Month: June 2011

Flagstaff Lawyer Notes the Differences Between Manslaughter and Negligent Homicide

Prescott, AZ – Recently, in Yavapai County, at the Superior Court in Camp Verde, the so-called “sweat lodge trial” came to an end.

The government had charged James Arthur Ray, a self-help guru, with manslaughter. After a lengthy jury trial, Ray was convicted of negligent homicide.

I’m not here to discuss the fairness of the verdict because only the jurors know how they arrived at their verdict. But I am going to discuss the differences between manslaughter and negligent homicide.

First, let’s talk about what defines manslaughter. Then we’ll define negligent homicide. Then we’ll get to the difference in Arizona laws associated with the level of felony of the two separate offenses. Manslaughter is defined in several different ways, but the one that was the theory of the State’s case in the State v. Ray trial was quite simple:

A person commits manslaughter by . . . Recklessly causing the death of another person.

A.R.S. section 13-1103(A)(1).

Compare that to negligent homicide:

A person commits negligent homicide if with criminal negligence the person causes the death of another person[.]

A.R.S. section 13-1102(A).

So the major difference? “Recklessly” versus “with criminal negligence” makes the difference here.

The jury, after hearing all the admitted evidence, agreed that James Ray caused death with criminal negligence, as opposed to recklessly. So what is recklessly and what is criminal negligence? Get ready… Arizona law defines recklessly as:

“Recklessly” means, with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but who is unaware of such risk solely by reason of voluntary intoxication also acts recklessly with respect to such risk.

A.R.S. section 13-105(10)(c).

Arizona law defines criminal negligence as:

“Criminal negligence” means, with respect to a result or to a circumstance described by a statute defining an offense, that a person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

A.R.S. section 13-105(10)(d).

I’ll let you read and assess those differences as you see fit. When it comes to the convictions, manslaughter is a class 2 felony. Negligent homicide is a class 4 felony in Arizona. That’s the basic rundown.

I’ll plan another article with more detail on sentencing schemes and certain factors like consecutive versus concurrent terms. Other ideas, please contact me using the form at the top right. Once again, this article is not meant to take a position on the verdict, the victims, the defendant, or any of the many people involved, but to identify some of the legal differences between manslaughter and negligent homicide.

Excuses to Get Pulled Over in Arizona

There’s a big issue looming on traffic stops in Arizona, including in the Flagstaff area, relating to GPS devices.

Many rental cars, and tourists in general, place GPS devices on their windshields to provide directions on how to get to the Grand Canyon, Sedona, Flagstaff, Lake Powell, and other destinations. And they get pulled over by the police. The Arizona statute at issue is going to be this one:

Except as otherwise provided in this section, a person shall not operate a motor vehicle with an object or material placed, displayed, installed, affixed or applied on the windshield or side or rear windows or with an object or material placed, displayed, installed, affixed or applied in or on the motor vehicle in a manner that obstructs or reduces a driver’s clear view through the windshield or side or rear windows.

A.R.S. section 28-959.01(B).

This law also refers to tinted windows. Of course, tinted windows were a big source of litigation on Fourth Amendment issues. So what changed? Not the law! This law has been in effect, unchanged, since 1996.

What changed is technology. Nobody had windshield GPS devices in 1996. Now every rental car company offers them. Most tourists have them. Even locals have them. What happens is this. Officers observe the GPS unit on the windshield. They suspect you’re a drug courier, or you’re DUI, and they want to investigate.

They use the GPS device as a reason to pull you over, to “investigate” if it’s obstructing or reducing the driver’s clear view through the windshield or side or rear windows. Then they move forward with the real motivation for the stop: drugs and alcohol.

You get charged with a crime. And me? I challenge the stop and move to preclude all evidence obtained thereafter.

Flagstaff Lawyer: Three Types of Robbery Under Arizona Law

As you’ve probably figured out by now, the law is never simple and easy. Robbery laws are no exception. There are three types of Robbery under Arizona criminal law:

(1) robbery;

(2) aggravated robbery; and

(3) armed robbery.

See A.R.S. sections 13-1902 et seq.

First, a basic robbery occurs where a person threatens or uses force against another person to take their property. Robbery is a class 4 felony, quite serious.

Second, an aggravated robbery is where a person commits a basic robbery but has an accomplice “actually present” while committing the robbery. The logic behind this is that having an accomplice is a show of force, thus increasing the threat to the victim. Aggravated Robbery is a class 3 felony.

Third, an armed robbery is where a person commits robbery and has or uses a deadly weapon or dangerous instrument. It even includes a simulated deadly weapon, like if you put a fake gun under your shirt, threaten a cashier with the “gun” under your shirt, and steal money from the cash register.

Although you only had a fake gun, you’ve committed an armed robbery, punishable as a class 2 felony. And it can be a “dangerous” offense for the purpose of sentencing.

All robbery charges are incredibly serious and should be handled by a dedicated criminal defense attorney.

Flagstaff Lawyer Discusses DUI Checkpoints

Flagstaff, AZ – DUI checkpoints are, in some ways, a suspension of your Fourth Amendment rights. The reason I say that is because at a DUI checkpoint, even sober people will be stopped and questioned by police. This is not a “consensual encounter” when the sober, non-criminal person is forced to pull over and speak with a police offcer. Yet, it’s not illegal.  So what’s going on with DUI checkpoints?

DUI checkpoints are considered a low- or non-intrusive suspension of your Fourth Amendment rights (think: search and seizure).  They are a public safety exception to the general principle that a person cannot be seized by the police against their will unless there is, at least, reasonable suspicion of criminal activity afoot.  When you are totally sober, and you are forced to stop and wait in a line of cars, and forced to roll down your window and show your ID to a police officer and answer questions, all while you are not consenting to do so — that’s a DUI checkpoint in a nutshell.

When you are at a DUI checkpoint, the officers are really looking for things like: the smell of alcohol on you; slurred speech; red watery eyes; and other signs and symptoms of alcohol impairment. Therefore, even if you say, “I respectfully decline to speak with you,” the officer will try to look for signs of intoxication. If there are none, they will require you to produce a drivers license (usually) and then let you pass through. DUI checkpoints have been challenged before, and as far as I know in Arizona, they have been upheld as constitutional.

If you turn your car around and flee from a DUI checkpoint, you can be chased and pulled over and investigated, at least under Arizona case law.  If you flee from a police vehicle trying to pull you over, even if you feel that you did nothing wrong and are just driving away from a DUI checkpoint, you can be charged with Unlawful Flight, a class 5 felony.

DUI checkpoints often result in many arrests.  That’s because the police are finding people who, although impaired by alcohol, were otherwise driving well enough that no police officer had the reasonable suspicion to pull them over.  With a DUI checkpoint, they automatically must pull over.  That’s when the police can recognize signs and symptoms of alcohol impairment.  That’s when you get arrested and jailed and your car gets towed.

If you’ve got a Flagstaff, Sedona, or Prescott DUI charge, call today for a free Arizona DUI consultation.

 

Felony Bonds & Bail in Arizona

Criminal defendants are often held in custody, in jail, while their cases are pending. But they’re innocent until proven guilty. So, why are they in jail? The basis of the pre-judgment incarceration is whether or not the person will appear for their court hearings if they are out of custody.

Rule 7.2(a) of the Arizona Rules of Criminal Procedure mandates as follows:

“Any person charged with an offense bailable as a matter of right shall be released pending or during trial on the person’s own recognizance, unless the court determines, in its discretion, that such a release will not reasonably assure the person’s appearance as required. If such a determination is made, the court may impose the least onerous condition or conditions contained in Rule 7.3 (b) which will reasonably assure the person’s appearance.”

Rule 7.4(b) provides that any person remaining in custody may move for a review of release conditions whenever the case is transferred to a different court or where the motion alleges the existence material facts not previously presented to the Court. And the Arizona Constitution speaks to the issue of bail as well.

Specifically, the Arizona Constitution prohibits excessive bail, mandating simply but effectively as follows:

“Excessive bail shall not be required[.]”

Art. 2, Sec. 15, Ariz.Const.

The Arizona Constitution further requires that

“[a]ll persons charged with crime shall be bailable by sufficient sureties,”

except for certain enumerated crimes not relevant to this case. Art. 2, Sec. 22(A), Ariz.Const. Ultimately there are many factors a Court must consider in determining bail and release conditions.

See Arizona Revised Statutes § 13-3967(B). To get a bond reduced, or to get out of jail, a good lawyer will use all of the favorable laws and tools provided by the Arizona Rules of Criminal Procedure.

For a free consultation on bail, bonds, or other criminal matters, call today or use the form at the top of the page.

Vehicle Theft and Crimes in Arizona

Flagstaff, AZ – Stealing a car in Arizona often results in the charge of Theft of a Means of Transportation, a class 3 felony crime.

There are a few different ways to be accused of theft of a means of transportation. The key words in Arizona criminal law relating to stealing cars are “permanently deprive.” See A.R.S. section 13-1814.

If a person controls another person’s vehicle with the intent to permanently deprive the owner of the vehicle, that’s a class 3 felony charge. Other ways to commit the same crime include misrepresenting or lying in order to get the vehicle; controlling a vehicle you know has been stolen; or taking a vehicle with limited permission and converting it to be used beyond that limitation.

Another relatively unknown vehicle theft statute relates to Unlawful Failure to Return a Motor Vehicle Subject to a Security Interest. Did you know it is a crime to purchase a car on credit, fail to pay on the lien for more than 90 days, and then fail to deliver possession of the vehicle to the lienholder? Well, it is a crime. In fact, it’s a felony.

Certain statutory requirements must be met before you can be charged, but in today’s economy, many folks have vehicles they can’t afford. They stop paying. They want to file for bankrupcty, perhaps. Well, if the secured creditor knows how to apply the criminal law, they’ll come after those folks in default and seek either the return.

Flagstaff Lawyer Comments on Aggravated Assault

Flagstaff, AZ – Let’s use a recent event in Flagstaff as a lesson on Aggravated Assault and how serious it is. In a recent Police Log article in the Arizona Daily Sun, the crime was explained as follows:

A man was threatened with a knife while walking in the area of Beaver Street and West Route 66 at around 10:30 p.m. on Wednesday night. According to police reports, the 36-year-old Flagstaff man said he was walking down the street when another man brushed up against him. He confronted the man about what was going on and the man asked him to fight and then pulled a pocket knife and threatened to kill him. When the victim challenged the man to stab him, the suspect took off on foot.

Arizona Daily Sun article located here.

Why this happened is unclear. But to pull a knife on someone and threaten to kill them is an Aggravated Assault With a Deadly Weapon or Dangerous Instrument. The crime is a class 3 felony, which is very serious. And the fact that a knife was used in the commission of the offense makes it significantly more severe in terms of punishment. If the man with the knife was convicted of this offense, he is not eligible for probation.

He must serve 5 to 15 years in prison. Assaults are serious crimes. Using a deadly weapon or dangerous instrument in the assault makes it a prison-only felony offense, and you need a great Arizona criminal defense lawyer to defend the case successfully.

Flagstaff Lawyer Discusses Indian Sovereignty

Flagstaff, AZ – Being qualified to practice law on the Navajo Nation and in the Hopi Tribal Courts is a privilege I do not take lightly.

Indian sovereignty results in unique laws, enforcement, processes, and other cultural phenomena within the Courts of Indian Country. Indian sovereignty is, at its most basic level, inherent. Granted, the Treaty of 1868 established the Navajo Indian Reservation, with the approval of both the Navajo signatories and the U.S. government.

However, it is still a treaty, such as one the U.S. would make with an independent sovereign.

The Navajo Nation Code has codified the laws of the Navajo Nation, not including many cultural matters. For example, the Navajo Nation Code contains an entire section on criminal laws, enforceable in the Navajo Nation courts. Many aspects of Navajo criminal law are the same as American criminal law: charges, prosecutors, judges, defense lawyers, and trials. But the laws are unique, and the criminal justice process has many nuances and cultural aspects not found in non-Indian American criminal cases.

Sovereignty also leads to struggle over jurisdiction. Can the F.B.I. march into the Navajo Nation and remove a criminal defendant for federal prosecution by the U.S. Attorney’s Office? Can the Navajo Nation imprison a non-Indian who has subject himself to the jurisdiction of the Nation? What are the limits of federal powers versus Indian powers?

Those questions must be answered on a case-by-case basis. And criminal law is just one example of the many areas of law unique to each Indian sovereign.