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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 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" »

June 19, 2013

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

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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 23, 2013

How National Agency's Recommendations Will Impact Arizona Drivers

1368042_wine.jpgArizona has tough DUI laws. They may get tougher, but not by much. The National Transportation Safety Board (NTSB), an independent federal agency, recently recommended, among other things, that the blood alcohol threshold be dropped from .08 BAC to .05 in all 50 states. Those drivers whose blood alcohol content (BAC) is 0.08 are presumed under Arizona and other state laws to be impaired.

The NTSB is an investigative agency. It doesn't have the authority to institute the changes. It is up to the Department of Transportation whether it wants to endorse this recommendation or not. States will each have to decide whether to accept the recommendation from NTSB. If the NTSB gets support from the Department of Transportation and other states, they will be closer to Arizona's current policies against drunk driving.

The American Beverage Institute (ABI) and the National Restaurant Association (NRA) took offense to this recommendation. They believe that a lower BAC targets moderate drinkers in addition to drivers who are actually drunk. A representative of ABI said, "Moving from 0.08 to 0.05 would criminalize perfectly responsible behavior."

ABI points to research indicating that less than 1% of over 32,000 traffic fatalities in 2011 were caused by drivers with a BAC between .05 and .08. Moreover, those with twice the current BAC (a BAC of .15 or higher) cause more than 70% of the drunk driving deaths.

NTSB argues that the research shows you start to be impaired in cognitive and visual abilities around .05, not. 08. This increases the likelihood of a serious crash. Most countries seem to agree, since they have BAC limits at .05 or lower.
But NTSB, an independent federal agency, said research shows most drivers suffer impairment of cognitive and visual functions like depth perception at a BAC level of 0.05, increasing the risks of a serious crash. According to the agency, the risk of having an accident increased substantially at .08.

More than 100 countries have BAC limits set at 0.05 or lower, according to the agency. According to another source, the U.S., Canada, and Iraq are among the small group with a BAC threshold of .08. Most European countries, most South American countries and Australia have set their BAC levels for purposes of assessing drunk driving to .05.

A representative of the AZ Governor's Office of Highway Safety has stated that this new federal law won't affect Arizona, claiming Arizona has "Not only the toughest laws in the country, but the toughest enforcement in the country." He believes this extends to Arizona's policy on driving while using drugs, too.

Arizona has passed a number of laws that are harsher than the DUI laws in other states. Among them is a law that says even if motorists have a blood alcohol level below .08 they can be cited if they are impaired.

A recently passed law requires first time DUI offenders to install an Ignition Interlock Device (IID) in their car or other vehicle for six months. An IID requires a driver to pass a breathalyzer test before being permitted to start the vehicle. According to Mothers Against Drunk Driving, the number of drunk driving fatalities has dropped 46% since 2007.

ADDITIONAL RESOURCES

NTSB Safety Report on Eliminating Impaired Driving
Arizona DUI Laws
Arizona MADD.org

Continue reading " Will Tough Arizona DUI Laws Get Even Tougher? " »

March 4, 2013

The Mayor of Phoenix AZ recently announced plans for the largest Gun Buyback Program to be held in May 2013. It is being funded by an anonymous donation of $100,000.00.

A Gun Buyback Program is an organized jurisdictional effort to compensate gun owners in return for their guns. The goal is to take unwanted guns off the street so that they are not a threat to police officers or residents of the communities.

Here are some facts that have been released about the program:

• It will be conducted every Saturday in May, excluding Memorial Day weekend;

• Sessions will be held in various different parts of Phoenix in church parking lots or other trusted locations;
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• Anyone can drop off a weapon anonymously. City officials announced that no questions will be asked regarding the source of the firearm or it's possessor;

• The owner will receive an unknown amount to be determined at a later date for the weapon;

• The Phoenix Police will check to see if the firearm was stolen. If so, it will be returned to the rightful owner;

• If the weapon was used in a criminal offense, it will be retained by police to be used an investigation.

• All other firearms will be taken out of circulation.

More details will be released as May approaches. For more information a person can contact *Arizonans for Gun Safety at 602-547-0976.


Criminal Defense Attorney Phoenix AZ

Gun offenses are very serious crimes in Arizona. Convictions under A.R.S. 13-3102 Arizona criminal code call for harsh penalties, many of which are felonies. All firearms used in the course of conducting or fleeing from a crime are felonies, and call for aggravated sentencing of the initial crime. Felony convictions call for a minimum sentence of 1 year in prison, and loss of the right to possess a gun, and classify the person as a Prohibited Possessor under the Arizona gun laws.

If you have been arrested for any weapons crimes under Arizona you should always consult a criminal defense attorney before pleading guilty to charges. If retained, they will protect your rights, defend your charges, and make every effort to get a good outcome in your case. There may be constitutional rights that were violated, or other defenses that may be used to resolve the matter favorably on your behalf.

*The Law Office of James Novak is a criminal defense firm serving clients in the Phoenix area. It has no affiliation with Arizonans for Gun Safety or the Phoenix Police Department.

Additional Resources:


Phoenix Buyback Program


Arizona Gun Laws


Arizona sentencing for serious, violent or aggravated offenses


Phoenix Police Department

Phoenix Superior Court


Continue reading "Phoenix to Conduct Largest Gun Buyback Program in City's History " »

January 16, 2013

"Use of Prescription Medication an Epidemic and DUI hazard"

The National Center for Disease Control (CDC) describes use of prescription medication as an epidemic and the fastest-growing drug problem in the Country. It is said that more teens are using prescription medicine than cocaine, meth and Ecstasy combined.

Final numbers are still being tallied from police agencies throughout Arizona. But preliminary statistics for 2012 indicate Drug DUI arrests are expected to jump from 11% in 2011 up 14% in 2012 of all DUI arrests in Arizona.

Officials attribute this to increased funding for specialized police drug detection and impairment training such as Arizona's Drug Recognition Expert (DRE) Program. Police Agencies are now using state of the art equipment, and are well trained for Drug DUI enforcement. For example, Gilbert AZ Police Department, is equipped with mobile DUI enforcement vans; unmarked vehicles; special DUI motor cycle enforcement units; granted allowances for overtime; and training and certification to police officers in phlebotomy DUI processing.

Other contributing factors for the increase in Drug DUI arrests are frequency of use and access to prescription drugs by adults, and youths.

At this juncture, there are no published statistics as to how many of the Drug DUI arrests were Marijuana related. So no assumptions can be made as to whether or not legalization of Medical Marijuana in Arizona contributed to the increased Drug DUI Arrests.

Arizona Drug DUI Laws

Under A.R.S. 28-1381 in addition to alcohol DUI laws, it is also unlawful to drive or be in actual physical control of a vehicle in Arizona, if a person is impaired to the slightest degree due to the influence of any drug; vapor releasing toxic substance or any combination of liquor, drugs or vapor releasing substances. This includes legal, or illegal drugs, or Medical Marijuana. It also includes drugs obtained with a valid prescription or any over-the-counter drugs. This means that a person can be cited for DUI if they have had no spirituous liquor at all, but are driving impaired to being under the influence of a drug.

A first or second DUI with no aggravated factors in Arizona is a Class 1 Misdemeanor. This includes drug related DUI charges. Penalties are generally the same or similar as sentencing for alcohol related DUI charges. If convicted penalties call for 10 day jail terms; mandatory substance abuse counseling; fines, fees, and other harsh penalties. Jail terms may be reduced to 24 hours, upon successful treatment of an alcohol or substance abuse program.


Criminal Defense Attorney Gilbert AZ

Motorists are not aware that a drug may impair their ability to driver. But in Arizona, it is not a defense for a motorist to claim that a driver was aware that drug had the potential to impair their driving or not. If you have been arrested for any type of DUI, your future and freedom are in jeopardy. You should a qualified consult a criminal defense attorney who defends charges in the city where you received the citation, to discuss your matter, and defense options.


Additional Resources:


Arizona State Legislature - Drug DUI Laws

• Arizona Governor's Office of Highway Safety Annual 2011 DUI Enforcement Statistics

Arizona Governor's Office of Highway Safety 2012 DUI Enforcement statistics (preliminary to 12/27/12)

Drug Abuse in Arizona - Office for Children, Youth and Families

National Center for Disease Control - Prescription Drug Abuse

Gilbert Police Traffic Unit

Continue reading "AZ Drug DUI Arrests Increase in 2012 " »

November 10, 2012

The Verdict could have national impact on when law enforcement can collect DNA evidence from suspects.

On November 9, 2012, the United States Supreme Court agreed to hear a criminal DNA testing case, Maryland v. King (12-207), which could result in nation-wide impacts. The defendant's DNA samples were collected immediately following his arrest. He was subsequently convicted of rape. King's Attorney attempted to suppress the DNA evidence, on the grounds that it was taken unconstitutionally. The Maryland Court of Appeals agreed, and overturned King's conviction. They ruled that suspects under arrest but not convicted, have more rights than convicted felons; and that DNA testing was more invasive than standard finger print evidence.

The State of Maryland disagreed, and appealed to the US Supreme Court to hear the case. The case is expected to be heard by the high court in June 2013.

DNA testing has been the subject of much controversy. Objection to the DNA testing of non-convicted suspects is that it is in violation of a person's 4th Amendment Constitutional Right against unlawful search and seizures.

All states currently use DNA testing as an admissible investigative tool. Currently it is lawful in most states, including Arizona, to collect report and distribute DNA results for convicted felons. However, not all states allow collection, analysis, reporting, distributing, and use of DNA testing as evidence against first time criminal offenders, with no felony convictions.


DNA Testing Laws in Arizona

Arizona allows collection, reporting and distribution of DNA evidence from prison inmates and convicted felons. Criminal DNA samples are maintained by in a forensic data base by authorized Law enforcement agencies, and indexed by the FBI.

However, in recent years, Arizona also passed legislation allowing DNA to be collected from suspects who were arrested, but not convicted of a felony in specific situations.
Under Arizona Law A.R.S. 13-610 DNA may be collected from a suspect if they were arrested for serious, violent, and dangerous felony offenses on involving a victim.

The law allows for DNA testing in situations where the suspect was arrested for a criminal offense specified by law, even if they were not convicted of the crime. Examples of these offenses include but are not limited to sexual offenses and assault; burglary in the first or second degree; homicide; and other dangerous offenses involving victims.


Criminal Defense for Charges involving DNA cases

Anyone arrested for a serious or dangerous crime, should always consult a criminal defense attorney before pleading guilty. Felony convictions for these types of crimes, will result in years to life in prison, or even expose a defendant to the death penalty. A defendant should always invoke their right to retain qualified legal representation to defend their rights and charges. If DNA evidence was collected unlawfully it may lead to suppression of the evidence in favor of the defendant. If DNA evidence does not lead to a match of the suspect arrested, the charges may be dismissed or lead to a "not-guilty" verdict in a jury trial. The lawfulness or validity of DNA evidence should always be argued by a qualified criminal defense attorney.


Additional Resources:


Arizona State Legislature


Arizona State Bar - Jury Instructions for Evidence


United States Supreme Court - Maryland v. King


US Supreme Court Orders - Petition Granted Maryland V. King, Alonzo J. (12-207)



Continue reading " The US Supreme Court to Hear Landmark DNA Evidence Case " »

October 1, 2012

United States Supreme Court.jpgThe 4thAmendment right put to the test: Unlawful search and seizure

On September 25, 2012, the US Supreme Court agreed to hear Missouri, Petitioner v. Tyler G. McNeely. The decision could affect DUI blood test consent cases throughout the nation.

The high court will rule on the issue of when the police need a warrant to draw blood from a suspect stopped on DUI, if they refuse a blood test. The law requires consent by the suspect to for the blood test to be administered, or in the alternative, with a warrant by police. The warrant could be waived, however, under the following circumstances:

• A delay could threaten a life; or
• A delay would destroy potential evidence.

In this case, the suspect refused both the breath test, and was also unwilling to take a blood test. The police proceeded with the chemical blood test which reportedly was 0.154% and exceeded the legal limit in Missouri of .08%.

The defendant moved to suppress the blood test on the challenge that since he did not consent to the test; the officer did not seek a warrant; and the officer was not concerned about any delay jeopardizing the evidence. As a result, the defendant's challenge was that it violation of his 4th Amendment Rights against unreasonable search and seizures.

The lower court suppressed the DUI blood test evidence, and the Missouri Supreme Court sided affirmed the lower trial court's ruling. The US Supreme Court is expected to hear the case in January 2013.


Arizona DUI Blood Test Consent Laws

The Arizona Supreme Court also held that under A.R.S. § 28-1321 the suspect must either expressly consent. In the case of a refusal the e police must have a warrant to administer a blood test. A warrant will be granted, if the police have just cause to believe a motorist was driving impaired due to alcohol or drugs. If the driver refuses the breath test, or does not consent to the blood test, civil penalties will be imposed including a one year loss of driver's license. The refusal will also be held against them in court. Refusals are perceived as an act of non-cooperation, or that the driver refused because they knew they would test positive for drugs or alcohol.

DUI Defense Attorney Mesa AZ

If you were arrested for any DUI you will need to address both the Civil Court penalties and the Criminal Court charges. You should always consult a qualified Criminal attorney before pleading guilty to a drunk driving or DUI charges. In addition to civil penalties, sentencing for convictions also include jail; fines, fees, assessment costs, drug or alcohol screening, and use of Ignition Interlock Device (IID) on your vehicle. If retained, your attorney will represent you, defend your charges, make sure your rights are not violated, and work to get the best resolution in your case.


Additional Resources:


US Supreme Court Docket - Missouri, Petitioner v. Tyler G. McNeely


Arizona State Legislature - Implied Consent Laws

Arizona Governor's Office of Highway Safety Programs


Continue reading "US Supreme Court Agrees to Hear Landmark DUI Blood Test Case" »

September 19, 2012

United States Supreme Court.jpgOn September 18, 2012, U.S. District Judge Susan Bolton released the temporary restraining order on the immigration provision in SB 1070 A.R.S. 11-1051 (B). The action was pursuant to the U.S. Supreme Court's ruling on the matter in June 2012.

At the center of a two year legal batter, is the provision in the law known as "Show me your papers", and was the most controversial of Arizona's SB1070. Under this provision a police stop must still be a lawful one. In other words, the "reasonable suspicion" that a violation of the law occurred in order to make a legal stop.

During the stop, the officer determines that there is reasonable suspicion that a person is unlawfully in the United States. If reasonable suspicion exists that the person may be in the country illegally, the officer must make a reasonable attempt to contact the USB Immigration and Customs Enforcement (ICE) Agency to confirm the immigration status of the detainee.

The law also requires police to verify immigration status of arrested or imprisoned persons prior to their release.


Lawful Documentation of US Residency

Under SB 1070 A.R.S. 11-1051 (B) a person is presumed to be in the United States legally if they can provide the following documentation:

• Valid Arizona Driver's License;

• Valid Arizona Nonoperation ID License;

• Valid Tribal Enrollment cared or alternative Tribal ID;

• Valid US Federal, State, or Local Government issued ID, if the entity requires proof of legal presence to issue any of the above documents.


U.S. Presidential Executive Order Amnesty Exceptions


There are exceptions to the rules, including those afforded under the U.S. President's Executive Order Decree on June15, 2012, which was also effective immediately. Eligible applicants will receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for a work or school permit to reside in the United States.

This applies to otherwise illegal immigrants. The US Department of Homeland Security (DHS) began accepting applications for "Deferred Actions" for the following persons:

• Those brought to the US before the age of 16; and

• Those who are under the age of 31; and

• Who have lived in the USA continuously from June 15, 2007 to June 15, 2012;

• Currently enrolled and attending school; or

• Graduated or obtained a certificate of completion from high school; or

• Earned a General Education Development (GED) Certificate; or

• An honorably discharged veteran of the US Coast Guard or US armed forces; or

• Have not been convicted of a felony; serious misdemeanor; three or more other misdemeanors; and

• They do not pose a threat to national security or public safety.


The immigration laws in Arizona and on a Federal level continue to change and face legal challenges. Police spokespersons extended their intent to "Treat all individuals with dignity and respect, which is the ethical foundation of policing". We will continue to follow up on changing legislation.


US Citizenship and Immigration Services

SB 1070 Arizona Legislature

Continue reading "Arizona's "Show me your papers" immigration provision starts now" »

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;
.
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 " »

April 9, 2012

"New AZ Criminal Law helps felons accused of less serious crimes avoid prison; reduces Arizona costs; and provides relief for overcrowded prisons".

News & Law Review By: Law Office of James Novak, PLLC, Phoenix DUI & Criminal Defense Firm

On March 21, 2012, Arizona Governor Jan Brewer signed into law "HB 2374 - Deferred Prosecution" Attached is a copy of the House Bill. In absence of legal challenge it is expected to go into effect July 2012. HB 2374 amends the current law A.R.S. § 11-361. In effect it liberalizes the law in favor of the defendant. It allows more opportunities to those charged with non-dangerous offenses, non-serious offenses, to participate in deferred sentencing and diversion programs, previously prohibited. It also allows those who have previously completed such a program to participate again for new criminal charges.

Deferred Sentencing or Diversion Program - Purpose of the Programs

The intended purpose and effects of the programs are bilateral for both the State and the Defendant:

• If a defendant agrees to participation in the program, and completes it successfully, the charges are permanently dismissed. The defendant receives confirmation of the dismissal by the Superior Court. If the defendant fails to complete the program, the charges will be reinstated; trial, conviction or sentencing will retroactively be continued where it left off.
• In theory, by participating in an appropriate program of professional counseling or treatment the person gets help they need to avoid the chance of repeating a criminal offense or recidivism in the future.
• Successful Diversion Programs help ease the strain on the overpopulated prisons
• The expenses of assessments and participation in the programs are the responsibility of the defendant. This saves the state the costs resulting from imprisonment as well as the diversion program.

Existing Criminal Law in effect until July 2012 - A.R.S. § 11-361

The current laws A.R.S. § 11-361 allows a defendant to participate in an approved program under supervision before entering a guilty plea or trial. The County Attorney of a participating county may not approve a diversion or deferment program for a defendant if they have:

1. Prior Felony Record;
2. Been accused of committing a "Dangerous Offense" Felony;
3. Previously completed a program established under this law

New Criminal Law Effects on A.R.S. § 11-361 due to HB 2374

The new law to become effective in July 2012, liberalizes A.R.S. § 11-361 by allowing the following defendants previously prohibited from being considered as candidates for the diversion programs and deferred sentencing:

• Persons previous convicted of a felony charge may now be considered for candidacy in the programs as long as the conviction is not for a Serious offense; Dangerous Offense; Sexual offense; or Dangerous crime against children.
• A person may now be considered for candidacy in the diversion program or deferred sentencing for persons who has previously completed a special supervision program.
• A person is prohibited from being considered for candidacy in the diversion or deferring prosecution of they have had three or more convictions for:

1) Personal possession of a controlled substance;
2) Personal possession of drug paraphernalia

Criminal Defense Attorneys for Deferred Prosecution, and Diversion Program

Participation in Deferred Sentencing, Deferred Prosecution, and Diversion Programs are not automatic and not an entitlement programs. A Defendant must be eligible for such programs, as agreed upon by the Prosecution, and Court based on factors such as nature of the crime, prior criminal record, attitude of the defendant towards reform, safety of community if the defendant is released after successful completion of the program. If retained, an experienced criminal defense attorney will be actively involved to help eligible defendants qualify for the program.

For more information regarding this new Arizona legislation visit:

http://www.azleg.gov/DocumentsForBill.asp?Session_ID=107&Bill_Number=HB2374

Continue reading "Arizona HB 2374 - Deferred Prosecution Law to take effect July 2012" »

June 6, 2011

The new AZ DUI law withdraws the right of a jury trial for some DUI defendants. But Arizonans say "not so fast"...

June 4, 2011
Arizona News & Editorial Commentary
Article By: James Novak, Arizona DUI and Criminal Defense Lawyer

AZ SB 1200 was signed into law by the Governor Jan Brewer on April 29th, 2011, to take effect December 31, 2011. A controversial provision discretely found its way into the bill at the last minute. It contained restrictive language that was not included in the earlier versions of the bill. Thus, it deprived the public of input or debate on the issue. The provision causing upset involves the revocation of some AZ DUI defendant's statutory right to a jury trial. It applies to DUI defendants who have been charged with a first time, non-extreme Arizona DUI charges, eliminates their statutory right to a trial by jury for their AZ DUI. It does include a consolation or alternative for the judge to hear the case and decide if the AZ DUI defendant is guilty or not guilty.

It didn't take long before the restrictive amendment sparked opposition by many Arizona citizens, AZ DUI defense attorneys, and organizations such as The Committee for the Right to Jury Trial.

Among numerous provisions, the new AZ DUI law includes the following:
1. Gives municipalities, counties and certain local AZ jurisdictions judges the authority and discretion to offer such alternative penalties to eligible defendants, home-detention programs instead of incarceration in jail.
2. Reduces the length of time from one year to 6 months for a first time, non extreme DUI offenders to use the DUI interlock device on their vehicles.
3. Eliminates the right for non-extreme, first time AZ DUI offenders the previous right to a jury trial. Instead only DUI defendants that have prior convictions, extreme DUI or less serious DUI charges to keep their previous statutory and inherent right to request a trial by jury.

The first provision makes good sense. It allows for some cost relief to help reduce the over crowded Arizona's Jails. The second provision gives some relief to first time non-extreme misdemeanor DUI defendants. So far, so good right?

But then there is the third provision that's facing fire. Arizona Law makers and proponents of the amendment claim that it was a move to reduce the State's cost for expensive jury trials for those less serious DUI charges, where the blood test or breathalyzer test against them strong against the DUI defendants. The problem with that thinking, among many other reasons, is that it revokes an existing statutory right to those who fall within this category. In essence it could be argued that first time offenders are losing rights while repeat offenders get rewarded by preserving their rights.

Constitutional and Statutory Rights are one of the few things in life people lean on to protect them from mistreatment or abuses in the criminal justice system. If the move was all about Arizona saving money because "trials are too expensive" then someone needs to redo the math. How much will it cost the state of Arizona to fight any and all future repeal propositions that this amendment will face? So much for cost savings and the preservation of the States economic resources.

The Committee for the Right to Jury Trial, led by attorney Clifford Girard is asking voters to repeal that particular amendment of the new AZ DUI law in SB 1200. The committee needs to gather 86,405 signatures by July 19, 2011 to qualify for putting the repeal on the 2012 ballot. Opponents want the voters of Arizona to have the chance to decide, debate, and vote; a chance that was not provided to them before it was passed into law. Fair enough.

Article News Sources: 1) azleg.gov/legtext/50leg/1r/bills/sb1200s.pdf, 2) tuccsoncitizen.com/arizona-news/category/arizona-republic-news , 3) Associated Press 4) Arizona Republic News. 5) AZ central.com news

This news article and commentary has been posted for general public informational purposes only. All articles by this author are intended to raise awareness and generate discussion on a variety of Arizona State Law issues and topics. Note that Arizona legislation, laws, and bills are often presented and changing. If you have a criminal or DUI defense matter related to this topic, it is important that you consult or hire an Arizona criminal or AZ DUI lawyer in the jurisdiction or municipality of Arizona where you received your charges for up to date information.

Continue reading "New AZ DUI Laws SB 1200 Signed and Effective December 31, 2011... But Challenged" »