State v. Almeida arose when the defendant was driving a car carrying his four-year-old son and fiancée. The victim was driving by himself. The defendant made a turn that cut off the victim, who hit the brakes. According to the testimony of the defendant’s fiancée, the victim responded by honking and tailgating them. She also said that the victim waved a gun. In the moment, she told the defendant about the victim’s gun.

When the cars pulled up to a stoplight, the defendant got out and stood next to the car with his own gun. The light changed to green, and the defendant got in his car and kept driving. Instead of letting it go, the victim gave chase, running two red lights.

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The victim called 911, and the dispatcher told him to stop chasing, but the victim continued for a while. The dispatcher then sent a police officer to meet the victim in a nearby shopping center. The victim went to the wrong place in the center but eventually met up with the officer. The officer searched the victim’s car and didn’t find a weapon. The victim claimed he never had one.

The defendant was arrested and put on trial. The trial court gave instructions on self-defense, defense of others, and defensive display of firearms. The trial court refused to give the defendant’s requested instruction on A.R.S. § 13-411, the crime prevention justification, on the grounds that there was no evidence to support it. The defendant was convicted and sentenced.

On appeal, the defendant argued that the judge should have given the jury instruction he requested on A.R.S. § 13-411.The state argued that the meat of the instruction was already covered by other instructions, so it didn’t matter that the trial court denied the request.

The instruction requested would have told the jury that his threat of deadly physical force was justified if he reasonably believed it was necessary to to stop an imminent aggravated assault. More importantly, the instruction also would have told the jury that a defendant is presumed to have acted reasonably if he is acting to stop what he reasonably thinks is imminent aggravated assault (or one of the other listed crimes).

The appellate court explained that a defendant is entitled to a jury instruction as long as it was on a theory supported by some small amount of proof. The court found that looking at the evidence that supported the defendant’s version of events, a rational jury could decide the victim acted as an aggressor. In this case, the defendant might reasonably have believed he needed to display the gun, while he was in the “zone of danger” in order to stop an aggravated assault.

The appellate court further explained that it didn’t matter if a jury might not find the defendant’s evidence believable. When deciding whether to give a jury instruction requested by the defendant, the trial court must look at evidence in the light that supports the defendant.

The appellate court also explained that the state was wrong that the requested crime prevention instruction was substantively covered by the self-defense and defense of third-person instructions. The crime prevention justification lets a jury know that a defendant is presumed to be acting reasonably in acting to stop an imminent aggravated assault. The state has the burden of proving the lack of justification. If the state fails to prove the defendant was unreasonable, the defendant must be acquitted. In this case, if the crime prevention instruction was given, it would have let the jury know about the presumption in favor of the defendant.

The appellate court reversed the conviction and sentence. Because of the presumption that the defendant acted reasonably and the burden on the state to prove otherwise, the crime prevention justification is an important one for defendants. However, a petition for review was filed to the Arizona Supreme Court, so this issue may still be in flux.

If you are charged with aggravated assault, the penalties are severe. It is important to retain an experienced criminal defense attorney who understands the nuances of all possible defenses. James Novak provides a free consultation for active criminal charges and serves Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona. Call today for a confidential and free consultation at (480) 413-1499.

Additional Resources A.R.S. § 13-411 (Crime Prevention justification)

A.R.S § 13-1204 (Aggravated assault)

A.R.S. § 13-404 (Self defense justification)

Requirements and Exceptions to Lawful Search Warrants in Arizona Other Articles of Interest Violations of “Search and Seizure” Laws: How they Impact Prosecution, July 23, 2013

U.S. Supreme Court Rules No Warrant Needed To Collect DNA If Arrested, June 9, 2013

Yes, You Have Constitutional Rights At An Arizona Checkpoint, July 5, 2014

Expert testimony involves the presentation of opinions or conclusions by individuals with specialized knowledge, skill, experience, training, or education in a particular field relevant to the case. Unlike lay witnesses who testify about facts within their personal knowledge, expert witnesses provide professional opinions to assist the court in understanding complex issues.

The recently decided opinion involved a case where the defendant appealed convictions for aggravated assault, and the victim testified as to the source of damage to a vehicle. On appeal, the defendant argues that this was expert testimony that was improperly admitted at trial. In the recently released opinion, the appellate court discussed the factors that define expert testimony versus lay testimony.

Testimony from lay witnesses must be rationally based on their perception of events, helpful in understanding the case, and not reliant on specialized knowledge beyond their expertise. Witnesses who testify as to scientific or technical knowledge must be qualified as experts. Expert testimony is based on scientific, technical, or specialized knowledge within the scope of the relevant legal standards. However, it must also be rooted in the witness’s perception and helpful in determining facts in the case.

In the case discussed in the judicial opinion, the court addressed the admissibility of testimony regarding damage to a tow truck allegedly caused by bullets. The court determined that the witness’s testimony was that of a lay witness, not an expert, as it was based on their perception of events and did not rely on specialized knowledge beyond their expertise.

While not every case involves expert witness testimony, in those that do, it is imperative to have an experienced attorney at your side to review the testimony and ensure the judge instructs the jury appropriately. Otherwise, you run the risk of the jury assigning too much credibility to the testimony.

Challenging and Utilizing Expert Witness Testimony in Your Case

Understanding the requirements for expert testimony is crucial for mounting a strong defense. Whether challenging the admissibility of opposing expert testimony or leveraging expert witnesses in your favor, strategic decision-making can significantly impact the outcome of your case. If you are facing criminal charges in Arizona, it is imperative to understand the legal implications of expert testimony and seek competent legal representation to navigate such complexities. The skilled Arizona criminal defense attorneys at the Law Office of James E. Novak are experienced in handling many types of criminal charges, including violent crimes. With our experience, you can be confident you’ll have the best chance of successfully defending against whatever charges have been brought against you. Contact us now at 480-413-1499 to schedule a no-obligation consultation to discuss your case.

Authorized jail and prison officials screen mail, and record suspects’ phone calls.

The information they obtain may be used to prosecute pending or future criminal charges. The exception to this would be privileged communications between a defendant and their criminal attorney.

Here are three things to keep in mind to help you avoid self-incrimination:

1. Inmate phone calls are all recorded. Any information in those calls can be used against you, with few exceptions. Persons with whom you speak with could potentially be called upon to testify.
2. Formal or informal conversations with police, jail, prison officials, guards, fellow inmates, or others can be used against you.
3. While incarcerated, authorized persons are permitted to use legal methods to open, read, and monitor mail.

Seemingly innocent statements can be used against you to prosecute pending or future charges. There are a number of reasons for this. Police and prosecution are not just looking for statements that implicate a suspect in a crime. They can also use it to challenge the credibility of a witness.

Refraining from discussing your case with others not only protects your rights, but it helps others to avoid being subpoenaed for questioning about statements you made to them. Therefore, you should only discuss details of your case with your criminal defense attorney, or while they are present. Failing to do so, will strengthen the prosecution’s case against you, which could result in a swift and harsh conviction.

How do I invoke my right to remain silent?

To invoke your right to remain silent you must communicate your intentions. This can be done verbally, in writing, electronically or in any way that clearly indicates that you wish to invoke your right to remain silent. Simple remaining silent is not enough, and can result in the perception that you are being uncooperative.

What are the penalties if I’m convicted for aggravated assault?

If you face Aggravated Assault Charges, it is important that you consult an experienced criminal defense attorney as soon as possible, preferably before your first court appearance. Felony assault charges can range from Class 6 to a Class 2 felony. Sentencing guidelines fall within one of two categories 1) Dangerous or 2) Non-dangerous. Below are the sentencing ranges for both dangerous and non-dangerous aggravated assault categories:

Non-Dangerous Felony Assault

Class 6 felony – Minimum 6 month; Maximum 18 months in prison;

Class 5 felony – Minimum 9 months: Maximum 2 years in prison;

Class 4 felony – Minimum 18 months; Maximum 2 years in prison;

Class 3 felony – Minimum; 2.5 years; Maximum 7 years in prison;

Class 2 felony – Minimum 4 years; Maximum 10 years in prison;

Dangerous Felony Assault

Class 6 felony – Minimum 18 months; Maximum 3 years in prison;

Class 5 felony – Minimum 2 years; Maximum 4 years in prison;

Class 4 felony – Minimum 4 years; Maximum 8 years in prison;

Class 3 felony – Minimum 5 years; Maximum 10 years in prison;

Class 2 felony – Minimum 7 years; Maximum 21 years in prison;

The ranges above do not include mitigated factors, aggravated factors, presumptive sentencing, or repeat offense sentencing.

Fines can range up to $150,000.00 per defendant. The court may also order restitution, other statutory penalties, and those deemed necessary under other sentencing provisions.

What determines the classifications for Aggravated Assault Charges?

The classification of charges, and severity of the penalties will be based a number of factors including:

• The nature and severity of the victim’s bodily injury;
• If a fatality resulted from the assault;
• Whether or not the assault involved use of a deadly weapon;
• The age of the victim and whether or not they were a minor;
• Whether or not the victim was restrained and unable to get free during the assault;
• First time or repeat felony assault offense;
• If the defendant knows or has reason to know occupation for which the victim is engaged falls A.R.S. 13-1204, and was performing their official duties (police, peace officer, firefighter, teacher, medical care practitioner, public defender, or other judicial officers);
• Whether or not the defendant committed the assault while in or out of law enforcement custody.

Case Review

The case began after the victim and the defendant, as well as their girlfriends, drank alcohol and gathered for two days in an empty lot. Early on the second morning, the defendant stabbed the victim in the back repeatedly. The victim was able to take the knife away from his assailant, and the defendant fled the scene. The victim survived after undergoing surgery followed by an 8 day hospitalization.

The police found the defendant walking down the road after learning of the stabbing. When they asked him for ID, he gave them false names and birthdates. He later told them he’d been knocked out by a man in a hoodie and denied that he’d stabbed anybody. The victim advised the police that he was stabbed by a person with a nickname the defendant gave them. The defendant was arrested for the stabbing.

Before trial, the defendant spoke with a woman from jail, at which time he inquired as to whether or not the victim planned to testify. The defendant told the woman in several different phone conversations that the victim would be subject to retaliation if he testified. After the woman communicated this to the victim, he decided not to pursue charges, though he initially was going to pursue them. The defendant then advised what steps the victim needed to take to get the charges dismissed.

At trial, however, a fellow inmate testified that the defendant confided in him about the stabbing and thought the victim should have died because he tried to kill him. The witness also advised that the defendant advised him that if the victim testified, others would seek revenge and harm the victim. Finally, the witness testified that the defendant told him that he buried the knife following the stabbing.

Though the police were unable to find the knife, the defendant was convicted of aggravated assault and false reporting. The jury found the defendant guilty of aggravated assault. The jury also decided that the crime classified as a “dangerous offense” because it produced emotional, financial, and physical harm in the victim. It also found he’d been convicted of two prior felonies, and therefore sentenced him to an aggravated sentence of 12 years in prison for aggravated assault along with a 60-day concurrent sentence for false reporting.

The defendant appealed his convictions arguing that it was a mistake to permit the prosecutor to ask the fellow inmate about the nature of his prior convictions. However, because the defendant hadn’t objected to this during trial, the court found that a fundamental error did not occur. The inmate had testified he came to know the defendant during incarceration through his role as jailhouse lawyer. The fellow inmate had a history of performing this work in the prison for over 30 years. The testimony was not elicited to impeach credibility by the state. The amount of time he’d been in prison and why, was offered by the prosecutor to show that other inmates trusted him for legal advice. It showed why the defendant had trusted him, and why he had different details which contradicted the defendant’s defenses.

The defendant also argued it was a mistake for the judge to instruct the jury it could consider facts suggesting he concealed evidence to decide his guilt. He argued that concealing evidence after a crime didn’t prove guilt on its own. The appellate court explained that a concealment instruction was appropriate if the defendant’s actions manifested his consciousness of guilt. In this case, the prosecution presented testimony he concealed the knife when he heard sirens coming, which showed a consciousness of guilt.

The defendant also argued it was inappropriate for a jury instruction to be given about his threats to the victim. The appellate court explained evidence of a threat against a witness was relevant in a criminal case to show the defendant tried to suppress evidence that would adversely affect him, and it was admissible to show conduct that indicated he was conscious of his guilt. For these and other reasons the defendant’s conviction and sentences were affirmed.

How a criminal defense attorney can help resolve your case in Mesa AZ

The most important way to protect your rights in aggravated assault charges is to retain an experienced and skilled Criminal Defense Attorney, like James Novak of The Law Office of James Novak, PLLC Tempe AZ, to represent you in the Aggravated Assault Charges.

The State of Arizona egregiously prosecutes felony assault crimes because they involve serious offenses against victims. A conviction is life altering and will jeopardize your future and freedom for years.

No matter how serious the aggravated assault charges are, you still have the right to plead not-guilty, and to retain legal representation to defend your charges. Once retained, you should follow your defense attorney’s guidance and instructions particularly when they relate to communications in or out of custody.

There are two sides to every story, particularly when it comes to assault cases. If retained, James Novak will present your side of the story, and be your voice in the criminal justice system. He will gather evidence available, and look for evidence that could help then outcome of your case.

James Novak of The Law Office of James Novak PLLC Tempe AZ is an experienced criminal defense attorney and former Maricopa County Prosecutor. He practices solely in criminal defense, and is highly skilled in defending felony assault charges. If retained James Novak will protect your rights, provide a strong defense, and work to get the most favorable outcome on your behalf.

Attorney James Novak offers a free initial consultation for active charges in Mesa, and Phoenix east valley cities. Call (480) 413-1499 or complete our contact form to discuss your criminal charges, and find out how James Novak can help you resolve your case.

Additional Resources:

• A. R.S. 13-404 Justification; self-defense
• A. R.S. 13-404 Justification; use of deadly force
• A. R.S. 13-1204 Aggravated assault laws
• A. R.S. 2907.01 False reporting to police laws
• A. R.S. 13- 105 (13) Dangerous Offenses defined
• 5^th Amendment Rights US Constitution – Cornell University Law School

Other Articles of Interest by the Law Office of James Novak, PLLC

• Admissibility of Expert Testimony in Domestic Violence Charges
• Does Enhanced Sentencing Apply under DCAC if Victim is Fictitious?
• What You Should Know about Threats, Guns and Assault Laws
• 3 Things You Need to Know about Plea Deals and Deferred Prosecution
• What You Need to Know About Your Rights in a Frisk

Under Arizona’s Dangerous Crimes against Children statute (DCAC), a person convicted of a sexual crime against a child is subject to enhanced sentencing. These penalties are severe and designed to provide greater punishments to those convicted of the offenses.

The question for the Court in this case was whether or not enhanced sentencing should be imposed under A.R.S. § 13-705(P) (1), when there was no actual victim.

The case arose after a defendant spoke with a woman who was a federal postal law enforcement officer. The defendant inquired about sexual involvement with the woman’s two young children, who were fictitious.

After the incident, the defendant was charged with solicitation to molest a child. The defendant entered into a guilty plea, and was sentenced to lifetime probation.

Later, the defendant’s probation for one of the counts was revoked which resulted in an order for the defendant to serve 10 years in prison. Upon release from prison the defendant’s lifetime probation on the second count would be reinstated.

The defendant moved to get the dangerous crimes designation dismissed. The court denied his request for a dismissal of the charges. However, the judge allowed him to be put back on probation as an alternative to serving a long term prison sentence.

A divided appellate court panel upheld the lower court’s decision. It found that the enhanced sentencing applied to solicitation to commit child molestation, even though victims were fictitious.

The defendant appealed to the Arizona Supreme Court. The Court explained that certain crimes are identified by section 13-705 as dangerous crimes against children which are perpetrated for persons less than 15 years of age. A crime under this statute is in the first degree when the offense is actually completed. The crime is in the second degree if the defendant attempts to commit a crime but falls short of completing the offense under A.R.S. § 13-1001.

The Court determined that in this case, solicitation to commit child molestation was a second-degree preparatory offense under A.R.S. § 13-705(O).

The defendant argued that a preparatory offense only included actions that showed a partial effort to commit a listed offense. The Court reasoned that a preparatory offense is one in which the defendant is preparing to engage, but has not committed. Therefore, it found that soliciting under the DCAC is a second-degree dangerous crime.

The Court reasoned that the language in the statute refers to actual minors under the age of 15. However, previous interpretation of the word minor has compelled a different meaning based on the context in which it is used. For example, lawmakers simultaneously enacted a law allowing convictions when the minor was a law enforcement officer pretending to be a minor; it didn’t separately specify a sentence for that type of offense.

In this case, the Court found that the case law didn’t bolster an interpretation that would include fictitious children. It explained that the imposition of enhanced sentencing was reserved only for those who actually committed serious crimes against children, and that the purpose of enhanced sentencing is to address the lifelong harm to a child victim of a sex crime. Further the Court explained that sentencing is reduced when older victims are involved, and if the molestation was not completed.

In conclusion, the Court decided that graduated penalties suggested that the lawmakers intended less serious punishments when an actual child was not victimized. It reasoned that if fictitious children were supposed to be included in the scheme, the legislature would have included language to that effect.

Determining that there must be an actual child victim for the enhanced sentences to apply under A.R.S. § 13-705(P)(1), the Arizona Supreme Court returned the case to the lower court to continue proceedings that are consistent with this decision.

What is the Dangerous Crimes against Children law?

The Arizona Dangerous Crimes against Children statute describes certain offenses under A.R.S. 13-705 for which enhanced sentencing is imposed. The DCAC applies when a person 18 years or older is convicted of committing specified offenses against children under the ages of 12 to 15. The sentencing ranges vary by named offenses under the law. For example a person convicted of sexual assault on a victim faces a sentencing range of 13 years minimum and 27 years maximum years in prison. This increases to a range of 23 to 37 years in prison if the person has a prior predicated felony. In another example, luring of a minor for sexual exploitation calls for sentences of 5 years minimum and 15 years maximum prison terms. This range increases to 8 years minimum and 22 years maximum if the person is convicted and has a prior predicated felony.

Below are some of the offenses listed under the statute:

• Attempted murder, or murder in the second degree;
• Felony assault that results in serious physical harm;
• Aggravated assault involving display or use of a deadly weapon;
• Sexual assault, abuse or exploitation;
• Child trafficking, smuggling, kidnapping, kidnapping for purposes of prostitution;
• Drug offenses that involve a child;
• Ongoing sexual abuse;
• Physical injury resulting from the manufacturing of methamphetamine;
• Bestiality;
• Solicitation, luring or aggravated luring for sexual exploitation;
• Misrepresentation of age;
• Mutilation;
• Predicated felony

A predicated felony is an offense involving child abuse, sexual crimes, or serious physical harm. It also includes offenses that in which threatening or use of a deadly weapon occurred.

What is enhanced sentencing?

Enhanced sentencing refers to increased penalty ranges to be imposed for particular criminal convictions. Enhanced sentencing statutes are laws enacted by the Arizona legislature intend to impose greater punishments for those convicted of felony crimes against victims, especially when the victim is a child.

Examples of crimes that fall within this category include Dangerous Crimes against Children, serious or violent crimes, and aggravated or predicated offenses.

Aggravated offenses are those that involve at least one aggravated factor. Some aggravated factors include use or display of a deadly or dangerous weapon, and repeat offenses.

How a criminal defense attorney can help if you’ve been charged with a sex crime offense

The State of Arizona prosecutes sexual crimes against children egregiously. A conviction of child molestation or other crimes against children call for harsh penalties which can include lengthy prison terms. A sex crime conviction can result in a defendant being identified on public registries as a registered sexual offender.

State’s mission is to prosecute the charges. They do not have an obligation to defend them on your behalf, or to make the process easier for you. Neither the judge nor prosecutor will challenge weak or invalid evidence that will be used against you. Further they will not help you find a way to mitigate charges or sentencing. It is crucial for you to retain your own legal advocate, who will look out of your interests.

An experienced criminal defense attorney who defends persons charged with dangerous sexual crimes understands that your future and freedom are at stake. A charge or complaint is serious, but it is not a conviction. An accusation does not mean you will be found guilty. You have constitutional rights that must be protected. An effective criminal defense attorney like James Novak, of the Law Office of James Novak, can defend your charges and protect your rights.

There may be defenses available that you are not aware of, that can be used to get your charges including pre-conviction and post-conviction challenges.

Pre-conviction defenses involve attempting to get the charges dismissed or reduced by using challenges that apply to the circumstances of the case. Examples may include raising the entrapment defense, constitutional violations, or challenging weak evidentiary issues.

Post-conviction defenses involve mitigating harsh sentences, and moving to get alternative sentences to incarceration such as probation.

You should always consult a criminal defense attorney regarding your charges before your first court appearance and before you plead guilty. James Novak of the Law Office of James Novak, PLLC is an experienced criminal defense attorney. He is a former prosecutor and effective trial attorney. If retained in connection with a Tempe sex crime charge, he will make sure your rights are protected and provide you with a strong defense for your charges. He offers a free initial consultation for people facing weapons charges and other criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona.

If you need legal representation for your sex offense charges, you can complete the on-line form, or call experienced criminal defense attorney James Novak at (480) 413-1499 to discuss your options for defense.

Additional Resources:

• A.R.S. § 13- 1410 (Molestation of a child)
• A.R.S. § 13-705 (Dangerous crimes against children)
• A.R.S. § 13- 1001 (Attempt to commit a crime classifications)
• A.R.S. § 13- 3827 (Sexual offender website requirement)
• A.R.S. § 13- 107 (Time Limitations – Dangerous Crimes Against Children)
• Arizona Department of Public Safety Sexual Offender Compliance
• Arizona Attorney General – Criminal Investigations
• Maricopa County Sheriff’s Department – FAQ
• A.R.S. § 13- 201 Requirements for Criminal Liability
• Arizona Internet Crimes Against Children Task Force
• Maricopa County Sheriff’s Special Victims Unit

Other Articles of Interest from Law Office of James Novak’s Award Winning Blog:

• How to Avoid Probable Cause for Arrest for Unlawful Flight
• 3 Things You Should Know about Plea Deals and Deferred Prosecution
• What You Need to Know About Your Rights in a Police Frisk

Unless specifically outlined by law, carrying a loaded firearm on any school grounds will result in criminal charges under Arizona’s Weapons Misconduct law A.R.S. 13- 3102(12).

This article outlines the weapons misconduct laws related to guns on school grounds, threatening and intimidation (assault) laws; and criminal defense for weapons misconduct and assault charges.

Case Overview

In a recent Arizona gun crime case an appellate court considered a conviction of threatening or intimidating a victim in violation of A.R.S. § 13-1202(A)(1) and misconduct involving weapons in violation of A.R.S. § 13-3102(A)(12).

The case arose when the defendant and the victim got into a verbal fight on the road while driving in separate cars. The day after the incident, they saw each other in a school parking lot, and the victim approached the defendant’s truck on the school grounds. The victim noticed that the defendant was handling a gun. While holding the firearm, the defendant said “driving the like that will get you shot.” The victim reported the gun and the comment to a police officer at the school. The investigating officer looked at the defendant’s gun and found bullets in the magazine of the firearm, but not in the firing chamber.

The police charged the defendant with two counts of intimidation or threat and one count of misconduct involving weapons. Later, the court dismissed one intimidation count. But the defendant was convicted of the second intimidation charge, and one weapons misconduct count. He was sentenced to probation, a fine, and four sessions of anger management class. The defense moved for a rehearing on the conviction for weapons misconduct.

The defendant challenged the charges based on the exception for unloaded firearms under § 13-3102 arguing that the law was unconstitutionally vague because it did not define the word “loaded” as it pertained to the gun. The defendant’s view was that the exception could be interpreted as applying to a firearm that had bullets in the magazine, but not the firing chamber. The trial court did not agree with this, and denied the motion.

The defendant appealed to an Arizona Appeals Court. The defense argued that it was a mistake to affirm the convictions because sections 13-3102(A)(12) and 13-3102(I)(1) conflicted which caused them to be unconstitutionally vague.

Under Section 13-3102(A)(12), misconduct involving weapons happens when someone knowingly has a deadly weapon on school grounds. Section 13-3102(I)(1) allows an exception if the weapon is an firearm that’s not loaded and being carried within a method of transportation controlled by an adult. The defendant argued that the word “loaded” is vague because some states provide a narrower definition than “containing ammunition.” For example, in one state a firearm is loaded if there is an unused cartridge projectile or shell in a firing position or if the manual operation of it would cause it to be fired.

The appellate court explained that in their perspective a law is not unconstitutionally vague merely because it doesn’t explicitly define its terms or could be interpreted in more than one way.

The Appeals Court reasoned that the law provides a person of ordinary intelligence with enough notice that deadly weapons such as firearms aren’t allowed on school property. The defendant argued it was unconstitutionally vague when read in conjunction with the narrow exception. The appeals court disagreed, explaining the law wasn’t void only because it was challenging to figure out how far you could go before the law was violated.

The defendant couldn’t show vagueness by showing that “loaded” was defined differently in other states. The plain meaning of “loaded” means “containing ammunition,” as stated by the lower court. The phrase “not loaded” wasn’t unconstitutionally vague.

The court didn’t have jurisdiction to determine whether the lower court had committed a legal error in affirming his convictions. The appellate court declined to treat the appeal of the conviction as a special action and affirmed the weapons misconduct conviction.

What are Penalties for Assault and Weapons on School Grounds Charges?

Assault – Under Arizona’s Assault law A.R.S. 13-1202, charges are classified as a Class 1 misdemeanor. However, if the assault is committed in retaliation of the suspect’s being reported of a criminal offense, or if it is gang-member related, charges will be brought as a Class 6 felony.

For Class 1 misdemeanors, penalties include jail terms with a maximum sentencing range of 6 months and a maximum fine of $2500.00 per person and $20,000.00 for enterprises. This does not include victim or community restitution, court fees, and assessments that may be ordered by the court.

Under A.R.S. 13-707(B) a person who is convicted of the same misdemeanor offense within 2 years, charges will be raised to the next highest classification.

If the assault charge is elevated to a Class 6 felony, the defendant will be exposed to a minimum of .5 and a maximum of 1.5 years. This could be lower or higher if mitigated or aggravated factors are involved.

Firearms on School Grounds – Under Arizona’s Weapons Misconduct law A.R.S 13– 3102 (12), charges for possessing a weapon on school grounds is a Class 1 misdemeanor.

However, if the conduct also involves violations of hiring, engaging or solicitation of minors into a crime syndicate, drug offenses, marijuana transfer or sales, or other illegal enterprise, charges will be classified as a Class 6 felony.

Non-dangerous Class 6 felony sentencing ranges call for .33 mitigated sentencing up to 2 years maximum for crimes involving aggravated circumstances.

Dangerous Class 6 felony sentences expose a person to 1.5 minimum up to 6 years maximum prison terms.

Repeat offenses for both non-dangerous and dangerous weapon crimes call for more harsh prison terms, and other additional penalties.

How does this Case Impact Gun Owners in Arizona?

When the court hears or decides on cases, they rely on state laws enacted by the Arizona legislature. But when the law does not fully address a particular issue in question, the court will look to prior case rulings, also referred to as precedents.

Unless the the issue or case has been decided by the U.S. Supreme Court, there is also a chance it can be overturned in whole or in part by a higher court if appealed.

This court ruling centered upon the following laws, and precedents:

Under A.R.S. 13-1202 (A)(1) a person may be found guilty of assault if it is found that they threatened or intimidated a person verbally or by their actions involving a firearm. This means a person can be found guilty of assault even if they did not physically harm another, when the victim is threatened or intimidated by the words or conduct.

Under A.R.S. § 13- 3102 (1), a person may be found guilty of weapons misconduct if they knowingly possesses a loaded firearm on school grounds.

School grounds” means in or on the grounds of a school; “school” means kindergarten, grade school or high school whether public or private.

Under A.R.S. § 13- 3102 (I) (1) Arizona law provides an exception, to weapons misconduct laws if the firearm within the person’s possession or vehicle was not loaded with ammunition.

In this case ammunition was not in the chamber. However, there was ammunition in the magazine which holds the shells for the purpose of feeding the chamber repeatedly.

The defendant argued that the law was unconstitutionally vague because it does not define the word “loaded”, and that some states define it more narrowly.

When is it Legal for a Person to Carry a Loaded Gun onto School Property?

Arizona law A.R.S. § 13- 3102 provides for exceptions and specific circumstances in which firearms may be carried onto school grounds.

It also describes possessors who are eligible to carry loaded weapons onto the school grounds.

Below are some specific circumstances in which particular individuals are authorized to carry loaded guns on school grounds:

• A firearm that is not loaded, is locked in a vehicle, under the control of an adult, and not visible from the outside of the automobile;
• A firearm that is carried onto school property that has been approved for the purpose of being used in a school program;
• A firearm carried by qualified persons for the purpose of participating or instructing firearm safety, or hunting courses;
• A firearm carried by police officer, peace or security officer including one called upon by another officer to help with official security duties;
• A firearm carried by a member of the United States Military performing official duties;
• A firearm carried by a warden, deputy, investigator, or officer of a detention or juvenile corrections department performing official duties of their job;
• A firearm carried by an individual licensed, with permission, or authorization under this state law, or other United States Law, which to carry the weapon on school grounds as part of their official duties.

Criminal Defense Attorney for Weapons and Assault Crimes Mesa AZ

A conviction for weapons crimes, threatening, and intimidation charges will expose a person to harsh penalties in Arizona.

If you face either assault or weapons misconduct charges it is important that you obtain criminal defense representation for your charges.

James Novak of the Law Office of James Novak, PLLC is an experienced assault and weapons misconduct defense attorney. He is a former prosecutor, and effective trial attorney. If retained he will make sure your rights are protected, and provide you with a strong defense for your charges.

James Novak offers a free initial consultation for people facing weapons charges and other criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona.

Contact us online or call experienced criminal defense attorney James Novak at (480) 413-1499 to discuss your options for defense representation.

Additional Resource Links:

• A.R.S. § 13- 3102 I (1) | Weapons Misconduct Exceptions
• A.R.S. § 13- 3101 (A)(7) Prohibited Possessor
• A.R.S. § 13- 3101 (8) Prohibited Weapons
• A.R.S. § 13- 1203 (A)(2) Assault by Apprehension of Injury
• A.R.S.§ 13- 707(B) Misdemeanor Repeat Offense Sentencing
• A.R.S.§ 13- 1202 (A)(1) Threatening and Intimidation by Word or Conduct
• Phoenix Police Department | Weapons and Firearms Laws – FAQs
• Arizona Firearm Laws and Criminal Defense for Weapons Crimes
• Arizona Criminal Defenses for Assault with a Deadly Weapon
• Criminal Defense for Weapons Charges in Arizona
• Arizona Attorney General – Criminal Investigations
• Maricopa County Sheriff’s Department – FAQ
• A.R.S. § 13- 201 Requirements for Criminal Liability
• Phoenix Police Department | What to Remember if Stopped by Police

Other Articles of Interest from Law Office of James Novak’s Award Winning Blog:

• How to Avoid Probable Cause for Arrest for Unlawful Flight
• 3 Things You Should Know about Plea Deals and Deferred Prosecution
• What You Need to Know About Your Rights in a Police Frisk

Police officers answered a domestic dispute, and the suspect was fatally shot by police.

When the officer arrived on scene, he encountered a woman outside a home.

It was reported that the woman threatened to shoot herself and a friend who was still inside the home with another person.

The officer allegedly believed that the woman was aiming a handgun at him. As a result, he shot, and killed her.

This unfortunate ordeal ended horribly wrong. It was the very worst possible scenario for the suspect.

Other adverse consequences occur. These include the high risk of criminal charges being brought against those involved in the domestic dispute.

The four types of charges often coupled with domestic violence crimes are weapons misconduct, aggravated assault, disobeying police orders, and domestic violence charges.

In this article, we will discuss four types of criminal charges often associated with domestic disputes, that put a person at risk for harm or fatality, as well as risk factors, and criminal defense for the charges.

Any one or more of these criminal charges, in absence of injury can be life altering.

Convictions can jeopardize your freedom, leaving you with a long standing criminal record.

1) Aggravated Assault Charges

An aggravated assault is a felony in Arizona.

Misdemeanor assaults and aggravated assaults are differentiated in that they are either felonies or misdemeanors.

While both types of assault are serious, aggravated assault convictions carry very harsh punishments.

Like weapons misconduct, felony assaults charges can be brought in a number of situations. Any assault that involves the use of a deadly weapon may also be charged as aggravated assault.

A deadly weapon includes any object designed for lethal use, including unloaded firearms.

This does not include permanently inoperable firearms. The definition of firearms also does not include a toy weapon.

The prosecution will have to show that a deadly weapon was used to intentionally, recklessly, or knowingly cause a physical injury to somebody else; placed someone else in reasonable apprehension of being physically injured; or knowingly touch somebody else with the intent to injure, provoke, or insult that person.

Any misdemeanor assault against a peace officer who is engaged in performing official duties can also be charged as an aggravated assault.

When an aggravated assault is based on an assault on a peace officer engaged in his job, charges are brought as class 2 felonies. A presumptive term for a class 2 felony is five years, and an aggravated term is 12.5 years.

2) Weapons Misconduct Weapons misconduct refers to criminal offenses that involve a deadly weapon.

Weapons crimes can be brought when a person knowingly carries a concealed deadly weapon other than a pocket knife, while committing a serious offense or felony.

They can also be brought when a person fails to respond correctly, as to whether or not they are carrying a concealed deadly weapon, upon inquiry by a police officer.

There are numerous ways weapons misconduct can result in a criminal record under Arizona Revised Statute section 13-3102.

In the former situation, weapons misconduct is charged as a class 6 felony.

While, these are not punished as harshly as other felonies in Arizona, they still call for prison time.

The presumptive term for a first-time offender’s conviction for a class 6 felony is one year, while an aggravated term is two years.

However, depending on the circumstances, it is sometimes possible to negotiate to get the felony turned into a class 1 misdemeanor with a lighter sentence.

Failing to answer a police officer accurately about a concealed deadly weapon is a class 1 misdemeanor.

The penalties are not as serious, but you can still end up with a criminal record that affects your ability to secure employment, professional licenses, and housing and it could affect the outcome of future criminal charges.

3) Domestic Violence Charges

In Arizona, according to statistics from the National Coalition for Domestic Violence (NCAVD), the presence of a gun, in the home, increases the chance of fatality by 500 percent. Domestic violence can be a felony or misdemeanor. This determination is made based on the actual crime that was committed.

Some examples include assault, sexual assault, criminal trespassing, violation of a restraining order, neglect, delinquency of a minor, stalking, harassment, incest, and other crimes against a child.

Whether or not the crime is one of domestic violence is determined by the nature of the crime and the relationship between the victim and the accused.

Relationships described in Arizona Revised Statutes 13-3601 include, but are not limited to those between current or former spouses, parents, children, grandparents, siblings, those involved in a romantic relationship, co-habitants, those either related, or in a present or former relationship that do not live together.

In Arizona when charges are brought for a third domestic violence incident, within 7 years, the charges are raised to a felony. This is the case, even if the violation was a misdemeanor.

If a deadly weapon such as a gun is displayed in a domestic dispute, while a person under the age of 15 is present, the suspect will be arrested.

This is the case, whether or not the weapon was used.

It is also the case, whether or not the police officer actually witnessed the display of the weapon. In any event, probable cause would be needed in order to make a lawful arrest.

Under Arizona’s domestic violence law, the police officer’s discretion, they have may seize a firearm temporarily if they learn that one is on the premises, and feel it poses the threat of harm under the circumstances.

In some situations one or more parties will turn on police.

When police are not sure which person is the aggressor, they will often arrest both individuals involved in the dispute.

For the victim, this is adds insult to injury causing a person to become angry and combative towards police.

4) Failure to Obey Police Orders

Arizona Revised Statute section 28-622 prohibits someone from failing to comply with a police officer who has the authority to direct, control, or regulate traffic.

In the incident described above, the woman could have been charged with a failure to comply if the police officer had asked her to put the toy gun down, even though it was not a real firearm.

A failure to obey a police officer is a class 2 criminal misdemeanor.

A class 2 misdemeanor can be punished with a term of imprisonment for a maximum of four months.

High Risk Factors in Domestic Disputes

A recent report was issued by the National Law Enforcement Officers Memorial Fund, which concluded that the deadliest police encounters involve domestic disputes.

Following a recent 5 years study, 684 officer deaths in the line of duty were analyzed. Of those, twenty percent of the officers died of rifle gunshot wounds.

Some of the reasons for this include an escalation of emotions, which is often accompanied by a decrease in logical thinking and reasoning, those involved.

Officers often find it necessary to arrest, or remove one or more of those involved from the home following a heated argument, for the safety of the occupants.

An order from police for one of the parties to leave their own home is often met with resentment and opposition. This alone, can be dangerous for both police and the suspect.

When alcohol and drug abuse is involved, judgment is impaired, which results in increased risk of harm or fatality.

According to statistics from the National Coalition for Domestic Violence, 72% of all murder-suicides in the United States involve intimate partners.

Further, statistics indicate that the existence of an accessible firearm, in the home increases the chance of fatality by 500 percent.

That risk increases to 2,000 percent if there has been a prior history of domestic violence among the individuals.

The officers are well aware of these dangers and exercise vigilance. They often call for back-up officers, for their own protection when called to a domestic dispute.

The police investigation into a domestic dispute begins before they even arrive on scene. When they receive a dispatch for a domestic violence call, one of the first things they do is a background check to see if police have been to the house in the past or if there are prior convictions.

When officers feel threatened, they generally will not take any chances.

Police officers are trained to use force if needed to defend themselves.

This can happen even if what they perceive as a threat, later ends up not being a real threat of harm to the officer.

Criminal Defense Attorney for Aggravated Assault, Weapons Misconduct, Failure to Obey Police Orders, Domestic Violence Charges in Phoenix AZ

If you simply plead guilty, without the guidance and retention of a qualified criminal defense attorney, you will be exposed to a swift conviction and harsh penalties.

It is important in all of these situations to retain experienced legal advocate who can fight for your rights, and provide a strong criminal defense.

No matter how serious your charges may be, you have the right to defend them.

In addition, to protecting your rights, and making sure you are treated fairly, an effective criminal defense attorney may be able to apply specific defenses in your case.

Depending on the circumstances, and strength of the evidence surrounding them, defense strategies can be mounted which can lead to a favorable outcome of your case.

Often, there are mitigating circumstances or facts that can be used to negotiate with the prosecution for a plea deal. In some cases, it may be possible to win at trial by establishing a reasonable doubt.

If your rights were violated or evidence was obtained unlawfully, it often can be suppressed to that it cannot be used to prosecute you.

James Novak, of the Law Office of James Novak, is an experienced criminal defense attorney, and former Maricopa County prosecutor.

Attorney, James defends charges of aggravated assault, failure to obey police orders, domestic violence, and weapons misconduct charges on a regular basis.

If you face active criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert or Scottsdale Arizona, James Novak will can provide you with a free and confidential consultation regarding your matter.

If retained, he will tailor and provide a strong defense on your behalf and work to resolve your charges.

Call (480) 413-1499, or contact James Novak today to personally discuss your options for your defense.

Additional Resources:

• Arizona Revised Statutes section 13-3102 (misconduct involving weapons)
• Arizona Revised Statutes section 13-1204 (aggravated assault)
• Arizona Revised Statutes section 28-622 (failure to comply with a police officer)
• Arizona Revised Statutes section 13- 3601 (domestic violence)
• Phoenix Superior Court
• National Law Enforcement Officers Memorial Fund | Police Deadly Encounters

More Articles:

• Aggravated Assault: The High Cost of Harming a Police Officer,
• Assault Convictions Require “Intent” and “Knowledge” or “Recklessness”
• Failure to Comply with Police Orders and Constitutionality Challenges

Our Federal and State Constitutions afford us the right to bear arms, to protect ourselves, our families, and others from immediate harm due to serious crimes in progress.

So why then, must we be concerned with facing criminal charges if we exercise those rights?

The answer to this question is two-fold:

First there’s a fine line between what we may feel is justified and what the language of the law dictates.

Second, the police, prosecution, court and jury may not feel the actions were as justified as we did under the same circumstances.

So while it is true we have these rights, we must be prepared to defend our actions.

In this article we outline a recent Arizona Court of Appeals case that began as a road rage incident.

The defendant was convicted of Aggravated Assault with a deadly weapon. He appealed his conviction, challenging the jury instructions provided in the trial.

At the heart of the case were two important legal concepts, that proved to be central to the verdicts:

1. Arizona’s “Justification – Crime Prevention” Defense;
2. The importance of accurate and complete Jury Instructions

The discussion topics in this article are broken down into the following 8 segments:

• Incident – Circumstances that led up to the incident;
• Why the Jury got it Wrong/ Why the jury ruled the way they did;
• Appeals Court Extended Summary;
• Arizona’s 15 Justification Defenses;
• Justification Use of Force – Crime Prevention;
• Arizona Aggravated Assault with Deadly Weapon Laws;
• What to do if you find yourself the target of Road Rage;
• Criminal Defense for Aggravated Assault Charges in Arizona

Part I – The Incident

The defendant was driving with his fiancé and her 4 year old daughter in the vehicle.

Following a minor traffic mishap, another driver began honking and tailgating them.

The angry driver (victim) pulled up alongside the defendant’s vehicle in road rage.

The angry driver waved a gun while pulled up next to their vehicle, frightening the passengers.

At the next stop light, the defendant got out of his vehicle, and brandished his own gun.

The defendant stood there, with his gun. But he did not move to harm the victim;

The light turned green. The defendant got back in his vehicle, and drove away.

The victim continued to chase him, and ran two red lights in the process.

The victim then called #9-1-1 reported the defendant.

The Police dispatcher repeatedly urged the victim to stop chasing the defendant, and to return to a nearby shopping center to meet an awaiting police officer.

The victim did not immediately obey the dispatcher, but did finally retreat and return to the shopping center.

The victim then took a detour to another area of the shopping center before meeting the officer.

Once stopped, the officer searches the victim’s vehicle but did not find any weapons. The victim denies having a gun.

The defendant was subsequently charged with aggravated assault with a deadly weapon.

The defendant chose to go to trial to prove his innocence.

The jury found the defendant guilty. He was sentenced to 5 years in prison for Aggravated Assault with a deadly weapon. Read More…more

Part II. The Most Common Reason Juries get it Wrong

[Arizona Revised Jury Instructions 2015]

The United States of America is in one of about 40 percent of Countries Internationally that allow trial by jury. We see it here in the USA as a right, and a privilege.

The remaining 60 percent of countries have either eliminated them, or never had them. Some have stringent restrictions as when they are allowed.

There are a number of reasons for the absence of juries in criminal justices systems.

One reason is that some do not consider it fair to ask a juror to make a decision about guilt or innocence, on a law for which they may be unfamiliar. This, despite the fact that they are capable, competent and may be well versed on an infinite number of other topics.

This is why it is important for jury instructions to be accurate, and applicable to the issues, defenses and laws in the case—all that apply.

The jury instructions that are given at a defendant’s criminal trial can make a big difference to the jury’s decision.

Most Jurors have good intentions. They understand their role, and usually want to reach the most accurate verdict they can.

The judge provides instructions about what laws apply to the case including the burden of proof required for a conviction, and the conduct required for deliberations.

The jury is held to reaching a verdict based on those specific and limited instructions.e explained in plain and understandable language.

This takes place after final arguments by both the prosecution and defense.

If the instructions are incomplete or inaccurate, chances are that someone will be wrongfully convicted.

This is especially true in trials involving Justification defenses, and other complex laws.

While it is not the only element that can result in a wrongful conviction of an innocent person, it is a common reason.

In this case the defendant formally raised the Justification – Crime Prevention Defense.

But the trial court decided it was not necessary to instruct the jury on the law, ruling that it was adequately covered by the statutory language in the other Justification defenses raised in the case.

The defendant then Appealed, challenging the fact that the Judge did not address the Justification – Crime Prevention instructions, which the Defendant raised in trial.

Part III. Appeals Court Extended Summary

[Arizona Court of Appeals Division II. No. 2 CA-CR 2014 – 0267 Filed 8/9/15]

In this case, the court heard an appeal on the grounds that the trial court failed to give proper jury instructions pertaining to Arizona’s criminal law, A.R.S. § 13-411, the “crime prevention justification.”

Among other things, A.R.S. § 13-411 allows someone to threaten deadly physical force against another if he believes that this force is necessary to prevent any of the crimes listed.

Aggravated Assault with a deadly weapon is one for the crimes against a defendant may be justified in using force or deadly force. Other crimes to which this defense may apply include kidnapping, sexual assault, armed robbery, and arson of an occupied structure.

This case arose when the defendant was driving a car carrying his four-year-old son and fiancée. The victim was driving by himself. The defendant made a turn that cut off the victim, who hit the brakes. According to the testimony of the defendant’s fiancée, the victim responded by honking and tailgating them. She also said that the victim waved a gun. In the moment, she told the defendant about the victim’s gun.

When the cars pulled up to a stoplight, the defendant got out and stood next to the car with his own gun. The light changed to green, and the defendant got in his car and kept driving. Instead of letting it go, the victim gave chase, running two red lights.

The victim called 911, and the dispatcher told him to stop chasing, but the victim continued for a while. The dispatcher then sent a police officer to meet the victim in a nearby shopping center. The victim went to the wrong place in the center but eventually met up with the officer. The officer searched the victim’s car and didn’t find a weapon. The victim claimed he never had one.

The defendant was arrested and put on trial. The trial court gave instructions on self-defense, defense of others, and defensive display of firearms. The trial court refused to give the defendant’s requested instruction on A.R.S. § 13-411, Use of Force – Crime Prevention Justification, on the grounds that there was no evidence to support it.

The defendant was convicted of Aggravated Assault with a deadly weapon and sentenced to 5 years in prison.

On appeal, the defendant argued that the judge should have given the jury instruction he requested on A.R.S. § 13-411.The state argued that the meat of the instruction was already covered by other instructions, so it didn’t matter that the trial court denied the request.

The instruction requested would have told the jury that his threat of deadly physical force was justified if he reasonably believed it was necessary to prevent an imminent aggravated assault. More importantly, the instruction also would have told the jury that a defendant is presumed to have acted reasonably if he is acting to stop what he reasonably thinks is imminent aggravated assault (or one of the other listed crimes).

The appellate court explained that a defendant is entitled to a jury instruction as long as it was on a theory supported by some small amount of proof. The court found that looking at the evidence that supported the defendant’s version of events; a rational jury could decide the victim acted as an aggressor. In this case, the defendant might reasonably have believed he needed to display the gun, while he was in the “zone of danger” in order to prevent an aggravated assault.

The appellate court further explained that it didn’t matter if a jury might not find the defendant’s evidence believable. When deciding whether to give a jury instruction requested by the defendant, the trial court must look at evidence in the light that supports the defendant.

The appellate court also explained that the state was wrong holding that the requested crime prevention instruction was substantively covered by the self-defense and defense of third-person instructions. The crime prevention justification lets a jury know that a defendant is presumed to be acting reasonably in acting to stop an imminent aggravated assault.

The state has the burden of proving the lack of justification. If the state fails to prove the defendant was unreasonable, the defendant must be acquitted.

In this case, if the crime prevention instruction was given, it would have let the jury know about the defendant should be presumed to have acted reasonably if his actions were to prevent the imminent or actual commission of an aggravated assault.

The appellate court reversed the conviction and sentence. Because of the presumption that the defendant acted reasonably and the burden on the state to prove otherwise, the crime prevention justification is an important one for defendants. However, a petition for review was filed to the Arizona Supreme Court, so this issue may still be in flux.

Part IV. Arizona’s 15 Justification Defenses

[A.R.S. 13 – Chapter 4]

Justification Defenses are some of the most common defenses used at trial to challenge Aggravated Assault with Deadly Weapon Charges.

Self-defense is a well-known Justification Defense. However, it is not the only one. Arizona has 15 different Justification Defenses, including the following: circumstances:

• Execution of public duty;
• Use of physical force;
• Self-defense;
• Use of lethal or deadly force;
• Defending a third party;
• Defending premises;
• Defending property;
• Use of physical force in the course of official law enforcement duties;
• Use of deadly force in the process of official law enforcement duties;
• Use of force – Crime Prevention;
• Actions under duress;
• Use of reasonable and necessary means, by a correctional officer to prevent the escape of a prisoner from custody or from a correctional facility; from taking another person hostage, or causing serious physical injury to another person;
• Necessity Defense

Each of these defenses contains different statutory language which will call for different jury instruction. Consequently the Jury Instructions will differ depending on which one the defendant raises in trial.

Part V. Justification Use of Force – Crime Prevention

[A.R.S. 13-411]

Under this law a person’s actions are justified in threatening and use of physical and deadly force, if the person reasonably believes that it is necessary to prevent another person’s immediate commission of serious crimes against a victim or their property. Several examples of crimes under the statute include burglary of an occupied structure, arson, aggravated assault, or murder.

The Appeals court noted in this case that Actual danger is not necessary to justify the use of physical or deadly physical force.

Under this law in Arizona there is no duty to first retreat.

The law applies to any incident which occurs in Arizona where the defendant has the right to be.

Part VI. Aggravated Assault with Deadly Weapon Laws in Arizona [A.R.S § 13-1204]

Aggravated Assault in Arizona is a Felony Assault. Among other definitions, a person may be convicted of a Felony Assault if the act meets the definition of a Misdemeanor assault under A.R.S. 13-1203, but the person uses a deadly weapon or dangerous instrument in the process of the crime.

To break it down further as it applies to this case. The assault crime was the act of causing someone to fear that physical injury was imminent.

Then since a firearm was displayed, this escalated the assault charge to Aggravated Assault with a deadly weapon.

This was the case, even though the victim was not physically injured.

Part VII. What to do if you become the target of Road Rage

[Personal Injury Attorney Dave Abels; Arizona Department of Public Safety; The National Safety Council]

For this segment, we explore the safest ways to deal with a road raged driver. We turn first to and experienced personal injury attorney in Phoenix AZ.

Following that, are tips from The Arizona Department of Public Safety; The National Highway Traffic and Safety Administration; and the National Safety Council.

Experienced Personal Injury Attorney in Phoenix AZ Dave Abels of Abels & Annes, PC. Personal Injury Lawyers, represents victims and their families whose injuries or wrongful were caused by road rage incidents.

Abels & Annes offers these tips on their web page dedicated to raising awareness, safety and prevention of road rage: “While you cannot control the behavior of other drivers, you can control your own behavior behind the wheel. If a driver exhibits dangerous or threatening actions, do not engage with that driver and instead increase the distance between yourself and the aggressive operator. If needed, turn onto another road or call local authorities for assistance. The best way to avoid a road rage collision is to remain aware of those around you and to avoid hazardous situations when possible.”

Abeles & Annes recent Blog post: “Road rage is a crime for good reason – driving in that manner can be reckless and significantly increases the odds that a collision will occur, making it possible that the drivers and passengers involved will be injured. If you find yourself in a frustrating or threatening situation while in Phoenix, try to remember to remain calm, avoid escalating the situation, and put distance between yourself and an aggressive driver to ensure your safety.”

[Arizona Department of Public Safety]

The Arizona Department of Public Safety provides these tips for confronting a road raged drivers:

• Stay Calm: Try to relax and ignore their hostilities;
• Focus on driving safely: Keep your eyes on the road, obey the speed limit, signs and signals;
• Get out of the way: If the hostilities and aggression continue, let them pass, and try to stay out of their way;
• Put pride aside: Do not challenge them or speed up to provoke them;
• Avoid eye contact: Eye contact enrage an aggressive driver;
• Ignore hand gestures: Refuse to return them;
• Report serious aggressive driving: Get the license plate and the description of the vehicle.
• Take into account the consequences of your own actions.

[The National Safety Council]

The National Safety Council (NSC) had these tips to share:

• Let aggressive drivers pass that are following too closely;
• Keep emotions in check;
• Give the road raged driver plenty of space;
• Take responsibility for your own actions;
• Continue to drive at a safe speed;
• Don’t take your eyes off the road;
• Continue to be respectful and use an apology gesture;
• If you are concerned about your safety or that of others drivers, call 9-1-1.

[Conclusion to Road Rage Safety Tips]

Count to 10, and think”Safety First”

The Authorities agree that the important thing is to avoid conflict. Remember that these are general tips and guides. All encounters hold their own unique set of circumstances. Remember that you can’t control what the other person is doing or thinking. Any actions can provoke a worse response. If you keep these tips in mind, stay calm, vigilant, and avoid conflict, you will likely reach your destination safely and without stress. So Count to 10 and think “Safety First”.

Part VIII. Penalties & Criminal Defenses for Aggravated Assault with Deadly Weapon Charges

[Criminal Code Sentencing Provisions 2015-2016]

If you are charged with Aggravated Assault your freedom and future are at stake. It is important that you consult an experienced Arizona criminal defense attorney to defend your charges and protect your rights.

When the charges involve a firearm or other deadly weapon, it adds an aggravated factor to sentencing and convictions will result in longer prison terms.

Charges may be brought as a Class 2 or 3 felony based on the nature of the offense, which will expose a person to 5 years minimum and 15 year maximum prison sentence; however, the maximums will be longer if the victim is a person under 15 years of age, a prosecutor, or on duty police officer doing their job.

It is important to retain an experienced criminal defense attorney who understands the nuances of all possible defenses. There are a number of defenses that may apply to your case.

In the case study above, both pretrial and post- trial defenses were used.

In pre-trial all the valid Justification Defenses that applied to the circumstances were used.

An appeal was made in post-trial on the grounds that the Jury Instruction were not provided for the Justification – Crime Defense challenge, which was successful, and the conviction was overturned. Justification Defenses are the most common types of pretrial challenges to aggravated assault charges. And while not often used, they applied here, and the Jury Instruction challenge proved to be effective in this case.

• Constitutional Rights violations;
• Burden of proof not satisfied by Prosecution;
• Forensic evidence challenges;
• Violations in court, police procedures;
• Violations in the handling and storage of evidence;
• Conflicting or prejudicial testimony;
• Miranda Warning Violations;
• Lack of, or insufficiency of evidence;
• Changes in Laws (Statutory);
• Jurisdiction challenges.

We want to Hear from You!

Thank-you for reading this post. We hope you gained some general knowledge of the important role of Juries and Jury Instructions; Justification Defenses for use of physical force in Arizona; Your rights; and How to respond to road rage.

Our goal is to provide high quality general legal resources, educational law content and media; criminal defense articles, as well as safety and crime prevention tips related to the topics we discuss.

If you found this article interesting or useful, or if you have added value comments to share, we would like to hear from you.

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“I’ll be Your Voice. I’ll tell Your Story. I’ll Defend Your Rights, in the Criminal Justice System.”

“Prepared to Defend”

– James Novak, DUI & Criminal Defense Attorney Tempe AZ

An experienced and knowledgeable attorney will look for every opportunity, to resolve your case in a way that will provide you with the most favorable outcome.

If retained, a good criminal defense attorney will review your case and determine the most effective defense strategy for your charges.

James Novak, exclusively defends DUI and Criminal charges. He is former prosecutor and experienced trial lawyer in DUI & Criminal Defense in Maricopa County.

If retained he will protect your rights and defend your charges. He will tell your story, be your voice, tailor and present your case in the criminal justice system.

James Novak, He provides a free consultation for active criminal charges in his service area. He will discuss your matter with you, in confidence, and provide you with options for defense.

The Law Office of James Novak, represents clients with active charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona in the Phoenix-metro East Valley.

Call or contact the James Novak today for a confidential and free consultation at (480) 413-1499.

Additional Resources

• A.R.S. § 13-411 (Crime Prevention justification)
• A.R.S. § 13-1203 (Misdemeanor Assault)
• A.R.S § 13-1204 (Aggravated, Felony assault)
• A.R.S. § 13-404 (Self- defense justification)
• Arizona Criminal Jury Instructions 2015
• Criminal Code Sentencing Provisions 2015-2016
• Arizona Department of Public Safety
• National Highway Traffic and Safety Administration

National Safety Council Additional Articles of Interest

• Violations of “Search and Seizure” Laws: How they Impact Prosecution,
• U.S. Supreme Court Rules No Warrant Needed To Collect DNA If Arrested
• Requirements and Exceptions to Lawful Search Warrants in Arizona
• Yes, You Have Constitutional Rights At An Arizona Checkpoint