Month: February 2011

Flagstaff Lawyer answers Arizona criminal law questions…

Question: What is a “Thayer presumption”? What is “prosecutorial misconduct”? What is the mercy rule? How about the adverse interest rule? And what is an Alford Plea?

Mr. Stevens’ Answer: The Thayer presumption refers to a certain type of a presumption, commonly understood as a burden of production but not persuasion. Under the Thayer approach, the purpose of a presumption is to require a party against whom a presumption operates to come forward with any evidence of the nonexistence of the presumed fact. This concept is rarely argued in criminal law because it relates to procedure, and the Arizona Rules of Criminal Procedure clearly define what types of presumptions occur in Arizona criminal law.

Prosecutorial misconduct is generally a procedural defense in which a defendant claims that the prosecutor acted inappropriately. Usually you’d have to prove that the prosecutor knowingly and intentionally violated constitutional rights or Arizona law in favor of the prosecution. This does occur but is not simple to prove. The only “mercy rule” that I know of relates to sports events, not criminal law, so I can’t help you there.

The adverse interest rule is a legal principle saying that if a party fails to produce a witness who is within its power to produce and who should have been produced, the judge may instruct the jury to infer that the witness’s evidence is unfavorable to the party’s case. This is rarely used in criminal law. However, for example, if the prosecutor has a witness with relevant information and fails to produce that witness, there is a presumption that the evidence was favorable to the defendant. Usually, the defendant can call the witness instead, thus defeating the need for the rule.

An Alford Plea is a “no contest” plea where a criminal defendant does not admit committing the crime (i.e., does not admit guilt), but admits that the prosecution could prove guilt. Usually, an Alford Plea is accepted where a defendant was so drunk or drugged out that he/she cannot remember committing the crime. In that case, the defendant cannot knowingly plead guilty (because he/she doesn’t remember committing the crime!), so the Court accepts a “no contest” plea. You should never enter a plea of guilty or an Alford plea without a lawyer!

Flagstaff lawyer discusses Flagstaff city dog laws…

The Flagstaff City Code is a set of ordinances and laws that governs various topics within the jurisdiction of Flagstaff city limits. One section is dedicated entirely to man’s best four-legged friends: DOGS.

While I would speculate that most dog-owners in Flagstaff regularly “violate” the Flagstaff laws on dogs, believe it or not, people actually get charged with criminal offenses for violating the dog laws of Flagstaff.

For example, any dog off the premises of its owner must have a collar with a securely fastened government issued dog tag which costs $10 to $20, depending on if your dog is neutered or spayed. Here’s a taste of what the Flagstaff dog laws say about collars: “At all times when a dog is off the premises of its owner, said dog shall have a collar around its neck with the metal tag aforesaid securely fastened thereto.” See Flagstaff City Code section 6-02-1-8.

Most Flagstaff dog owners don’t know, or care, about the Flagstaff city government’s efforts to control and regulate all things relating to their dogs, including of course the “barking or howling dogs” ordinance. “It is unlawful for any person owning or having the care, custody or control of any dog to permit said dog to bark, bay, howl or make any other noise, day or night, in such an unreasonable manner as to disturb the peace and quiet of any person or persons.” See Flagstaff City Code section 6-02-1-11(C).

And then there’s dog bites and “vicious dogs.” In Flagstaff, a “vicious dog” is defined in four ways:

  • A dog that bites a human beings without provocation; or
  • A dog with a known propensity, tendency, or disposition to bite human beings; or
  • A dog that while at large kills or causes injury to domestic animals; or
  • A dog declared to be a vicious dog by a City Magistrate after a determination at a hearing of a pattern of aggressive behavior that has caused injury, apprehension or intimidation of a person.

Basically, if your dog nips someone without provocation, you’ve got yourself a “vicious dog” that Flagstaff city law requires to be muzzled when off the premises of its owner. So if you take your dog on a walk, and it had nipped at someone in the past, then you have to muzzle it or else you’re guilty of violating Flagstaff city dog law. Here is what the Flagstaff city law says:

“No person owning or having charge, care, custody, or control of a vicious dog shall permit such dog off his premises unless such dog is under the control of a competent person and is securely leashed and muzzled.”

Flagstaff City Code section 6-02-1-1(B)(1).

Violating Flagstaff city dog law is criminal in nature and involves court hearings, pre-trial conferences, plea negotiations, plea agreements, criminal restitution.

Worst of all: the City of Flagstaff may kill your dog. That’s right, if your dog is found to be “vicious” by the government, they can order the humane destruction of your dog. They can kill your dog.

If you have been cited by the Flagstaff police or Flagstaff City Attorney with any violation of the Flagstaff City Code, including the Flagstaff dog laws (failure to control dog; vicious dog; dog-at-large; failure to have a dog collar; etc.), call or email Griffen & Stevens Law Firm, PLLC for a free evaluation of your case.

I’ll unleash your best legal defenses. And always remember: one barking dog sets the whole street barking. I look forward to speaking with you.