Year: 2011

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.

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.