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

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

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

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

Later, the defendant’s probation for one of the counts was revoked which resulted in an order for the defendant to serve 10 years in prison.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

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

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

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

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

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

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

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

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

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

What is the Dangerous Crimes against Children law?

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

Below are some of the offenses listed under the statute:

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

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

What is enhanced sentencing?

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

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

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

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

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

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

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

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

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

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

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

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

Additional Resources:

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

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

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

The defendant was convicted of all four of these. During a sentencing hearing, the judge imposed a minimum mandatory 4-month term in prison followed by two years of probation. The court ordered the prison terms and the probation to run concurrently. It also ordered significant “Assessments” totaling $4,630 per count. From the way the court wrote the order, it was not clear whether these Assessments were imposed concurrently or if this was the sum the defendant had to pay per count.

The defendant appealed solely with respect to the issue of the Assessments. He argued that there shouldn’t have been four separate Assessments assessed for four felony convictions all arising from the same driving incident. He didn’t raise a constitutional issue, but rather a prohibition found in the state statutes. Specifically the code states, “[a]n act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent.”

The appellate court asked the parties to report how his payments were applied. The parties’ reports revealed that the court’s clerk applied the payment such that each dollar was credited to only one, not four counts.

At the outset, the court noted that imposing an unauthorized Assessment made a criminal sentence illegal. It also stated that, to the extent that the statutory prohibition applied, (1) the Assessments had to be “sentences” within the meaning of the code, (2) the convictions had to arise from a single act, and (3) no legislative act could have clearly overridden the code.

With respect to the first issue, the court reasoned that a fine is a criminal penalty that constitutes a “sentence”. Is an Assessment? The appellate court reasoned an Assessment may qualify if it is “a pecuniary punishment imposed by a lawful tribunal upon a person convicted of a crime; (2) the money recovered goes to the people of Arizona and (3) the money is not a civil penalty or restitution to a crime victim.” The court concluded that using this three-part test, Assessments were sentences. They were pecuniary punishments. The money recovered from the assessments are paid to the people of Arizona. They don’t go to a victim.

Additionally, the drunk driving incident was a single incident. The appellate court reasoned that it was factually impossible to commit one of these counts without also committing the others. Finally, the statutes mandated that a court could not sentence a defendant with cumulative punishments unless the Legislature clearly intended it do so. The appellate court modified the sentence so that the Assessments would run concurrently.

There are many serious penalties to a DUI conviction in Arizona, but the above post shows that there are limits to the kinds of penalties you incur. If you are pulled over or charged with a DUI, you should contact an attorney with experience in DUI defense. It can make a big difference. Contact the Arizona DUI attorneys at the Law Offices of James Novak at 480-413-1499.

MORE BLOGS

Marijuana DUI: The Impact of Montgomery V. Harris in Arizona, Phoenix DUI Lawyer Blog, March 13, 2013 Prescription Drug DUI Charges, Phoenix DUI Lawyer Blog, January 28, 2013

ADDITIONAL RESOURCES

• Arizona DUI Laws
• City of Phoenix – Municipal Court
• Arizona MADD.org

A recent Marijuana DUI dismissal was overturned in favor of the state and moved for continued prosecution in the Arizona Court of Appeals.

The main legal issue was whether or not a motorist could be prosecuted for Marijuana DUI when the only evidence revealed on a blood test was an inactive chemical compound in Marijuana. In this case, the drug compound was one that does not cause impairment, “Carboxy-THC”. This is a residual compound known to stay in a person’s blood stream for 3 to 4 weeks after Marijuana use. The inactive or non-impairing compound was examined in contrast to the known active ingredient THC or Tetrahydrocannabinol. THC has been successfully argued in courts as one that causes driving impairment.

The lower court dismissed the case before appeal, on the basis that the motorist was not driving impaired. But the Arizona Court of Appeals ruled that both the active compound and the inactive compound fall within Arizona DUI Law A.R.S. 28-1381, so the motorist could still be subject to prosecution.

The impact of this ruling is that the prosecution does not need to prove that the driver was impaired. In order to prosecute the motorist for DUI with Marijuana, as long as at least one of the two compounds can be identified in the DUI blood test evidence. Another adverse impact is that a person may have used the Marijuana legally in another state, days or weeks prior to driving in Arizona, and still be arrested for Marijuana DUI.

The Arizona Court of Appeals indicated that this ruling shall not be used to set precedent. However, this presents challenges in consistency for the courts since other cases similar to this are pending prosecution.

Arizona Drug DUI Law

Currently under Arizona law A.R.S. 28-1381 a person may be guilty of DUI under the following circumstances: (1) While under the influence of intoxicating liquor or drugs while they are impaired to the slightest degree; or (2) If the person has an alcohol concentration of 0.08 percent or more, within two hours of driving or being in actual physical control of the vehicle and the alcohol was consumed either before or while driving or being in actual physical control of the vehicle; or (3) While there is any drug defined in section A.R.S.13-3401 or its metabolite in the person’s body.

A person driving under the influence of Marijuana could be arrested under items (1) or (3) depending on the circumstances of the Marijuana DUI. It is not a defense if the person is a qualified Medical Marijuana user.

Criminal Defense Attorney for Drug DUI charges Mesa, AZ

If you face any type of drug DUI charges in Arizona, you should always consult a qualified criminal attorney to discuss your case. Arizona has some of the most strict laws, and severe penalties for DUI conviction in the state. Sentencing for drug DUI charges are the same or similar to those of drunk driving. They include jail terms, suspension of driver’s license, probation, substance abuse screening and counseling; fines, fees, and assessments. Other penalties may apply. If retained an experienced criminal lawyer will protect your rights, and defend your charges. There may be defenses that you are not aware of that could lead to a dismissal of charges, or otherwise favorable outcome in your case.

Additional Resources:

• Arizona Drug DUI Laws

• Arizona Court of Appeals Division 1

• Arizona Drugs Defined Under Criminal Code

• Mesa AZ Municipal Court

• Mesa AZ Police Department

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A person may be arrested in Arizona for a DUI, if they are not driving drunk, and even if they have had no alcohol at all. Last year Drug impairments accounted for 15% of all DUI arrests in Arizona. Police attribute many of these to Prescription DUI violations. If a motorist is driving impaired due to Prescription-only medications solely or in combination with alcohol, they may be exposed to a DUI Arrest. Convictions for drug related driving impairments are generally as severe as those for alcohol related impaired driving charges.

Arizona Prescription Drug DUI Laws
A.R.S. 28-1381 – In Arizona it is unlawful for a person to drive or be in actual physical control of a vehicle, if the person is “impaired to the slightest degree” while:

• Under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree; • If the person has an alcohol concentration of 0.08 or more within two hours of driving or being in actual physical control of the vehicle; • Due to any drug defined under A.R.S. 13-3401 or its metabolite in a person’s bodily systems.

Prescription Drug DUI Penalties

A person found guilty of driving impaired due to prescription drugs will be convicted of a Class 1 Misdemeanor. Penalties first offense Drug DUI convictions include 10 days in jail; substance abuse education and screening; fines, fees, costs of $1250.00; 90 day driver’s license suspension; and probation; and Ignition Interlock Device (IID) one year. A second violation, within 7 years is a Class 1Misdemeanor. Penalties include 90 days jail; $3,000.00 fines, fees, costs; license revocation for one year; probation; Ignition Interlock Device (IID); and probation. A third DUI violation of any kind within 7 years, with two prior DUI convictions elevates a DUI to a Class 4 Felony, or Aggravated DUI to a Class 4 Felony. Penalties call for 4 months in prison for the third DUI; and 8 months for subsequent impaired driving convictions; fines, fees, costs of at least $4,000.00; driver’s license revocation for 3 years; ignition interlock device (IID) 2 years; probation or community service; and a felon criminal record.

These penalties may vary slightly, and additional penalties may apply.

Prescription Drugs Defined

A.R.S. 13-3401 (28) includes the definition of “Prescription only drug” and means; • Any toxic or potentially harmful drug as recognized in the general medical community; and • Is considered safe to use only under the supervision of a licensed and qualified medical practitioner; • Limited or approved for use as new drug under Federal Rules and medical supervision; of a medical practitioner. • Potentially harmful drugs with labeling that includes proper directions for use; • Drugs required by the Federal Rules to include labeling with the test “Federal law prohibits dispensing without prescription” or “Rx only”.

Criminal Attorney for Prescription Drug DUI defense Gilbert AZ
Arizona has some of the toughest laws and penalties for conviction in the county. If you are arrested for any type of impaired driving in Arizona due to alcohol or drugs, your future and freedom are in jeopardy. But you have the right to defend their charges, and by law are innocent until proven guilty. You should consult a criminal defense attorney, regarding your matter before deciding to plead “guilty”. If retained, a qualified legal advocate will protect your rights and defend your charges. There may be defenses you are not aware of that could lead to a case dismissal, reduction of charges, or mitigation in sentencing.

Additional Resources:

• Arizona Prescription Drug Definition

• Arizona DUI Laws

• Gilbert AZ Police DUI Enforcement Units

• Criminal Court Gilbert AZ

• Arizona MADD.org

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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

This year Phoenix AZ, East Valley, and West Valley are combining DUI Task Force Efforts to create one large task force, for better efficiency and safety.

The Special DUI Task Force will be in place for the rest of month of December 2012. A central Command Post will be set up at Devonshire Community Center. It is located at the intersections of E. Devonshire Ave and 28th Street, in Phoenix AZ. Police will also set up DUI Field Vans, with Preliminary Breath Test Units, throughout the valley.

DUI Charges

DUI charges represented the largest number of crimes in Arizona in 2011. A total of 35,505 arrests were made or 14% of all crimes committed in Arizona last year. In an effort to decrease incidents of drunk driving or Drug DUI, Maricopa County police have actively sought out DUI motorists with DUI Sobriety Checkpoints set throughout 2012. This year, they increased their presence and safety checkpoints around holidays, events, and times where high volumes of traffic were expected.

DUI Laws

Arizona has some of the toughest DUI laws and penalties in the country. A first-time DUI is a Class 1 Misdemeanor. Under A.R.S. 28-2831 it is unlawful for a person to drive or be in actual physical control of a vehicle while:

• Driving “impaired to the slightest degree” due to any alcohol or drugs;
• If the person has an alcohol concentration of 0.08 or greater within two hours of driving or being in actual physical control of a vehicle.

In Arizona the legal limit for alcohol or Blood Alcohol Content (BAC) is 0.08%. However, a person may be guilty of DUI even if their BAC was below 0.08%, if due to alcohol or drugs they were driving “impaired to the slightest degree”.

Before making an arrest, the police will conduct an investigation to determine if they have probable cause for a DUI arrest. This may include Field testing, breath testing, and or blood testing.

DUI Penalties

First-time non-extreme DUI conviction will result in the following penalties:

• 10 jail sentence;
• Suspension of driver’s license for 90 days;
• Ignition Interlock Device (IID) on vehicle following reinstatement of driving privileges;
• Fines, fees, costs and assessments of at least $1,200.00;
• Probation;
• Alcohol/drug abuse education and counseling which will reduce jail time to 24 hours if successfully completed;

The higher the Blood Alcohol Content (BAC) level found in a person’s system, the higher the penalties.

Laws and sentencing are more severe for repeat offenses. If a person is found guilty of a third DUI within 7 years, even if the prior DUI charges occurred in another state, they will be convicted of an Aggravated DUI which is a Class 4 Felony. Penalties for Felony DUI call for:

• 4 months in prison;
• Fines, fees, and assessments of S4,000.00;
• Driving privileges revoked for 3 years;
• 24 months of IID after reinstatement of license;
• Parole;
• Drug and Alcohol counseling and treatment;
• Community Service
• Felony criminal record

Criminal Defense Attorney for DUI Charges in Phoenix AZ

If you face DUI charges of any kind you should always consult a DUI Attorney before pleading guilty or appearing in court. Even though you were arrested, you have the right to retain an attorney and defend your charges. Your legal advocate will protect your rights; provide a defense; and work to resolve your matter as favorably as possible.

Additional Resources:

• Arizona DUI Laws

• Arizona Department of Public Services (DPS) – 2011 Crime Statistics

• Phoenix Police Department

• City of Phoenix – Municipal Court

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Law Office of James Novak 4500 S. Lakeshore Drive Tempe AZ 85282 (480) 413-1499 Free Consultation Maricopa County DUI & Criminal Defense Firm Serving Tempe, Phoenix, Mesa, Chandler, Gilbert, & Scottsdale AZ www.novakazlaw.com

It was reported in the media that his Blood Alcohol Content (BAC) level exceeded the Super Extreme limit which is 0.20%. The suspect allegedly admitted to being under the influence of prescription drugs. The Judge was not at his bench on Monday, and the court reported that was allegedly assigned to non-judicial duties due to a personal matter.

In Arizona it is illegal to drive “Impaired to the Slightest Degree” due to alcohol or drugs. Prescription drugs, especially for pain, often have adverse impacts on driving. When drugs and alcohol are combined, they can prove to be particularly impairing on a motorist’s ability to drive.

A mistake in judgment can easily result in a criminal offense. A DUI conviction can result in harsh criminal penalties including jail, driver’s license suspension, and other civil penalties, as well as other consequences. If you will be driving in Arizona, you should understand the side effects of any drugs you take; and be familiar with Arizona DUI laws and consequences of a conviction.

Arizona Drug DUI Laws

A.R.S. 28-1381. (A). Under Arizona law it is illegal to drive or be in actual physical control of a vehicle, “impaired to the slightest degree”, while under the influence of:

• Alcohol;
• Drug, or toxic substance (including over-the-counter, prescription, other legal or illegal drugs; or
• Any combination of liquor, and drugs First offense drug DUI charges are treated are very similar to those of an alcohol DUI with a BAC of 0.08%, and categorized as a Class 1 Misdemeanor. Penalties for conviction include:
  • 10 days jail;
  • Fines, fees, costs of $1,200.00
  • Installation of Court ordered Ignition Interlock Device on vehicle for at least 6 months;
  • Drug/Substance abuse screening, counseling or treatment which if completed, will reduce jail term;
  • Suspension of Driver’s License for 90 days;
  • Probation and/or
  • Community Service

Super Extreme DUI laws in Arizona

A.R.S. 28-1381. (A)(2)(B). A motorist driving with an Alcohol BAC of 0.20 or more will be found guilty of Super Extreme DUI. A super Extreme DUI is a Class 1 Misdemeanor; If a person is found to be driving with a BAC of 0.20 they will also be cited with “Impaired to the Slightest Degree”; 0.08% BAC DUI; 015% or more Extreme DUI and 0.20% Super Extreme DUI for up to 4 citations in one stop.

Penalties for a first offense Super Extreme DUI include

• 45 days in jail; • Fines, fees, costs of $2,500.00
• Drug/Substance abuse screening, counseling or treatment which if completed, will reduce jail term;
• Installation of Court ordered Ignition Interlock Device on vehicle for at least 18 months;
• Suspension of Driver’s License for at least 90 days;
• Probation and/or
• Community Service

Criminal Defense Attorney for Super Extreme DUI charges Gilbert AZ

Penalties for DUI if convicted will usually result in other life altering consequences such as termination or suspension of job. It is important to consult an experienced criminal defense attorney before going to court to discuss your matter, and options for defense. The penalties for any DUI in Arizona are some of the toughest in the country. You should never plead “Guilty” without being represented by an effective criminal defense lawyer. There may be defenses you are not aware of, that can lead to a dismissal, reduction or charges, or a reduction of harsh penalties. They will guide you through all phases of the criminal justice process; protect your rights; defend your charges; and work to get the most favorable resolution to your case.

Additional Resources:

• Drug DUI and Super Extreme DUI laws

• Gilbert AZ Police Department

• Alcohol/Substance Abuse Counseling and Treatment Providers

• Arizona Department of Health Services – Behavior Health Resource Links

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Law Office of James Novak 4500 S. Lakeshore Drive Tempe AZ 85282 (480) 413-1499 Free Consultation Maricopa County DUI & Criminal Defense Firm Serving Tempe, Phoenix, Mesa, Chandler, Gilbert, & Scottsdale AZ www.novakazlaw.com