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

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

You cannot be arrested solely for a non-criminal traffic violation in Mesa, AZ.

However, that changes if you fail to stop or try to elude police when you are signaled to pull over. Failure to stop violates Arizona’s unlawful flight laws.

The most important thing you can do when you realize police are signaling you to stop, is to pull over safely and promptly.

In the least you should slow down and find a way to let police know that you intend to pull over. Otherwise you could potentially create probable cause for your arrest.

Recently an Arizona Appeals Court ruled on whether or not a search warrant was required for police to follow a driver into a private driveway for a stop that began on a public road.

It held that though a person is not subject to arrest for a civil traffic violation, fleeing from police or refusal to stop can create probable cause for arrest.

This article features 5 important answers to questions about your rights at a stop, and defending subsequent criminal charges.

Why Did the Court Hold that Police Stop Without Warrant in Residential Driveway was Constitutional?

In a Arizona Appeals Court case, the defendant was charged with transporting methamphetamine (meth) for sale, possessing marijuana, and possessing drug paraphernalia. He was convicted and sentenced to a total of 11 years of imprisonment. On appeal, he argued that the trial court shouldn’t have denied his motion to suppress evidence due to a violation of his 4th amendment rights.

The case arose when two deputies saw a car stop and then turn, eventually following a random zigzag pattern through multiple intersections. The deputies checked the license plates and found there was an insurance cancellation for the car a month earlier. They drove after the car to start a civil traffic stop due to no valid insurance. Once they caught up with the suspect’s vehicle, the officers activated their emergency lights. A few seconds later, the suspect reportedly made what was described as a swooping turn into a private driveway. The police followed him into the driveway and into a backyard. It was there that the suspect complied with police. Police testified that at that time of the incident, they were unaware if the suspect had had any connection to that property.

Later, one of the deputies would testify that he felt the defendant was trying to run. The other deputy tried to call in the stop on his cell phone, while the first deputy went up to the car. The defendant began to exit the vehicle, but was instructed by police to remain inside the car.

The first deputy smelled pot and told the defendant to get out of the car and put his hands behind his back. He cuffed the defendant and checked for weapons. He found a stack of bills and a plastic baggie in one pocket, as well as a wallet plus two stacks of money in another pocket. The defendant had more than $2,400 in cash, and his car contained a burned pot cigarette, a charred metal spoon, and a bag containing meth.

The defendant denied knowing anything about the property where he’d stopped, but the police figured out that the property was his girlfriend’s property. The defendant was arrested, and he moved to suppress what the deputies had seized. The court denied his motion to suppress, finding that there was no probable cause or reasonable suspicion to detain him. It found that the place where the defendant had stopped in the backyard was not inside the home and that therefore, it was reasonable under the circumstances for the cops to follow him back there.

On appeal, the defendant argued that the deputies had gone onto his girlfriend’s private property without a warrant in violation of the Fourth Amendment, thereby subjecting him to an unlawful search and seizure. Deputies cannot go into somebody’s house to arrest him without a warrant, consent, or exigent circumstances. There must be an objectively reasonable basis for deputies to believe the circumstances justify a warrantless entry to raise the exigent circumstances ground. For example, if a deputy is in hot pursuit of someone suspected of committing a felony, there might be exigent circumstances to go into a private residence. Generally, curtilage or an intimate area of the home is considered part of the home. In this case, the trial court had found the defendant went into the curtilage but not the home.

The defendant argued that he didn’t try to flee the deputies in this case and that the reason they followed him was because he didn’t have auto insurance, which was only a civil infraction. The prosecution argued that by the time the deputies caught up with him in the backyard, they had probable cause for an arrest under A.R.S. § 28- 622.01.

The appellate court explained that any refusal to stop when asked by an officer in a police car is a violation of the felony flight statute. In this case, the deputies had turned on their emergency lights, but the defendant didn’t stop on the shoulder but instead drove onto a private driveway. Based on the total circumstances, a reasonable officer could conclude he was trying to escape. The driver’s attempt to avoid stopping for the officers by going onto the private driveway formed probable cause of a flight attempt, even though the purpose of the stop was to investigate a civil traffic violation. The convictions and sentences were affirmed.

Updated June 6, 2018:

On May 18, 2018 the Arizona Supreme Court reaffirmed the convictions and sentences in this case. It concluded the police did not violate the defendant’s rights by following him into the driveway. It reasoned that the Constitution does not allow for a driver to refuse to stop on a public road and retreat to a private driveway. Further the court found that the defendant’s actions implied that he was consenting to the stop.

Probable Cause for Arrest Q & As

Below are answers to 5 important questions about actions that create probable cause for arrest, and your rights at a police stop.

Can Police Detain You in Your Driveway Without a Warrant?

The U.S. Supreme Court has held that under the 4^th amendment police are prohibited from entering a home without a warrant. The individual’s property attached to a home such as an enclosed garage, are considered private. However, driveways are only semi-private.

There are a few exceptions recognized within the scope of the 4^th amendment warrant requirement.

Exigent circumstances that cause a situation to be emergent in nature to protect the safety of others or avoid destruction of evidence.

One exception to the warrant requirement is when exigent circumstances are present.

The U.S. Supreme Court has also held that police do not need a warrant is when they are in hot pursuit of a felon suspect. Police may finish pursuing a suspect in a chase that begins in a public location and eventually leads to a private driveway or home.

Does Failure to Stop, or Unlawful flight from Police Create Probable Cause for Arrest?

Yes, probable cause can be created by fleeing from police.

If the driver of a vehicle fails to stop after police have instructed or signaled them to stop even for a civil violation, they will be in violation of A.R.S. 28 – 622.01 or A.R.S 28- 1595.

Under Arizona law A. R.S. 28 – 1595 a person who knowingly fails to stop their vehicle when signaled by police to pull over may be found guilty of a class 2 misdemeanor.

Under Arizona Law A.R.S. 28-622.01 a person who willfully fails to comply with a police officer’s order may be found guilty of a class 5 felony. misdemeanor.

Below are 10 things you should consider if you are signaled by police to pull over:

1. Once you have reached a stop, remain in the driver’s seat until the officer instructs otherwise.
2. Always keep both hands on the steering wheel in plain sight where the officer can see them.
3. Refrain from making any sudden or unexpected movements, especially those that suggest you are reaching for something.
4. Do not provide anything until the officers requests it with regard to ID information. If the officer asks you for identifying information or vehicle registration, let the officer know where the document is and where you will be retrieving it from inside the vehicle.
5. If it is dark outside the vehicle, turn on the dome light or interior lights so the police officer can see you and your surroundings within the vehicle.
6. If others are with you in the vehicle, you should instruct them to remain quiet and calm. You should also advise them to comply with the police orders or instructions.
7. If the officer issues you a citation of any kind, you should try to remain calm. It is OK to ask for clarification if you have questions about it.
8. The most effective way to contest a citation or stop is through the proper legal channels after you have been released from custody, or detention. Do not challenge the charges or ticket in the presence of the officer at the stop, if he or she has written one. This usually will cause more harm than good. Usually it leads to the officer getting annoyed or feeling threatened. These situations can quickly turn bad and result in serious physical harm as well as additional charges.
9. Accepting a citation peacefully does not mean you agree with the citation. An arrest is not a conviction. You have the right to hire an attorney to represent you. You have the right to contest the charges or citation. If you wish to invoke these rights you should consult a criminal defense attorney who serves the area where you received the citation or were arrested.

What can an Attorney do to Help Resolve Drug Charges and Unlawful Flight Charges in Mesa AZ?

Attorney James Novak has extensive experience in defending drug crimes involving drug possession and possession with intent to sell, drug sales, distribution, manufacturing, transport, and unlawful flight charges.

James Novak of the Law Office of James Novak exclusively defends individuals charged with a crime in Maricopa County. Mr. Novak is a former Maricopa County Prosecutor with strong litigation skills and over 20 years of experience in DUI & Criminal Law

If retained, Attorney James Novak will represent you and defend your charges. He will make sure your rights are protected and determine the best defense strategy in your case.

James Novak will look for weaknesses in the prosecution’s case, gather favorable evidence if available, and work hard to obtain the best possible resolution to your charges.

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

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

Additional Resource Links:

• A.R.S. § 28-622.01 (Unlawful flight)
• A.R.S. § 28-1595 (Failure to Stop)
• A.R.S. § 13-3913 (Conditions Precedent to Issuance of Search Warrant)
• Arizona Attorney General – Criminal Investigations
• Phoenix AZ Police Department
• U.S. Supreme Court Terry v. Ohio
• Phoenix Police Department | What to Do if You are Stopped by Police

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

• 3 Things You Should Know about Plea Deals and Deferred Prosecution
• What You Need to Know About Your Rights in a Police Frisk
• Reasonable Suspicion and Totality of the Circumstances Arizona

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

In a recent case decided by the Arizona Supreme Court, the defendant was charged with Marijuana transportation, and challenged the charges using Arizona’s Dress defense.

The defendant testified that smugglers armed with weapons, forced him to carry large bundles of Marijuana into the Arizona desert.

At trial, the jury found the defendant guilty of drug crimes and sentenced him to prison.

The Arizona Court of Appeals affirmed the conviction.

The defendant appealed his conviction to the Arizona Supreme Court on the basis that he was prohibited from advising the jury in opening statements that the duress defense would be used.

Below is an outline of the Arizona Supreme Court opinion and additional topics related to Arizona’s Duress Law:

• Arizona Supreme Court Opinion – Case Overview
• Understanding Arizona’s Duress Defense
• Q. & A. – Duress Defense
• Penalties, and Criminal Defense for Marijuana Charges

Case Overview

The case arose when two “coyote smugglers” led the defendant and two others from Mexico into the Arizona desert.

The defendant testified that during the trek, he was forced at gunpoint to carry bundles of Marijuana across the desert.

The group was spotted by Border Patrol and Sheriff’s deputies.

The officers found the defendant under a tree with multiple backpacks full of marijuana, but the others escaped.

The defendant was arrested and charged with transporting marijuana for sale, importing, and possessing drug paraphernalia.

The defendant told the court prior to trial that he planned to testify that his actions resulted from duress, and therefore he would challenge the charges using Arizona’s Duress defense.

Because the trial court judge believed he might change his mind about testifying, the defense was barred from mentioning duress or the defendant’s planned testimony.

Before the trial started, he asked the court to clarify its ruling and swore in an affidavit that coyote smugglers helped him cross the border.

The defendant claimed the smugglers took his possessions and threatened to hurt him if he didn’t transport the marijuana.

The trial court reiterated the ruling that until the testimony was actually established, the defense couldn’t argue duress.

The defense complied. The defendant testified just as he’d described in his affidavit, and his attorney argued duress during closing arguments.

The jury found him guilty of transporting marijuana and possessing paraphernalia, but acquitted him of importing marijuana. He was sentenced and appealed.

The Arizona Appeals Court affirmed the conviction.

The prosecution had argued that the defendant could have changed his mind at any time about testifying.

Therefore, the Appellate Court held that the trial court’s ruling was consistent with case law that an opening statement should include statements that can supported by proof.

The Arizona Supreme Court agreed to review the case.

The State conceded in its brief that it was error to prevent the defense attorney from mentioning the defense of duress in opening statements, but argued it was a harmless error.

The Arizona Supreme Court agreed that the trial court had made a mistake, because a defendant’s opening statement should advise the jury of facts that a defendant relies upon in his defense.

The Court explained further that the opening statement allows the jurors to get a total picture so that they can understand the evidence.

The Court reasoned that the defendant was supposed to be able to explain his plans to use Duress defense in the opening statement.

It is true that a criminal defendant has an absolute right not to testify.

But a mere possibility that the defendant might later choose not to testify, was not a good enough reason in the eyes of the Arizona Supreme Court.

The court reasoned that the mere possibility of the defendant choosing not to testify, should not bar a defendant from explaining this in the opening statement.

A trial court can require someone to identify the good faith basis for evidence that will be offered, but can’t be more exacting than that.

The Court noted that things don’t always go according to plan at trial, with witnesses sometimes not appearing. or changing their stories.

To account for that, trial courts instruct jurors that opening statements and arguments are not evidence, whereas testimony and exhibits are.

A defendant that doesn’t provide the appropriate evidence to support claims he made during his opening statement would only hurt his own credibility.

In this case, the affidavit was enough to show a good faith prediction about what evidence the defendant planned to present in his defense.

The Court explained that that restricting the opening statement didn’t deprive the defendant of the basic protections of due process in a criminal trial, or make a structural difference.

This is because he was allowed to testify, which mandated a harmless error review.

Accordingly, the Court sent the case back to the court of appeals to decide whether the lower court’s error relating to the opening statement was harmless beyond a reasonable doubt.

Understanding Arizona’s Duress Defense

Under Arizona Law A.R.S. § 13 – 412, Duress is classified as a Justification Defense.

A Justification Defense such as Duress is used to excuse a person for criminal liability under unique and specific circumstances.

It exists when a reasonable person’s conduct would otherwise be considered a criminal act, but is determined to be justified because the person acted under the threat of immediate physical harm.

For this defense to be available, the person being charged must reasonably believe that they were unable to refuse engaging in the criminal act.

Duress cannot be used a person acted intentionally or recklessly, or knowingly; or if the act carried out, results in homicide or serious physical injury to another person.

When it is used, the prosecution must prove beyond a reasonable doubt that the accused actions were not justified based on the facts presented at trial.

Arizona’s Duress Defense: Questions and Answers

Q. If a person committed a crime as a result of being under duress, will the judge or prosecution make sure the defendant uses the Duress defense?

A. No. Neither the judge or prosecutor has an obligation to introduce facts or evidence in favor of the suspect. If the suspect has a viable defense, the jury will not hear about it, from them. The most effective way to challenge the charges utilizing this defense is for the defendant to retain a skilled and experienced criminal defense attorney to do this on their behalf.

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Q. When can a person use the Duress Defense?

A. Under A.R.S. § 13-412 a defendant may raise the Duress Defense, if they were forced to engage in a criminal offense, under the threat of immediate physical injury or harm by another.

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Q. Under what circumstances is a person barred from using the Duress Defense?

A. Under A.R.S. § 13-412 A person is barred from claiming Duress, if they recklessly or intentionally placed themselves in a situation where duress was likely to happen. Under A.R.S. § 13 Duress is also unavailable as a defense where a person was murdered or seriously injured due to their actions.

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Q. What is the standard for burden of proof when the Duress Defense is used?

A. According to Arizona’s Revised Criminal Jury Instructions, the state must prove that the defendant was not justified in committing the crime, beyond a reasonable doubt.

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Q. What happens if the prosecution is unable to prove beyond a reasonable doubt that the suspect’s actions were not justified?

A. According to Arizona’s Revised Criminal Jury Instructions, if the prosecution is unable to meet this burden of proof, the defendant must be acquitted.

Marijuana Possession & Transportation Criminal Defense Attorney in Phoenix AZ

In Arizona, knowingly possessing Marijuana for the purpose of importing or transporting it for sale, under Arizona Law A.R.S. § 13 – 3405 is a class 3 felony, for offenses involving possession of Marijuana with a weight under two pounds.

If convicted of a first offense Marijuana transportation resulting in a class 3 felony, the person will be exposed to a minimum of 2.5 years, to a maximum of 7 years in prison.

If convicted in a case where the Marijuana exceeds two pounds in weight, charges will be brought as a class 2 felony, which calls for 4 years to 10 years in prison.

These amounts may vary by 1-2 years less or more, depending on mitigating or aggravating circumstances surrounding the charges.

Other felony sentencing and penalties will apply including large fines, fees, and assessments.

Some other defenses that may apply to Marijuana transportation or importation charges besides Duress, might include but are not limited to the following:

• Fourth Amendment and other Constitutional Rights violations;
• No knowledge that the Marijuana was in your possession;
• You did not have knowledge that others in the group were in possession of Marijuana for transport or sale;
• No evidence that the Marijuana in your possession was for transfer or sale;
• Challenges to weight and quantity the defendant is accused of possessing or having direct control;
• You were not in possession of the Marijuana for sale or otherwise;
• Mistaken identify

Arizona is tough on repeat offenses, which result in longer prison terms and harsher sentencing.

This is why it is important to invoke your right to a private drug defense representation if you face Marijuana or any drug related charges.

An effective criminal defense attorney will review the facts and evidence surrounding charges to determine the best defense strategy available.

When deciding whether or not to charge a person or enterprise with illegal drug transportation for sale, law enforcement officers consider the quantity found in a person’s possession.

Generally, the higher the quantity, the more likely the Marijuana is being transported for sales or intent to sell.

If you are charged with importing or transporting marijuana, you will need an experienced and tough defense attorney. James Novak is a former prosecutor and an experienced trial lawyer who offers a free consultation for active criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona.

If retained, Mr. Novak, will provide you with a strong defense for your charges. Depending on the circumstances, there may be defenses that will apply to your case that can lead to a favorable outcome.

Call (480) 413-1499 or contact James Novak, of the Law Office of James Novak, today to discuss your matter and options for defending your charges.

Additional Resources:

• A.R.S. § 13-3913 (Conditions Precedent to Issuance of Search Warrant)
• A.R.S. § 13-412 (Duress)
• A.R.S. § 13 – 3405 (Marijuana Possession, Sales, and Transportation)
• Arizona Drug Investigations
• Arizona Attorney General – Criminal Investigations
• Phoenix AZ Police Department
• Maricopa County Sheriff’s Department – FAQ
• One of the Most Important Reasons to Resolve Your Warrant

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

• Entrapment: The Most Important Requirement for your Defense Revealed
• Arizona Supreme Court Rules on Voluntariness of Drug Testing
• Reasonable Suspicion and Totality of the Circumstances Arizona

Since that time, police have been required to read suspects their Miranda rights while in custody before they are interrogated.

The Miranda principle has faced many legal challenges, including when police are required to read the rights.

The Arizona Supreme Court recently considered whether or not the police are required to read a person their rights before being questioned curbside.

In this case, the suspect was not read his Miranda rights, before police asked him about his involvement in a crime.

Instead, the police questioned the suspect curbside, after finding him sitting in front of a building.

In this case, the Arizona Supreme Court held that the suspect was not in custody for purposes of the Miranda warning.

Therefore the self-incriminating comments made by the suspect were allowed to be admitted and used against the defendant for purposes of prosecution.

In this article we will cover the following:

• 3 Things You Need to Know about Miranda Rights
• Arizona Supreme Court Case overview
• How a Criminal Defense Attorney can if you’ve been Arrested

This discussion is intended to provide insight into information that is not part of the Miranda reading, but is crucial in helping one to avoid self-incrimination.

3 Things You Need to Know about Miranda Rights

Here are three important things you should know about your Miranda Rights:

1. The police are required to read or say the Miranda rights to a suspect being taken into custody, but before being questioned about involvement in a crime.
2. You have Miranda rights whether they are read or not.
3. Any statements given police anytime before the Miranda warning is read can be used for purposes of prosecution. This includes statements made in seemingly friendly or casual conversation.

1. Police are required to read or say the Miranda rights to you after an arrest and prior to interrogation.

The police must read Miranda warnings to suspects following an arrest or while they are in custody, to inform suspects of important rights they possess. However, the timing of which the police are required to provide them to you does not change the fact that you have them outside of custody and before arrest

2. You have Miranda Rights whether they are read to you or not.

Under the Fifth Amendment of the United States Constitution, persons have the right remain silent of protection against self-incrimination.

Under the Sixth Amendment of the U.S. Constitution, suspects have the right to a criminal defense attorney. This includes having an attorney present during interrogation.

3. Statements you give to police before being Mirandized can be used against you.

Miranda warnings are intended to help you avoid running afoul of your constitutional rights if you are in custody, and the police plan to question you regarding your involvement in a crime.

If you do not invoke your right to an attorney and your right to remain silent, anything you say, even in casual conversation to the police can be used against you in court.

One police tactic used to obtain incriminating information from a suspect is through use of casual conversation.

Police often strike up a casual conversation or appear friendly during questioning.

This informal approach often catches a suspect off guard, leading them to unknowingly provide self-incriminating statements.

Your statements can later be admitted and used against you for criminal prosecution.

The following discussion reveals the crucial impact each of these three factors had on the defendant’s case in a recent Arizona Supreme Court’s opinion in this case.

Case Overview

The case arose when a driver saw the defendant sitting on a curb outside an empty building.

The building belonged to a church that was also located on the property.

An observant driver noticed that a board was missing, that had previously been placed over a broken window.

Due to prior break-ins in that building, the driver decided to report it to police.

Officer Huntley was dispatched and parked in the lot next to the building.

After talking to the driver who noticed the exposed broken window, the officer approached the defendant, who was still sitting in front of the building.

The officer noted that the suspect’s possessions were in a shopping cart nearby.

The defendant gave the officer identification upon request and agreed to a pat-down search for weapons.

The officer confirmed that the suspect was not armed, and there were no outstanding warrants for him.

The officer asked the defendant what he was up to, and if he knew anything about the board being removed from the broken window.

The defendant denied any knowledge of the board being removed from the window.

Then the officer asked the defendant to sit in the patrol car because he didn’t know whether anyone else was inside the building.

A second officer arrived on the scene. The defendant then sat on the curb again.

Then a third officer arrived on the scene and helped check the building for unsecured doors.

The pastor of the church arrived and told the first officer he’d be willing to pursue charges if there was a suspect.

The first officer again asked the defendant if he knew anything about the board being removed from the broken window.

The defendant admitted to the officer that he removed the board the day before and had entered to search for money.

The officer then arrested the suspect and escorted him into the police car.

After a search of the building, the officers found no evidence of forced entry, accept for the board being removed from the broken window.

The pastor reported that he found nothing missing.

The officer returned to the police car and advised the defendant of his Miranda rights.

The defendant was read his rights after he had already made the self-incriminating statements that led to his arrest.

For the third time, the officer asked the suspect about his entry into the building. Again the defendant admitted that he removed the board to go inside of the building.

The defendant was charged with burglary.

The defense moved to suppress the defendant’s incriminating statements.

The trial court denied the motion to suppress holding that the defendant was not considered to be in custody when the incriminating statements were made.

The suspect was found guilty of third-degree burglary. His sentence was suspended, and he was placed on probation, with the requirement that he serve 30 days in jail as a condition of probation.

The Arizona Court of Appeals affirmed the trial court’s denial of the motion to suppress the incriminating statements made by the defendant.

The defendant then appealed to the Arizona Supreme Court. The court reviewed the question of whether or not the defendant was in custody for purposes of Miranda at the time police questioned him.

The defense argued that police must provide Miranda warnings before interrogating someone who is in custody.

The Arizona Supreme Court explained in precedent cases they heard, someone is considered to be in custody if there’s been a formal arrest or a restraint on the suspect’s freedom to move.

The court noted that the limitation of not being free to move is generally associated with being arrested or taken into police custody.

However, the Court explained that the United State States Supreme Court more recently considered this issue.

Citing Howes v. Fields; Berkemer v. McCarty; and Maryland v. Shatzer, the U.S. Supreme Court held that not just one factor should be considered.

The Arizona Supreme Court held that when evaluating whether or not a person is in custody subject to Miranda, that multiple factors should be considered, citing U .S. Supreme Court opinions in Howes v. Fields 2012; and Stansbury v. California 2012.

Since then, the Arizona Supreme Court considered these factors when deciding whether or not a person was in custody for purposes of Miranda:

• If the suspect experienced substantial freedom of movement, in a way that would make any reasonable person to feel that they were not free to leave an interrogation; and
• The environment and location of where the questioning takes place, and the presence of objective indicators that an arrest has taken place;
• Length of the interrogation.

With regard to the first factor, the record indicates that after the defendant submitted to a pat down, he was asked to sit in back of the police car.

Later, the officer asked him to get out of the patrol car and again sit on the curb.

The court recognized that the defendant was under constant police supervision from the first time the officer spoke to him. They held that a reasonable person wouldn’t have felt free to leave.

The court then moved to the next factor, regarding the location of the questioning.

It noted that consideration must be given to whether or not the location of questing was familiar rather than one unfamiliar to the suspect.

An example of an unfamiliar location would be in custody at the police station (Miranda v. Arizona).

In Miranda the court held that the unfamiliarity and the change of environment to the police station resulted in a psychological advantage for the police. This environment, in which Miranda was interrogated, played a crucial role in the U. S. Supreme Court’s decision.

To be considered “in custody” for Miranda purposes, the environment of the questioning would need to present circumstances where “inherently coercive pressures” existed.

These circumstances would be such that they would push a defendant into complying with the interrogator’s will.

The court held that being questioned while in public view, serves to diffuse the feelings that the suspect is being threatened with physical force if they do not agree to answer questions.

In this case study, the defendant answered the questions on the street in public, in the familiar surroundings. The officer questioned him casually where he had been sitting on the curb when the officer arrived on the scene.

The third factor the court considered in this case was length of time. The Court noted that the total time that elapsed was an hour, from the officer’s arrival on scene until the arrest.

The Court cited precedent cases where questioning occurred, held that 1 hour to 1 ½ hours did not constitute being “in custody’ ’ for Miranda purposes.

Additionally, the Court reasoned that it matters whether there was an unreasonable delay by the police during the investigation in order to get an advantage over the suspect and increase the likelihood he would incriminate himself.

In this case, the defendant was not interrogated in isolation from others and was visible to passersby.

The investigation was a little bit longer, but this was appropriate in the context of an investigation of a possible burglary.

The officers acted efficiently and without exaggerated displays of authority in conducting the investigation.

The defendant was only asked a few questions, and his property was not seized.

The Court concluded that the curbside questioning was not conducted while the defendant was in custody, and the questioning was not coercive enough to require Miranda warnings.

The Arizona Supreme Court affirmed the lower court’s order denying the motion to suppress and affirmed the conviction.

How a Criminal Defense Attorney Can Help if You’ve Been Arrested for Burglary in Mesa AZ

In Arizona a person may be guilty of burglary if they intended to carry out burglary even if they did not take anything as in this case under A.R.S. 13-1506, and A.R.S. 13-1507.

Penalties for burglary convictions in Arizona are severe. All burglary charges in Arizona are categorized as felonies, which expose a person to prison terms if convicted.

Mere possession of burglary tools call for prison sentencing from for up to 2 years in prison.

Third degree burglary charges sentencing include a maximum of 3.75 years in prison.

Burglary charges in the second degree call for prison terms of 8.75 years.

First degree burglary charges expose a person to a maximum of 21 years prison.

James Novak, of the Law Office of James Novak, exclusively defends criminal charges.

He is former prosecutor and experienced criminal defense attorney. James Novak provides a strong defense for those who have been accused of criminal charges.

If retained, James Novak will evaluate your case determine the best strategy for your defense.

James Novak, works hard for his clients, and will pursue the most favorable outcome possible in in your case.

Criminal Defense Attorney, James Novak, offers a free initial consultation to those who face active criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona.

If you are charged with burglary or another felony offense, you can contact or call the Law Office of James Novak at (480) 413-1499, and speak with James Novak for your free and confidential initial consultation.

Additional Resources:

• A.R.S. 13-1508 (Burglary in the First Degree)
• A.R.S. 13-1507 (Burglary in the Second Degree)
• A.R.S. 13-1506 (Burglary in the Third Degree)
• Requirements and Exceptions to Lawful Search Warrants in Arizona
• Miranda v. Arizona
• Fifth Amendment of the U.S. Constitution
• Sixth Amendment of the U.S. Constitution
• Arizona Criminal Code Sentencing Chart 2016-2017

Other Articles of Interest from our Award Winning Blog:

• Mistake of Law: How to Challenge an Unlawful Stop
• Marijuana Odor Probable Cause for Search Warrant
• One of the Most Important Reasons to Resolve Your Warrant
• Entrapment: The most important requirement for Your Defense
• Your Right to Request Change of Judge in Arizona Criminal Court

You’ve just been released from prison. You are struggling to become a productive member of society.

You’re looking for job, and trying to get your life on back on track.

So far, no employer has been willing to hire you, due to your criminal record.

You’ve sold nearly everything you own, including your car to pay outstanding debts, and to try and make ends meet.

Day after day you wait for the bus to take you to town so you can continue your job search.

Then one day, you are approached by a man while waiting for your bus. The man asks you if you will purchase $20.00 of crack cocaine. He offers to pay you $10.00 to do the deal.

You hesitate, and think that selling drugs again was the last thing you ever intended to do.

Weary, desperate, and hungry, you err in judgement and agree.

The man takes you to buy the drugs from an acquaintance. You buy the cocaine for him. You give him the cocaine, and he pays you.

Following the exchange of drugs and money, the man immediately arrests you.

You now face returning to prison, and serving 8 to 10 more years for selling illegal drugs while on parole.

The man who approached you at the bus stop was an undercover police officer. You were clearly entrapped.

But you will not have a chance to gain an acquittal based on the entrapment defense, without doing this one very important thing…

That is, if you wish to challenge the charges by utilizing the entrapment defense, you must admit to the substantial elements of the crime.

In simple terms, you will need to admit that you committed the criminal act for which you were charged.

You are confused by this. It goes against everything you understood about your 5th Amendment rights and protections against self-incrimination. So you do not admit to the crime.

But the fact is, it doesn’t matter how much police deception or inducement was involved. Unless you are prepared to formally admit to the substantial elements of the crime, either in testimony or stipulation, the entrapment defense will not apply.

You are convicted and sentenced to return to prison to serve 9 more years. Your freedom was short lived.

Not only is this scenario imaginable, but the the high court of Arizona recently heard a case with similar circumstances. This statutory requirement was affirmed in that case.

The Arizona Supreme Court held that the entrapment defense afforded under A.R.S. 13-206, is reserved for cases in which the defendant admits to the substantial elements of the crime.

In this article we examine the often misunderstood entrapment defense, and include the following featured topics:

1. Overview of recent Arizona Supreme Court ruling in a cocaine case;
2. 7 questions and answers regarding application of the entrapment defense;
3. The requirements of making a valid entrapment claim in Arizona;
4. The burden of proof for entrapment;
5. Arizona entrapment law A.R.S. 12 – 206;
6. 10 other drug crimes defenses besides entrapment;
7. Criminal defense for drug charges in Phoenix AZ

Arizona Supreme Court Case Overview

The case arose when an undercover police officer approached the defendant at a bus stop. The officer asked the man if he could get him some “hard,” the street name for crack cocaine.

The defendant agreed he would get the undercover officer $20 worth of crack cocaine for $10.

The officer drove the man to an apartment complex and gave him the $20 to take with him.

Ten minutes later, the defendant returned with cocaine. The cop arrested him for sale of narcotics.

The cop had secretly recorded the conversation with the defendant. On the recording, the defendant said, “I’m a good person” and “I don’t usually do this.”

The prosecution presented the recording of the conversation between the officer and the defendant as evidence at trial, over the defendant’s objection.

The defendant asked that the jury be instructed on the defense of entrapment as provided under Arizona’s law A.R.S. § 13-206.

In order to claim entrapment, a defendant must admit the substantial elements of the crime that is being charged through testimony or other evidence.

In this case, the trial court determined that the defendant hadn’t made the required admissions to the substantial elements of the crime.

Therefore, the request to instruct the jury instruct the jury on the Entrapment defense, was denied.

The defendant was found guilty by the jury. He was sentenced to 9 1/4 years in prison.

The Arizona Court of Appeals appellate court affirmed the trial court’s ruling on the grounds that he hadn’t admitted the elements of the crime.

An Appeal was then made to the Arizona Supreme Court. They agreed to review the case in order to consider whether A.R.S. § 13-206 requires a defendant asking for a jury instruction on entrapment to affirmatively admit the crime’s elements.

The court explained that the statute didn’t expressly state that a defendant could admit elements simply by not challenging the prosecution’s evidence.

The defendant argued that the Court should construe the statute as not requiring an affirmative admission and his silence on this point could be deemed an admission.

The Court found this argument by the defendant unpersuasive.

In its’ opinion, the court provided the history behind the entrapment laws in Arizona explaining that it was founded on common law.

Traditionally, the defendant had to admit substantial elements of the crime being charged.

If the defendant, in that case, denied knowledge of the crime they could not raise the entrapment defense.

Furthermore, the State had to act in such a way as to induce the accused to commit a crime that he wouldn’t otherwise have committed.

Simply providing an opportunity to commit the crime is not enough to be successful on an entrapment defense.

Under common law, a defendant could not passively admit the crime’s elements by not taking the stand in order to invoke the defense.

The Court explained that the statute had to be interpreted with an eye toward the requirements of common law, unless the language of the statute showed an intention to change those requirements.

The defendant argued that requiring him to affirmatively admit the elements in order to claim entrapment was in conflict with the Fifth Amendment right against self-incrimination.

In response to this argument, the Court explained that entrapment is not a denial of criminal responsibility but instead an affirmative defense.

Although the defendant had made incriminating statements and implicated himself unwittingly, he quite possibly may have been found not guilty of the charges if he had been able to use the entrapment defense.

To the contrary, however, he did not affirmatively admit substantial elements of the crime, and therefore, that defense was not made available to him

The recorded conversation didn’t prove that the defendant provided drugs to the officer

Instead, this was proven by the officer’s testimony. The defendant had not challenged that testimony, and so the court confirmed the conviction and sentence of 9.25 years in prison.

Q & A: Entrapment Defense

Q. Is it entrapment if undercover officer hides their identity as a law enforcement official?

A. Not always. If a person is committing a crime that they would have committed even if the undercover officer was not involved, entrapment would not apply under A.R.S. 13-206 (C).

___

Q. What is the burden of proof standard for entrapment in Arizona?

A. Under Arizona Law A.R.S. 13-206 (B) the burden of proof is by “clear and convincing” evidence. This is a medium level of proof that must be shown. It is a higher standard than “preponderance of the evidence,” but a lower standard than” beyond a reasonable doubt.”

___

Q. Who holds the burden of proof when the defendant wishes to use the entrapment defense?

A. Under Arizona Law A.R.S. 13-206 (B) the defendant is bears the burden of proof. Generally, the prosecution bears the burden of proof. However, since entrapment is an affirmative defense, the burden shifts to the defendant.

___

Q. If a person wishes to use the entrapment defense, must they admit that they committed the criminal act?

A. Yes. In order for the entrapment defense to apply under A.R.S. 13-206 (A), the defendant must admit to the substantial elements of the crime.

___

Q. Does the entrapment defense apply if a law enforcement officer provides a person with an opportunity to commit a crime?

A. No. The undercover officer’s role must be more substantial. The crime must be the law enforcement officer’s idea. The officer must induce, influence, or urge the accused to commit the criminal act.

___

Q. The police stakeout the scene of a planned crime based on a tip, and arrest the suspects while the crime is in progress. Does the entrapment defense apply?

A. No. Since the police did not urge, plan or induce the crime, the entrapment does not apply.

___

Q. If a defendant does not challenge the testimony or evidence, will the entrapment defense apply?

A. No. The Arizona Courts have held that to refrain from objecting to the evidence or testimony, does not constitute admittance of the substantial elements of the charges State of Arizona v. Grey, June 2016.

Requirements of a Valid Entrapment Claim

In this case, the Arizona Supreme Court outlined the requirements needed to make a valid claim of entrapment:

Citing State v. McKinney Arizona, 1972, and State v Nilsen, 1983, the court noted the following:

• Law enforcement’s actions must have induced the defendant to commit a crime that they would otherwise not have committed; and
• Law enforcement must have provided the accused with the opportunity to commit the offense; and
• The defendant must admit to the substantial elements of the crime; and
• A defendant may stipulate, testify, or have the admission read into evidence the admissions; and
• Merely refraining from challenging the evidence does not rise to the requirement of admitting to the substantial elements of the crime.

Arizona Entrapment Law A.R.S. 13-206

The entrapment law is what is known as an affirmative defense. Under A.R.S. 13- 206, entrapment is a defense in which the accused admits to criminal conduct and seeks to be excused from criminal liability, based on intervening circumstances.

Generally in criminal cases, the burden of proof lies with the prosecution and state to prove beyond a reasonable doubt that the accused is guilty of the crime for which they were accused.

But Affirmative defense are one of a few exceptions to this rule.

In the case of entrapment and other affirmative defenses, the defendant the accused has the burden of proving by “clear and convincing evidence” these three elements:

1. The law enforcement officer’s initiated the idea of the accused committing the crime;
2. The law enforcement officer influenced and provided the opportunity for the accused to commit the offense;
3. Prior to the law enforcement officer’s inducement of the crime, the accused had not planned to commit the crime.

Under Arizona’s law, entrapment does not apply if the accused was already planning or intending to commit the crime, and the officer simply provided the opportunity.

It is also not considered entrapment in Arizona if a police officer simply hides their identity during the interaction or exchange.

10 Defenses used to Challenge Drug Charges

Below are 10 other defenses, that may be used to challenge drug charges:

• Unlawful search and/or seizure;
• Mistake of fact;
• False identification;
• No probable cause for arrest; The officer did not have reasonable suspicion for detention;
• You had no knowledge that a drug crime was in progress;
• The illegal drugs found did not belong to you and you were not aware they were in your possession;
• The illegal drugs found in your vehicle or home were for personal use and not for sale;
• You did not have the amount of drugs that you were accused of having, in your possession;
• Law enforcement planted the drugs for prosecution, or someone else planted them in your possession to avoid prosecution themselves;
• Violation of other constitutional or procedural rights.

The best way to defend your charges whether or not any of these defenses apply is to retain a qualified criminal defense attorney to represent you, and raise the challenges on your behalf.

Criminal Defense for Drug Charges Phoenix and East Valley AZ

When you are facing drug charges in Arizona, it is important that you retain an experienced and highly skilled drug crimes defense attorney to represent you.

In addition to entrapment, there are a number of other defenses that can be used to defend drug charges.

It is crucial that your defense be tailored to the unique circumstances surrounding your case.

James Novak, Criminal Defense Attorney of the Law Office of James Novak, PLLC is a former prosecutor. He has a vast amount of experience defending drug charges in Maricopa County.

If retained he will protect your rights and defend your charges. He provides strong representation, and will work to obtain the most favorable resolution to your charges.

James Novak offers a free initial consultation to people facing active criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona. If you are charged with a drug crime, you can contact or call the Law Office of James Novak at (480) 413-1499 and speak with James Novak for your free and confidential initial consultation.

Additional Resources:

• A.R.S. 13-206 (Entrapment)
• A.R.S. 13-3408 (Possession of Narcotic Drugs)
• A.R.S. 13-3401 (Drug Definitions)
• Requirements and Exceptions to Lawful Search Warrants in Arizona
• National Library of Medicine | National Institute of Health
• Drug War Facts
• Drug Enforcement Administration Drug Facts
• DEA Phoenix Division

Other Articles of Interest from our Award Winning Blog:

• Drug Conspiracy or Facilitation Charges with use of Cell phones, Wireless or Electronic Communications
• Stalking Laws: 7 Myths and Facts | Arizona’s Stalking Law Legislative Changes Under HB 2419
• Ignition Interlock Device No Longer Required Drug DUI Penalty in Arizona |A Comprehensive Overview Of Arizona’s Ignition Interlock Program & Legislative Changes
• Arizona Supreme Court Rules on Voluntariness of Consent in DUI Testing Case
• Your Right to Request Change of Judge in Arizona Criminal Court
• Right to Counsel before DUI Breath Test
• Consent to Search Includes Drug Canine Vehicle Search

The Arizona Rules of Criminal Procedure afford parties the right to request a change of judge before trial. But these rights are not without limitations.

In a recent case, an Arizona appellate court reviewed a defendant’s conviction for misconduct involving weapons. The appeal centered around two arguments, one being the defendant’s request for a new judge.

First, defendant had requested a peremptory change of judge under Arizona Rule of Criminal Procedure 10.2, which was denied by the trial court.

Secondly, the defendant challenged the sufficiency of the evidence used to obtain the conviction.

In this article we will also, take a closer look at the arguments, and summarize three concepts related to the Rules of Criminal Procedure for trial, which were addressed in this case:

• The Right of the Parties to Request Change of Judge;
• Special Actions v. Direct Appeals; and
• Judgement of Acquittal

We will also discuss the proceedings, final ruling, the right to bear arms, procedural and evidentiary challenge in trial, and criminal defense for weapons charges.

Prohibited Possessor of Weapons Case

The case arose when officers learned that the defendant, the subject of an outstanding felony arrest warrant, was staying at a house Maricopa County.

The officers received a tip that the suspect was armed. They were informed that the suspect may potentially use a deadly weapon to avoid being captured.

Police called for back-up, and went to the house where they learned the suspect was staying.

There, they detained the defendant, based on the outstanding warrant, and located a .40 caliber bullet in one of his pockets at that time.

Another person who was renting the house confirmed that the defendant was staying there with her and her children.

That individual also informed the officers there was a gun in the house. She voluntarily consented to a search of the home for a weapon.

Police subsequently, found a .40 caliber semi-automatic loaded pistol with a bullet in one chamber, ammunition, an empty pill bottle, and a gun cleaning kit inside a briefcase in a bedroom closet.

Following jury trial the suspect was convicted of knowingly possessing a deadly weapon, as a prohibited possessor.

Court Proceedings

Initially, the defendant was indicted for one count of misconduct involving weapons. The court reassigned the case to a different judge one week before trial.

The day before trial, the defendant filed a notice of change of judge, by right pursuant to Arizona Rules of Criminal Procedure 10.2.

The Court found the request untimely. The defendant was found guilty of the charges, and convicted. He was sentenced to serve 2.5 years in prison.

On appeal, the defendant argued that the trial court erred in denying his request for a peremptory change of judge.

In response, the state argued that the appellate court wasn’t permitted to hear this issue, since the defendant had challenged the ruling by a special action.

In reviewing this issue, the Appeals Court determined that it needed to address whether or not the ruling should be challenged by a direct appeal or special action.

The Appeals Court concluded that a challenge to the denial of a notice of peremptory change of judge must be brought by Special Action, and that it cannot be challenged on direct appeal (State v. Mincey, Arizona 1981).

Further the court ruled that even if this were a special action, the defendant wouldn’t be entitled to relief.

This is because Rule 10.2(c) required the defendant to file the notice of change of judge on the next business day, after receiving notice of the assignment that took place fewer than 10 days before trial.

The defendant also argued that the state did not present enough evidence to support his conviction, so the trial court should have granted his motion for a judgment of acquittal under Rule 20.

The court noted that under A.R.S. § 13-3102(A)(4), someone commits misconduct involving weapons by knowingly possessing a deadly weapon when he or she is prohibited from doing so.

Under A.R.S. § 13- 3101(A)(7)(b), a person is prohibited from possessing guns if they’ve been convicted of a felony inside or outside the state of Arizona, and your civil right to possess or carry a firearm hasn’t been restored.

The defendant did not argue that he was not a prohibited possessor in this case. The parties had stipulated to the defendant’s prior felony conviction.

The defendant had told an officer that he wasn’t allowed to have a gun during a post-arrest interrogation.

However, the defendant argued that there wasn’t enough evidence to show he actually possessed the gun.

In evaluating the possession challenge, the court noted that possession may be actual or constructive (State v. Gonsalves Arizona 2013).

The Court recognized that since the pistol wasn’t found on the defendant it was not actual possession. The next step was to look at whether or not enough evidence was presented to support the concept of constructive possession.

The Court noted that constructive possession applies when the property is found in a place where the defendant has “dominion” (Arizona v. Tyler 1986), or control, and the defendant has actual knowledge of the prohibited property’s existence (Arizona v. Cox 2007; citing Arizona v. Villavicencio 1972).

A defendant is in constructive possession of property if it is found in a place that is under the defendant’s control or “dominion”, and under circumstances from which one can reasonably infer that the defendant actually knew the property existed there.

Direct or circumstantial evidence can be used to show constructive possession, and more than one person can jointly possess the prohibited object.

Someone merely being present in the same place as the prohibited property is not enough to show control or dominion.

In this case, the defendant indicated that he had a briefcase like the one that the officers found, but he didn’t know if that one was his. He had also admitted his was in a closet. The tag on the briefcase referenced Wisconsin, where the defendant’s prior felony was committed.

Additionally, the prescription pill bottle had the defendant’s name on it and was dated less than two months before the arrest. Moreover, the defendant had a .40 caliber bullet in his pocket, which was circumstantial evidence linking him to the pistol.

The Appeals Court noted in its evaluation that that the original tip to the police about the suspect having a gun, appeared to be “hearsay”.

However, it noted that since the defendant did not object on that basis at trial, it may be admitted as competent evidence (Arizona v. McGann 1982).

The court ruled there was enough evidence to show he had constructive possession, and his conviction was affirmed.

Request for Change of Judge

Under Arizona Rules of Criminal Procedure 10.2, Rights of Parties, a person has the right to request a new judge prior to trial by filing a pleading with the court. The request must be in good faith. The court will have reason to deny this request however the moving attorney must disavow that the request is being made for any of the following reasons:

• So that severance may be obtained;

• Interference with the judge’s reasonable case management protocol;

• Prejudice of faith, race, or gender;

• Request of change of the same judge, in a blanket fashion as cited in (State v. City Court of Tucson, 150 Ariz. 99, 722 P.2d 267 (1986) where the prosecution requested a change of judge in every impaired driving case);

• For a more convenient geographical location;

• To secure an advantage or circumvent a disadvantage related to a negotiated plea agreement, with the exception of those allowed by Rules of Criminal Procedure 17.4g.0

Change of Judge Requests – Time Restrictions

Reassignment of a Judge is subject to certain time restrictions. A change of judge may be filed within ten days after:

• The Arraignment, as long as proper notice and assignment is provided;

• The Arizona Appellate Court files a mandate with the Superior Court clerk.

In all other cases when a different judge is assigned to preside over a case less than 10 days before a trial begins, certain time rules apply: Notice of the change is required to be filed with the other parties. The other parties must be in actual receipt of the notice by 5:00 p.m. of the next business day, the earlier of the assignment, or by the start of trial.

When filing the change of judge, the parties are required to provide written notification as to whether or not they have agreed upon a judge who is in a position to take the case. Their request will be honored.

If the parties cannot agree upon a judge then the presiding judge will complete the reassignment immediately.

Special Action v. Direct Appeal

In Arizona the Rules of Criminal Procedure, for trial, allow for Special Actions as part of trial proceedings.

They are used provide a remedy for arguments involved in the case, for example those involving evidence, or rules of procedure.

Generally these take place prior to the completion of the trial

The disputing party begins the process by filing a petition with the court, similar to an Appellate brief.

This differs from a Direct Appeal in which the petition can be filed only following final orders, and appealable judgments.

Arizona Statutes exists that allow for Special Action filing. These are referred to as Statutory Special Actions.

Special Actions are not available where there is an equal and adequate remedy that exists through the filing of a Direct Appeal.

A Direct Appeal is a formal petition in writing asking the Appeals Court to review the decision to make sure rights were not violated, procedures were followed, and laws were interpreted correctly.

Judgement of Acquittal

Arizona Rule 20 of the Criminal Procedures allows for a Judgment of Acquittal on behalf of the defendant. It may take place before the verdict or after the verdict.

An Acquittal is in essence, a “not-guilty” judgment. It is a conclusion that can be reached pursuant to a jury verdict in whole or in part on the counts; motion by the defendant, or by the court itself.

This may be concluded when it is determined that substantial evidence does not exist that would lead to a guilty verdict, or that the state prosecution did not did not satisfy its burden of proof beyond a reasonable doubt.

Criminal Defense for Arizona Prohibited Possessor Charges

Under the Arizona Constitution and United States Constitution persons currently have the right to bear arms.

But these rights are not without limits at both levels.

For example under Arizona Law A.R.S. 13- 3102, is in violation of Weapons Crime Laws if they are convicted of:

• Possess a deadly weapon, while classified as a Prohibited Possessor;
• Possess a Prohibited Weapon as defined by law; or
• Other Misconduct of Weapons as defined by law.

Weapons crimes may be classified as Misdemeanors or Felonies. Both are serious, particularly those brought as felonies.

All felony convictions in Arizona expose a person to prison sentences, large fines, a felony criminal record, and jeopardize a person’s rights in the future to bear arms, even to defend themselves.

It is important to understand your rights if you carry or possess weapons, and the fact that those rights are in jeopardy if you face felony charges.

If you face criminal charges, you should hire an experienced weapons crime defense attorney to protect your rights, and defend your charges.

Due to the multifaceted nature of criminal charges, numerous challenges or defenses may exist, and every possible avenue explored for applicability for criminal defense purposes.

10 Common Defenses Used for Prohibited Possessor Charges

Below are 10 challenges that might apply to prohibited Possessor charges:

• Constitutional Rights violations such as unlawful search and seizure;
• Validity or trustworthiness of “heresay” testimony;
• Lack of constructive or actual possession;
• Lack of knowledge of prohibited property;
• Lack of Dominion where the prohibited property was found;
• Lack of ownership of the firearm;
• Challenges to whether or not the suspect is a prohibited possessor;
• Challenges to whether or not the property is prohibited;
• Violations of Police agency procedures or Rules of Criminal Procedural;
• Insufficiency of Evidence or other trial challenges

Prohibited Possession of Weapons Defense Attorney Mesa, AZ

“Always Prepared to Defend.”

– James Novak, DUI & Criminal Defense Attorney Mesa AZ

James Novak is a highly skilled criminal defense attorney. If retained, James Novak will evaluate your case to determine what defenses apply and tailor your defense. He will determine what challenges if presented are likely to lead to the most favorable resolution in your case.

If you are charged with a gun crime in Arizona, you should consult an experienced criminal defense attorney. James Novak of the Law Office of James Novak provides a free initial consultation for active charges in his area. He can discuss your matter with you, and provide you with options for a defense. Call or contact the Law Office of James Novak today for a confidential and free consultation at (480) 413-1499.

Additional Resources

• A.R.S. § 13-3102 (A)(4) (Misconduct involving weapons)
• A.R.S. § 13- 3101(A)(7)(b) (Definitions related to weapons charges)
• Arizona 13-3925 (Unlawful Search and Seizure; Admissibility of Evidence)
• Requirements and Exceptions to Lawful Search Warrants in Arizona
• Arizona Constitution Article 2, Section 8 (Privacy Rights)
• Arizona Rules of Criminal Procedure | III Rights of Parties | Rules 10.1 & 10.2
• Arizona Rules of Criminal Procedure| Rule 20 | Judgement of Acquittal
• Maricopa County Attorney | Criminal Process

Other Recent Articles of Interest

• Medical Marijuana Users have a Limited DUI Defense; Not General Immunity from Prosecution
• Why Good Juries Reach Bad Verdicts
• Violations of “Search and Seizure” Laws: How they Impact Prosecution,
• U.S. Supreme Court Rules No Warrant Needed To Collect DNA If Arrested,
• Yes, You Have Constitutional Rights At An Arizona Checkpoint

Introduction

This collaborative two part series was inspired by my friend and colleague, Eyitayo Ogunyemi, LL.B, B.L, Attorney and Human Rights Advocate in Lagos, Nigeria.

This is part I of II which applies to Phoenix, AZ laws, in the USA.

Eyitayo Ogunyemi has written Part II, which applies to Lagos, Nigerian laws.

To symbolize human rights, we have chosen the number “15”, to represent 15 Universal Declaration of Human Rights, that often involve police brutality if violated. They include:

Freedom from slavery; Freedom of opinion or expression; Right to peacefully assemble; Freedom from non-discrimination; Freedom from brutality and torture; Freedom inhumane or degrading treatment; Freedom from arbitrary arrest, detention or exile; Freedom of thought, conscience and religion; Right to equality; Right to life, liberty and security; Right to remedies for violations of human rights under the law; Right to trial; Right to presumption of innocence until proven guilty; Right to adequate shelter, food, clothing, medical care and other fundamental needs; Right to protection against interference or attacks against privacy, family, home, honor, reputation, or correspondence.

Police Use of Deadly Force Denounced by Amnesty International & UN Human Right Council

Earlier this year, Amnesty International reported its findings that 50 States and the District of Columbia in the USA failed to comply with the international standards on the use of lethal force. They highlighted a “widespread pattern of racially discriminatory treatment by law enforcement officers and an alarming use of lethal force nationwide.”

We also heard about the criticism by the UN Human Rights Counsel early this year about the use of excessive force and racisms.

As our great Country works hard to resolve these crucial human rights issues, the one thing we as individuals can do to reduce fears and tensions is to understand the laws, and rights afforded within them.

“15” Ways to reduce the risk of becoming a victim of brutality, or misconduct by police

Being aware of your rights and the laws where you live or travel, is your first line of defense in avoiding police brutality.

1. Stay calm, polite and respectful;
2. Stop talking;
3. Listen carefully to instructions by police;
4. Obey the commands;
5. Always keep your hands where the officer can see them;
6. Never display a firearm or other deadly weapon unless the officer asks you to;
7. In the event, ask the officer to direct you as to how they would like it to be presented or safely displayed so that they do not feel threatened by it:
8. Move slowly and carefully at all times;
9. Never move to a location behind the police officer unless they request you to do so;
10. Never reach for, or attempt to take an officer’s weapon;
11. Never argue or provoke the officer;
12. Never resist arrest;
13. Never walk away from police until they tell you that you are free to leave;
14. Never flee from the officer if they attempt to arrest you;
15. If you are being questioned or interrogated about a crime, invoke your 5^th amendment right. To do this, politely tell the officer that you wish to remain silent and request that your attorney be present during any questioning regarding involvement in crime.

Any police stop can be tense for all involved. This includes the officer. Police will be the first to tell you that there is no such thing as a “routine stop.”

Police are trained to approach each encounter as though it could turn deadly, at any moment.

It is important to understand this mindset of the officer.

They will always be on guard, armed, and ready to protect themselves in the event the encounter turns violent.

If an officer feels threatened, or that his or her life is in danger, they are trained to react with force equal and necessary. That may include lethal force in the event that is the level of threat against them.

The key to avoiding a violent or dangerous encounter with police is to avoid making the officer feel threatened in any way.

Each person should be aware that their own actions may either keep them from harm, or put them in harm’s way.

What Should You Do if you are Being Assaulted by Police

Though these tips will reduce your risk of harm, unfortunately, violent encounters may still erupt.

People often want to know if it is lawful to use deadly force against a police officers who is beating and brutalizing them, or using excessive force. The short answer to that is yes.

Under Arizona Criminal Code A.R.S. 13-404, a person is allowed to protect themselves by using necessary physical force, against an officer. However, this is only lawful, if the police officer is using physical force that exceeds that allowed by law.

Having said that, it is important to understand the consequences of which a person is exposed in making that choice:

• It could result in serious harm or death as the officer retaliates;
• The suspect who used deadly force against an officer to protect themselves will likely be arrested and a criminal investigation will ensue;
• The suspect may be charged with aggravated assault or homicide if the force used by the police officer did not exceed the lawful amount of force needed under the law;
• In trial, the suspect will need to make a showing that the physical force used by the police officer did in fact exceed the amount of force required;
• The prosecution will attempt to persuade a jury that the police officer’s initial actions did not exceed the necessary force allowed under law. For this reason it is important to obtain surveillance footage, and eyewitness statements, or other evidence that can provide such showing or accurate account of the events.

The Most Common Criminal Defense used for Use of Deadly Force Charges in Self-Defense

The most commonly used defense in this situation is a what is known as “Justification” defense which affords the right to self defense under AR.S. 13-404.

Though the Justification defense generally does not apply to police officers, the exception to that is if they reasonably believed force was needed to immediately and necessarily protect themselves against the officer’s use of unlawful excessive force.

Lethal force, however, is not justified if the suspect uses it merely to resist an arrest, even if the person feels they are innocent.

Even if a suspect is completely innocent, it is important for them to stay calm, obey the orders, cooperate, and then consult a criminal defense attorney as soon as reasonably as possible following an arrest.

Formal Rights that offer Protection from Police Brutality & Use Excessive Force by Police

Most of the formal rights afforded to individuals are those under the

1. United States Constitution and Amendments;
2. State of Arizona Constitution and Amendments.

The United States Constitution

Some of the rights under the US Constitution that afford protections against brutality include:

• 4^th Amendment: Freedom from unlawful search and seizures;
• 5^th Amendment: Freedom from self-incrimination; deprivation of life, liberty, or property absent due process;
• 8^th Amendment: Freedom against cruel and unusual punishment;
• 14^th Amendment: Freedom from denial of privileges and/or immunities of citizens of the US; deprivation of life, liberty, property in absence of due process; denial of equal protection under law.

State of Arizona Constitution

Some Rights under the State of Arizona Constitution Article II which address the protections against brutality, harm, and police, and police misconduct include:

Article II. Declaration of Rights

• Section 4. Freedom from deprivation of life, liberty, or property without due process;

• Section 5. Right of petition and for peaceful assembly, protest rights;

• Section 8. Right to privacy; freedom from disturbance and home invasion without lawful authority;

• Section 15. Freedom from excessive bail; and infliction of cruel & unusual punishment;

• Section 24. Rights of thee accused in criminal prosecutions

Consequences of Law Enforcement Violation of Rights in Criminal Law

One common violation is the US Constitution’s 4^th Amendment for unlawful search and seizure.

If the police entered your home without a valid warrant or your consent to search it, then seized evidence against you, and planned to use that evidence to prosecute you, then that would be a constitutional violation.

If the unlawful search and seizure was material, your criminal defense attorney may file a motion to suppress that evidence.

This means the evidence obtained as a result of a violation of the suspects rights, will not be admissible to use against them in trial.

Suppression of material evidence generally leads to an acquittal or dismissal of the criminal charges or other favorable outcome in case for the defendant.

Remedies for Victims of Brutality, Criminal Misconduct, or Cruel and Unusual Punishment

Constitutional Violations that involve brutality, gross misconduct, or cruel and unusual punishment, may have both criminal and civil remedies available.

In the case of an officer involved shooting, a detained inmate grossly abused or neglected, or fatally beaten by guards, criminal charges may be brought against those involved.

Civil remedies exist such as law suits being filed by qualified survivors for wrongful death of their loved one. The civil suits may be filed against the agency, jail, prison, city, county, or other locale with jurisdiction of those who committed the crime.

Civil Law suits may be filed by the victims, or their families or the American Civil Liberties Union (ACLU) on behalf of the victims.

Law Suits for Constitutional Violations of this nature are filed under Federal Rule 42 USCA § 1983; often referred to as a “Section 1983” lawsuits.

These are civil right laws that protect inmates in prison or jail, or civil detainees, from being deprived of their Constitutional rights.

Those responsible from the violations may include law enforcement officers, jail or prison guards, or other employees working there.

Obstacles to Justice: Qualified Immunity Laws

Police, guards, and other civil servants have general protections under what are known as Qualified Immunity Laws. These are in place at the federal, state, and local level. In Arizona, they can be found under A.R.S. 12 – 820.02 for reference.

These laws provide immunity from civil liability against litigation against officers acting within the scope of their job duties.

As long as their actions were not in violation with police, prison, jail procedures; and as long as their actions did not constitute a criminal offense the civil servant will be afforded protection under the Qualified Immunity Laws of their jurisdiction.

In these situations often people feel the criminal justice system has turned away, without offering any remedy for their injury or injustice.

There is a perception among many that prosecutors and police are on the “same side” considering they work closely together to prosecution criminal offenses. As a result, they feel that prosecutors are in no hurry to bring charges against police in these situations.

Amidst the recent fatal police shootings and tragedies, the violent protests that erupted had much to do with the fact that it has been increasingly difficult to prosecute criminal conduct by police.

Charges can be brought against a police officer in two ways in Arizona and most states in the USA. They can be brought by the prosecutor filing a formal complaint, or by Grand Jury indictment.

A Grand Jury indictment is not required to bring criminal charges.

It is the prosecution who decides if they want to take the case to the Grand Jury or file the formal charges themselves.

The prosecution decides what evidence they want the jury to see and hear; and what witnesses to call.

So generally speaking if the prosecution is not passionate about the grand jury bringing charges, they know what the jury needs to see and hear, to assure the desired outcome.

Even if the Grand Jury decides not to bring charges, the prosecution can still bring them. They are not bound to the grand jury’s decision not to bring them.

In numerous cases recently, where the charges were not brought where evidence seemingly existed to the contrary that criminal liability existed, violent protests erupted.

Tensions continue to mount as more tragic incidents occur, in Arizona and across our great nation.

What a Criminal Defense Attorney can do to help you if you face Criminal Charges

If you were arrested or face criminal charges, you should always consult an experienced DUI or Criminal defense attorney before going to court, or pleading guilty.

If retained your criminal defense attorney will thoroughly review your case, gather all the evidence available including evidence in your favor. They will present your side of the story through the proper legal channels.

They will then determine what the best defense strategy will be given the circumstances of your case. If your constitutional rights were violated, they may file a motion to have the evidence obtained as a result that violation, be suppressed.

Other defenses may exist in your case that you are not aware of. The challenge may lead to a favorable outcome such as a reduction of charges, mitigation of sentencing in the event of conviction, dismissal, or acquittal of the case.

James Novak, DUI, and Criminal Defense Attorney is a former Maricopa County Prosecutor who is effective, and dedicated to providing a strong criminal defense for his clients. He will work hard to get the best possible outcome in your case.

If you face active criminal or DUI charges in Phoenix, Mesa, Gilbert, Tempe, Scottsdale, or Chandler, AZ call James Novak of The Law Office of James Novak for a free initial consultation at (480) 413-1499.

If defending and resolving your charges is important to you, it’s more important to James Novak, experienced DUI & Criminal Defense Attorney of the Law Offices of James Novak.

Personal Insights

As a proud American, and former US Marine, I consider the USA to be the greatest country in the world.

No one deserves to be deprived of their fundamental human rights. Yet, atrocities mount across the globe as we speak.

We are not alone in this fight, given no country on the planet is immune to the travesties, violations, abuses, or corruption.

Our forefathers who created the Declaration of Independence, The US Constitution, the Bill of Rights, 235 years ago when the United States was founded, likely did not imagine the events we face today.

For over two centuries our brave soldiers fought, lost life and limb for our country while proudly serving our Flag, and the freedoms and rights afforded by our Constitution; and so that no one would not be deprived of basic human rights, protections, or dignity.

We continue to strive to make sure that all those legally within the boundaries of the United States of America would flourish, live freely, and not be violated.

We are the same country. We have the same fundamental values. We have the same rights if not more protections ever before afforded in our Country’s history. The US Constitution has not has regressed.

The problem is not with the laws themselves, but the violations of those laws.

If a person wishes to commit a crime, or an injustice upon another, they will have little regard for the laws. Their actions will be driven by impulse, provocation, threat, emotional instability, fear, criminal intent, or other motive.

When it comes to victim injustice, or brutality, they are not being mindful of the laws in that instance.

Human behavior must change.

Human and procedural modifications can be further explored as they relate to public trust, and law enforcement activities.

More emphasis should be placed on education, training & retraining, accountability,monitoring, supervision, detention and law enforcement surveillance, disciplinary actions, and more legal remedies for victims.

There is much work to be done to improve relationships, and increase public trust within our law enforcement communities. But I am hopeful that we can and will overcome this difficult and turbulent time if we approach and deal with it constructively.

I extend my deepest gratitude to Eyitayo Ogunyemi, Human Rights Attorney in Lagos Nigeria for his valued contributions to this article. We hope you will stay with us for Part II of our discussion.

Excerpts from Part II
“I have even had course to share comparative experiences with colleagues in other countries which clearly revealed that the mistrust that the public has against police institution is universal even though it is on different levels…
I humbly encourage you to re-share this post with the hope that it will go a long way in sensitising the public on simple ways to hold the police institution to account and also create the much sort after change that we desire.” – Eyitayo Ogunyemi

Eyitayo Ogunyemi is an Associate at Falana & Falana’s Chambers in Lagos Nigeria. He is the President of Paralegal Academy which teaches elementary principles of law to the public.

Eyitayo Ogunyemi is the Initiator of “The People’s Parliament” in Nigeria.

Legal Advocate, Eyitayo Ogunyemi is dedicated to raising awareness and educating the great people of Nigeria regarding their human and civil rights, and providing legal advocacy within.

Eyitayo Ogunyemi arms himself with the message that one person can and will make a difference in progressing, evolving, and improving human rights in Nigeria.

Other Articles of Interest:

• Police Brutality: Your Rights
• Liability for Victims of Cruel Punishment or Police Brutality & Wrongful Death
• US. Supreme Court Tips Scale to 4th Amendment Rights at Police Stops
• Grand Juries: A Look Behind the Curtain: An Overview of the Role, purpose, and Processes of Grand Juries in the Criminal Justice System
• Arizona Court of Appeals Marijuana Trafficking Case Study: Part II of II – Suspects 40 Minute Detention for K-9 Drug Unit Not Unreasonable.

Additional Resources:

• Aggravated Assault on Police Officer Laws Arizona
• Resisting Arrest; Classifications; definition Arizona Law
• Eighth Amendment Guarantees in Criminal Cases
• State of Arizona Constitution
• Arizona Qualified Immunity Laws
• The Universal Declaration of Human Rights

Law enforcement officers recently conducted the biggest methamphetamine bust in Maricopa County’s history. Sheriffs investigated for several months before locating 18 bricks of meth (51 pounds) worth almost $1 million. The twenty-six year old suspect who possessed the bricks was arrested for meth possession and other felony charges. As outlined below, he may face serious prison time, depending on his prior felony record and other factors.

Earlier this year, Phoenix AZ participated in “Operation Justice V” sponsored by the U.S. Marshall. In one week 231 persons without outstanding felony warrants were arrested. A large number of those were wanted for “Dangerous Drug” offenses including Meth crimes.

The possession and sale of meth is a growing illegal drug market in Arizona, and some believe it has reached crisis proportions, now affecting teenagers as well. Even though Arizona’s teenage meth use has declined in recent years, Arizona remains among the top 10 states for teen meth use.

Meth is highly addictive and affects the neurotransmitter dopamine. It can be smoked, injected or snorted. Users experience a rush as well as increased energy, reduced appetite, and increased respiration. There is a danger of violent behavior, irritability or psychosis. Importantly, long-term use of methamphetamines can cause brain damage that is akin to Alzheimer’s.

Due to the addictive nature of Methamphetamines and other Dangerous Drugs, they have been found to lead other serious crimes by users, and dealers that include theft, burglary, assault, sexual assault, aggravated assault, home invasions, even murder.

Meth is classified in the Arizona Revised Statutes as a “dangerous drug.” Other “dangerous drugs” include LSD, ecstasy, mushrooms, mescaline and GHB. Willful possession of a dangerous drug can subject anyone who is convicted to serious punishments at the sentencing stage.

Possession of methamphetamine is a Class 4 felony, until someone possesses more than 9 grams, as in the case described above. Then it is charged as a Class 2 felony because it is assumed to be possession for sale. It is important to note that possession of methamphetamine cannot be charged simply as a misdemeanor, even if you have no priors.

Penalties are increased substantially for possession of large quantities of meth. If someone possesses more than 9 grams and it is a first offense, the presumption is that it is for sale. In that case, the minimum imprisonment sentence is five years, the presumptive sentence is 10 years and the maximum sentence is 15 years. However, if someone possesses more than 9 grams and it is not a first offense, the increase in sentencing jumps dramatically. A minimum imprisonment sentence for possession for sale of meth on a second offense is 10 years.

First time drug offenders are eligible for a deferred prosecution program in which they participate in probation during which the offender is subject to drug testing among other things. If they do not meet conditions of their probation, they may face jail time.

The Arizona Revised Statutes permit mitigation or enhancement of a sentence for reasons such as prior criminal convictions, the amount of the drug, and more. If charged with a Class 2 felony and aggravating factors, a defendant can face over 12 years in prison.

The sentencing laws are even harsher for those convicted of manufacturing methamphetamine. In response to the meth crisis, in 2000, Arizona’s child abuse law was expanded to include a presumption of endangerment when children or vulnerable adults are found at meth labs.

Additional Resources:

• About Meth (Arizona Attorney General)
• Arizona Drugs Defined Under Criminal Code
• Mesa AZ Police Department

If you are arrested for a methamphetamine-related offense in Mesa, AZ or surrounding cities within Maricopa County you face the possibility of harsh consequences. You should retain an attorney knowledgeable about these types of cases to defend and protect your rights. Contact The Law Office of James Novak at 480-413-1499 for a free consultation.

More Blogs
Arizona’s Medical Marijuana Law Stands Ground, Phoenix DUI Lawyer Blog, June 4, 2013
Marijuana DUI: The Impact of Montgomery v. Harris, Phoenix DUI Lawyer Blog, March 13, 2013

Cultivation or manufacture of marijuana for non-medicinal purposes (or growing outside the strict guidelines provided in connection with medical marijuana cards) remains a felony in Arizona. Those arrested and prosecuted for felony marijuana manufacturing can face serious punishments at sentencing.

There have been several significant arrests in Phoenix and Tucson for cultivation of marijuana recently. In mid-May, Tucson police found a house where 356 marijuana plants in various stages of growth were growing. They also found $18,000 in cash. On June 3, 2013 a canine unit from the Arizona Department of Public Safety found a driver carrying 7 pounds of marijuana. After arresting him, the Arizona Department of Public Safety searched his house in Phoenix and found 100 marijuana plants as well as handguns and growing equipment.

Marijuana cultivation for non-medicinal purposes is not only illegal, but can also be physically dangerous. On June 6, 2013, a marijuana grow house with about 1 dozen marijuana plants caught fire. The firefighters observed lighting, heaters, and Styrofoam insulation. Equipment used to grow marijuana can require an enormous amount of electricity.

As a result of the equipment used to grow large quantities of marijuana, circuits can get overloaded and wires get overheated, resulting in a fire. An entirely sealed room may require a dehumidifier, which also consumes electricity. Failure to control humidity can lead to mold or rotted wood. If propane powered generators are used, there is also the chance of explosion. Depending upon the circumstances, causing a fire and the ensuing property damage or injury to a person can lead to additional civil or criminal penalties beyond those levied for marijuana manufacturing.

Marijuana cultivation for non-medicinal purposes carries different punishments based on the dried weight of the marijuana. In addition to jail or prison time, those convicted of marijuana cultivation must also pay $750 in fines. If convicted of cultivating an amount less than 2 pounds, sentencing may be for a Class Five felony. As a first offense, marijuana manufacturing can be punished with prison for between 6-2.5 years in custody. A judge may offer a first time offender probation instead. If the defendant has one or more prior felony convictions, incarceration times increase even for this small amount.

If convicted of cultivating a quantity of marijuana with a dry weight of 2-4 pounds, the cultivation is a Class 4 felony that carries a mandatory prison sentence of 1 to 3.75 years of incarceration. With one prior felony conviction, the mandatory prison range is 2.25-7.5 years prison. The amount of mandatory prison time increases the more prior felony convictions a defendant has.

Marijuana cultivated in an amount that exceeds 4 pounds dried is a Class 3 felony with a mandatory prison sentence of 2-8.75 years in prison. This amount can increase up to 25 years of incarceration with two prior felony convictions.

Other penalties may apply in a situation involving a marijuana grow room or outside crop. A defendant may be charged not only with manufacture or cultivation, but also possession, sales, or trafficking depending upon the circumstances. As mentioned above, there may be property damage or other problems associated with a grow room.

There are several defenses to a charge of cultivating marijuana that an experienced criminal defense attorney may be able to raise. A number of these have a constitutional basis and involve the police following flawed procedures. For example, if the police coerced you into making a confession or failed to read you your “Miranda rights,” the evidence obtained this way is not admissible at trial. Similarly, where search warrants were not obtained or obtained improperly, they may violate Fourth Amendment rights.

Under certain circumstances, people are arrested and charged who were not aware of marijuana cultivation. This may happen, for example, on a rental property if marijuana is growing outside in a small part of a garden.

If you are arrested for manufacturing marijuana or for another marijuana-related offense, you should retain an attorney knowledgeable about these types of cases to defend and protect your rights. Contact The Law Office of James Novak at 480-413-1499 for a free consultation.

Additional Resources:

• Arizona Drug DUI Laws
• Arizona Drugs Defined Under Criminal Code
• Mesa AZ Police Department

More Blogs

• Arizona’s Medical Marijuana Law Stands Ground, Phoenix DUI Lawyer Blog, June 4, 2013
• Marijuana DUI: The Impact of Montgomery v. Harris, Phoenix DUI Lawyer Blog, March 13, 2013

Almost three years after passage, Medical marijuana remains controversial in Arizona. Medical Marijuana was legalized in 2010 through voter passage of the Arizona Medical Marijuana Act (AMMA). The purpose of the AMMA is to protect patients with debilitating medical conditions, so that they can obtain necessary relief.

AMMA allows patients to get a registration identification card to show law enforcement officers that they are permitted to use marijuana for medicinal purposes. Visitors from another state that recognizes medical marijuana, like California, with equivalent cards are also protected.

Notwithstanding these state protections, some law enforcement officers refuse to recognize the card. Federal law, which trumps state law, does not recognize or permit a medicinal use for marijuana. An appellate case heard earlier this year further legitimized medical marijuana cards, but the facts of the case illustrate that it there are still risks from a legal perspective to be a medical marijuana user in Arizona. In the case, a California driver (the defendant) was stopped when she entered Arizona. The authorities found and seized marijuana and other contraband. The State filed drug charges against the driver, dismissing them only after she produced proof of permission to use marijuana for medical purposes. The Superior Court ordered that the driver’s marijuana be returned.

The State appealed. It argued that the superior court could not order the sheriff to return the marijuana and that Arizona law not only requires “summary forfeiture” of any marijuana seized by law enforcement, but the sheriff could not return the driver’s marijuana or risk violating federal law and getting prosecuted.

The appellate court reasoned that law enforcement officers did not seize the marijuana in connection with a drug offense, since the driver was permitted to possess marijuana for medical purposes. Nor could the State win on the grounds that it could keep marijuana that came into its possession. This was because to do that would require either bringing civil forfeiture proceedings, or to be holding drugs possessed in a crime. Since AMMA decriminalized medical marijuana, the latter situation did not exist.

The State also argues that the AMMA did not expressly require them to return marijuana from a qualifying patient. The appellate court disagreed. It noted that no penalty could be placed on a qualified patient under the statute.

The State had also argued that the sheriff could be prosecuted for transferring marijuana under federal law. This, too, the appellate court repudiated. Federal law “immunizes” law enforcement officials who follow a court order.

The State’s final argument was that the superior court could not order that the driver’s marijuana be returned to her because her possession was a federal crime. The appellate court declined to decide whether federal law preempted AMMA for purposes of adjudicating this case. There was no actual or threatened prosecution of the driver under federal law, and the State was not a party with a personal stake who had standing to argue that federal law prevented the driver from possessing the marijuana. Accordingly, the appellate court affirmed the ruling of the superior court.

It’s clear that this will not be the last time a defendant will have to deal with a situation in which state law enforcement attempt to ignore AMMA. Officers may continue to arrest drivers, requiring them to come to court to fight the charges brought against them.

Additional Resources:

• Arizona Drug DUI Laws

• Arizona Court of Appeals Division 1

• Arizona Drugs Defined Under Criminal Code

Medical marijuana may be further complicated when officers arrest drivers who test positive for marijuana use on the grounds that they are driving under the influence of drugs. For help defending your Phoenix AZ DUI or drug charges, contact the experienced Arizona criminal defense attorneys of the Law Offices of James Novak at 480-413-1499.

More Blogs

Arizona Court Rules Against Imposition of Non-concurrent Sentences, Phoenix DUI Lawyer Blog, May 17, 2013 Prescription Drug DUI Charges, Phoenix DUI Lawyer Blog, January 28, 2013

A person’s rights to counsel can be found in the State’s Rules of Criminal Procedures; The US Constitution 5th and 14th Amendment; the Arizona Constitution; and Under Arizona Criminal Code A.R.S. 13-114. This segment focuses on the Rules of Criminal Procedure in Maricopa County.

Arizona Rules of Criminal Procedure – Right to Counsel

Rules 6.1 (a.) & (c.) entitle a defendant to be represented by counsel in DUI and criminal proceedings. However, they are not entitled to counsel if the offense has no possibility of resulting in jail or prison if they are found guilty.

A defendant may waive their right to counsel at any time.

Arizona Rules of Criminal Procedure – Withdrawal of Waiver of Right to Counsel Rule 6.1 (e.) allows for a person who previously waived their right to counsel, to also withdraw their waiver of right to counsel, at any time.

There is one exception to withdrawing a waiver of right to counsel at any time: A person is not entitled repeat a proceeding, they previously waived their right to an attorney, on the sole ground that they were unrepresented.

When Legal Counsel is Necessary

Defense services of qualified legal counsel are needed in all stages of criminal proceedings, that expose a person to jail or prison, if they are found guilty of the charges. These stages include:

• Pre-trial Services;
• Trial Representation;

Sentencing A person should also consider hiring a lawyer to represent them in pre-indictment cases, when a suspect is being investigated for serious charges, but has not yet formally been charged.

Legal Representation for DUI and Criminal Charges in Mesa AZ

It is unwise for a person to waive their right to legal counsel for DUI or criminal charges in which a person may be exposed to incarceration in jail or prison if found guilty. If a person moves forward with criminal proceedings unrepresented, irreversible harm can result in their case, and their defense may be compromised.

A defendant should always retain an attorney as early as possible in order to preserve all rights and defenses that may be used in the future to challenge or defend the charges.

If a defendant has jeopardized use of defenses, waived rights, or provided self-incriminating testimony, an attorney generally can’t undo the damage that has been done. They can’t go back and abolish the proceeding on the sole basis that the defense was compromised as a result of the defendant’s waiver of right to representation by an attorney.

In general, defendants usually do not secure favorable resolutions to their charges when they go unrepresented. A person who represents themselves if expected to adhere to all Rules of Criminal Procedure; understand their rights and laws; and consequences of their decision in the event they are found guilty of the charges. Early retention of a criminal defense attorney is a key factor in obtaining any favorable outcome in criminal cases.

Additional Resources:

• AZ Supreme Court – Rules of Criminal Procedure

• Maricopa County Superior Court

• Right to Counsel under Criminal Code

• US Constitutional Amendments

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Law Office of James Novak 4500 S. Lakeshore Drive Tempe AZ 85282 (480) 413-1499 www.Arizonacriminaldefenselawyer.com www.novakazlaw.com Arizona DUI & Criminal Defense Firm Serving Maricopa County Phoenix-metro, and surrounding East Valley Cities

You have probably seen the Television commercials airing the messages: “Drive Sober or get Pulled Over;” Don’t drink and drive; and “They’ll see you before you see them”. The efforts involve increased police presence, DUI Task Forces; media outreach; national and local advertisements geared at raising public awareness.

According to the National Highway Traffic Safety Administration (NHTSA) launched a new anti-impairment driving campaign to support high visibility enforcement (HVE) of police officers nationwide. The campaign is intended to help reduce drunk driving, and raise awareness about the hazards of driving impaired due to alcohol or drugs. The efforts focus combining resources:

• Community outreach programs and education;

• DUI Task Force administration guides and materials;

• Heightened Presence of Police for basic traffic safety;

• Paid media communications, advertisements and marketing;

• Social media and internet campaigns to communicate the messages

Every state has their own laws regarding the legal limit or level of impairment that will result in criminal charges. It is important that you be familiar with the laws in your state, or any state that you plan to visit or reside.

Blood Alcohol Content (BAC): Legal Limits Arizona

All states in the country comply with at least 0.08% as the legal limit. Other states have more strict legal limits for example 0.05%. Under Arizona law A.R.S. § 28-1381 A (2) a person may be arrested for DUI if their BAC is 0.08% or greater while driving or in actual physical control of any vehicle. In Arizona, a motorist may also be charged with DUI, even if the BAC is below 0.08% down to 0%. This is called being “impaired to the slightest degree” under the influence of alcohol or drugs A.R.S. § 28-1381 A (1). The penalties for DUI convictions are some of the harshest in the country. A first time Misdemeanor DUI, non-extreme BAC (below 0.15.%) conviction carries jail terms; 90 day suspension of driver’s license; Ignition Interlock Device on vehicle; mandatory drug or alcohol counseling; probation; fines and fees.

DUI Attorney for defense of charges in Chandler AZ

If you face any type of DWI or drunk driving charges, you should always consult a criminal defense attorney to discuss your matter, and defense options. It is never a good idea to go to court alone or try to go without legal representation. If retained, your lawyer will provide legal representation throughout the criminal justice process; make sure you are treated fairly; defend your charges; and look for mitigating factors that will help you avoid a conviction or harsh penalties.

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• National Highway Traffic Safety Administration – Driving Safety

• National Impaired Driving Enforcement Crackdown

• Arizoan Legislature – Arizona Revised Statutes

If you “Like” this article please let us know! Feel Free to subscribe and “Share”! Law Office of James Novak 4500 S. Lakeshore Drive Tempe AZ 85282 (480) 413-1499 Free Consultation www.Arizonacriminaldefenselawyer.com www.novakazlaw.com Arizona DUI, DWI, Drunk Driving & Criminal Defense Firm Serving Tempe, Mesa, Chandler, Gilbert, Mesa, Phoenix & Scottsdale AZ