James E. Novak participates in several legal organizations including The Arizona Attorneys For Criminal Justice, The Association of Trial Lawyers of America, and others. As well as:
National Assoc. of Criminal Defense Lawyers
National College for DUI Defense
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”It’s not about giving up, or giving in. It’s about making sure the punishment fits the crime”.
Cases in Point
In April 2013, 46-year-old John Horner, a restaurant worker, and father of three children, was convicted of selling pain killers worth $1,800.00. He was sentenced to 25 years in prison due to the mandatory minimum sentencing for drug offenses. The question that begs answer is whether he deserved to be sentenced to life in prison.
One of the most controversial cases is that of Clarence Aaron, who is serving three life sentences for his role in a cocaine drug deal he witnessed. Clarence, age 24 at the time, was a football player, and college student, with no prior criminal record. His role did not involving using, possessing, trafficking, or distribution. It was to introduce a buyer and seller in return for $1,500.00. He was present at the sale. He was convicted and sentenced to what is being called on the on the longest prison sentences ever ordered for his role, and for refusing to cooperate with law enforcement authorities. That was in 1993. Clarence Aaron is still serving time, and hoping for Presidential Clemency. Did the punishment fit the crime?
Each year, thousands of similar applications for pardons are being made to the US Justice Department, but very few are granted. A large number of applications are from offenders serving 10 years to life terms in prison due to low-level, non-violent drug offenses.
Prison Facts
United States of America has the highest incarceration rate in the world, which continues to be the fastest growing as well. Last week, The Business Insider reported recent statistics from the United States Bureau of Prisons (BOP).
The BOP reported an alarming 48 percent the United States of America Federal prison population is serving time due to drug offenses. This is mostly the result of the current Mandatory Minimum sentencing.
Mandatory Minimums are harsh sentencing laws that require automatic prison terms for those convicted of certain crimes. Judges have little to no discretion with regard to sentencing in certain crimes with regard to mitigation of the penalties or prison term. This is the case, even if the punishment does not fit the crime.
History, Trending, News
In 1986 President Ronald Reagan declared “War on drugs”. Since that time the practice of incarcerating low level drug dealers and non-dangerous, non-violent drug offenders has snowballed out of control.
The Washington Post reported that US Justice Department statistics indicated the cost of incarceration in 2010 in the USA was over $80 billion dollars, and the Federal Prison population has grown by 800 percent since 1980. This has taxed prisons to operate at over 40 percent over maximum capacity resources. Many believe one primary cause of the soaring prison overpopulation problem is the existence of mandatory minimums, particularly for lower-level drug crime convictions.
Recently The United States Attorney General Eric Holder announced that low-level, non-violent drug offenders with no involvement in gang activity, and no ties to large-scale drug organizations, will cease to be charged with crimes that call for severe mandatory prison sentencing. This announcement was part of a larger prison reform package unveiled that also serves to require alternatives to prison for non-violent inmate and criminals. The reform guidelines call for a change in policy in the US Justice Department that will serve to reserve the harshest sentencing and penalties for drug offenses for serious, high-level, dangerous, violent drug offenders.
This prison reform proposal is a response to overpopulated and over-burdened prison system. Holder expressed the need for the United States to recognize not only the need to punish crimes, but to “deter and rehabilitate”. This change not only serves to reduce financial burdens of over-crowded prisons. But it is also a strong signal of the recognition that punishment alone has proven ineffective in reducing repeat offenses or recidivism in low-level drug offenses, in absence of other inmate reform efforts, which could include occupational rehabilitation, mental health, and substance abuse counseling or treatment.
Other provisions in the prison reform proposal will require some legislative changes including the granting of discretionary authority to federal judges with regard to not applying mandatory minimum sentences to those low-level, non-violent drug convictions.
Pros and Cons
Opponents for elimination of mandatory minimum sentencing, argue that softening the sentences do not serve justice, nor do they make society safer. They feel it simply encourages potential offenders to commit drug crimes, and that the US is giving in and giving up to the “war on crime” declared by former President Ronald Reagan in 1986.
Supporters of the reform feel that the Federal Government is “late for the party” so to speak as a number of states have already addressed these issues, and have in some way reformed, or eliminated mandatory minimums so low-level drug offenses.
Advocates also feel that such offenders, although disliked by society, are at the same time, non-dangerous, non-violent, or not to be feared. Proponents feel it’s not about giving up or giving in. Rather, it’s about making sure the punishment fits the crime, instead of “one size fits all”.
They feel that giving judges more discretion and eliminating mandatory minimums for low-level offenders will serve to reduce overcrowding in prisons; help rehabilitate and reform drug offenders, enable the justice system to focus on prosecution and incarceration of more serious, violent, and dangerous offenders.
Arizona Mandatory Sentencing Laws and Trends
Arizona judges have more discretion in sentencing of drug crimes involving quantities of illegal drugs that do not exceed the statutory “Threshold Amounts”. Quantities exceeding the Threshold Amounts are generally viewed as amounts in possession for sale, or intended sale or distribution, which are subject to mandatory prison terms. Mandatory Minimum sentences apply to drug trafficking and other serious drug offenses or felony violations under A.R.S. 13-3410, including unlawful drug offenses that involve a weight of the drug that exceeds the statutory Threshold Amount A.R.S. 13-3401.36 specified by law for dangerous drugs, Marijuana and narcotics.
Arizona sentencing laws have undergone many changes since the 1970s. Current reforms in place involve what is known as the “three –strikes-statute”. Under criminal code A.R.S. 13-706 the statute calls for mandatory extended prison sentencing for third-time violent, dangerous, felony (aggravated) offenders. However, offenders of serious, violent, dangerous and aggravated offense against a victim, are also exposed to mandatory minimum prison sentencing guidelines up to life in prison, and are also exposed to the death penalties.
Aggravated or felony DUI, for example third-time DUI conviction within 7 years, under A.R.S. 28-1383 call for mandatory minimum prison sentencing.
The trend in Arizona is to reduce or eliminate incarceration in jail or prison of non-dangerous or non-violent illegal drug possession or use crimes. The state seeks to address drug abuse as a treatable illness, thereby offering counseling, and treatment for substance abuse as an alternative to incarcerations. Under A.R.S. 13-901 which is sentencing for convictions of personal possession or use of drugs, non-dangerous drug offenders may be eligible for probation and substance abuse treatment program for first-time offenses. However, persons convicted of a second offense are generally not eligible for participation in the drug treatment program as an alternative to incarceration.
Criminal Defense for Maricopa County DUI Arrests
Any drug offense arrest is potentially serious. Persons charged with drug crimes in Chandler, or Gilbert AZ or other Phoenix-East valley cities should always consult an experienced criminal drug defense attorney before pleading guilty to any charges. Even if they think they may be eligible for a drug diversion program, a qualified criminal defense attorney should be consulted. Without proper legal representation a person can get swift convictions and be subject to harsh penalties which include jail or prison terms. If retained, an experienced criminal attorney will be able to protect your rights, defend your charges, and help secure the best possible outcome on your behalf.
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Rippling Impacts Arizona v. Zaragoza: DUI arrests for being in “actual physical control” of a vehicle
This weekend in the news we heard a popular motorcycle sports celebrity Robbie Knievel was allegedly arrested for DUI. Reports indicate the Police were called to Mr. Knievel’s parked motor home, near a famous Motor Cycle Rally. When they arrived on the scene, they found Mr. Knievel’s motor home parked; with Robbie Knievel patiently texting on his mobile device, while sitting in the driver’s seat of his parked vehicle.
Police reported that when they arrived they smelled a strong odor of alcohol, and asked him if he had been drinking. He admitted that he had been drinking a few beers, but DUI test results allegedly indicated his Blood Alcohol Content (BAC) tested 0.228 percent which was 3 times the legal limit in South Dakota. But there is more to this story. It was reported that the reason police were called to the scene, was that witnesses reported seeing him allegedly driving into two other motorhomes, causing damage, without stopping.
This recent news illustration leads us to our discussion of similar DUI arrests that occur in the State of Arizona. Here a person can also be in violation of A.R.S. 28-1381 DUI law if they were impaired due to drugs or alcohol, but not actually driving. This is the case if they are found to be in “actual physical control” of a vehicle.
Over 60 Years ago, the Arizona State Legislature expanded the DUI statutes to prohibit being “in actual physical control” of a vehicle while under the influence of spirituous liquor. However, they stopped short of defining what constituted “actual physical control” of a vehicle. This has resulted in many legal challenges, which have resulted in evolutions and interpretations of its meaning.
One landmark case of involving this issue was State of Arizona v. Zaragoza which was heard in the Arizona Supreme Court. The Superior Court initially found the defendant guilty and convicted him of Aggravated DUI. The charges were elevated to a felony due to Aggravated circumstances in that the defendant possessed a revoked driver’s license at the time of the DUI charges
In this case, the police officer responded to an emergency service call at an apartment complex. There the officer found the Defendant Vincent Zaragoza, balancing himself from vehicle to vehicle, staggering toward his own. As the officer approached nearer he found Zaragoza sitting in the driver’s seat of his vehicle. Zaragoza had one hand on the steering wheel, and the other hand holding the key to the vehicle’s ignition starter. At that point the officer stopped and questioned him on suspicion of DUI.
The officer arrested him following his DUI investigation for probable cause. The defendant’s Blood Alcohol Content (BAC) was later found to be 0.357 percent which was over 4 times the legal limit.
At trial, Zaragoza testified at trial that he did not intend to drive the vehicle; but only to sleep in it following an argument he had with a woman in the apartment complex. He testified that he wanted to start the vehicle’s ignition only to open the window of the vehicle and turn on the radio.
The lower trial court’s jury instructions included language that asked the jury to consider the totality of the circumstances shown by evidence as well as whether or not the defendant’s “potential use” of the vehicle presented a real danger to himself or others” at that time.
The key element at appeal was the question of whether or not the trial court erred by confusing the jury when it provided it’s jury instructions to enable them to determine if the defendant’s conduct and evidence fell within its meaning.
The State Prosecution appealed, and The Arizona Court of Appeals overturned the conviction, finding that the jury instruction language “potential use” misled the jury. The court held that the instructions could have been interpreted as requiring to jurors to find the defendant, Zaragoza, guilty based on control of his vehicle that he might have hypothetically exercised but did not, was in error.
The defendant appealed to the Arizona Supreme Court reversed the Court of Appeals decision, vacating the Appeals court ruling, and affirming the “guilty” conviction.
The Arizona Supreme Court that jury instructions should read: “In determining whether the defendant was in actual physical control of the vehicle, you should consider the totality of the circumstances shown by the evidence and whether the defendant’s current or imminent control of the vehicle presented a real danger to [himself] [herself] or others at the time alleged. Factors to be considered might include, but are not limited to…”
The Arizona Supreme Court went on to recommend 13 factors to consider including, but not limited to whether or not:
- The vehicle was running;
- The vehicle’s ignition was turned on or off;
- The location of the vehicle’s ignition key;
- The person was sleeping or awake;
- Headlights on or off;
- There was a conspicuous location of the vehicle;
- The vehicle was in operation, moving or stopped;
- The driver pulled off the road voluntarily;
- It was morning, noon, or night, or other specified time;
- The weather was good or poor, and weather conditions;
- Heater or air conditioner was on or off;
- Windows were opened or closed;
- Other explanation of circumstances presented as evidence.
In their opinion, the Arizona Supreme Court reminded that the list was not meant to be all inclusive. But rather it was up to the courts and jury to examine all available evidence and weigh the credibility of the facts and evidence, based on the “totality of the circumstances”, and that this was just part of what needed to be determined.
The Justices relied on prior court rulings that held the process of determining “actual physical control” under the statute, should be a “fact finding” mission. In that not only should they consider totality of the circumstances and evidence under that statute, but one other very important element. The AZ Supreme Court held that the jury should also weigh the evidence to determine if a person “actually posed a threat to the public by the exercise of present or imminent control over the vehicle while impaired.”
Criminal Defense for Maricopa County DUI Arrests
As the Arizona Supreme Court reasoned, cases involving “actual physical control” of a vehicle can be very complex and involve much fact finking and gathering. A qualified criminal defense attorney will need to be retained in order to protect your rights, defend your charges, and gather evidence on behalf of our defense to present in your case. Experienced DUI Attorney, James Novak, of the Law Office of James Novak, PLLC provides a strong defense for these types of DUI cases. If you or someone you know has active DUI charges in Chandler AZ, Tempe, AZ or other Phoenix East Valley cities, consult The Law Office of James Novak for a free consultation regarding your matter, and options for defense.
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Recent Amendment expands protections under Arizona’s “Stand Your Ground” Laws; not only to their homes, business, but anywhere else in Arizona “they have the right to be”.
Amidst heated debates over “Stand Your Ground” laws Arizona, businesses and homeowners continue to do what they must, to protect their home and property from intruders. For centuries, “Stand Your Ground” laws have existed and also referred to as the “Castle Doctrine” influenced by the age old adage “One’s home is their castle.”
Most states have some form of “Stand Your Ground” laws. These laws pertain to defenses that justify one’s actions, in what would otherwise be considered criminal conduct. Arizona has some of the broadest, most liberal “Stand-Your-Ground” laws in the country. One such provision is that a person can be protected under the laws if an incident where deadly physical force is reasonably necessary outside their home. In fact, it applies anywhere in Arizona where they “have the right to be”.
Under Arizona criminal code, these laws fall under the category of “Justification Defenses”. These afford protection to the use of deadly force against another person, which if applicable may be considered justified under law. Criminal Laws that govern Justification Defenses may apply when a person finds it necessary to use lethal force in self-defense under A.R.S. 13-404, or to prevent a dangerous crimes such as kidnapping, armed robbery, sexual assault, molestation or dangerous victim crimes under A.R.S. 13-411.
Another one of the state’s broad provisions under “Castle laws” under A.R.S. 13-411 is that there is “no duty to retreat” by a homeowner, or other person before the use or threaten to use deadly physical force in the event one of the specified dangerous crimes is in progress, or attempted.
In Phoenix, late last week, a homeowner woke up to find an intruder in his home, and allegedly shot him in the early hours of the morning. The intruder suffered serious facial wounds after the homeowner shot him after the intruder attempted to enter the homeowner’s bedroom in the early morning hours. It was reported that the intruder was found by police with one foot in the homeowner’s bedroom doorway. The intruder is expected to survive at this point. During the scene investigation, police allegedly learned that the homeowner was a qualified Arizona Medical Marijuana Cardholder Holder, and that he was cultivating twice the amount of Marijuana than is legal under the Medical Marijuana Law.
Since this is a developing story, it is unknown what criminal charges have been or will be brought against the homeowner or the intruder. With regard to the homeowner, he could be potentially exposed to drug charges for possessing at least 24 Marijuana plants, an amount that exceeds the Medical Marijuana limit of 12 plants. But in the unlikely event charges are brought by against the homeowner, in absence of provocation, by the homeowner would have a strong argument for use of force with a deadly weapon under the Justification Defense Laws of Arizona, resulting from the home invasion.
In absence of such circumstances a person using a deadly weapon or shooting another would result have resulted in serious criminal charges such as aggravated assault Under A.R.S. 13-1204. A person may be guilty of aggravated assault if the person commits assault with a deadly or dangerous weapon or instrument against another. Charges in the given circumstance might have otherwise been brought as a Class 3 felony.
A closer look at Justification Laws in Arizona
When the Justification Defense offense is under to defend criminal charges, it means that the defendant doesn’t deny that an act was committed; but that they were justified in defending themselves, their families, or property in self-defense or prevention of a serious crime against them.
Arizona’s A.R.S.13-404 Justification for use of physical or deadly force is applicable for in an incident involving “self-defense”. This defense applies when a person uses threatening or physical force against another when a person reasonably believes it is necessary to protect themselves against another’s use or attempt to use unlawful physical force. However, this defense is unjustified if:
- It is a response to verbal provocation only;
- Resisting arrest by police, unless police use more force than required by law to restrain a suspect;
- The intruder, or aggressor clearly communicates their wishes to or safely withdraw from the unlawful encounter
Arizona’s A.R.S.13-411 (A). This Justification defense is used as a result of someone trying to “prevent a crime”. It is applicable when a person reasonably believes reasonable or deadly force immediately needs to prevent a dangerous victim crime against a victim such as burglary, armed robbery, kidnapping, manslaughter, murder, sexual misconduct or assault involving a minor, armed robbery, or aggravated assault. There is no duty to retreat before threatening or using physical force or deadly physical force in this section.
This applies if the threatened, attempted crime or crime in progress occurs in a person’s home or other residence, their business, land they owned or rent, a vehicle or conveyance, or anywhere in this state where a person has the right to be.
Note the last phrase “anywhere in this state where a person as the right to be”. This language stems from a 2010 Arizona amendment to the “Stand Your Ground” law which passed in 2010, making the ability to stand one’s ground even broader. This means under A.R.S 13-4011 a person is allowed to use such physical or deadly force for preventing a crime described above, in any location in Arizona, where a person lawfully “has the right to be”. This may be a countless number of locations throughout the state including public streets, highways, occupied public places, and anywhere the resident is lawfully located at the time of an encounter.
In light of recent controversial court decisions, state legislators are requesting a formal review of Arizona’s broad “Stand Your Ground” laws, and the 2010 Amendment. Their fear is that people who would otherwise avoid a violent confrontation may be compelled to engage in it, assuming that their actions will be protected regardless of circumstances.
Criminal Defense in Maricopa County
It is important to consult a criminal defense attorney if you face any type of aggravated assault, or any type of charges involving use of a lethal weapon or deadly instrument. Convictions for these types of felony crimes are aggravated, and call for long term prison sentencing, restitution, and a number of other serious penalties. If arrested for any crime you have the right to defend your charges, and to hire a qualified criminal defense lawyer to represent you. If you have active charges, in the Phoenix or East Valley areas, including Mesa, Tempe, Chandler, Scottsdale, and Gilbert, call the Law Office of James Novak, PLLC at (480) 413-1499 for a free consultation.
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State Marijuana Laws Pass Another Test of Strength.
Some see the Arizona Supreme Court’s refusal to disturb an Appeals Court ruling in favor of a Medical Marijuana Defendant’s rights, as win in the test of strength of the Arizona Medical Marijuana Law (AMMA). This is because the issues inherent in the case, extended well beyond the matter of returning a defendant’s Marijuana following dismissal of charges. They compel the state courts to address the conflicting federal laws on the prohibition of Marijuana.
Last week the Arizona Supreme Court, held the lower court’s ruling that Medical Marijuana Patients, who have not violated the law, are entitled to the return of the Marijuana seized from them in an arrests. The AZ Supreme Court Justices provided only a brief order, which in essence simply outlined their refusal to overturn the lower Appeals Court’s Ruling.
The case involved an out of state driver who was qualified to use Medical Marijuana the state where she resided, California. After police found and seized her Marijuana, she was arrested. The charges were later dismissed after the defendant produced her Medical Marijuana Card, and proof of residency in California. The residual issue, however, was the fact that her Marijuana was never returned to her. An Arizona Superior Court ordered the police to return to her, the Medical Marijuana amounting to nearly an ounce, initially seized in the drug stop.
Here’s where it gets more interesting. The State of Arizona appealed that decision arguing that Marijuana seized by police could not be returned to the defendant. They argued that under A.R.S. 13-3413 of criminal code, the law requires forfeiture of Marijuana seized in an arrest; and that the Arizona Medical Marijuana Act did not expressly require them to return the Medical Marijuana to the defendant. Further the prosecution argued that the Sheriff would be in violation of the Federal Controlled Substances Act, and subject to prosecution, if they returned the defendant’s Marijuana, since federal law prohibits the drug in all forms.
The Arizona Appeals Court rejected the State’s arguments on the grounds that the driver was a qualified Medical Marijuana user, and not in violation of the law. So since the driver did not commit a crime, then the state was not justified in keeping her Marijuana in holding as part of a criminal offense. The Court ruled that in the alternative, if they wished to continue to keep the drugs they seized in the process of arrest, they could do so only upon prevailing in civil forfeiture proceedings. The AZ Supreme Court determined that that no penalties could be imposed upon the Arizona Sheriff’s Department or their personnel since Federal Law grants immunity to law enforcement officials who are acting under court orders.
The Appeals Court’s declined to address the argument that Federal Controlled Substances Act prohibition preempted, thereby invalidates AMMA. The court acknowledged the known general principal that when Federal law conflicts with state law, federal law prevails, and the state will be bound to the Federal law. However, in this case, the court recognized that there was no actual or imminent threat of prosecution by the Government in violation of the Federal Control Substances Act of the defendant, only the State of Arizona. The court found the facts of this case similar to Thomas v. Anchorage Equal Rights, 9th Cir. 2000 holding that “If no enforcement action or prosecution is threatened or imminent, the dispute is premature”. In conclusion they affirmed the Arizona Superior Court’s order for law enforcement to return the Marijuana, in favor of the defendant. The State Appealed to the Arizona Supreme Court; the Justices rejected the State Prosecutor’s arguments; and left the lower court’s decision undisturbed.
This is just one of numerous cases making their way through the criminal justice system, since Arizona passed its Medical Marijuana Law in 2010. Arizona is one of numerous states that have adopted Marijuana laws legalizing it in some fashion, either narrowly or liberally. The legal conflicts stem largely from the differences between state laws the Federal Control Substances Act which still prohibits Marijuana in all forms. Thus far, the Arizona State Courts have managed to circumvent a specific ruling in the matter, holding that their courts will not overturn the will of the people under AMMA, or that Federal Prosecution is not imminent in their presiding case.
Meanwhile, the Government has taken no action to prosecute people or entities using, possessing, selling, or cultivating, or distributing Marijuana, in compliance with Marijuana and Drug Laws of their State. But several Arizona County Attorneys and those who oppose the AMMA Law continue to contest the law, in look to obtain a specific ruling at the US Supreme Court level that will invalidate the law, in violation of the Federal Controlled Substances Act.
Until such conflicts are resolved between the Federal and State laws, qualified users of Medical Marijuana are still at risk for arrest, and prosecution, even if they are in compliance with the State Laws, and forced to defend themselves in criminal court. Drivers using Medical Marijuana, as qualified users face the highest risk of arrest for DUI in violation of A.R.S. 28 – 1381. This is because of strict case law that exists in Arizona which prohibits motorists from driving under the influence of Marijuana to any extent, even if they are not impaired to the slightest degree.
Maricopa County Marijuana Defense
Even Qualified Medical Marijuana users are at potential risk of being arrested for DUI, or other violations related to Marijuana, in violations of DUI and drug laws. If charges have been brought, you will need to need them in court, and through the criminal justice system. You have the right to retain a qualified attorney to defend you, and make sure your rights are protected. If you have active charges in Maricopa County, you can consult the Law Office of James Novak, in Tempe AZ. James Novak, Experienced Criminal and DUI defense attorney provides a free consultation. Call (480) 413-1499 before pleading guilty to DUI or criminal charges
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Misconduct with Weapons and DUI enforcement top police priority list.
The Arizona Governor’s Office of Highway Safety (AGOHS) is working closely with law enforcement agencies to conduct DUI task forces in Phoenix, Tempe, Mesa, Chandler and Gilbert AZ, this July 4, 2013 weekend.
According to the recent statistics reported by the National Centers for Disease Control (NCDC) nearly one third of all fatal auto accident were the result of impaired driving; and according to Mothers Against Drunk Driving (MADD), one in every three people will be involved in an impaired driving motor vehicle accident. According to MADD, the average drunk driver gets behind the wheel to drive at least 80 times before they are arrested for their first DUI.
Police are heavily patrolling in Maricopa County’s Phoenix and East Valley Cities to enforce alcohol and drug laws, commonly associated with holiday festivities. These include but are not limited to Underage 21 Drinking: drunk driving; impaired driving due to alcohol; drivers under the influence of drugs; illegal sales, possession or use of drugs; and disorderly conduct law violations.
Arizona egregiously prosecutes impaired driving, and weapons offenses to the greatest extent, leaving no room for second chances. Although a majority of impaired driving charges in Maricopa County are Misdemeanors, they carry tough penalties. Even a first time DUI charge under A.R.S. 28-1381, with a Blood Alcohol Content (BAC) just over the legal limit of 0.08% will cost an offender jail terms, suspension of driver’s licenses, fines, fees, use of Ignition Interlock Device (IID), and mandatory alcohol/drug abuse screening, counseling, or treatment.
Arizona also has Extreme DUI laws (BAC 0.15%) and Super Extreme DUI laws (BAC 0.20%), under A.R.S. 28-1382. In view of penalties, the higher the BAC, the more severe the sentencing. Penalties also expose a person to jail terms which can reach as high as 180 days in Maricopa County Jail for a second offense within 7 years.
The most severe penalties are reserved for Felony DUI charges. These are impaired driving charges that involve aggravated factors outlined under A.R.S. 28-1383. All felony DUI charges expose a person to prison sentencing up to 8 months. Some aggravated factors include being charged with a third DUI with two prior convictions in 84 months; driving with a passenger under 15 in the vehicle; impaired driving on a suspended, revoked, or expired driver’s license; or DUI while the driver is under court order to equip a motor vehicle they operate with an Ignition Interlock Device, resulting from a previous DUI. If a person is convicted of a felony DUI involving serious injury or death another person, other serious felony charges will apply as well. Penalties will expose a person to 20 to 25 years or up to a lifetime in prison.
In addition police are focusing on DUI, alcohol and illegal drug related offenses, police will be focusing on apprehension of those violating firearms and weapon’s laws. One offense that is always a concern, but particularly around observed holidays is random gun fire or firing shots into the air. This offense is a violation of A.R.S. 13-3107, also known as violations of “Shannon’s Law”. This law was named in memorial of an Arizona girl killed as a result of random gunfire in 1999.
Other weapon’s misconduct includes reckless discharge of a gun, discharging a gun within city limits; discharge of firearms at structures; disorderly conduct; reckless display of a firearm, possession of use of prohibited weapons, or possession or use of firearms by prohibited persons, other offenses committed while using or in possession of a firearm.
Weapons crimes may be charged as a misdemeanor or felony, largely dependent on the circumstances. Class 1 Misdemeanors, the most severe of Misdemeanor penalties expose a person to up to 6 months in jail, fines, fees, probation and other punishments. While felony weapon crimes, depending on how serious may expose a person to sentencing of up to 21 years in prison for Class 2 Felonies and up to $150,000.00 fines. Other penalties will also apply.
A person may be charged and arrested for a weapons crime or assault if a person feels threatened by a gun or other dangerous instrument due to reckless display or misuse; even if the other party was not actually hurt or physically injured. A suspect may also be charged and arrested for a weapon’s that results in injury or death caused by misconduct or unlawful use of a weapon whether the crime itself was intentional or unintentional.
Tempe Weapon Crimes and DUI Defense Attorney
If you have been charged with any weapons crime or impaired driving defense you will then need to defend your charges in a court of law, if you wish to defend the charges, and avoid or mitigate prosecution and harsh penalties resulting from conviction. The Law Office of James Novak at provides a free consultation for active charges in Tempe, Phoenix, and surrounding East Valley cities. James Novak, DUI & Criminal Defense attorney will provide you with information about your constitutional rights, and options for retaining a defense attorney to protect them and defend your charges. Call (480) 413-1499 to learn more and get your free consultation today.
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AZ High Court uses “constructive possession” standard in reverse-sting operation case.
In State of Arizona v. Keven Ottar and Ruan Junior Hamiliton, recently, the Arizona Supreme Court affirmed the Appeals Court decision to continue prosecution of Marijuana Possession charges, even though the defendants did not leave with the drugs.
The case involved a “reverse-sting” operation where law enforcement officials went undercover and acted as dealers to sell illegal drugs, rather than buying them. The defendants met with undercover detectives who agreed to sell a large quantity of Marijuana to the defendants. The defendants and undercover detectives completed most of all transactions of the sale. However, the defendants were arrested before they could leave with the drugs. Given this was a reverse-sting operation detectives did not allow the defendants to actually take and leave with the Marijuana. Multiple charges were handed down in the arrests, including Marijuana Possession charges.
Under A.R.S. 13-3405 a person is in violation of a Marijuana Possession laws if they knowingly “possess”, or use Marijuana, ”possess” it for sale. In determining whether or not the defendants could be prosecuted under this charge, the Appeals Court and the Arizona Supreme Court relied on the definition of “possess” and “possession” under AZ criminal code A.R.S. 13-105 definitions which indicate that (34) to “possess” requires a person knowingly have physical possession or otherwise exercise dominion or control over the property (Marijuana) (35) “Possession” means a voluntary act if a person knowingly exercised control or dominion over the property (Marijuana).
In this case “dominion” was not in challenge by the defendant, so the critical issue was did the defendants have “control” over the Marijuana. Arizona’s criminal code does not define the word “control” so it was given a “commonly understood” or “ordinary meaning”. A primary authority for this is allowed under A.R.S. § 1-213. Under this rule it is indicated that words should be construed according to the common and approved use of language, unless they have acquired a particular meaning under the law.
The AZ Supreme Court cited two previous cases for precedent of their conclusions United States v. Kitchen (1995); and United States v. Adams (2010), both of which involved “reverse-sting” operations. The high court used the standard of “constructive possession” since the defendants had done all they could do in the transaction, short of leaving the scene with the drugs since the undercover police would never have allowed the defendants to leave with the drugs. Subsequently they were arrested prior to actually taking the illegal drugs. The US Supreme Court ruled that in a “reverse-sting” operation “(control) is not rendered legally impossible merely because a defendant does not leave the scene with the drugs” due to the impracticality or ability to do so given the circumstances. Given this principle, the high court concluded that a defendant may be found to “possess” or be in “possession’ did not have exert full control over the drugs, but did have to “manifest an intent” to control the drugs.
However, the court did affirm the principal used in precedent cases that more than intent to make a purchase was needed. They agreed with precedent cases that it was not enough for the defendants to simply go to the location of the illegal drugs; look at; smell; or touch the drugs. Rather, the sale itself had to be legally consummated by tender or other consideration in order to “manifest intent”, and thereby displaying their intent to exercise control over the illegal drugs.
As a result the US Supreme Court affirmed the decision of the Court of Appeals which held that the lower trial court had erred as a matter of law, in dismissing the Marijuana Possession Charges, resulting in prosecution of the Possession charges.
Depending on the circumstances and drug sentencing factors, Marijuana Possession for Sale offenses which may result in a Class 2, Class 3, or Class 4 felony. All felony charges expose a person to prison in Arizona. Convictions can result in a minimum of 18 months to 10 years in prison; exorbitant fines beginning at $750.00 to as high as $150,000.00 for individuals; and other harsh penalties.
Maricopa County Marijuana Defense
If you face any Marijuana charges in Chandler AZ or other cities within Maricopa County, your future and freedom may depend on your retention of an experienced and qualified drug charges defense attorney. Contact the Law Offices of James Novak at (480) 413-1499, for a free consultation if you have active charges.
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Measure would also liberalize Arizona’s strict Marijuana DUI laws.
An initiative filed by “Safer Arizona”, seeks to legalize all forms of Marijuana for adults in Arizona. The words “We’re gonna legalize it” which appears on their website indicates their mission to end all Marijuana prohibition in Arizona.
The petition requires 259,213 signatures which need to be submitted before July 3, 2014, in order to be put on the November 2014 ballot in Arizona.
Currently, recreational Marijuana is prohibited in Arizona under A.R.S. 13-3405. Depending on the quantity involved in the offense, possession or use of it may be charged as a felony, and if convicted, exposes a person to prison sentencing, and other harsh penalties.
Arizona passed Medical Marijuana legislation in 2010, by a slim margin of voters. However, it has taken three years and a host of legal battles to advance its implementation. Obstacles stemmed from legal battles involving conflicting Federal Laws which prohibit Marijuana. Under the Federal Controlled Substances Act, all forms of Marijuana are illegal. Generally, federal laws prevail when state and federal laws differ. However, Arizona Courts thus far have supported the new Arizona Medical Marijuana Act (AMMA) under passed by Arizona voters.
One legal battle in particular involved White Mountain Health Center v Bill Montgomery, DHS, State of Arizona, et al. White Mountain Health Care, a Medical Marijuana Dispensary, was initially denied a zoning license to operate within Maricopa County. The Superior Court reasoned that Medical Marijuana laws under AMMA and A.R.S. 36-2801 were much narrower than the Federal Laws which prohibit it. So the Court ruled in favor of the Arizona voters, consistent with trending in other states, who limited Marijuana to medicinal use. The court also announced that such narrow use of Marijuana for medicinal purposes was not in violation of public policy. It ruled that White Mountain Health Care’s application for zoning rights should be honored.
Maricopa County Attorney, Bill Montgomery appealed the ruling., which was upheld on December 20, 2012, when the Arizona Court of Appeals refused to block the Superior Court’s Order. The appeals court ruled that White Mountain Health Center Medical Marijuana Dispensary may proceed with the prior orders to obtain zoning rights. This paved the way for other Dispensaries to obtain their zoning licenses in Maricopa County, which are now in operation.
The new full Marijuana legalization effort is much broader than the preceding Medical Marijuana proposal. The purpose of the new initiative is to put laws in place that will lift the ban and enable Marijuana possession, use and sales, to be administered similarly to those involving liquor laws.
The Safer Arizona initiative was modeled after that of Colorado’s and Washington’s “Marijuana for all” proposals in 2012. While the voters in both states voted for full legalization of Marijuana in 2012, they continue to face obstacles for implementation due to the conflict between state and federal laws.
Safer Arizona describes the new measure as a grassroots effort, meaning it has no major financial funding sources, and driven only by public support. Volunteers are relied upon to collect the signatures needed to put it on the ballot. However, it is expected that national pro-legalization of Marijuana groups will provide financial support, once the required number of signatures are collected to enable the measure to be put on the ballot in 2014.
Proponents of lifting the ban fully, feel that current prohibition of Marijuana promotes other health hazards and dangers including: alcoholism, alcohol poisoning, liver disease, street violence, dangerous drug dealings, and lack of control over children and minors having access to it.
In contrast, Safer Arizona endorses Marijuana over alcohol. Their stance is that Marijuana has medicinal qualities, promotes pacifism, and peaceful conduct. Further, they feel that it is unlikely to result in death or disease, as compared to alcohol. In sum, advocates for the measure feel that legalizing Marijuana would get it out of the hands of children, reduce crime, and promote healthier choices, over alcohol for adults.
The new initiative also seeks to liberalize Arizona’s strict Marijuana DUI laws. This is critical given the fact that currently, drivers can be prosecuted for driving under the influence even if they are not impaired to the slightest degree, by Marijuana. This provision was motivated by a recent Arizona Appellate Court ruling Arizona that allowed for prosecution of Marijuana DUI in absence of driver impairment.
In Arizona v. Shilgevorkyan the Appeals Court decided that driver impairment was not a prerequisite for arrest and prosecution. But rather, the driver can be prosecuted for Marijuana DUI if the only trace substances are found in the motorist’s bloodstream. The trace compound at question was Carboxy –THC which may remain in a person body 3 to 4 weeks after use and more importantly does not cause driver impairment. Carboxy – THC differs from the active ingredient in Marijuana known as Tetrahydrocannabinol or THC. The active ingredient THC has been found to cause driver impairment when certain levels are reached in a person’s bloodstream. A.R.S. 28-1381 was interpreted by the court in way that allows for prosecution without impairment of a motorist if they were driving or in actual physical control of a vehicle, while under the influence of any drug defined under A.R.S. 13-3401. The court ruled that under Arizona DUI law Carboxy –THC the non-active ingredient fell within the definition of “metabolite. The Arizona Appeals court expressed that their intent was in the spirit of public safety. However, it faced heavy scrutiny in Arizona and throughout the country. Many felt that it was senseless to prosecute drivers with no impairment, calling it unconstitutional.
Safer Arizona is expected to obtain the number of signatures needed to put it on the ballot in 2014. However, even in light of its popularity, the measure can expect to meet strong, formal, and widespread opposition for the proposal. But that will be just the beginning. If passed, the law can count on even more legal battles in the future given the conflicting Federal prohibition laws.
Marijuana Defense Lawyer Tempe, AZ
Arizona currently has some of the toughest Marijuana and DUI laws in the country. Criminal charges for illegal drug and impaired driving offenses result in harsh penalties, and will jeopardize your freedom and future. If you face criminal or DUI charges contact the Law Office of James Novak, in Tempe AZ at (480) 413-1499. James Novak is an experienced marijuana lawyer in Maricopa County. He provides a free initial consultation regarding your matter. If retained he will protect your rights and defend your charges. He serves clients in Tempe, Phoenix, Mesa, Chandler, Gilbert, Scottsdale, and surrounding areas
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Previous blogs related to this topic:
“State of Arizona v. Hon. Jane A. Butler and Tyler B” Decision: The Impact of the AZ Supreme Court’s Ruling on Arizona Drivers.
In an unprecedented ruling, the Arizona Supreme Court rejected the Prosecution’s holding that all motorists who drive in Arizona, give their absolute voluntary consent to DUI breath or chemical testing, solely due to the existence of the “Implied Consent” traffic law A.R.S. 28-1321; and that the voluntary consent by a juvenile is not absolute.
This case involved a 16-year-old student who was accused of driving to school under the influence of Marijuana. The student was detained when after school security reported a strong odor of Marijuana in the vehicle, and drug paraphernalia in plain view inside the vehicle. The Court records revealed that the student agreed to have A DUI blood test, only after being handcuffed by police, informed of the existence of the Implied Consent Law, and then instructed that he was required to submit to the DUI chemical test.
The AZ Supreme Court Justices ruled unanimously, that without a clear and voluntary consent immediately prior to the blood collection, the process is unlawful without a warrant, under the Implied Consent Law. The Court decided that the juvenile’s consent was not voluntary in this case. It was decided that a consent is involuntary if police conducting the DUI investigation, advise a driver that they were required to consent to a breath or chemical test under the Implied Consent law as a condition of driving in Arizona.
The Arizona Supreme Court ruled that the voluntary consent by a juvenile was not absolute; and should not be given the same amount of weight as an adult’s voluntary consent. The Justices determined that uncertainties exist regarding the presence or lack thereof, maturity, naivety, peer pressure, vulnerabilities, and negative influences which may impact their decisions.
One Justice, John Pelander concurred “…in view of the various contingencies and uncertainties surrounding determinations by officers in the Field (and subsequently by courts) on whether express consent of DUI arrestees (particularly juveniles) is voluntary, the safest course of action for law enforcement might simply be to obtain search warrants, when reasonably feasible, for obtaining blood samples in DUI investigations. See A.R.S. §§ 13-3914, -3915, 28-1321(D) (1)…”
The Court made it clear that the “Implied Consent” traffic law A.R.S. 28-1321 gives the driver the choice of voluntarily consenting, or not, to participate in a DUI breathalyzer test or submit to invasive chemical testing. Further it was ruled that a suspect should be informed of the consequences of failing to voluntarily consent. In that, to refuse to consent, would result in the civil penalties that included driver’s license suspension for one year, whether they were found to be impaired or not. This, rather, that using the traffic law as an excuse to require someone, who does not realize otherwise, that they must voluntary consent.
The Justices ruling also included consideration both age, and whether or not the parents had been notified of the matter, and their input on it. However, it fell short of holding that solely the absence of parental notification, would result in an involuntary consent. But, rather, that it be simply as another factor.
Further, the Supreme Court ruling did not address the aspect of a juvenile’s legal capacity to voluntarily consent or whether invasive DUI chemical testing was in violation of parental rights.
DUI Test Lawyer in Chandler, AZ
Any DUI charge in Arizona is a criminal offense. If convicted a person will be exposed to harsh penalties including jail terms, suspension of driver’s licenses, fines, fees, alcohol/substance abuse counseling or treatment, a criminal record and other penalties.
There may be defenses or constitutional issues that apply to your case, and could lead to a suppression of evidence, or dismissal of charges. The most effective way to challenge your charges and protect your rights is to retain an experienced criminal defense attorney to represent you. If you have been arrested in Chandler for DUI, you should consult an experienced DUI attorney regarding your matter and your needs for legal representation.
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Lower numbers attributed to DUI prevention, and increased police presence.
Major news outlets reported that Arizona Police made 410 DUI arrests over the Memorial Day Weekend, 2013. Of those, 360 or 88 percent were Misdemeanor DUI charges; and 50 or 12 percent were Felony DUI charges. Of the total 410 DUI arrests, 111 or 27 percent were Extreme DUI charges meaning the Blood Alcohol Content (BAC) of the suspect was .015 percent or higher. The number of 2013 DUI arrests during this time frame, 410, were lower than last year. In fact, the numbers show a consistent downward trend over the prior 3 years.
During this same time frame in 2012 DUI arrests were 547; in 2011 arrests were 614; and in 2010 arrests were 849. Law enforcement officials attribute this downward trend to additional funding by the Arizona Governor’s Office of Highway safety. In recent years has focused on reducing the number of DUI arrests and DUI accidents during observed holidays, and throughout the year.
Both the National Center for Disease Control (CDC) and National Highway Traffic and Safety Administration (NHTSA) have concluded that the stronger the state’s efforts and funding used for prevention of DUI incidents, the more discouraged motorists will be to drive impaired, and the more likely DUI arrests will be reduced.
The AZ Governor’s Office of Highway Safety (AZGOHS) in recent years has provided generously for what the NHTSA refers to as High Visibility Elements (HVE) for DUI prevention. HVE efforts include but are not limited to increased police presence, large and small scale DUI checkpoints, roaming patrols, saturation patrols in known high DUI traffic areas, high profile special vehicles and equipment, high-intensity lights, large signage, special insignia vans and police patrol cars and designated officer’s uniforms, safety messages, various types of media communications and press releases for public education, and community awareness.
In addition the State has provided funding for more overtime, additional mobile units and special vehicles, Drug Recognition Education (DRE) programs for police, DUI phlebotomy training, new technical resources for roadside testing, and evidence processing,
Arizona has some of the toughest DUI/DWI laws and penalties in the county. Any DUI is classified as a criminal offense. Even a first-time, non-extreme DUI charge will expose a person to jail terms, loss of license, mandatory alcohol/substance abuse education or counseling; fines, assessments, fees; probation, and other penalties the court deems necessary.
The higher the BAC levels, or impairment, the more severe will be the sentencing. Repeat impaired driving sentencing is particularly harsh and includes increased penalties. If a person is charged with a DUI with aggravated circumstances, the charges will be raised to a felony. Aggravated circumstances may include DUI with a passenger under 15 in the vehicle, third DUI in 84 months with two prior convictions, driving on a suspended or revoked license, or DUI with a severe auto accident involved. A Felony DUI conviction will expose a person to prison terms in all cases.
For most people an impaired driving arrest is a life altering ordeal, particularly if they get a conviction. If you are arrested for any DUI in Tempe AZ, or other surrounding cities in Maricopa County, you should never go to court and plead guilty for impaired driving without fully understanding the consequences. It is important to consult an experienced criminal defense attorney as soon as possible following an arrest, to discuss your case. You will need a professional legal advocate to provide a formal defense. If retained, their criminal lawyer will protect your rights, defend your charges, and work to get the best possible outcome in your case.
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“All gave some; some gave all”.
1. Observance of Memorial Day began after the Civil War, in remembrance of those 620,000 who lost their lives in the deadliest war ever to occur on U.S. soil.
2. Out of the total number of deaths in the Civil War, a majority of the deaths, 400,000, resulted from disease. Combat resulted in 220,000 deaths.
3. Memorial Day’s focus was to honor those who died in the wars — different from Veteran’s Day, which honors all veterans, living or dead.
4. Memorial Day was initially called “Decoration Day.” Memorial Day was proclaimed May 5, of 1868 by General Logan in his 11th General Order. It was observed by placing flowers on the graves of Union and Confederate soldiers at Arlington National Cemetery.
5. It was later re-named “Memorial Day” in 1882, which was officially declared its new name under Federal law in 1967.
6. On June 28, 1968, the United States Congress passed the Uniform Holidays Bill, which included moving Memorial Day to the last Monday in May to enable it to be observed as part of a three-day weekend. It took effect in 1971.
7. Flag Etiquette for Memorial Day is to fly it at half-staff until noon. At 12:00 p.m., it should be lowered only to hoist it to the top; and taken down at sunset. If the flag is lighted, it may remain up. It should not be flown in the rain.
8. The tradition of wearing red poppies on Memorial Day in honor of those who died was inspired by a poem written in 1915 “In Flander’s Fields,” by John McCrae.
9. The sheet music “Kneel While Our Loves are Sleeping” published in 1867, by Nella L. Sweet, and words by G.W.R. were dedicated “To The Ladies of the South,” who decorated the graves of the fallen soldiers.
10. In December of 2000, “The National Moment of Remembrance Act” was signed into law. It encourages Americans, to pause for a moment of silence on Memorial Day at 3 p.m. local time, no matter where they may be, to remember all of those who have died in service to the United States of America.
DUI Safety Message from Law Office of James Novak Criminal Defense Firm Tempe, AZ
Memorial Day is often observed with celebrations and gatherings among friends and family. For many it marks the beginning of the summer and its holidays. Many plans include traveling, enjoying outdoor activities such as boating, outdoor grilling, swimming, and tubing down the Salt River. Whatever your plans be sure you know laws of highways; roadways; on the water; or wherever, you will be celebrating. Below are some DUI tips to help you stay safe.
DUI Prevention and Alcohol Safety Tips
• Drive defensively. Be aware that there is the potential for other motorists on the road that may be driving impaired due to alcohol or drugs.
• Plan ahead. If you plan to drink, don’t drive. If there’s a chance you might be driving impaired or under the influence of alcohol or drugs, make arrangements in advance for a ride home. Appoint a designated driver, take a cab, or contact a trusted family member or friend who will not be under the influence of alcohol or drugs.
• Don’t engage in “Binge Drinking”. This is the number one cause of alcohol poisoning, and can be fatal. The National Center for Disease Control (CDC) defines “Binge Drinking” as drinking 4 or 5 shots of liquor in a row.
• If you live or drive in Arizona be aware that Arizona has some of the toughest laws in the country related to DUI.
• Know that a person weighing 120 pounds or more can easily reach or exceed the legal limit for Blood Alcohol Content after only 1-2 drinks. A person 160 pounds or over can reach or exceed the legal limit after 2-3 alcoholic beverages. Both depend on certain factors such as gender, food, medications, alcohol tolerance, and more.
• A person can be driving “impaired to the slightest” degree even after only one drink, depending on other factors and be in violation of Arizona Law A.R.S, 28-2831.
• A person can be guilty of driving “impaired to the slightest degree” if they have are under the influence of intoxicating drugs, even if they have had no spirituous liquor at all under A.R.S. 28-1381.
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