Month: May 2011

Flagstaff Lawyer on Drive By Shooting Charges

Flagstaff, AZ – Drive-by shooting charges are more common than most people think in Arizona. It’s not just what you see in the movies: an angry drug dealer with four buddies drives by a quiet house in the middle of the night and shoots out the windows and doors. In fact, “road rage” incidents lead to many drive-by shooting charges because a drive-by shooting does not need to be at a house. It can be at a car.

Under Arizona law, a drive-by shooting is where a person intentionally shooting a weapon from a motor vehicle at a person, occupied structure, or occupied vehicle. See A.R.S. section 13-1209(A).

Does the vehicle have to be moving? No, it does not, according to the current status of Arizona criminal law. Let’s break it down. It has to be an intentional shooting from a motor vehicle. Easy enough to understand. Then the target has to be a person (which will justify murder or attempted murder charges), or an occupied structure, or an occupied vehicle.

So a road rage incident that leads to a gunshot while the two cars are driving is a drive-by shooting. An occupied structure can be many things: building, object, vehicle, watercraft, boat, aircraft, or any house even if vacant. See A.R.S. section 13-3101.

The consequences of a drive-by shooting, because it is such a dangerous and terrible thing, are a class 2 felony, and typically “dangerous” in nature. Prison will be mandatory. Additionally, the vehicle used to commit the drive-by is going to be seized and forfeited to the government, typically in a civil forfeiture proceeding.

I discussed forfeiture in some detail in a previous article on Flagstaff-Lawyer.com here. Drive-by shooting charges are very serious. In fact, any criminal offense in Arizona involving a dangerous instrument or deadly weapon (e.g., a gun) is extremely serious and can lead to felony convictions, up to a lifetime in prison, forfeiture of property and civil rights, fines, restitution, and other consequences.

Hire a knowledgeable, aggressive criminal defense lawyer to defend you.

Flagstaff DUI Lawyer on Field Sobriety Tests

Flagstaff, AZ – Field sobriety tests. Nobody wants to do them. When you pass by a person on the side of the road, walking in a straight line with their arms extended outward, while a cop shines a flashlight on them and takes notes of ever swaying movement, you always think, “Wow, glad that’s not me!” Well, what if it is you one day? You should know the facts.

You can decline field sobriety tests under Arizona DUI laws.

Your refusal can be used against you, but that may be less of a problem for you than failing FST’s. It doesn’t matter how the police officer phrases the question:

“Will you do me a favor, ma’am? I’d just love if you’d make my job easier and do a few simple tests for me and then I’ll send you on your way.”

“You said you haven’t been drinking. Great. Show me by doing a few tests please?”

“If you do a few tests successfully, I’ll let you drive away without a ticket. How about it?”

No matter what, the police cannot force you to perform field sobriety tests. They are not required in Arizona. And field sobriety tests (or “FST’s”) are fraught with peril.

Every mistake, every sway, every time you put a foot down when you’re not supposed to, the officer will write it down and use it to establish probable cause that you are impaired so that you can be arrested and charged with a DUI. \

At a legal training course as a prosecutor, I was once asked to perform FST’s in front of a class. I was sober, of course. How did I do? FAIL. Well, it’s not really a pass/fail test. But I made two (2) mistakes, which would have been noted as proof of my impairment. The truth is that a sober person, on the side of a road, in the dark, with adrenaline rushing due to the police officer’s presence, shining blue-and-red lights causing distractions, cars whizzing by, and many other factors, would not perform FST’s perfectly.

Rather than give the police “evidence” of your impairment, even if you are not impaired at all, you can respectfully decline to perform the tests. Tell the officer if you have any injuries to your legs, feet, or other body parts that would cause you problems with performing the tests. What’s the harm in refusing to perform FST’s?

Well, the truth is that you don’t have a legal right to refuse a lawful search. So if the officer has reasonable suspicion that you were driving while impaired, then your refusal to perform FST’s is admissible at trial against you, and the prosecutor can argue that you refused to perform FST’s goes to show your guilt. See State ex rel. Verburg v. Jones (Phipps, Real Party in Interest), 211 Ariz. 413, 121 P.3d 1283 (Ariz. App. Div. 1, 2005).

It’s not the perfect argument of your guilt, but it can hurt your case. So it is a catch 22 in many ways. Unless you know you can nail the FST’s perfectly, the risk is all yours to consider. Know the consequences.

Flagstaff Lawyer Unleashes on Coconino County Dog Laws

Coconino County, AZ – Do you own a dog in Coconino County, outside the city limits of Flagstaff? Here’s a fun fact you may not know. Everyone who owns, or even keeps, a dog in Coconino County must purchase a dog license when the dog turns three months old, or within 30 days of becoming the owner or keeper, or within 30 days after moving into Coconino County.

And then there’s the new Coconino County barking ordinance. Passed in early 2011, this new law governs barking dogs and makes it a crime for the owner of dog to allow it to bark for more than 15 minutes, or 30 minutes if intermittent. They define a “barking dog” as a dog that barks, howls, or makes any other such noise in an excessive and unrestrained, continual and unprovoked manner which disturbs the peace and quiet of any person or persons. So what if you live in Doney Park and your dog barks for 15 minutes while you’re not home, and a construction worker is moderately annoyed by it?

You can be charged with a CRIME!

It’s a class 2 misdemeanor and you can face a fine, plus applicable cost and surcharge as follows:

  • for the first offense, a fine of not less than twenty five dollars( $25.00) and not more than seven hundred and fifty ($750.00);
  • for the second offense a fine of not less than fifty dollars ($50.00) and not more than seven hundred and fifty dollars ($750.00);
  • for the third offense a fine of not less than one hundred dollars($100.00) and not more than seven hundred and fifty dollars($750.00);
  • and for the fourth and subsequent offenses a fine of not less than two hundred dollars ($200.00) and not more than seven hundred and fifty dollars ($750.00).

Coconino County Dog At Large Ordinance

The Coconino County dog at large ordinance is a lot like the Flagstaff City Code in regard to dogs at large, vicious dogs, and other dog laws. Outside of city limits, in Coconino County, the owner, or other person acting for the owner of a dog is required “at all times” to keep such dog from running at large upon the streets, sidewalks, alleys, or public property of unincorporated areas of the County, unless such dog is restrained by a leash, cord, rope or chain of not more than 6 feet in length and of sufficient strength to control the action of the dog.

This provision also includes land under the control of both State and Federal Government. Again, it’s a class 2 misdemeanor if you violate the dog-at-large ordinance. For “vicious dogs,” meaning in general dogs that bite a person, the law makes it so that no person owning or harboring or having the care or custody of a vicious dog shall suffer or permit such dog to go unconfined beyond the premises of such person unless such dog is securely leashed and muzzled or otherwise securely restrained.

Sometimes the best defense is contending whether the dog is indeed a “vicious dog.” If the judge believes your dog is a threat to humans, the Coconino County government can kill your dog without your consent!

Dog laws are not as simple as you may think. Before you suffer a criminal conviction for a dog violation, call your dog lawyer right now.

Flagstaff Crime Lawyer Notes the Power of Arizona Forfeiture Laws in Drug Cases

Northern Arizona – When an Arizona felony drug crime is charged, the State will look to take away things of value used for criminal behavior, like computers, cell phones, vehicles, cash, and more. That’s because the Arizona criminal code gives the State the power to seize those items, auction them off (or keep and use them) and keep the proceeds!

But did you know: through civil forfeiture proceedings, police and prosecutors and take your stuff, auction it off and keep the proceeds to fund their own budgets? And they can do that without ever charging a crime!

The basic rule for forfeiture in drug offenses is: If something is used or intended for use in violation of Arizona drug laws, they’re going to take it.

The kinds of things they can take in drug cases include: Property Equipment Containers Chemicals Materials Money Books Records Research Products Formulas Microfilm Tapes Data Vapor-releasing substances Vehicles See A.R.S. section 13-3413(A).

And the stuff subject to seizure does not need to be closely linked to the crime. The stuff just need to be proceeds and “traceable” to a drug offense that was committed for financial gain. So, if the State thinks you bought an iPhone with marijuna sales proceeds, your iPhone is a goner. Marijuana and other drugs, including peyote, can be summarily forfeited. Typically, the State must institute forfeiture proceedings. You will see case names like U.S. v. $124,700 in U.S. Currency, which is called an in rem proceeding because, as you can see, the U.S. is instituting a lawsuit over money, not a person.

This type of forfeiture proceeding is the norm. So the moral of this forfeiture story is if you’re accused of selling drugs, or committing any drug offense where you have any financial gain, including transporting drugs on the interstate, your vehicle, phones, computers, and other property are subject to seizure and forfeiture.

They’ll be used by the police, or prosecutors, or sold at auction. If you’re involved in a forfeiture proceeding, contact Griffen & Stevens Law Firm, PLLC immediately.

Arizona Search Warrant Lawyer: Controverting Search Warrants

Flagstaff, AZ – Search warrants are defined by Arizona law as orders in writing issued in the name of the State of Arizona, signed by a magistrate, directed to an Arizona peace officer, and commanding the peace officer to search for personal property, persons or items. When property is stolen or embezzledSearch warrants can be issued upon the following grounds:

  • When property is used as a means of committing a public offense
  • When property is in the possesion of a person with the intent to use the property to commit a public offense or hide the evidence
  • When property needs to be inspected by a public official in the interest of the public health, safety or welfare as part of a state inspection program
  • When the person sought has an outstanding arrest warrant

See A.R.S. section 13-3912. So, what do you do if you’re the victim of a search warrant? Well, first, you should receive a copy of the warrant and a very important document called the Property Invoice and Receipt. The receipt must state everything that was taken from you. So you should make sure that the police did not take anything that is not noted on the receipt. Next, go to the Court that issued the search warrant and try to get a copy of the affidavit upon which the search warrant was based.

The legal standard to determine if the search warrant is valid is “probable cause.” Specifically, no search warrant shall be issued except on probable cause, supported by affidavit, naming or describing the person and particularly describing the property to be seized and the place to be searched. See A.R.S. section 13-3913.

If you do not believe probable cause exists, or the grounds stated in the affidavit are false, misleading, wrong, or otherwise faulty, we can challenge or controvert the grounds of issuance of the warrant. The Court will have a hearing where we can elicit your testimony and the testimony of other witnesses.

Ultimately, controverting the grounds of a search warrant will not lead to the suppression of evidence from trial, but it might get your stuff back sooner. If your property is subject to forfeiture proceedings, that’s a-whole-nother story.

Questions on Arizona forfeiture proceedings? Contact me using the form at the top right of this page. Need to challenge a search warrant? Contact Griffen & Stevens Law Firm, PLLC now.

Yavapai County Felony Defense Lawyer

Prescott, AZ – Felony cases in Yavapai County often face the Early Disposition Court, or EDC, which is an attempt by the Yavapai County Attorney’s Office to get felony defendants to give up their constitutional rights, plead guilty, and most likely go to the Arizona Department of Corrections.

No defendant should ever take an EDC plea without a lawyer’s advice. And EDC doesn’t really give anybody, defendants or defense lawyers, a chance to thoroughly review the case or the State’s evidence. It’s well known law in Arizona that a Yavapai County Superior Court judge, or any Superior Court judge, cannot accept a guilty plea on a felony case unless the defendant knowingly, voluntarily, and intelligently waived all of his constitution rights associated with criminal cases.

Can you really waive all of those rights intelligently in Yavapai County’s EDC on a felony case? Doubtful. To do so, you’d need time to review all of the State’s disclosure, which is often ongoing.

Rule 15.1 of the Arizona Rules of Criminal Procedure requires specific types and amounts of disclosure. Can the prosecutors in Yavapai really meet those requirements at EDC? Again, doubtful.

Before pleading guilty to any criminal offense in Arizona, click the link at the top of this page for a free consultation. Or call Griffen & Stevens Law Firm, PLLC now.

What a Flagstaff DUI Lawyer Can Do For You

Arizona DUI (or DWI) cases are different than other criminal cases. DUI laws are in Title 28 of the Arizona Revised Statutes, which pertains to Transportation in general.

DUI offenses are not listed in the Arizona criminal code. But they are still criminal in nature. In Flagstaff, Prescott, Verde Valley, and across northern Arizona, the punishments can be severe. If your very first DUI is with a 0.15% BAC, if you’re convicted you’ll go to jail for at least 30 consecutive days.

So if you spent 24 hours in jail on the DUI charge (to sober up in the “drunk tank”), you won’t serve 29 days, you’ll still serve at least 30 more days because it is required to be consecutive.A simple DUI, or DUI Slightest, is a class 1 misdemeanor, punishable by up to 6 months in a Arizona county jail and up to $2,500 in fines, except that the fines can be higher than $2,500 in an Extreme DUI case.

A DUI Slightest is the same level of offense as an Extreme DUI, meaning that if you drive with a 0.08% BAC, it’s a class 1 misdemeanor. And if you drive with a 0.20% BAC (Super Extreme DUI), it’s still a class 1 misdemeanor. On a first-time DUI with a 0.20% BAC or higher, you’ll do 45 consecutive days in the Coconino County jail (or in whatever county the crime occurred).

So what can a northern Arizona DUI lawyer do for you?

Plenty.

You need a criminal defense lawyer with DUI case experience, who is familiar with the inner workings of DUI laws, breath tests, blood tests, expert testimony by criminalists, jury trials (all DUI cases come with a right to a jury trial), plea negotiations, suppression hearings, suppression motions, Fourth Amendment, and much more.

Creative plea bargains can be obtained as well to minimize your jail time, get you on work furlough (so you’re out of jail for 12 hours/day while still getting credit for the time), and much more.

A criminal defense lawyer should thoroughly and critically review the State’s evidence. Sometimes, a dismissal of your DUI case is appropriate. To get a free DUI consultation right now, use the form at the top right of this page, or call the number at the top.

Arizona Attorney: How to Do an Arizona Public Records Requests

Flagstaff, AZ – If you’re looking for information held by a public office, we all have the right to do a public records request. Generally, Arizona law requires every public body to maintain all records of disciplinary actions, including the employee responses to all disciplinary actions.

This includes politicians, politicians’ employees, police officers, chiefs of police, sheriff’s deputies, prosecutors, public defenders, school board members, and all other public officials. Those records must then be “open to inspection and copying” under most circumstances.

How do I create a public records request in Arizona?

Both Arizona state law, and the federal Freedom of Information Act are on your side. If you are looking for Arizona public records, contact me now using the link at the top of this page.

For a low rate, I can put together a solid public records request, with all of the legal citations you need, for you to make sure you get the information you’re looking for.

Flagstaff Lawyer Notes the Importance of Arizona Pre-Sentencing Work by Felony Defense Lawyers

If you’ve been exposed to the Arizona criminal justice system, especially felony cases in northern Arizona, may have heard of “mitigation hearings” or “pre-sentencing hearings.”

But if you’re looking at a possible prison sentence in the Arizona Department of Corrections, you don’t want to just walk into a Sentencing Hearing and hope for the best.  You need a lawyer who will prepare a mitigation case, file a Sentencing Memorandum, seek positive reference letters and testimony, challenge the State’s aggravating factors and arguments, and put on a Pre-Sentencing Hearing pursuant to Rule 26.7, Arizona Rules of Criminal Procedure.

Normally, felony sentencing occurs at a Sentencing Hearing after either a jury trial or change of plea (wherein the defendant pleads guilty or no contest).  A Sentencing Hearing in Coconino County, Yavapai County, Mohave County, or Navajo County typically occurs 15-30 days after the determination of guilt. See Arizona Rules of Criminal Procedure, Rule 26.3(a).

According to Rule 26.7, the Court shall hold a pre-sentencing hearing if the defendant requests one.  And the Court can’t hold a mitigation hearing, let’s call it, until the Adult Probation Department (or whoever the judge appoints) creates the Pre-Sentence Report.  The Pre-Sentence Report is a compilation of relevant information about the defendant, including family history, substance abuse history, criminal history, facts of the present csae, statements from victims and others, and lots more.

At the mitigation hearing, both the defendant and the prosecutor can introduce any reliable, relevant evidence, including hearsay, in order to show aggravating or mitigating circumstances, to show why sentence should not be imposed, or to correct or amplify the pre-sentence reports.

In summary, after a person pleads guilty to a felony, a good defense lawyer should be work very hard in preparation for sentencing because Arizona law provides lawyers with a lot of methods for getting a judge to see and find mitigation, which can result in a significantly lighter sentence.

In a recent case I handled, the prosecutor argued for the maximum sentence of 3 years in prison, and because I prepared hard, filed a pre-sentencing memorandum, interviewed witnesses, and articulated the mitigating factors in a favorable way, my client got the minimum sentence.

Flagstaff Lawyer Speaks On Arizona Domestic Violence Laws

Flagstaff, AZ In Arizona, “Family Offenses” are criminalized under Title 13, Chapter 36 of the Arizona Revised Statutes. A typical scenario is a boyfriend/girlfriend or husband/wife drinking alcohol, getting into an argument, and resorting to some level of violence, anger, outburst, or other crime. The result is that the crime will be tagged as a Domestic Violence Offense, or “DV”.

What most people don’t know is that “domestic violence” is not in-and-of-itself a criminal offense in Arizona. Domestic violence, or DV, is a designation that is tagged onto specific crimes, if certain criteria are met. So, let’s first discuss the criteria. What makes a relationship worthy of the extra protections of the domestic violence statutes?

Here are the relationships between “victim” and “defendant” defined by Arizona DV laws:

  1. Marriage or former marriage or people who lived together or used to live together;
  2. Have a child in common;
  3. The victim or the defendant is pregnant by the other person;
  4. The victim is related to the defendant either by blood or by marriage (including in-laws), such as a parent, grandparent, child, grandchild, brother or sister or by marriage as a parent-in-law, grandparent-in-law, stepparent, step-grandparent, stepchild, step-grandchild, brother-in-law or sister-in-law.
  5. When the victim is a child, and resides or has resided in the same household as the defendant and is related by blood to a former spouse of the defendant or to a person who resides or who has resided in the same household as the defendant.
  6. A “romantic or sexual relationship”, current or previous, defined by the following factors: (a) The type of relationship. (b) The length of the relationship. (c) The frequency of the interaction between the victim and the defendant. (d) If the relationship has terminated, the length of time since the termination.

See A.R.S. section 13-3601(A).

Once the DV relationship exists, what crimes can be domestic violence?

Here’s the list:

  • Any Dangerous Crime Against Children
  • Endangerment
  • Threatening or Intimidating
  • Simple Assault
  • Aggravated Assault
  • Custodial Interference
  • Unlawful Imprisonment
  • Kidnapping
  • Criminal Trespass (1st, 2nd, and 3rd degree)
  • Criminal Damage
  • Interfering with Judicial Proceedings
  • Disorderly Conduct
  • Use of a Telephone to Terrify, Intimidate, or Harass
  • Harassment
  • Aggravated Harassment
  • Stalking
  • Surreptitious Recording or Photographing
  • Aggravated Domestic Violence
  • Child or Vulnerable Adult Abuse

All of the above-stated crimes can be tagged as DV.

And what happens if you get a DV conviction? There are special sentencing provisions that make things worse for DV defendants, including no-contact orders, DV counseling and classes, DV impact panel, higher costs, and more. If you get a 3rd or subsequent DV conviction in a period of 7 years, it is automatically a class 5 felony.

Domestic violence in Flagstaff is a significant problem, and oftentimes comes after an alcohol-fueled day or evening. Don’t commit domestic violence. If you have anger problems, drinking problems, or have committed DV and want to never do it again, get help right now.