Month: March 2011

Flagstaff search warrants under Arizona law…

Question: The police came to my house in Flagstaff with a “search warrant” and went inside my house without my permission. What is a search warrant? And how does it relate to “probable cause”? What is “probable cause” in Arizona? When is a search warrant issued?

Mr. Stevens’ Answer: You pose great questions. A search warrant is an order in writing issued in the name of the state, signed by a magistrate, directed to a law enforcement officer, commanding him to search for personal property, persons or items. See Arizona Revised Statute, section 13-3911. For a search warrant to be valid, it must be supported by probable cause. See Arizona Revised Statute, section 13-3913.

The term “probable cause” is a legal term of art that is best described as a standard of proof. Perhaps the best-known definition of probable cause is a reasonable belief that a person has committed a crime, and in terms of a search warrant, that the items the police want to seize will likely be evidence of a crime. Under Arizona law, a search warrant may be issued upon any of the following grounds:

  1. When the property to be seized was stolen or embezzled.
  2. When the property or things to be seized were used as a means of committing a public offense.
  3. When the property or things to be seized are in the possession of a person having the intent to use them as a means of committing a public offense or in possession of another to whom he may have delivered it for the purpose of concealing it or preventing it being discovered.
  4. When property or things to be seized consist of any item or constitute any evidence which tends to show that a particular public offense has been committed, or tends to show that a particular person has committed the public offense.
  5. When the property is to be searched and inspected by an appropriate official in the interest of the public health, safety or welfare as part of an inspection program authorized by law.
  6. When the person sought is the subject of an outstanding arrest warrant. See Arizona Revised Statute, section 13-3912. There are many laws and cases (Arizona Supreme Court; Arizona Court of Appeals; and federal courts including the U.S. Supreme Court) relating to search warrants, including governmental limitations based upon one of the most important amendements in the U.S. Constitution, and that is the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I encourage you to speak with a lawyer about your situation because there is a lot at stake and a lot you need to know about search warrants in Arizona. If the Flagstaff police are searching your house, you may be a suspect in a criminal investigation or otherwise related to the investigation in some way. Ask for a free consultation with an attorney. And good luck to you.

Flagstaff misdemeanor charge and conviction explained…

What is a misdemeanor in Flagstaff? Can you get a misdemeanor for a traffic offense? Can you go to jail for a misdemeanor, or only for a felony? What punishment does Arizona law for a misdemeanor conviction? Are there classes of misdemeanors?

Misdemeanors are often misunderstood. Misdemeanors are criminal in nature, unlike a “civil” speeding ticket, and you can suffer the punishments of a criminal conviction, like jail, fines, restitution, probation, drivers license suspension and revocation, and other consequences. In fact, a speeding ticket is a good way to explain the relative nature of a misdemeanor. Say you get pulled over for speeding in Flagstaff, and the Flagstaff Police Officer issues you a speeding ticket for going 45 mph in a 35 mph zone on South Milton Road. That is called a “civil traffic offense” in Arizona because it is non-criminal and you cannot be ordered to go to jail for it.

Now let’s say you get pulled over for going 60mph in the 35 mph speed limit on South Milton Road. In that case, you’d be 25 mph over the limit. That is a criminal offense in Arizona. It’s called criminal speeding or “excessive speeds,” in violation of A.R.S. section 28-701.02(A)(2). It is a “class 3” misdemeanor. That’s because going 20mph over the speed limit is no longer a civil violation; it is criminal. Similarly, if you get caught going anything over 85 mph in Arizona, you are guilty of excessive speeds in violation of A.R.S. section 28-701.02(A)(3). That is also a class 3 misdemeanor.

So a misdemeanor is worse than a civil offense. But is not as bad as a felony offense. It is somewhere in between. And misdemeanor convictions do appear on your criminal record because they are criminal convictions. Here are the maximum punishments for an Arizona misdemeanor conviction:

  • Class 1 Misdemeanor — You can get up to 6 months jail and a fine of up to $2,500, plus criminal restitution and probation;
  • Class 2 Misdemeanor – You can get up to 4 months jail and a fine of up to $750, plus criminal restitution and probation;
  • Class 3 Misdemeanor – You can get up to 30 days jail and a fine of up to $500, plus criminal restitution and probation.

Before you accept a misdemeanor conviction or plead guilty to a misdemeanor in Flagstaff or anywhere in Arizona, contact a lawyer for a free consultation. Sometimes, you can get a better deal and maybe, just maybe, you can beat the charges.

Flagstaff Lawyer Discusses How to Get an Arizona Felony Conviction Set Aside and What that Means for Your Civil Rights

Arizona law allows convicted felons to apply for several post-conviction remedies. In this article, I’m not writing about appeals and “post-conviction relief” pleadings. What I am talking about is getting your civil rights restored (e.g., gun rights), getting your conviction vacated or “set aside,” and the whether or not that conviction can still be used against you in the future.

Arizona law allows you (or your attorney or probation officer) to apply to the Court “on fulfillment of the conditions of probation or sentence and discharge by the court[.]” A.R.S. section 13-907. I recommend speaking to an attorney before you file an Application to Set Aside Judgment because it is important that you do it right the first time around.

If you are a first-time felon in Arizona, after you complete probation or your prison sentence, and you complete victim restitution, then you “shall automatically be restored any civil rights that were lost or suspended by the conviction.” A.R.S. section 13-912. However, be careful when it comes to guns, because your gun rights are not automatically restored! To get your gun rights restored, you must comply with two very specific Arizona statutes, specifically A.R.S. sections 13-905 and 13-906. Speak with an attorney if you want your gun rights to be restored correctly. It can be a very tricky process.

Once you have your conviction set aside, whether by application or automatically (for first-time offenders), you can get your civil rights restored. In fact, you will be released from “all penalties and disabilities resulting from the conviction[.]” A.R.S. section 13-907. That said, there are exceptions to this rule. One major exception is that, even though your conviction was set aside and your judgment was vacated, the State of Arizona, in a future felony prosecution against you, can and will use your prior conviction to enhance your next sentence. That’s right, even if you had your conviction set aside, the “fact” of the conviction will be used against you if you are convicted of another felony offense.

In a 2008 case, the Arizona Court of Appeals addressed that issue, referring back to older cases that said, ““The statute itself is proof that restoration of civil rights under section 13-907 does not expunge or remove the fact of conviction in Arizona. The statute allows an otherwise admissible prior conviction to be used for subsequent prosecutions as if the judgment of guilt had not been set aside.” Russell v. Royal Maccabees Life Ins. Co., 193 Ariz. 464, 467-68, ¶ 15, 974 P.2d 443, 446-47 (App.1998) (footnote omitted); accord State v. Green, 173 Ariz. 464, 469, 844 P.2d 631, 636 (App.1992), vacated in part, 174 Ariz. 586, 852 P.2d 401 (1993) (noting statute “specifically authorizes the conviction to be used as a prior conviction in subsequent prosecutions”); see also State v. Key, 128 Ariz. 419, 421, 626 P.2d 149, 151 (App.1981) (noting statute permits a person to be released of all penalties and disabilities “with the exception that the conviction may be proved as a prior conviction in a subsequent criminal action”).

Thus, even when your conviction is vacated or set aside, the fact that you were ever convicted of a felony in the first place can come back to haunt you. According to the Arizona Court of Appeals, that’s what the legislature intended when they drafted the terribly-worded law that is A.R.S. section 13-907.