Month: July 2011

Aggravated Assault on Police

Flagstaff, AZ – No matter who you are, it is disturbing when there is an assault on a police officer. In this article, I will talk about Arizona laws relating to simple assault and how, when the simple assault is against a police officer, it becomes a serious felony offense.

Recently, the Arizona Daily Sun reported on an assault on a police officer.

“A man attempted to run down a Flagstaff police officer in a car on Tuesday morning while officers responded to a domestic violence call.”

(See article.)

According to police data, a Flagstaff officer tried to stop a man from driving away after a domestic violence incident, and the man did not stop. He accelerated his vehicle at the police officer, trying “to run him over.”

The officer, in a wise display of courage, pulled out his gun but decided not to shoot. He dove to the side and avoided serious injury. What kind of crimes might the driver be charged with?

First, let’s talk about simple assault. In Arizona, a person commits assault by:

  1. Intentionally, knowingly or recklessly causing any physical injury to another person; or
  2. Intentionally placing another person in reasonable apprehension of imminent physical injury; or
  3. Knowingly touching another person with the intent to injure, insult or provoke such person.

A.R.S. section 13-1203.

All simple assaults are misdemeanors, not felonies.

Applying facts laid out above, did the driver intentionally place another person (i.e., the officer) in reasonable apprehension of imminent physical injury? You bet.

That’s a simple assault even though the driver never caused physical contact with the police officer. Had he touched or injured the officer, he’d still be guilty of, at least, simple assault. Now let’s look at a special provision that takes a simple assault, and raises it to the level of “aggravated assault,” a felony.

Aggravated assault occurs under Arizona law when there is a simple assault and, in this case, when

“the person commits the assault knowing or having reason to know that the victim is… [a] peace officer, or a person summoned and directed by the officer while engaged in the execution of any official duties.”

A.R.S. section 13-1204(A)(8)(a).

In plain terms, a simple assault on a police officer is no longer a simple assault. It’s an aggravated assault, automatically. It’s not a misdemeanor. It’s a felony. If the aggravated assault on the officer involves a deadly weapon (think: gun or knife) or dangerous instrument (think: vehicle accelerating toward a police officer), the seriousness of the felony and severity of the punishment upon conviction goes up significantly.

Referring back to the aggravated assault described at the beginning of this article, the driver of the vehicle could very possibly be charged with aggravated assault on a police officer using a dangerous instrument (i.e., the vehicle).

What he is accused of doing is an extremely serious crime under Arizona law, even though there was no physical injuries of any kind. Other classifications of protected persons, like police officers, include: constable, firefighter, teacher, health care practitioner (i.e., nurse, doctor, etc.), prosecutor, code enforcement officer, park ranger, and public defender.

Any simple assault on a person in one of those classifications is automatically a felony case. Aggravated assault has many more definitions, nuances, and categories. Just remember, based on the facts we’re talking about, any assault on a police officer, even if it is without injury to anyone, is an aggravated assault and a felony offense.

Could the Raquel Nelson Case Happen in Arizona?

Flagstaff, AZ –  You may have seen it on the national news.  On the night of April 10, 2010, Raquel Nelson, of the state of Georgia, hopped on a bus with her three young children to go home.  The bus stop was across the street from their residence.  But it wasn’t just any street.  It was a 4-lane highway, according to reports.  The nearest crosswalk to her bus stop?  Over a quarter mile away.

It was dark out.  She was alone with three young kids.  The bus stop had no crosswalk.  Her apartment was across the road.  She didn’t want to walk her children down a dark street to a crosswalk, and then walk back up the other side in the dark.  She made a choice.

While Raquel maneuvered her children across the road, she had no idea that Jerry Guy was heading right for them.  Guy had two prior hit-and-run convictions.  He admitted, later, that he had been drinking and was on pain medications.  Guy struck and killed Raquel’s 4-year-old son, A.J.  And he kept going.  Another hit-and-run.

You may be thinking: Isn’t Guy guilty of murder or, at least, manslaughter?  In Georgia, Guy was convicted of hit-and-run (again) and served 6 months in prison.  That is all.

But this story isn’t about Guy and the pathetically lenient sentence he received.  This story is about Raquel.

In a mean twist to this story, the prosecutors went after Raquel and charged her with vehicular homicide.  They took her through trial, and the jury convicted.  Raquel was convicted of vehicular homicide.  She faced up to 3 years in prison.  Fortunately, the judge granted her a choice: probation or a new trial.  Early reports indicate that Raquel will seek a new trial and an acquittal.

So, applying the same facts of the case, what would happen to Jerry Guy in Arizona?  And what would happen to Raquel?

First, as a former felony prosecutor, I can tell you that Jerry Guy would not be enjoying a mere 6 months in prison for drinking, taking pain meds, driving, and killing a 4 year-old in a hit-and-run.  He would be charged with manslaughter, a class 2 dangerous felony, and very likely would be convicted.  In Arizona, he’d get 7 to 21 years in prison.  Manslaughter occurs when a person, like Guy, recklessly causes the death of another person.  Arizona law defines “recklessly” as:

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.

See A.R.S. section 13-105.

In the alternative, Guy would’ve likely been convicted of Negligent Homicide, which occurs when a person causes the death of another, not recklessly, but with criminal negligence.  Arizona criminal law defines “criminal negligence” as:

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.

See A.R.S. section 13-105.

On that count, he could still go to prison for upwards of 3 years or, if he has prior felony convictions, up to 15 years.

Lastly, Guy could face Aggravated Assault charges in Arizona, for using a “dangerous instrument” (think: his vehicle) to cause serious physical injury and death to A.J. Nelson.  On that count, when convicted, Guy would face 5 to 15 years in prison.

But what about Raquel?  Wasn’t the homicide of her son enough punishment?  Could she be prosecuted under Arizona law on the same legal theory as in Georgia — that A.J.’s death was criminally attributable to her failure to walk a 1/2 mile in the dark to make use of the nearest crosswalk?

Let’s start with the Arizona laws pertaining to crosswalks.  Notably, Arizonans are not required to use a crosswalk in order to cross a road.  It is not illegal to cross a road outside of a crosswalk.  However, there are some important laws that may help us here:

“A pedestrian shall not suddenly leave any curb or other place of safety and walk or run into the path of a vehicle that is so close that it is impossible for the driver to yield.”

A.R.S. section 28-792(B).

“A pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles on the roadway.”

A.R.S. section 28-793(A).

“[E]very driver of a vehicle shall: (1) Exercise due care to avoid colliding with any pedestrian on any roadway.”

A.R.S. section 28-794(1).

“[E]very driver of a vehicle shall . . . [e]xercise proper precaution on observing a child . . . on the roadway.”

A.R.S. section 28-794(3).

It doesn’t take a lawyer to read the law in this case.  Using common sense alone, would Raquel face 3 years in the Arizona Department of Corrections if her case happened in Arizona?  No.  Jerry Guy drank, took pain meds, and killed a child in a hit-and-run.  Why Georgia prosecutors felt he was less culpable for the death of A.J. Nelson is beyond explanation.

Another legal theory in Arizona that comes to mind in Raquel’s case is accomplice liability.  Could Raquel have been an accomplice to Jerry Guy’s murder?  In Arizona criminal statutes, “accomplice” means a person, who with the intent to promote or facilitate the commission of an offense, does at least one of the following:

  1. Solicits or commands another person to commit the offense; or
  2. Aids, counsels, agrees to aid or attempts to aid another person in planning or committing an offense.
  3. Provides means or opportunity to another person to commit the offense.

See A.R.S. section 13-301.  It is conceivable, I must concede, that a prosecutor could charge Raquel in Arizona with negligent homicide or even as an accomplice thereto for providing the opportunity for Jerry Guy to commit the crime.

But when you look at the case, both as a casual observer and as a critical thinker, would convicting Raquel be just?  On a busy night when you’re getting home after dark, would you walk your kids 1/2 mile in the dark beside an unsafe roadway to use a crosswalk that has not been provided closer?  Or would you cross the road, using careful discretion, and be totally caught by surprise when a drunk driver with two prior hit-and-run convictions comes smashing into your family?  Tragedy happened.  And the person who should be held criminally accountable is the one who got 6 months.  The other one ought to get her new trial.  And she must be acquitted.

Arizona Speeding Ticket Laws Exposed

When it comes to driving, the most typical reason for a traffic stop is speeding.  But the law isn’t so simple as “if you drive fast, you are speeding” or anything like that.  As with all laws, Arizona speeding statutes are subject to a wide range of interpretation.

The most common speeding statute in Arizona is A.R.S. section 28-701(A), which states:

A person shall not drive a vehicle on a highway at a speed greater than is reasonable and prudent under the circumstances, conditions and actual and potential hazards then existing. A person shall control the speed of a vehicle as necessary to avoid colliding with any object, person, vehicle or other conveyance on, entering or adjacent to the highway in compliance with legal requirements and the duty of all persons to exercise reasonable care for the protection of others.

There are two sentences, noting two distinct types of violations.  The first is a speed greater than is reasonable and prudent under the circumstances.  The second relates to controlling the speed of a vehicle as necessary to avoid collision.  Either one creates liability on the part of the driver.  And driving in excess of the posted speed limit is also sufficient cause for you to be pulled over and cited.  Then there’s criminal speeding which most commonly occurs where a person drives in excess of 85 miles per hour.

No matter what the type of speeding violation, an office can pull you over.  Once you’re pulled over, the officer will be looking for evidence of other crimes.  Transporting drugs?  DUI?  Possession of drug paraphernalia?  Illegal weapons?  The list goes on.

If you want high quality traffic ticket defense, or you got charged with a more serious Arizona crime, call Griffen & Stevens Law Firm, PLLC today, or fill out the form at the top of the page.

 

Flagstaff DUI Attorney Notes Changes in Extreme DUI Laws

The Arizona legislature passed some dramatic changes to Arizona DUI statutes. Let’s review some of the changes to the Extreme DUI (0.15% or Higher) statute that haven’t gone into effect yet, but when they do, will dramatically change DUI prosecutions. I’ll discuss the offense of Extreme DUI (0.20% or Higher) in a separate article. Jail The first question that comes to the minds of almost everyone charged with Extreme DUI is: Am I going to jail and, if so, for how long? If you are convicted of Extreme DUI (0.15% BAC or higher), Arizona law requires you to be sentenced to 30 consecutive days in jail. The law does say “consecutive” so if you served 29 days pre-sentence, bonded out or got released, and then you get convicted, you must got serve all 30 days consecutively. You cannot apply credit for the days you already served (unless they add up to 30 or more consecutive days). But the Arizona legislature recently passed some amendments to the Extreme DUI statute. And there’s a big one in there when it comes to the mandatory jail sentence for an Extreme DUI (0.15% or more). Yes, if convicted of the offense, the defendant is still required to be sentenced to 30 consecutive days in jail. But here’s the change: “the judge may suspend all but nine days of the sentence” (emphasis added) if the person equips any vehicle they operate with an ignition interlock device for 12 months. So here’s how it works. If a person is convicted of the new Extreme DUI (0.15% or Higher) law in Arizona, that person will be sentenced to at least 30 days in jail, but that person may get 21 of those days suspended if the person equips their vehicle with an ignition interlock device. The good news is, then, that you wouldn’t have to serve 30 full days in jail, as the current law requires. You may only serve 9 days total. But you must comply with the ignition interlock device order, or else you’re back in the slammer for at least 21 days.

Drivers License Suspension

The other main question that comes to mind is: Will my drivers license be suspended? If you’re convicted of Extreme DUI (0.15% or Higher), then yes it will be suspended. But the new law affects the length of suspension in a significant way.

It used to be that your license would be suspended for a full 12 months upon conviction. However, the new law only requires you to serve 45 days of that 12 month suspension before you are eligible for a “special ignition interlock restricted driver license” that could get you back driving in as little as 45 days, or 320 days sooner than under the previous law.

Again, you must comply with all iginition interlock device orders and requirements, or else it’s back to jail and back to having a suspended drivers license. Those are the main changes, for now.

There are more, but jail time and license suspensions are the most dramatic changes to the Arizona Extreme DUI law. If you need further information, or have been charged with a DUI, call Griffen & Stevens Law Firm, PLLC for a free consultation.

Flagstaff Lawyer Slams the Change to Arizona DUI Law Depriving Citizens of a Jury Trial

“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

Thomas Jefferson, 1789.

For those charged with a DUI in Arizona, including political folks like Arizona State Representative Trish Groe (R) who has a history of DUI charges, a trial by jury was a guarantee. Until now.

Starting soon, first-time DUI defendants facing misdemeanor DUI – Slightest or DUI – 0.08% or More charges will not have the right to take their case to a jury. Why? Juries are the foundation of the people’s system of justice. The people’s court. The people’s constitution.

Let’s ask the Arizona senator pushing for this deprivation of a right to a jury trial. Sen. Linda Gray, R-Glendale, who ushered the change through the Legislature, said there is no reason for the time and expenses of a jury trial for what, in the broad scheme of criminal laws, is a relatively minor offense. (Source: Arizona Daily Sun)

But is such a criminal charge a minor offense? I’ll pose the question to my readers:

Is it minor for a person to face up to 6 months in jail, $2,500 in fines plus 84% surcharge, and other punishments?

The fine (with surcharge) is up to $4,600. The jail is up to half a year. It’s an economic argument from Sen. Gray. Time and expense.

In my opinion, the Arizona Constitution, the rights of the people, and the very basis of our criminal justice system — the jury — must never subject to destruction on the basis of time and expense. Granted, felony DUI cases, and all cases triable in the Superior Courts, still come with the right to a jury trial.

But why make this change to misdemeanor first-time DUI cases? Why not give the accused the right to take their case to a jury, when their liberty, freedom, and money are all at stake?

“A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.”

Justice Byron White, Duncan v. Louisiana, 391 U.S. 145, 155 (1968).

Juries hold everyone accountable, just like Arizona citizens do when they vote senators out of office. To take away the right to a jury is to take away the community’s contribution to their own justice system.

Jury service is widely renowned as instructive and educational. Jurors learn about their own criminal justice system; they participate meaningfully in the law; and they honor the constitution and their community. Jury service is not waste of time. It is not a waste of money. Jurors vote guilty or not guilty.

The change to the Arizona DUI statute is a deprivation of the right of the people to have a say, to hold the system, and people being salaried by Arizona tax-payers, accountable. Jurors don’t just hold the guilty accountable.

They hold the government accountable: the police that we pay, the prosecutors that we pay, the judges that we pay, the defense lawyers that we pay, and the entire system, funded by the citizens, upon which we defend our laws and morals. Taking away the long-established tradition of a jury trial is an inexcusable detriment to the State of Arizona, and a deprivation to all of us who live here.

“Civil liberties had their origin and must find their ultimate guaranty in the faith of the people.”

Justice Robert H. Jackson, Douglas v. Jeannette, 319 US 157, 182 (1943).

The right to engage a jury in DUI cases must never be compromised.