Year: 2011

Flagstaff DUI and the Admin Per Se / Implied Consent laws that cause your Arizona driver’s license to be suspended…

This article discusses the effects on your license (i.e., suspension) related to getting charged with a DUI anywhere in Arizona, including Flagstaff.

It starts with a DUI arrest, and it involves breathlyzer machines and bodily fluid samples (blood, urine, and more). It’s called Admin Per Se / Implied Consent and it relates to Arizona laws on DUI, specifically sections 28-1381 (DUI), 28-1382 (Extreme DUI), 28-1383 (Aggravated DUI), and other Arizona traffic laws related to drinking and driving. The basic rule is: Any person who operates a vehicle in Arizona gives consent (i.e., by the act of driving, it is implied that you consent) to

“a test or tests of the person’s blood, breath, urine or other bodily substance for the purpose of determining alcohol concentration or drug content” if the person is arrested for any DUI offense “while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs.”

Arizona Revised Statute section 28-1321(A).

What this means it that if the police arrest you for DUI (or for being under 21 with any alcohol in your system while driving), then you automatically consent to a test of your blood, breath, urine, or other bodily substance! Just by driving, you consent. And guess who gets to choose what bodily substance you must give?

You probably guess right: it’s the same police officer that arrested you. So, by driving, you take the risk that a police officer will believe (probable cause or “reasonable grounds”) that you are DUI and arrest you and force you to give up your bodily fluids for testing.

This can happen as long as the officer believes (probable cause or “reasonable grounds”) that you are DUI. It does not matter if you are later acquitted or found not guilty or your case is dismissed. Once you are arrested for DUI, the officer is legally required to ask you to submit to the testing of your bodily fluids or breath. See Arizona Revised Statute section 28-1321(B).

If you agree to provide a sample, and your blood-alcohol-concentration (BAC) comes back at 0.08% or higher, your driver’s license is automatically suspended for at least 90 consecutive days. You will have to do a drug and/or alcohol screening in order to get your license back after 90 days. Refusal: Two Things Happen If you refuse to submit to provide a breath sample or your bodily fluids that the police officer wants, first you will be threatened.

The law requires the police officer, upon your refusal, to threaten you with the following: Your driving privilege is suspended for 12 months, or for 2 years if this is your second refusal in an 84-month period. So if the officer wants your urine, and you refuse to provide it, your license will be suspended for 12 months. Period. However, you may appeal the suspension and request a hearing before the Arizona MVD but must do so very quickly. The second thing that is likely to happen to you is that the police officer will still take your bodily fluid.

So, not only will you lose your license for 12 months (for refusing to provide a sample), but the officer will probably send a “tele-fax” search warrant to a magistrate, who will likely issue a search warrant. See Arizona Revised Statute section 13-3915. The search warrant will allow a qualified phlebotomist to come and take your blood without your consent, authority, or approval. If you resist, you will be forcibly held down and/or strapped to a chair, and they will put a needle in your arm and take your blood. And after that, they will still take your driver’s license.

Conclusion

There are many other consequences related to Admin Per Se and Implied Consent laws in Arizona. When you are arrested for DUI, a complex chain of events, and Arizona laws, will begin changing your life.

There is no way to describe all of those events and laws in this article, but one thing is for sure: you should talk to a lawyer. The penalties for DUI are severe, including mandatory jail time in every DUI conviction.

Be careful out there, and if you get arrested for DUI, call me right away to protect your rights.

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.

Flagstaff Lawyer answers Arizona criminal law questions…

Question: What is a “Thayer presumption”? What is “prosecutorial misconduct”? What is the mercy rule? How about the adverse interest rule? And what is an Alford Plea?

Mr. Stevens’ Answer: The Thayer presumption refers to a certain type of a presumption, commonly understood as a burden of production but not persuasion. Under the Thayer approach, the purpose of a presumption is to require a party against whom a presumption operates to come forward with any evidence of the nonexistence of the presumed fact. This concept is rarely argued in criminal law because it relates to procedure, and the Arizona Rules of Criminal Procedure clearly define what types of presumptions occur in Arizona criminal law.

Prosecutorial misconduct is generally a procedural defense in which a defendant claims that the prosecutor acted inappropriately. Usually you’d have to prove that the prosecutor knowingly and intentionally violated constitutional rights or Arizona law in favor of the prosecution. This does occur but is not simple to prove. The only “mercy rule” that I know of relates to sports events, not criminal law, so I can’t help you there.

The adverse interest rule is a legal principle saying that if a party fails to produce a witness who is within its power to produce and who should have been produced, the judge may instruct the jury to infer that the witness’s evidence is unfavorable to the party’s case. This is rarely used in criminal law. However, for example, if the prosecutor has a witness with relevant information and fails to produce that witness, there is a presumption that the evidence was favorable to the defendant. Usually, the defendant can call the witness instead, thus defeating the need for the rule.

An Alford Plea is a “no contest” plea where a criminal defendant does not admit committing the crime (i.e., does not admit guilt), but admits that the prosecution could prove guilt. Usually, an Alford Plea is accepted where a defendant was so drunk or drugged out that he/she cannot remember committing the crime. In that case, the defendant cannot knowingly plead guilty (because he/she doesn’t remember committing the crime!), so the Court accepts a “no contest” plea. You should never enter a plea of guilty or an Alford plea without a lawyer!

Flagstaff lawyer discusses Flagstaff city dog laws…

The Flagstaff City Code is a set of ordinances and laws that governs various topics within the jurisdiction of Flagstaff city limits. One section is dedicated entirely to man’s best four-legged friends: DOGS.

While I would speculate that most dog-owners in Flagstaff regularly “violate” the Flagstaff laws on dogs, believe it or not, people actually get charged with criminal offenses for violating the dog laws of Flagstaff.

For example, any dog off the premises of its owner must have a collar with a securely fastened government issued dog tag which costs $10 to $20, depending on if your dog is neutered or spayed. Here’s a taste of what the Flagstaff dog laws say about collars: “At all times when a dog is off the premises of its owner, said dog shall have a collar around its neck with the metal tag aforesaid securely fastened thereto.” See Flagstaff City Code section 6-02-1-8.

Most Flagstaff dog owners don’t know, or care, about the Flagstaff city government’s efforts to control and regulate all things relating to their dogs, including of course the “barking or howling dogs” ordinance. “It is unlawful for any person owning or having the care, custody or control of any dog to permit said dog to bark, bay, howl or make any other noise, day or night, in such an unreasonable manner as to disturb the peace and quiet of any person or persons.” See Flagstaff City Code section 6-02-1-11(C).

And then there’s dog bites and “vicious dogs.” In Flagstaff, a “vicious dog” is defined in four ways:

  • A dog that bites a human beings without provocation; or
  • A dog with a known propensity, tendency, or disposition to bite human beings; or
  • A dog that while at large kills or causes injury to domestic animals; or
  • A dog declared to be a vicious dog by a City Magistrate after a determination at a hearing of a pattern of aggressive behavior that has caused injury, apprehension or intimidation of a person.

Basically, if your dog nips someone without provocation, you’ve got yourself a “vicious dog” that Flagstaff city law requires to be muzzled when off the premises of its owner. So if you take your dog on a walk, and it had nipped at someone in the past, then you have to muzzle it or else you’re guilty of violating Flagstaff city dog law. Here is what the Flagstaff city law says:

“No person owning or having charge, care, custody, or control of a vicious dog shall permit such dog off his premises unless such dog is under the control of a competent person and is securely leashed and muzzled.”

Flagstaff City Code section 6-02-1-1(B)(1).

Violating Flagstaff city dog law is criminal in nature and involves court hearings, pre-trial conferences, plea negotiations, plea agreements, criminal restitution.

Worst of all: the City of Flagstaff may kill your dog. That’s right, if your dog is found to be “vicious” by the government, they can order the humane destruction of your dog. They can kill your dog.

If you have been cited by the Flagstaff police or Flagstaff City Attorney with any violation of the Flagstaff City Code, including the Flagstaff dog laws (failure to control dog; vicious dog; dog-at-large; failure to have a dog collar; etc.), call or email Griffen & Stevens Law Firm, PLLC for a free evaluation of your case.

I’ll unleash your best legal defenses. And always remember: one barking dog sets the whole street barking. I look forward to speaking with you.

Flagstaff-Lawyer discusses Arizona street racing and exhibition of speed…

Question: I was cited for “drag racing” by a police officer. I don’t know what that means. The prosecutor offered me a plea to “28-701(A).” Should I accept that plea?

Mr. Stevens’ Answer: The law you were cited for, A.R.S. section 28-708, is essentially for street racing. Here’s how Arizona criminal law defines street racing:

“A person shall not drive a vehicle or participate in any manner in a race, speed competition or contest, drag race or acceleration contest, test of physical endurance or exhibition of speed or acceleration or for the purpose of making a speed record on a street or highway.”

Your cited offense of exhibition of speed, street racing or drag racing criminal in nature — it’s a class 1 misdemeanor for your first offense, and can even be classified as a felony if you are convicted of it twice in 2 years.

The minimum fine if you are convicted of violating 28-708 is $250, but could be up to $2,500, along with jail and community service. Now, the prosecutor has offered you a plea to 28-701(A). Unless you think the citation is bogus and that you are innocent, this is not a bad plea. What the plea is basically saying is that you drove “at a speed greater than is reasonable and prudent,” according to Arizona traffic law.

That would be a civil penalty, and not a criminal conviction. It’s your basic, run-of-the-mill Arizona speeding ticket. But make sure your plea does not say section 28-701.02 because that is a class 3 misdemeanor and puts you back in the world of Arizona criminal law. Please keep in mind, I don’t know the total facts of your case.

So, I would strongly recommend you to consult with an Arizona lawyer before you accept a plea or demand a trial. I do free consultations on all Arizona criminal and traffic cases. Best of luck.

Flagstaff Lawyer discusses premeditated and felony-murder (emphasis on arson murder)…

In Arizona, when a person commits arson of an occupied structure, and someone dies, the person is guilty of first degree murder under the felony-murder statute. The punishment is the same as premeditated murder.

Recently, in Prescott, Arizona, Zachary Sutton has been accused of first degree murder. Originally, it looked like an arson-murder (i.e., felony-murder) but has possibly evolved into a premeditated first degree murder.

Either way, if convicted of either premeditated or felony-murder, Sutton faces possible life imprisonment. In Arizona, felony-murder works like this. The crime of first degree felony murder requires proof that: (1) the defendant, acting either alone or with one or more other persons, committed or attempted to commit a specified felony offense (e.g., arson of an occupied structure); and (2) in the course of and in furtherance of this crime or immediate flight from this crime, the defendant or another person caused the death of any person.

Thus, committing arson of an occupied structure, in the course of which someone dies, is felony-murder. Felony-murder is a distinct crime from premeditated murder because the elements of the crimes are different. But, the punishment is identical for both. Like the prosecution that Sutton is facing in Yavapai County, I prosecuted Cynthia McDaniel for an arson-murder. She was convicted of first-degree felony murder, even though she had no premeditation to kill.

According to the Arizona Supreme Court, here is what premeditation means:

“Premeditation” means that the defendant intended to kill another human being or knew he would kill another human being, and that after forming that intent or knowledge, reflected on the decision before killing. It is this reflection, regardless of the length of time in which it occurs, that distinguishes first degree murder from second degree murder. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion. The time needed for reflection is not necessarily prolonged, and the space of time between the intent or knowledge to kill and the act of killing may be very short.

Therefore, under Arizona law, a person can be sent to prison for life on a first degree (felony) murder conviction without ever having premeditation.

Feel free to email me questions on these issues and any other Arizona criminal law question!

Flagstaff-Lawyer discusses a defendant stuck in jail awaiting trial and the meaning of complex case designation…

Question: What does it mean when a State of Arizona prosecutor files a motion for a complex case designation in someone’s case? What if the defendant is in custody, stuck in jail, awaiting trial?

Mr. Stevens’ Answer: Under Arizona law, a complex case designation adds 90 to 120 days (depending on if the defendant is in custody or out of custody) to the total maximum amount of time that the prosecutor has to bring the case to trial. The relevant rule is Rule 8 (Arizona Speedy Trial) of the Arizona Rules of Criminal Procedure.

The Arizona Constitution, and the United States Constitution, also come into play. But procedurally speaking, Rule 8 sums up the situation for your question. Complex case designation under Arizona law is reserved for first degree murder cases, cases involving certain search warrants (wiretaps, etc.), and any other case that the Court believes is truly complex. If a person is in jail, awaiting trial on a felony, normally the prosecution has 150 days from the arraignment to take it to trial.

But in a complex case (if the Court grants the prosecutor’s motion), the person in jail has to wait for 270 days from the arraignment. You should be aware, also, that during the process of the case, such as at Case Management Conferences, if the Arizona defendant’s lawyer agrees to “waive Rule 8 time” or anything to that effect, the process will take longer than 270 days. What that means is that the defendant is waiving his speedy trial rights for a limited time, meaning he is not enforcing his right to a speedy trial at the moment, but can do so in the future by refusing to “waive time” any further.

Any extension of time should be to the benefit of the defendant’s case. No Arizona defendant or Arizona defense lawyer should ever “waive time” or waive constitutional rights unless there is some benefit to the defendant who is sitting in an Arizona jail, awaiting trial.