Month: January 2011

Flagstaff-Lawyer discusses Arizona street racing and exhibition of speed…

Question: I was cited for “drag racing” by a police officer. I don’t know what that means. The prosecutor offered me a plea to “28-701(A).” Should I accept that plea?

Mr. Stevens’ Answer: The law you were cited for, A.R.S. section 28-708, is essentially for street racing. Here’s how Arizona criminal law defines street racing:

“A person shall not drive a vehicle or participate in any manner in a race, speed competition or contest, drag race or acceleration contest, test of physical endurance or exhibition of speed or acceleration or for the purpose of making a speed record on a street or highway.”

Your cited offense of exhibition of speed, street racing or drag racing criminal in nature — it’s a class 1 misdemeanor for your first offense, and can even be classified as a felony if you are convicted of it twice in 2 years.

The minimum fine if you are convicted of violating 28-708 is $250, but could be up to $2,500, along with jail and community service. Now, the prosecutor has offered you a plea to 28-701(A). Unless you think the citation is bogus and that you are innocent, this is not a bad plea. What the plea is basically saying is that you drove “at a speed greater than is reasonable and prudent,” according to Arizona traffic law.

That would be a civil penalty, and not a criminal conviction. It’s your basic, run-of-the-mill Arizona speeding ticket. But make sure your plea does not say section 28-701.02 because that is a class 3 misdemeanor and puts you back in the world of Arizona criminal law. Please keep in mind, I don’t know the total facts of your case.

So, I would strongly recommend you to consult with an Arizona lawyer before you accept a plea or demand a trial. I do free consultations on all Arizona criminal and traffic cases. Best of luck.

Flagstaff Lawyer discusses premeditated and felony-murder (emphasis on arson murder)…

In Arizona, when a person commits arson of an occupied structure, and someone dies, the person is guilty of first degree murder under the felony-murder statute. The punishment is the same as premeditated murder.

Recently, in Prescott, Arizona, Zachary Sutton has been accused of first degree murder. Originally, it looked like an arson-murder (i.e., felony-murder) but has possibly evolved into a premeditated first degree murder.

Either way, if convicted of either premeditated or felony-murder, Sutton faces possible life imprisonment. In Arizona, felony-murder works like this. The crime of first degree felony murder requires proof that: (1) the defendant, acting either alone or with one or more other persons, committed or attempted to commit a specified felony offense (e.g., arson of an occupied structure); and (2) in the course of and in furtherance of this crime or immediate flight from this crime, the defendant or another person caused the death of any person.

Thus, committing arson of an occupied structure, in the course of which someone dies, is felony-murder. Felony-murder is a distinct crime from premeditated murder because the elements of the crimes are different. But, the punishment is identical for both. Like the prosecution that Sutton is facing in Yavapai County, I prosecuted Cynthia McDaniel for an arson-murder. She was convicted of first-degree felony murder, even though she had no premeditation to kill.

According to the Arizona Supreme Court, here is what premeditation means:

“Premeditation” means that the defendant intended to kill another human being or knew he would kill another human being, and that after forming that intent or knowledge, reflected on the decision before killing. It is this reflection, regardless of the length of time in which it occurs, that distinguishes first degree murder from second degree murder. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion. The time needed for reflection is not necessarily prolonged, and the space of time between the intent or knowledge to kill and the act of killing may be very short.

Therefore, under Arizona law, a person can be sent to prison for life on a first degree (felony) murder conviction without ever having premeditation.

Feel free to email me questions on these issues and any other Arizona criminal law question!

Flagstaff-Lawyer discusses a defendant stuck in jail awaiting trial and the meaning of complex case designation…

Question: What does it mean when a State of Arizona prosecutor files a motion for a complex case designation in someone’s case? What if the defendant is in custody, stuck in jail, awaiting trial?

Mr. Stevens’ Answer: Under Arizona law, a complex case designation adds 90 to 120 days (depending on if the defendant is in custody or out of custody) to the total maximum amount of time that the prosecutor has to bring the case to trial. The relevant rule is Rule 8 (Arizona Speedy Trial) of the Arizona Rules of Criminal Procedure.

The Arizona Constitution, and the United States Constitution, also come into play. But procedurally speaking, Rule 8 sums up the situation for your question. Complex case designation under Arizona law is reserved for first degree murder cases, cases involving certain search warrants (wiretaps, etc.), and any other case that the Court believes is truly complex. If a person is in jail, awaiting trial on a felony, normally the prosecution has 150 days from the arraignment to take it to trial.

But in a complex case (if the Court grants the prosecutor’s motion), the person in jail has to wait for 270 days from the arraignment. You should be aware, also, that during the process of the case, such as at Case Management Conferences, if the Arizona defendant’s lawyer agrees to “waive Rule 8 time” or anything to that effect, the process will take longer than 270 days. What that means is that the defendant is waiving his speedy trial rights for a limited time, meaning he is not enforcing his right to a speedy trial at the moment, but can do so in the future by refusing to “waive time” any further.

Any extension of time should be to the benefit of the defendant’s case. No Arizona defendant or Arizona defense lawyer should ever “waive time” or waive constitutional rights unless there is some benefit to the defendant who is sitting in an Arizona jail, awaiting trial.