important to hire an experienced Arizona criminal attorney or DUI trial lawyer to defend your DUI or Criminal Charges in Arizona.

Arizona Criminal Laws - Comparison of Two Criminal Defenses

1. "A.R.S. Title 13, Chapter 2, 13-204. Effect of ignorance or mistake upon criminal liability"- Where "not knowing the law" is not a viable defense and in fact may lead to a conviction. In reader friendly terms this law states that if one "does not know the law", it makes no difference, and they will be held criminally responsible. In Arizona, if a person knowingly commits an act, but claims they "didn't know" it was a violation of the law, it does not matter In fact by claiming they did not know their conduct was a crime; is simply reinforcing to prosecution that they in fact committed the crime.

2. "A.R.S. Title 13 Chapter 34: 13-3405. Possession, use, production, sale or transportation of marijuana; classification Where "Not having knowledge" may lead to a dismissal of charges. This law applies to Arizona Drug laws; in it is a provision and requires that the state prove beyond a reasonable doubt that a defendant was "knowingly" in possession of drugs, in order to get a conviction for the drug charges. In this case, if someone "did not know" they were in possession of the drugs, their criminal defense attorney would present compelling arguments to the effect that their client "was not knowingly in possession" of the drugs. This often times proves to be a most effective defense that results in suppression of evidence, and dismissal of charges.

Application of Two Arizona Laws and Defenses:

1) A.R.S. 13-204. In the first case one admits certain criminal conduct, but "does not know" their actions were against the law. (not a valid defense)

2) A.R.S. 13-3405. In the second case, involving drug charges, a person is charged with drug possession, but "does not know" they were in possession of drugs. (Justifiable defense).

Examples of each of the Two Arizona Laws and Defenses:

1) A.R.S. 13-204 - The accused is arrested for possessing dangerous and illegal drugs. They claim they knew they had the dangerous drugs, for intended personal use. They were promptly arrested. They insist they did not know it was against the law to have the particular dangerous illegal drugs in their possession. It does not matter. They have reinforced their dangerous drug possession charges in favor of the prosecution.

2) A.R.S. 13-3405 - A friend borrowed the accused person's vehicle and inadvertently left a bag of Marijuana on back floor board of the car. The following evening, the owner of the vehicle was driving it and was stopped by police for a minor traffic infraction. As the police officer approached the vehicle they saw the bag of Marijuana in "plain sight", and arrested the owner of the vehicle. Until then, the owner of the car did not k now the Marijuana was in the vehicle. A good AZ criminal defense lawyer will have a compelling argument that the accused was not "knowingly" in possession of the drugs.

If you face criminal charges in Arizona, be sure you consult and retain an experienced criminal defense lawyer in the state and county you received the DUI or criminal charges. DUI and criminal laws and defenses may differ in every state.

Source of Arizona Law: Arizona State Legislature
Arizona Revised Statutes azleg.gov

Continue reading "Examining the effects of "knowledge" on Criminal Liability and Criminal Defense" »

October 12, 2011

15 Traits of Maricopa County Defense Lawyers - Who Often Get Criminal & DUI Charges Dismissed!

"Your chances of getting criminal charges dismissed increase with an attorney who can present a "compelling argument", over an attorney who has a stronger argument, but presents it less persuasively."

- James Novak, AZ DUI & Criminal Defense Trial Lawyer and Author of "Arizona Winning DUI & Criminal Defense Strategies" Book Series

1. Experience; Criminal & DUI defense experience in Maricopa County;

2. Communication: The best trial lawyers listen, as well as they speak. They know that winning cases are often found in the "details" of the facts, evidence and testimony; and they don't want to miss a thing. A DUI lawyer preoccupied with what they are going to say next, risks missing details that could lead to their client's case dismissal;

3. Compelling: The best defense lawyers are persuasive, articulate and compelling. They can present highly effective arguments;

4. Thousands of Hours of Trial & Litigation: Be careful of hiring criminal defense attorneys who have not spent much time in the court room or trial, even if you don't plan on having a trial. The fact is, that there are attorneys who have not seen much of the "inside of a court room": either because they are new, or because they simply don't challenge the evidence or prosecution on the issues very often. In those cases, the attorney simply agrees with whatever the prosecution throws at their clients for conviction and sentencing; You don't need to pay someone to help you lose;

5. Former Prosecutor: Here are just 4 good reasons to choose a former prosecutor:

(a) They get a vast amount of trial experience in many types of criminal cases in a short amount of time;
(b) In Maricopa County, it is not unusual for prosecutors to be in court or trial 4 to 5 days a week, every week. There are fewer of them and they carry heavy caseloads;
(c) In contrast average DUI or criminal defense lawyers in Maricopa County, only go to trial on about 2% or 3% of their cases, if that;
(d) Criminal defense lawyers who are former prosecutors know what can and can't be done outside to help the defendants, particularly when it comes to negotiations for dismissals, or reduction in sentence; they practiced by the book, and know what's in the book; and they don't take "no" for an answer if they know otherwise;

6. They are Scholars of Arizona DUI & Criminal Defense Law
: They know the Arizona criminal law; they are familiar with existing and new laws, changing legislation, and court cases with outcomes that may impact their client's DUI & Criminal charges in Maricopa County. They recognize that Arizona Laws do not exist just to prosecute a defendant and they know what laws to use that will make good defenses and protect the rights of their clients;

7. They Don't Use "Cookie Cutter" defenses
: The best lawyers understand that "one size fit all" does not apply to defenses in a DUI or criminal cases. Each is unique and with its own set of facts. Winning DUI & Criminal Defense strategies are well thought out, and tailored to fit the circumstances. A particular defense in a case that leads to a dismissal may result in conviction with a prison sentence in a different case;

8. They Don't File "Frivolous" Motions: Attorneys with reputations of filing frivolous or unjustified motions lose credibility with judges and the prosecution in courts where they regularly appear;

9. They Never Underestimate the Power of Filing EARLY Justified Motions
: These often involve procedural or constitutional rights violations such as 1). Charges being brought in the wrong jurisdiction; or 2). Time limit to prosecutor has expired for that crime under Arizona Constitution and the like;

10. The "Home Court Advantage": The best criminal lawyers defend charges exclusively within their own jurisdiction or county such as in the case of Maricopa County. So although they may be licensed to practice in the entire state of Arizona, it is still best in most cases to hire an attorney who frequently defends cases in the jurisdiction or county where the charges were filed. Those lawyers have built reports; are well respected by law enforcement, prosecutors, investigators, expert witnesses, and judges; and they are extremely familiar with court procedures and protocol throughout courts for which they defend clients; There's no substitute for the "Home Court Advantage";

11. Simplify Complex Issues: Not only are the best attorneys able to interpret the law, but they have the ability to simplify them in the best light for their client's defense;

12. Passion and Dedication
: They are dedicated to their client's defense and obtaining the most favorable outcome for them; they have a passion for defense; they recognize that the accused has fundamental rights by law to defend their charges in due process under the United States Constitution and Arizona Law; They make sure defendants are treated fairly, and their constitutional rights are protected;

13. Work Ethic: They make the time needed to tailor, build, and present a compelling defense case which includes gathering evidence, retesting it, examining the facts, and challenging evidence for suppression (not to be used), and obtaining exculpatory (evidence in the client's favor); they conduct their own defense investigations, concurrently as the prosecution is building their case;

14. They exhaust all means to obtaining the best outcome for their clients: Including case dismissals (partial or complete); negotiating for a better outcome, including leniency in penalties; or alternatives to harsh and unwarranted sentencing such as incarceration.

15. Getting the Case Dismissed is #1 priority: If a client does not wish to challenge their charges; have someone fight for them; or attempt to get their charges dismissed; then they do not need to hire one of the "Best Criminal Defense Attorneys in Maricopa County". In fact, they would not need to hire any criminal defense attorney, in that the case.

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October 4, 2011

"What You Don't Know, Could Cost You Your Freedom"

Article by: James Novak, DUI & Criminal Defense Lawyer Arizona

Good criminal lawyers can challenge your AZ DUI using different types of defenses; but in Arizona, "I didn't know" is not one of them.

Arizona criminal defense attorneys may challenge your DUI or criminal charges using certain defenses for example, "Affirmative Defenses", "Reasonable Doubt", and "violation of rights" defenses. If successful, the DUI or criminal charges may be dismissed or acquitted. But the fact that you "did not know" you violated the law, does not release you of "criminal responsibility". Thus an experienced Arizona criminal lawyer would not attempt to use it.

Arizona Law
A.R.S. Arizona Criminal Code Title 13, Chapter 2, 13-204

"GENERAL PRINCIPLES OF CRIMINAL LIABILITY" Chapter 2, 13- 204 of Arizona Law
Reads in part as follows:

"13-204. Effect of ignorance or mistake upon criminal liability

A. Ignorance or a mistaken belief as to a matter of fact does not relieve a person of criminal liability ...

B. Ignorance or mistake as to a matter of law does not relieve a person of criminal responsibility"

AZ Criminal Charges - What You Should Know
1) Criminal and DUI laws are different in every state; Arizona has some of the most harsh penalties and strict DUI laws in the Country;
2) Arizona Prosecutors egregiously pursue convictions for DUI, Drug and other Criminal charges in Arizona;
3) Currently all DUI convictions both Misdemeanor and Felony DUI expose you to incarceration in jail or prison;
4) Most Arizona drug charges are prosecuted as Felonies:
5) Your chances of getting DUI or Criminal charges dismissed increase drastically when you retain a criminal lawyer or DUI attorney to defend you.

How to Prevent, Avoid, or Mitigate Criminal Convictions in Arizona
• Become familiar with Arizona Criminal Laws, especially if you are visiting from another state; or you have recently moved to Arizona;
• Become familiar with your basic Federal and State Constitutional Rights;
• If you are driving and stopped by police for suspicion of DUI, do not offer information may harm your defense such as "I just left a bar", or I only had two drinks.
• If you are arrested, the police are not required to read you the "Miranda Rights" which include your right to remain silent; and your right to an attorney, until or before interregation or questioning;
• Remain cooperative.
• Invoke your right to "remain silent", until your attorney is present, either verbally or in writing. If you do not formally invoke this right, and you just remain silent, you will appear uncooperative which will harm your defense.
• Become familiar with several Criminal Defense or DUI Lawyers in your County, before you need one; and keep their contact information with you, or in your mobile device.

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Source: Arizona State Legislature
Arizona Revised Statutes azleg.gov

If you have been arrested; face active Arizona criminal or DUI charges, or have an existing warrant for your arrest in Maricopa County for Arizona DUI, DWI, drunk driving, drug or any other criminal charges contact the Law Office of James Novak, for your Free Consultation at (480) 413-1499. James Novak, experienced Arizona criminal Defense and DUI & Criminal defense Attorney, James Novak will speak with you directory concerning your charges, and provide you with defense options. James Novak is an experienced trial lawyer and former prosecutor. The Law Office of James Novak is devoted 100% to defending DUI, Drug & criminal charges in valley wide within Maricopa County including Mesa AZ, Scottsdale AZ, Tempe AZ, Phoenix AZ, Chandler AZ, Gilbert AZ, East Valley, and surrounding cities within the Phoenix metro and Maricopa County Area.