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The Entrapment Defense in Arizona

Entrapment Defense in ArizonaUnderstanding Arizona Affirmative Defenses

One of the best ways to understand the entrapment defense in Arizona is to read the standard jury instructions. Arizona Pattern Jury Instructions for criminal cases tracks the language of A.R.S. § 13-206 and provides:

The defendant has raised the affirmative defense of entrapment with respect to the charged offenses. In this case the defendant must prove the following by clear and convincing evidence:


  1. The idea of committing the offense[s] started with law enforcement officers or their agents rather than the defendant; and
  1. The law enforcement officers or their agents urged and induced the defendant to commit the offense[s], and
  1. The defendant was not predisposed to commit the type of offenses[s] charged before the law enforcement officers or their agents urged and induced the defendant to commit the offenses[s].

The defendant does not establish entrapment if he or she was predisposed to commit the crime.

It is not entrapment for law enforcement officers or their agents to use a ruse or to conceal their identity.

The conduct of law enforcement officers and their agents may be considered in determining if the defendant has proven entrapment.

If you find that the defendant has proven entrapment by clear and convincing evidence you must find the defendant not guilty of the offense[s].

In 1997, the legislature codified the entrapment defense in A.R.S. § 13-206. See State v. Preston, 197 Ariz. 461, 463–64, 4 P.3d 1004, 1006–07 (App. 2000).

The statute for the entrapment defense requires that the defendant admits the substantial elements of the offense[s] as a condition of raising the defense. 197 Ariz. at 464, 4 P.3d at 1007. Also, the statute now requires the defendant to prove entrapment by clear and convincing evidence. Id.

Subsection D of the statute required that the trial court instruct the jurors that the defendant had admitted the elements of the offense, and “that the only issue for their consideration is whether the defendant has proven the affirmative defense of entrapment by clear and convincing evidence.” A.R.S. § 13-206(D).

But in Preston, the Arizona Court of Appeals declared subsection D of the statute unconstitutional because it effectively denied a criminal defendant the presumption of innocence and the right to a jury determination of guilt. 197 Ariz. at 466–68, 4 P.3d at 1009–11.

Instead, the Preston Court held that subsection D was severable from the remainder of the statute. Id. at 468, 4 P.3d at 1011. The court upheld placing upon the defendant the burden of proving the affirmative defense of entrapment by “clear and convincing evidence.” Id. at 464–65, 4 P.3d at 1007–08.

Recent Court Ruling on Entrapment Defense in Arizona

A more recent case dealt with the constitutionality of requiring the Defendant to admit to the substantive elements of the offense. The Supreme Court of Arizona recently decided the case of State v. Gray, — P.3d ——, No. CR-15-0293-PR, 2016 WL 3390236 (Ariz. June 20, 2016).

In this case, the Defendant was charged with sale of narcotics for violating A.R.S. § 13–3408(A)(7), which provides that “[a] person shall not knowingly … transport for sale, import into this state, offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer a narcotic drug.”

The Defendant gave incriminating statements to an undercover police officer in a recorded conversation. The Court found he did not affirmatively admit to the substantial elements of the crime charged, and thus could not assert entrapment defense, even though the defendant did not contest officer’s testimony explaining the events captured in the audio recording.

The Court found the defendant did not affirmatively admit the substantial elements of the offense, and although the officer asked the defendant to help him obtain some “hard,” which was a slang term for crack cocaine, the recorded conversation alone did not prove that defendant, in fact, provided the drugs to the officer. Ariz. Rev. Stat. Ann. §§ 13-206(A), 13-3408(A)(7).

The Defendant was convicted and sentenced to over nine years in jail for accepting an undercover officer’s invitation to obtain twenty dollars’ worth of crack for a fee of ten dollars. Because he was not allowed to present an entrapment defense without surrendering fundamental rights, the dissenting opinion pointed out that “we will never know whether the Defendant was a cunning drug courier awaiting precisely such an opportunity, or whether he was simply waiting for a bus.”

In the case, the Supreme Court held that the defendant was required to affirmatively admit, by testimony or other evidence, the substantial elements of the offense, to claim the entrapment defense. The requirement to affirmatively admit the elements of offense did not violate the Fifth Amendment privilege against self-incrimination.

Also, the Court found that the defendant, who gave incriminating statements to undercover police officer, did not affirmatively admit the substantial elements of the crime charged, and thus could not claim entrapment.

Arizona’s Entrapment Defense Under A.R.S. § 13–206(A)

The Court found that A.R.S. § 13–206(A) affords a defense of entrapment only when the defendant affirmatively admits the substantial elements of the charged offense. A defendant cannot invoke this affirmative defense merely by declining to challenge the state’s evidence, even when it includes incriminating statements made by the defendant to an undercover officer. The Court granted review because the application of the statutory entrapment defense presents a recurring issue of statewide importance.

The Court decided whether § 13–206 requires a defendant who requests a jury instruction on the entrapment defense to affirmatively admit the substantial elements of the offense and, if so, what qualifies as “other evidence” for such an admission.

By its terms, § 13–206 requires a defendant “to admit … the substantial elements of the offense charged.” The statute does not expressly address whether a defendant can “admit” the elements merely by not challenging the state’s evidence.

The defense argued that the Court should construe the statute as not requiring a defendant to affirmatively admit the elements. The defense pointed out that “silence can, in some contexts, be deemed an admission, and [that the Court] should deem his not offering evidence to contradict his recorded statements to be an “admission” for purposes of § 13–206.

After considering the history of the entrapment defense in Arizona, the Court held that the legislature in enacting § 13–206 generally codified the rule that in order to raise an entrapment defense, the accused “must affirmatively admit, by testimony or other evidence, the substantial elements of the offense….Such an admission cannot be accomplished merely by the defendant passively declining to challenge the state’s evidence.”

The defense also argued that requiring a defendant to affirmatively admit the elements of a crime before claiming entrapment conflicts with the Fifth Amendment’s guarantee that “no person shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. The Court ultimately decided that requiring a defendant who chooses to assert an entrapment defense to admit the elements of the charged offense does not “compel” self-incrimination.

The Court also found that limiting the entrapment defense to those who choose to admit the elements of the crime also does not implicate the “unconstitutional conditions” doctrine.

Finally, the Court decided that although the defendant made incriminating statements in his recorded conversation, he did not affirmatively admit the substantial elements of this offense.

A dissenting opinion was filed by Judge Bolick who pointed out that the State of Arizona has adopted a uniquely narrow—indeed, “draconian”—view of the entrapment defense.

The dissenting opinion reasoned that the Defendant should have been entitled to raise an entrapment defense. The dissenting opinion found that Arizona “is unique, unfortunately, is its statutory requirement that a criminal defendant must admit the substantial elements of the crime before raising an entrapment defense, a rule the majority today affirms.

Arizona’s outlier status in that regard is well-recognized but not well-regarded. The dissenting judge reasoned that by requiring a defendant to affirmatively admit the substantial elements of the crime, the statute (especially as construed in this decision) implicates the defendant’s right against self-incrimination, protected both by the Fifth Amendment (“No person … shall be compelled in any criminal case to be a witness against himself….”), and by article 2, section 10 of the Arizona Constitution (“No person shall be compelled in any criminal case to give evidence against himself….”).

Recognizing that the entrapment defense plays an important role not only in protecting the due process rights of criminal defendants by ensuring that they will be punished only for crimes for which they are genuinely culpable, it also is important because it constrains government conduct that is incompatible with a free society.

The dissenting opinion also recognized that although there is no recognized constitutional right to an entrapment defense, forcing defendants to choose between raising the defense and forfeiting precious constitutional rights presents an unconstitutional condition.

The doctrine of unconstitutional conditions prevents the government front granting a benefit on the condition that the beneficiary surrenders a constitutional right, even if the government may withhold that benefit altogether. Thus, the dissent reasoned that the A.R.S. § 13–206(A) affirmative admission requirement constitutes an unconstitutional condition and may not be required to assert an entrapment defense.

Additionally, the dissenting opinion found that the majority opinion exacerbates the problem by interpreting “other evidence” and “substantial elements” to prevent the Defendant in that case from raising an entrapment defense even though his words, entered into evidence by the State, were essentially an admission of the crime.

In State v. Gray, — P.3d ——, No. CR-15-0293-PR, 2016 WL 3390236 (Ariz. June 20, 2016), the Supreme Court of Arizona took a draconian view of the entrapment defense which, as a practical matter, might force the Defendant to take the stand and admit all elements of the offense before the jury instruction for entrapment can be read to the jury.

Criminal Defense Lawyer for Entrapment Cases in Mesa, AZ

When a person allegedly commits a crime that he or she would not have otherwise committed, it may be possible to invoke the affirmative defense of entrapment. It is critical in such cases to have experienced legal counsel for help achieving the most favorable outcome.

James Novak of The Law Office of James E. Novak is a former prosecutor in Maricopa County who understands the types of criminal charges that entrapment claims work best for. Even when entrapment might not be applicable for a certain case, he can identify many other affirmative defenses or other claims that could possibly result in criminal charges being reduced or dismissed.

The Law Office of James E. Novak represents clients charged with such crimes as drug charges, sexual offenses, property crimes, and firearm or weapon offenses. James Novak helps residents of and visitors to communities throughout Maricopa County, including Phoenix, Mesa, Tempe, Chandler, Scottsdale, and several other nearby areas.

Contact The Law Office of James Novak today at (480) 413-1499 or fill out an online contact form to take advantage of a free, confidential consultation that will let our attorney review your case and discuss all of your legal options.


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Arizona Supreme Court Rules Marijuana Odor Establishes Probable Cause

Marijuana Odor Establishes Probable CauseArizona Cannabis Laws, Penalties, Criminal Defense

Police officers have long used the alleged scent of marijuana as an excuse to perform searches of alleged offenders’ motor vehicles when they refuse to consent to such searches. After the two divisions of the Arizona Court of Appeals came to different conclusions about the legality of the “plain smell doctrine”—the proposition that the smell of cannabis alone provides probable cause, the Arizona Supreme Court agreed to review of one of the cases.


The alleged offenders in both cases argued that the odor of marijuana no longer suffices to establish probable cause after the implementation of the Arizona Medical Marijuana Act (AMMA) in 2010. “We granted review because whether AMMA affects the determination of probable cause based on the odor of marijuana is a recurring issue of statewide importance,” the Arizona Supreme Court wrote in its decision in State Of Arizona v. Ronald James Sisco II, No. CR-15-0265-PR.


A magistrate issued a telephonic warrant in March 2013 that allowed Tucson police officers to search a storage warehouse where the officers were responding to a tip that “a strong odor of fresh marijuana” was emanating from one of the buildings in the complex. After the first unit the officers searched was vacant, the magistrate issued an amended warrant to search another unit where officers found “it was being used as a residence and a marijuana growing operation” with officers seizing “marijuana growing equipment, marijuana paraphernalia, and hundreds of marijuana plants.”


Sisco was charged with child abuse, possession of drug paraphernalia, possession of marijuana for sale, and production of marijuana, but he sought to have the evidence suppressed because, he argued, “the odor of marijuana no longer suffices to establish probable cause in light of AMMA.” The trial court denied this motion and Sisco was convicted of all charges.


On July 20, 2015, Division Two of the Arizona Court of Appeals reversed the trial court’s ruling on Sisco’s suppression motion and vacated his convictions and sentences. The majority ruled that AMMA “renders possession, cultivation, and use of marijuana lawful under some circumstances,” adding:


Accordingly, those circumstances—not the mere possession itself—now determine whether such activity is criminal or permitted under state law. For this reason, and for the reasons stated below, we hold that the scent of marijuana, standing alone, is insufficient evidence of criminal activity to supply probable cause for a search warrant. We emphasize this holding is a limited one. Probable cause can arise when the scent of marijuana is coupled with additional, commonly evident facts or contextual information suggesting a marijuana-related offense. However, no such information was presented here. We, therefore, reverse the denial of Sisco’s suppression motion and remand the case to the trial court. Our disposition makes it unnecessary to address the evidence supporting his conviction of child abuse.


Nearly one year later on July 11, 2016, the Arizona Supreme Court affirmed the trial court’s ruling denying the motion to suppress and vacated the court of appeals’ opinion. The Supreme Court concluded:


The mere fact that AMMA authorizes use, possession, or cultivation of marijuana in certain circumstances does not dispel the probable cause established by the odor. Under AMMA, registered qualifying patients are generally authorized to possess up to two and one-half ounces of useable marijuana, while those patients that live more than twenty-five miles from the nearest dispensary may be authorized to cultivate up to twelve marijuana plants. § 36-2801(1)(a); § 36-2804.02(A)(3)(f). A designated caregiver may also cultivate up to sixty plants, but only if the caregiver cares for five patients, all five patients are authorized to cultivate marijuana, and each patient designates the caregiver to cultivate on their behalf. §§ 36-2801(1)(b)(ii), (5); § 36-2804.02(A)(3)(f). AMMA also authorizes dispensary cultivation sites in certain locations. See A.R.S. § 36-2804(B)(1)(b)(ii). Nothing suggests the police here had reason to believe they had detected marijuana authorized by any of these provisions.


In sum, under the totality of the circumstances presented here, the odor of marijuana established probable cause. We have no occasion to assess how, in other circumstances, probable cause might be dispelled by such facts as a person’s presentation of a valid registration card.


Arizona Medical Marijuana Act (AMMA) as Defense in Marijuana Cases

While Division Two emphasized that it’s holding in Sisco was a limited one, it did not take long for Division One of the Arizona Court of Appeals to issue a decision that essentially contradicted the ruling that the scent of cannabis could no longer be used as probable cause for a search warrant. A mere three days after Division Two decided Sisco, Division One ruled in the State of Arizona v. Ian Harvey Cheatham that AMMA did not eliminate Arizona’s plain smell doctrine.


In Cheatham, police officers searched the car of the alleged offender after one officer noticed a strong odor of burnt marijuana from inside the vehicle they pulled over for a dark windshield that appeared to violate state law. An officer found an empty prescription bottle that smelled of unburnt marijuana, an empty cigar package, and a small amount of unburnt marijuana.


Like Sisco, Cheatham filed a motion to suppress, arguing the automobile exception to the search warrant requirement no longer authorizes searches based on the plain smell of marijuana after the enactment of AMMA. The superior court rejected the motion, and Cheatham was found guilty of the Class 1 misdemeanor offense of possession or use of marijuana and was placed on supervised probation for one year.


Division One concluded that the police officer satisfied the three prongs of the plain smell doctrine:


Cheatham argues the superior court abused its discretion by denying his motion to suppress because the only evidence supporting probable cause for the warrantless search of his car was the smell of marijuana. Under the plain smell doctrine, a police officer may conduct a warrantless search and seizure of contraband if: (1) the “officer [is] lawfully ․ in a position to [smell] the object;” (2) “its incriminating character [is] immediately apparent;” and (3) “the officer [has] a lawful right of access to the object.” State v. Baggett, 232 Ariz. 424, 428 ¶ 16, 306 P.3d 81, 85 (App.2013) (citations omitted). There is no dispute that the officer was lawfully in a position to smell the marijuana and had a lawful right of access. Moreover, in this case, the odor of marijuana provided sufficient probable cause that marijuana was present and that a crime was being or had been committed. See Harrison, 111 Ariz. at 509, 533 P.2d at 1144; Baggett, 232 Ariz. at 428 ¶ 20, 306 P.3d at 85. Accordingly, the record at the suppression hearing was sufficient to support a finding that all three requirements of the plain smell doctrine were met. Thus, the superior court did not err in denying Cheatham’s motion to suppress.


Arizona Cannabis Possession Laws

Under AMMA, qualifying patients registered with the Arizona Department of Health Services (ADHS) are able to purchase and possess up to 2.5 ounces of usable marijuana every two weeks. Arizona Revised Statute § 36-2811 establishes that there is a presumption that a qualifying patient or designated caregiver is engaged in the medical use of marijuana if the qualifying patient or designated caregiver is in possession of a registry identification card and in possession of an amount of marijuana that does not exceed the allowable amount of marijuana.


For all unlicensed individuals, marijuana possession in Arizona remains a felony offense. Under Arizona Revised Statute § 13-3405, possession of less than two pounds of cannabis is a class 6 felony, at least two pounds but less than four pounds is a class 5 felony, and four pounds or more is a class 4 felony.


Voters in Arizona may be able to legalize recreational on Election Day this coming November 8, however. Proposition 205 would legalize marijuana in the state and allow individuals 21 years of age or older to use cannabis products out of public sight.


Even if the initiative is voted into law, it still would not take effect until September 1, 2018. In the meantime, police officers throughout the state will still be able to use the plain smell doctrine as probable cause to search the motor vehicles of alleged offenders.


What to Do After a Marijuana Arrest

If you are stopped by police in Arizona and police claim to smell the scent of cannabis in your vehicle, it can be difficult to prevent a search of your automobile—even when you believe that an officer may be lying. Alleged offenders should do their best to remain calm and take the same steps to exercise their rights that they would in any encounter with law enforcement.


Remember that the right to remain silent under the Fifth Amendment to the United States Constitution means that you do not have to answer any questions. Also remember that the Fourth Amendment guarantees your right to be free from unreasonable searches and seizures.


If a police officer searches your vehicle despite your refusal to consent to any searches and finds marijuana in your car, you may still be able to challenge the legality of the search. When an officer claims that he or she smelled cannabis in your vehicle, it can be a very difficult assertion to disprove but courts may still consider the totality of the circumstances involved if you attempt to suppress the evidence in a criminal case.


The validity of the search is not the only legal defense in marijuana possession cases. An alleged offender may be able to claim that the cannabis belonged to someone else or that he or she was not aware the marijuana was in his or her vehicle.


First-time offenders accused of cannabis possession in Arizona may be eligible for deferred prosecution in which they are placed on probation. If the alleged offenders successfully complete the terms of their probation, the criminal charges are dropped.


Criminal Defense Attorney for Cannabis-Related Charges in Mesa, AZ

As felony offenses, marijuana possession convictions carry severe penalties with many long-term consequences. In addition possible prison time and fines, alleged offenders can face a lifetime of difficulty obtaining employment or housing because of their criminal records.


When a person has been arrested for allegedly possessing any amount of cannabis in Arizona, it is critical to immediately retain legal counsel for help attempting to get the criminal charges reduced or dismissed. The Law Office of James E. Novak helps clients achieve the most favorable outcomes to marijuana possession cases.


James Novak has experience handling these types of cases on both sides of the aisle as a former prosecutor in Maricopa County. He understands the most effective defenses that can be raised when alleged offenders have been accused of any marijuana-related offense.


The Law Office of James E. Novak defends people who have been charged with possession, sale, or cultivation of marijuana. James Novak represents clients throughout the greater Maricopa County area, including Phoenix, Gilbert, Mesa, Scottsdale, Tempe, Chandler, and many surrounding communities.


Call (480) 413-1499 or fill out an online contact form today to take advantage of a fee, confidential consultation that will let our criminal defense lawyer review your case and discuss your legal options.


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Supreme Court Rules Firearm Possession Prohibited After Domestic Violence Conviction

Supreme Court Domestic Violence

Arizona Domestic Violence Laws, Penalties, Criminal Defense

The Lautenberg Amendment in Title 18 U.S. Code § 922(g)(9) prohibits shipment, transport, ownership and use of guns or ammunition by individuals who were convicted of a misdemeanor domestic violence offense or are under a protection order (commonly referred to as a restraining order) for domestic violence. The amendment was enacted in 1996 and has been the subject of numerous court challenges.

On June 27, 2016, the United States Supreme Court further clarified that even convictions for reckless domestic assault can be construed as domestic violence offenses that prohibit firearm possession. The 6-2 decision resolved lingering questions about the nature of misdemeanor domestic violence convictions than can lead to loss of firearm rights.

Voisine v. United States involved two cases being linked in one certiorari petition. Both of the men involved pled guilty to misdemeanor assault offenses in Maine, one in 2004 and the other in 2008. Both men were later found in possession of guns were federally prosecuted under 18 U.S.C. § 922(g).

The two men alleged that their convictions did not qualify as crimes of domestic violence for the purposes of the Lautenberg Amendment because the state laws they were convicted under were the results of reckless conduct, not intentional. In writing for the majority, Justice Elena Kagan noted:

In sum, Congress’s definition of a “misdemeanor crime of violence” contains no exclusion for convictions based on reckless behavior. A person who assaults another recklessly “use[s]” force, no less than one who carries out that same action knowingly or intentionally. The relevant text thus supports prohibiting petitioners, and others with similar criminal records, from possessing firearms.

The Court agreed to hear this case specifically to resolve the “reckless conduct” question that was left unanswered following the 9-0 decision in United States v. Castleman that a conviction for misdemeanor domestic assault in state court qualified as a misdemeanor crime of domestic violence under federal law, and thereby prohibited offenders him from having guns. The Court declined to answer whether the ban on firearm possession by individuals convicted of domestic violence violated their rights under the Second Amendment, although Justice Clarence Thomas wrote in his dissent that “a single conviction under a state assault statute for recklessly causing an injury to a family member—such as by texting while driving—can now trigger a lifetime ban on gun ownership” and “this decision leaves the right to keep and bear arms up to the discretion of federal, state, and local prosecutors.”

Domestic Violence and Firearm Rights in Arizona

Individuals convicted of domestic violence in Arizona had already effectively lost their firearm rights under the Supreme Court’s Castleman ruling, but the Voisine case did involve some Arizona case law. Before the case reached the Supreme Court, the United States Court of Appeals for the First Circuit affirmed the judgments of guilt.

In its dissent, however, the minority on the First Circuit cited the 2006 United States Court of Appeals for the Ninth Circuit case of Fernández–Ruiz v. Gonzales. In that case, “the Ninth Circuit held that a prior Arizona assault conviction did not constitute a crime of violence under § 16(a) because that federal statute ‘covers only those crimes involving intentional conduct,’ and thus the merely reckless use of force (as covered by the Arizona statute) was insufficient to establish a violation.”

Voisine focused on the definition of the “use … of physical force,” with the two men arguing that their conduct having been committed recklessly—not knowingly or intentionally—did not constitute crimes of domestic violence as defined under the Lautenberg Amendment. The Supreme Court, however, distinguished between acts of negligence in which it would be difficult to describe injuries caused as “active employment” of force and “reckless behavior—acts undertaken with awareness of their substantial risk of causing injury.”

According to the FBI, more than half of the victims of domestic violence homicides in Arizona between 2003 and 2012—61.1 percent—were killed with guns. In addition to federal prohibitions on purchases and possession of firearms for people convicted of domestic violence offenses in Arizona, officers are also allowed to temporarily seize firearms found at the scene of domestic violence incidents.

Arizona Domestic Violence Laws

Domestic violence is defined under Arizona Revised Statute § 13-3601 as any act that is a dangerous crime against children or an enumerated violent offense in which any of the following applies:

  • The relationship between the alleged victim and the alleged offender is one of marriage or former marriage or of persons residing or having resided in the same household;
  • The alleged victim and the alleged offender have a child in common;
  • The alleged victim or the alleged offender is pregnant by the other party;
  • The alleged victim is related to the alleged offender or the alleged offender’s spouse by blood or court order as a parent, grandparent, child, grandchild, brother or sister or by marriage as a parent-in-law, grandparent-in-law, stepparent, step-grandparent, stepchild, step-grandchild, brother-in-law or sister-in-law;
  • The alleged victim is a child who resides or has resided in the same household as the alleged offender and is related by blood to a former spouse of the alleged offender or to a person who resides or who has resided in the same household as the alleged offender; or
  • The relationship between the alleged victim and the alleged offender is currently or was previously a romantic or sexual relationship.

When determining whether the relationship between an alleged victim and the alleged offender is currently or was previously a romantic or sexual relationship, the following factors may be considered:

  • The type of relationship;
  • The length of the relationship;
  • The frequency of the interaction between the victim and the defendant; and
  • If the relationship has terminated, the length of time since the termination.

Many crimes of domestic violence are classified as felony offenses, but one of the most common misdemeanor charges is domestic assault. If an alleged offender commits assault against a child or family or household member, the crime becomes domestic assault.

Under Arizona Revised Statute § 13- 1203, a person can be charged with domestic assault if he or she commits any of the following against a child or family or household member:

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

Convictions for domestic assault can result in jail time, fines, domestic violence classes, and loss of the right to possess a firearm.

What to Do After a Domestic Violence Arrest

When police officers respond to a call relating to a domestic violence matter, chances are high that one person will usually be placed under arrest. Alleged offenders in these instances should absolutely refuse to say anything to authorities until they have legal counsel.

It is not uncommon for the alleged victims in domestic violence arrests to express a desire to want to “drop the charges.” Alleged offenders should not interpret these wishes as meaning that the incidents will simply be forgotten about.

A prosecutor is the only party that has the power to drop criminal charges. Even if an alleged victim does not want to cooperate, the prosecutor can still pursue a case against an alleged offender when he or she feels there is enough evidence to support the charges.

Anybody who has been arrested for a domestic violence offense in Arizona should immediately contact an experienced Mesa criminal defense lawyer. An attorney will not only advise the alleged offender on how to answer certain questions, but can also begin negotiating a plea agreement that can help secure a favorable outcome with the fewest possible penalties.

An alleged offender who has been arrested for domestic violence will not only have to appear in court to answer criminal charges, but he or she could also have to appear in court if the alleged victim has sought an order of protection. In such cases, judges often err on the side of caution and prefer to keep orders of protection in effect if they will keep alleged victims safe.

Orders of protection can result in several consequences in addition to criminal penalties, such as possible loss of child custody or access to a shared home. When people are accused of any kind of domestic violence in Arizona, it is critical to understand that judges will not accept a claim that an alleged victim’s accusations are exaggerated or fabricated without evidence to support the belief.

Criminal Defense Attorney for Domestic Violence Charges in Mesa, AZ

A conviction for any crime of domestic violence can have serious and long-lasting consequences for an alleged offender. Individuals with these offenses on their criminal records not only face harsh immediate penalties in the forms of incarceration and fines, but possibly also several years or even a lifetime of struggles obtaining employment, housing , or professional licensing.

Anybody charged with a domestic violence offense will want to be sure to seek aggressive and experienced legal representation for help exploring all possible defenses. An alleged offender may have a valid self-defense claim, or perhaps the prosecution does not have enough evidence to support the criminal charges.

As a former prosecutor in Maricopa County, James Novak of The Law Office of James E. Novak understands how these cases are handled. He has a thorough understanding of the best possible defenses against domestic violence and can use his experience to fight to get the criminal charges reduced or dismissed.

The Law Office of James E. Novak represents clients who have been accused of domestic assault, aggravated domestic violence, child abuse, child endangerment, stalking, and many other domestic violence offenses. James Novak works tirelessly to achieve the most favorable outcomes for clients all over Maricopa County, including Phoenix, Tempe, Scottsdale, Chandler, Mesa, and many other surrounding communities.

You can receive an honest and thorough evaluation of your case as soon as you call The Law Office of James Novak at (480) 413-1499 or complete an online contact form to schedule a free, confidential consultation.

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What You Should Know about Arizona DUI Laws  

Overview of Arizona DUI Trends, Laws, Penalties, and Criminal Defense

If you live in Arizona or plan to drive in the state over the July 4th weekend it is important to be aware of the DUI laws and consequences of a conviction.

According to media reports, state and local law enforcement agencies throughout Arizona will increase DUI patrols over the July 4th weekend. Starting Friday, July 1, 2016 law enforcement, including the Phoenix and Tempe police departments, will have an increased presence throughout Maricopa County looking for drivers impaired by drugs and/or alcohol.

The increased police presence over the holiday weekend is part of the Arizona Governor’s Office of Highway Safety DUI Traffic Enforcement Program, a statewide initiative to reduce motor vehicle accidents and related injuries and deaths.

Drivers can expect delays at checkpoints, particularly in high traffic areas where people are going or returning from holiday festivities and summer activities.

Although the Arizona Governor’s Office of Highway Safety has not released the number of law enforcement officers that will be participating in patrols, an increased police presence can be expected. Last year Arizona law enforcement agencies executed 31,636 DUI arrests statewide— with a majority of those arrests occurring during peak seasons or holidays.

In this article we will discuss the following topics:

  • Binge Drinking and Alcohol Related Motor Vehicle Crashes Arizona
  • Statistics, Trends and Safety Tips
  • Arizona DUI Laws and Criminal Penalties
  • What to do after a DUI Arrest
  • Criminal Defense for DUI Charges

Alcohol Binge Drinking and Alcohol Related Motor Vehicle Crashes Arizona

Collisions caused impaired driving due to alcohol, like many states, are a serious problem throughout Arizona. According to the Arizona Department of Transportation or (ADOT) there were 4,941 alcohol related crashes in 2015, which resulted in 295 deaths and 3,205 injuries.

The National Centers for Disease Control (CDC) report that nearly one third of all traffic fatalities are caused by drivers under the influence of alcohol.

The more alcohol a person has in their system or the higher the high blood alcohol content (BAC) levels in a person’s body, the more likely they are to cause a serious auto accident.

The number one cause of high BAC levels is binge drinking.  The National Institute of Alcohol Abuse and Alcoholism (NIAAA) defines binge drinking as drinking 4 or 5 alcohol beverages within a short period of time, usually several hours.

The best way for a person to avoid this is to decide in advance how many drinks are safe for them to consume, and then to stick to that number.  Doing shots is particularly dangerous to the high concentrations of alcohol the body is must metabolize in a short period of time.

According to the Substance Abuse and Mental Health Services Administration (SAMHSA),  the July 4th holiday has been the most dangerous holiday of the year for underage drinkers.  Those youths who drink and drive are 87 percent more likely to binge drink on this holiday over any other during the year.  As a result their risks of being involved in a serious or fatal auto accident sharply increase.

Arizona DUI Laws and Criminal Penalties

In addition to the hazard DUI poses to everyone on the road, a criminal conviction for DUI has serious consequences.

If you will be driving in Arizona it is a good idea for you to be aware of the impaired driving laws in Arizona.

Types of DUI charges that can be brought in Arizona include:

  • Impaired to the slightest degree; R.S. 28- 1381 (A) (1)
  • .08 percent BAC or greater; R.S. 28- 1381 (A) (2)
  • .15 percent BAC or greater; R.S. 28- 1382 (A) (1)
  • .20 percent BAC or greater; R.S. 28- 1382 (A) (2)
  • Drug DUI; R.S. 28- 1381 (A) (3)
  • Underage 21 DUI; A.R.S. 4-244 (34)
  • Commercial Drivers DUI .04 percent BAC or greater A.R.S. 28- 1381 (A) (4)
  • Aggravated DUI (felony) while driver’s license is suspended or revoked A.R.S. 1383 (A) 1
  • Aggravated DUI (felony) 3rd DUI within 84 months A.R.S. 1383 (A) (2)
  • Aggravated DUI (felony) with passenger under the age of 15 in vehicle A.R.S. 1383 (A) (3)

Under Arizona DUI law, A.R.S. §28-1381 it is unlawful for a driver to drive or have actual physical control of a motor vehicle while under the influence of an intoxicating liquor, any drug, vapor releasing toxic substance, or any combination thereof.

An individual may be charged with DUI if he or she has a blood alcohol concentration (BAC) of 0.08 or higher within two hours of driving or having actual physical control of a motor vehicle.

Though 0.08 percent is the legal limit in Arizona, a person may also be found guilty of DUI if are found to be driving or in actual physical control of a vehicle if they are driving impaired to the slightest degree by drugs or alcohol.

In other words, a driver can be convicted of a DUI if they are driving below the legal limit of .08.  It also means they may be found guilty if they have not been drinking at all, but are impaired to the slightest degree due to legal or illegal drugs.

An individual convicted of a first time, non-extreme misdemeanor DUI is exposed to the following criminal penalties:

  • Imprisonment for not less than 10 consecutive days in jail and is not eligible for probation or suspension of execution of sentence until entire sentence is served
  • A fine of no less than $250.00
  • An addition $500 assessment to the state treasure in the prison construction and operations fund
  • Installation of a certified ignition interlock device for 12 months*
  • Possible Community service
  • Alcohol and drug screening
  • Alcohol and education treatment and education

If the DUI charges were based on drugs, the defendant is subject to the same penalties as alcohol DUI, with one  exception.   That is, that effective December 31, 2016 will eliminate the mandatory penalty of installing a certified ignition interlock device (IID) for drugged DUI convictions only.

Courts will now have the discretion of whether or not to impose the IID penalty in drug DUI cases. The mandatory installation of a certified ignition interlock device will remain for those convicted of DUI involving intoxicating liquor.

When it comes to underage drinking, Arizona is a zero tolerance state.  Persons under the age of 21 may be charged with DUI if they are driving with any alcohol at all in their system.

In other words a person driving under the age of 21 under the influence does not have to be driving impaired to be charge with a DUI.

DUI penalties can be devastating for youths due to that fact that they are subject to losing their driving privileges for two year in addition to impaired driving penalties imposed on drivers over the age of 21.

If a DUI charge involves aggravated factors, the offense is raised to a Felony DUI. Aggravated circumstances include driving on a suspended, revoked, or invalid driver’s license; DUI with a passenger under the age of 15 in the vehicle; Third DUI within 84 months; the DUI caused a severe injury or fatality.

In absence of aggravated factors, DUI charges that involve higher Blood Alcohol Content (BAC) levels in violation of Arizona’s Extreme DUI laws are still classified as misdemeanors, but call for longer jail sentences and larger fines.

All Felony DUI charges expose a person to prison terms in Arizona, with sentences that range from 10 days to 8 months in prions.  Fines fees and assessments are higher averaging $4000.00.

Other penalties include use of Ignition Interlock device for 2 years, driver’s license revocation for 1 year; felony criminal record; possible forfeiture of vehicle; possible community service; substance abuse counseling or treatment, and other penalties the court deems necessary.

What to do after a DUI Arrest

For most people a DUI arrest is an overwhelming and devastating experience.  The important thing to remember is that you have the rights in the legal system, including the right to defend your charges.

Following a DUI arrest you should invoke your right to defend your charges, by consult and retaining an experienced criminal defense attorney as soon as possible.    

You will be usually released after your formal charges are read in an initial appearance with the judge, and given release conditions.  The release conditions are ordered to assure you return for your next court date.

Following a DUI, a driver will have their driving privileges suspended.  The Arizona Motor Vehicle Department providing you with notice that a hearing may be requested about your driving privileges.  You will have 15 days from the date of that notice to request a hearing. You will then receive a information about your scheduled hearing date, time and location of where you will need to appear for these civil proceedings.

Next is the criminal court matter of the DUI.  If retained your criminal defense attorney will guide you through the case stages, and protect your rights.

Your attorney will instruct you as to whether or not you will need to appear for the first court date which is the arraignment.    The purpose of the arraignment is again read the formal charges, and to allow you to enter a plea of guilty or not-guilty.    In some cases, your attorney can enter the plea on your behalf to the court with reservation of rights and notice to preserve your defense.

They will gather evidence and evaluate your claim to determine the best defense strategy to use based on the unique circumstances, and strive to obtain the best outcome in your case.

Criminal Defense Attorney for DUI Charges in Mesa, AZ

A DUI conviction can have a severe impact on a person’s personal and professional life. In addition to the criminal penalties, an individual faces several collateral consequences, including suspension or loss of employment and disqualification from certain professional licenses.

If charged with DUI in Arizona it is important to consult an experienced DUI defense lawyer. Maricopa County criminal defense lawyer, James Novak of The Law Office of James Novak, has years of experience defending individuals facing DUI charges, including aggravated DUI, DUI with Drugs, DUI with Injury, and more.

As a former prosecutor in Maricopa County, Attorney Novak has the knowledge and skill to build the strongest defense possible on your behalf.

The Law Office of James E. Novak diligently defends clients charged will all types of DUI throughout Maricopa County, including Phoenix, Scottsdale, Tempe, Mesa, Chandler, and surrounding areas.

Attorney, James Novak provides a free consultation for persons who have been charged with a DUI or crime and have active criminal charges in these service areas.

Contact or call The Law Office of James Novak at (480) 413-1499 to schedule a free confidential consultation on your DUI or any other criminal charges.

Additional Resources:  

Additional Articles of Interest:


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Killer Fentanyl-Laced Heroin Still at Large

DEA danger warnings; Arizona Laws, Facts, Trends, and Criminal Defense

The National Centers for Disease Control (CDC) reported this year that the USA is facing drug overdose deaths in epidemic proportions.

In the data collected by the CDC, it was concluded that overdoses increased 137 percent over the last decade.

This included a 200 percent increase in overdoses that involved pain relievers and opioids fentanyl and heroin.

Last year the United States Drug Enforcement Administration (DEA) issued a nationwide alert about the dangers of fentanyl and fentanyl analogues or compounds after the anesthesia drug was being increasingly laced in heroin.

The DEA Administrator recently reported that fentanyl and fentanyl analogues were up to 100 times more powerful than morphine and 30-50 times more powerful than heroin.

Fentanyl is a powerful opioid analgesic typically used to treat patients with severe pain or, manage pain after surgery, or treat people with chronic pain.

The National Institute on Drug Abuse defines heroin is a highly addictive opioid drug.  It is an abstract of morphine.

When the two are combined the dose becomes lethal, with one dose sufficient enough to cause death.

The Glaring Questions        

In light of the inherent dangers and reports of rising death tolls, begs the questions: Why are people still using? Why are people still buying? And why are dealers selling a drug so dangerous,  they dare not use themselves?  

When it comes to illegal drug manufacturing and sales, it can be difficult to remember that for dealers it is a business.

Like any other business that sells goods or products the seller is looking to make a profit.  So they need to buy low, fulfill a market demand, sell it for a competitive price, and make it accessible.

Fentanyl is far less expensive than heroin to buy, and so if mixed with the heroin can reap a greater profit.

The deadly combination only costs about $10.00 or less on the street, making it easier to sell and buy.

The dealer can buy low, sell low, and still make a lucrative profit.

Due to competition on the street and market demand for a stronger drug by those who suffer from addiction more potent drugs and dangerous drugs like fentanyl laced heroin are being sold.

According to the Drug Enforcement Administration, fentanyl laced opioids are abused for their intense euphoric effects, as it can serve as a direct substitute for heroin in opioid dependent individuals.

In cases where a chronic user has developed a tolerance to heroin and no longer gain the high they did in the past, they may seek to find something that will, regardless of the risks.

Those looking for more potent and dangerous drug often seek drugs that are responsible for death and overdose, somehow feel they can tolerate such a dangerous drug.

Those suffering from addiction to the drug will seek out such deadly drugs, under the premise that they feel they can handle its potency, where others could not.

But not all users are aware of its dangers, or even that the heroin itself is laced with fentanyl.

In either case, the potential for comma or death is imminent, even in the smallest of doses.

Arizona Narcotic Drug Laws and Criminal Penalties   

The dangerous consequences involving fentanyl based opioids or heroin go far beyond the health risks.

Unfortunately many do not seek treatment in their battle with opioid addiction, until it is too late.

But if a dependent user can obtain successful treatment in time, they may be reduce or eliminate

their risk of overdose, fatality, or serving years in prison.

Felony drug offenses carry some of the most serious penalties under Arizona Law.

Arizona Revised Statute 13-3401 classifies fentanyl as a narcotic drug—the same classification for heroin under this statute.

Those charged with possession of heroin or illegal use of fentanyl in Arizona face serious penalties.

Under Arizona Revised Statute 13-3408, criminal charges relating to fentanyl or heroin can include:

  • Possession or use of a narcotic drug is a class 4 felony punishable by a presumptive sentence of 2.5 years in prison;
  • Possession of a narcotic drug for sale is a class 2 felony punishable by a presumptive sentence of 5 years in prison;
  • Possession of equipment, chemicals, or both, for the purpose of manufacturing a narcotic drug is a class 3 felony punishable by a presumptive sentence of 3.5 years in prison;
  • Manufacture of a narcotic drug is a class 2 felony punishable by a presumptive sentence of 5 years in prison;
  • Administration of a narcotic drug to another person is a class 2 felony punishable by a presumptive sentence of 5 years in prison;
  • Obtaining or procuring the administration of a narcotic drug by fraud, deceit, misrepresentation or subterfuge is a class 3 felony punishable by a presumptive sentence of 3.5 years in prison; and
  • Transport for sale, import into Arizona, offer to transport for sale or import into Arizona, sell, transfer or offer to sell or transfer a narcotic drug is a class 2 felony punishable by a presumptive sentence of 5 years in prison.

All heroin offenses are classified as felonies, which call for prison sentences.  If the quantity of heroin found in a person’s possession exceeds 1 gram, longer term prison sentences will apply.

In general, the higher the quantity found, the more harsh the prison sentencing if the defendant is convicted.

Criminal Defense for Heroin and Fentanyl Charges in Maricopa County

“Prepared to Defend” 

– James Novak, Law Office of James Novak, PLLC

Any drug charge in Arizona relating to heroin or fentanyl in Arizona is a felony offense. A conviction for a felony can lead to the loss of the rights to vote, hold public office, serve as a juror, and possess a gun or firearm.

Some alleged offenders accused of heroin or fentanyl offense may be eligible for the Maricopa County Drug Court Program. Drug court allows alleged offenders to have felony charges reduced to misdemeanors upon successful completion of the year-long drug court program.

Participants in this program must submit to random drug tests, maintain a full-time job, and complete a treatment program. Alleged offenders must also regularly report to probation officers and attend sober support group meetings.

Not everybody is eligible to participate in the drug court, but this does not mean that a conviction is automatic. Unknowing possession of illegal drugs, illegal search and seizure violations, or legal possession of a prescription medication can all be defenses that can result in heroin or fentanyl charges being significantly reduced or completely dismissed.

James Novak is a former prosecutor for Maricopa County who has handled these types of cases on both sides of the aisle. This unique perspective allows him to identify the most effective defenses for clients that help them secure the most favorable outcomes to their cases. If you were arrested for a heroin or fentanyl drug offense, contact an experienced criminal defense lawyer at the Law Office of James Novak today for a free, confidential consultation.

Other Articles of Interest:

Additional Resources:

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Challenges to the Constitutionality of Arizona’s “Failure to Comply with an Order” under ARS 28-622(A)

Mesa Police Department Squad CarOne of least understood and most commonly charged crimes in Arizona is “Failure to Comply with a Lawful Order” in violation of Arizona Revised Statutes (ARS) section 28-622(A). The crime is classified as a class 2 misdemeanor. The statute provides:

28-622. Failure to comply with police officer…

  1. A person shall not wilfully fail or refuse to comply with any lawful order or direction of a police officer invested by law with authority to direct, control or regulate traffic. (“Willful” and its variations are spelled “wilful” in the statute, an accepted but archaic spelling in American English.)

But the question remains, how do you assert your rights during a traffic stop without running the risk of being arrested with “Failure to Comply” under ARS Section 28-622(A)?

First, it is important to remember that an officer can either ask you to do something or order you to do something. If the officer is merely inviting you to do something on a voluntary basis without ordering you to do it, then you are free to decline the invitation.

On the other hand, if the officer gives you an order that is “lawful” when it is issued, then you should comply in order to avoid an arrest and prosecution for ARS 28-622(A). Making such a decision in the heat of the moment at the scene creates problems for the officer and the person being detained.

A Recent Challenge to the Constitutionality of ARS 28-622(A)

A recent decision from the Court of Appeals of Arizona, issued on October 8, 2015, sheds light on the nature of the charge and the vagueness of its terms. Although many criminal defense attorneys consider the charge a “catch-all” provision that allows an officer to make an arrest even when no other crime was committed, the Courts have upheld its constitutionality after a recent challenge.

The decision shows the tremendous and nearly unlimited discretion officers have to make an arrest for merely failing to company with an order of the law enforcement officer. At trial, the job of the criminal defense attorney is to show reasonable doubt about one of the elements of the offense, including whether:

  • The defendant acted willfully;
  • The defendant failed or refused to comply with an order or direction of a police officer;
  • The order or direction was a lawful order at the time it was issued; and
  • The police officer was invested by law with authority to direct, control or regulate traffic.

In State v. Burke, (No. 1 CA-CR 14-0438. Court of Appeals of Arizona, Division One. October 8, 2015), the Court recently examined the constitutionality of the statute after a prosecution by the Scottsdale City Prosecutor’s Office. The bench trial took place in the Scottsdale Municipal Court. After the conviction, the defendant appealed to the Maricopa County Superior Court arguing, among other things, that the A.R.S. § 28-622(A) is unconstitutionally vague and over broad.

The Court briefly recounted the facts of the case as follows:

“This case arises out of a routine traffic stop. After Burke allegedly failed to stop at a stop sign, a police officer pulled Burke over, asked him for his license and registration, and directed him not to move his vehicle. Burke disobeyed the instructions, drove his vehicle to the side of the roadway, called 911, and eventually exited his vehicle after additional officers arrived on the scene. Burke was arrested after exiting his vehicle.”

On appeal the Court held that the statute was not vague because “the statute does not punish individuals for a mere failure to obey; instead, it requires a willful, or knowing refusal or failure to comply, which is tantamount to an affirmative act of rejection.”

Therefore, the Court found that the terms “wilful” and “wilfully fail,” as used in the statute, are not so indefinite as to be considered constitutionally invalid.

Burke also argued that the phrase “lawful order or direction” in A.R.S. § 28-622(A) lacks sufficient definiteness such that it is unconstitutionally vague. The Court recognized that the term “lawful order” was not defined by the Arizona Legislature in the statutory scheme.

The Court, however, looked at the ordinary meaning of that phrase and found it required “the individual to comply with a police officer’s instructions that are, at the time they are issued, authorized by law.” The Court noted that because  “many police orders can be deemed lawful (e.g.: “step out of the car with your hands up,” or to the person exiting the vehicle, “put down your weapon”), the facial attack here must fail.”

The Court also argued that A.R.S. § 28-622(A) was not unconstitutionally vague because did not fail to establish minimal guidelines for enforcement or open up the possibility of discriminatory and arbitrary enforcement.

Additional Resources:

Recent Decision on on the Constitutionality of ARS 28-622 — Visit the portals of, the website for the Arizona Judicial Branch, to find recent court decisions from the Court of Appeals in the State v. Burke case. Also find recent decisions issued by the Arizona Supreme Court, as well as publications and reports, licensing and regulations, a self help center, and information from the Administrative Office of the Courts (AOC).

ARS 28-622 — Failure to Comply with a Police Officer — Visit the website of the Arizona Legislature to read the complete statutory language of the Failure to Comply with a Police Officer statute under ARS 28-622.

Finding an Attorney in Arizona for “Failure to Comply” Cases

If you were charged with willfully refusing or failing to comply with a lawful order or direction of a police officer in violation of Arizona Revised Statutes (“A.R.S.”) section 28-622(A), then contact James Novak, an experienced criminal defense attorney in Tempe, AZ.

James Novak represents clients on misdemeanor and felony charges throughout the greater Phoenix area and the surrounding East Valley Cities including Scottsdale, Tempe, Chandler, and Gilbert, Arizona.

James Novak also represents clients on related charges including Disorderly Conduct under ARS 13-2904, Resisting Arrest under ARS 13-2508, and Unlawful Flight from a Pursuing Law Enforcement Vehicle under ARS 28-622.01.


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New Affirmative Defense for DUI Marijuana or Impairing Metabolite in Arizona

Medical Marijuana and PrescriptionsOn November 20, 2015, the Supreme Court of Arizona decided Dobson v. McClennen (P.3d, 2015 WL 7353847, Arizona Supreme Court 2015). The decision has important implications for individuals that use medical marijuana and might have THC or its metabolite in their system but drive at a time when they are not impaired. Jokingly called the “Driving While a Habitual User of Marijuana,” these prosecutions are no joke.

Although the responsible use of cannabis for medical purposes has largely been decriminalized in Arizona, prior to this decision the DUI laws effectively made it a crime to drive as a medical marijuana patient (even after the impairing effects faded and disappeared). In other words, using medical marijuana should not automatically be a DUI when there was no actual impairment at the time of driving.

The decision in Dobson v. McClennen didn’t make either side happy. The defense wanted a ruling that Medical Marijuana Patients were immune from the “per se” version of DUI under § 28–1381(A)(3). On the other hand, the prosecution wanted a ruling that a positive blood test meant an automatic “per se” DUI conviction under § 28–1381(A)(3). The Court rejected both positions and came up with a middle ground that leaves many of the complicated issues surrounding driving after consuming medical marijuana unresolved.

In these cases, the main evidence is usually a blood test revealing THC and/or its impairing metabolite, hydroxy-THC. But this evidence alone doesn’t necessary mean that the driver was actually impaired by marijuana at the time of driving. THC and its metabolite stay in a driver’s system long after the impairing effects have disappeared.

In these cases, the presence of THC or its metabolite hydroxy-THC is largely irrelevant to impairment. In other words, the presence of THC or the metabolite hydroxy-THC often has little correlation with actual impairment. Now if the defense raises this new affirmative defense at trial, the issue is left up to the fact-finder to decide.

Under this recent decision, the driver must present some evidence to raise the affirmative Arizona Medical Marijuana Act (AMMA) Marijuana DUI defense. Raising the affirmative defense would require a showing by the defendant, by a preponderance of the evidence, of the following:

  • That the driver was covered by the AMMA as a registered qualifying patient (or held an equivalent out-of-state-issued medical marijuana registry identification cards which could be shown by admitting the card into evidence or presenting other evidence of its existence); and
  • Showing that the concentration of marijuana or its impairing metabolite in their bodies was insufficient to cause actual impairment at the time of driving.

How would the second showing be made? In many of these trials, expert witness testimony could establish that the concentration was insufficient to cause impairment at the time the driving occurred.

The expert witness could be the same witness called by the prosecutor when the blood test and its result are admitted into evidence. Additionally, the defense could call its own expert to testify about this point. In many of these cases, the expert will be able to testify that although the blood test might reveal THC and/or its impairing metabolite hydroxy-THC, based on the driver’s testimony about the timeline of consumption, the amount would not cause actual impairment at the time of driving. Even the experts will have a hard time explaining it to the jury because, unlike for alcohol, there is no accepted threshold for marijuana impairment. Even according to the National Highway Traffic Safety Administration, “It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects.”

Other admissible evidence might come from the driver testifying that he or she did not feel impaired. The defense would also be able to argue that other evidence showed a lack of impairment including a safe driving pattern and good performance on field sobriety exercises.

Ultimately, the driver’s DUI convictions in these cases were upheld. But the decision provides an important road map for other people in a similar situations. At the very least, this decision makes a prosecution for driving while impaired by marijuana much more difficult under § 28–1381(A)(3) alone.

Procedural History

The Defendants were convicted in the Maricopa County Municipal Court of driving with an impermissible drug or its metabolite in a person’s body. After the conviction, the Defendants appealed the conviction to the Maricopa County Superior Court. The Superior Court affirmed the conviction.

The Defendants then sought special action review in the court of appeals, which accepted jurisdiction but denied relief finding that “neither A.R.S. § 36–2811(B) nor § 36–2802(D) provides immunity for defendants facing charges for driving with an impermissible drug or impairing metabolite in their bodies under A.R.S. § 28–1381(A)(3).”

Then the Defendants sought relief from the Arizona Supreme Court. The Supreme Court granted review because whether the AMMA immunizes a medical marijuana cardholder from DUI prosecution under § 28–1381(A)(3) presents a recurring issue of statewide importance.

The Supreme Court of the State of Arizona held, as a matter of first impression, that an affirmative defense to the charge could have been made by showing that a qualifying patient’s use of marijuana was authorized by the AMMA and was in a concentration insufficient to cause impairment. The Court also found that under the facts of the case any error in excluding evidence of defendants’ registry cards under the AMMA was harmless.

The Chief Assistant City Prosecutor for the Mesa City Prosecutor’s Office represented the State in the appeal. An amicus brief was filed by Thomas W. Dean, Phoenix, Attorney for Amicus Curiae National Organization for the Reform of Marijuana Laws (NORML).

Arizona’s laws generally make it a crime for a person to drive with any amount of certain drugs, including marijuana or its impairing metabolite, in the person’s body. (A.R.S. § 28–1381(A)(3)). In the case, the Arizona Supreme Court held for the first time that “the AMMA does not immunize a medical marijuana cardholder from prosecution under § 28–1381(A)(3), but instead affords an affirmative defense if the cardholder shows that the marijuana or its metabolite was in a concentration insufficient to cause impairment.”

Facts of the Case

The facts of the case showed that two drivers were each charged with two counts of driving under the influence (“DUI”). Count one alleged a violation of A.R.S. § 28–1381(A)(1), which prohibits a person from driving a vehicle in Arizona “[w]hile under the influence of … any drug … if the person is impaired to the slightest degree.” Count two alleged a violation of § 28–1381(A)(3), which prohibits driving a vehicle “[w]hile there is any drug defined in § 13–3401 or its metabolite in the person’s body.” Cannabis (marijuana) is a drug defined in A.R.S. § 13–3401(4).

In each case the driver submitted to a blood test that showed the driver had marijuana and its impairing metabolite in his or her body. The drivers also stipulated to the fact that they “had marijuana in their bodies while driving (blood tests revealed both THC and its impairing metabolite hydroxy-THC) and their failure to offer any evidence that the concentrations were insufficient to cause impairment.” Instead, the only evidence they offered was their respective registry identification cards into evidence.

Before trial, the municipal court in Maricopa County denied the driver’s motion to present evidence at trial that the driver held an out-of-state-issued medical marijuana card. The Court also granted the State’s motion in limine to preclude evidence that the driver held an out-of-state-issued medical marijuana card.

Neither driver tried to introduce at trial any evidence other than their respective medical marijuana cards.

Each was convicted of the § 28–1381(A)(3) charge, which prohibits driving a vehicle “[w]hile there is any drug defined in § 13–3401 or its metabolite in the person’s body.”

History of the Arizona Medical Marijuana Act (AMMA)

The Arizona Medical Marijuana Act (AMMA) was passed by voters in Arizona in 2010. The provisions of the AMMA were codified as A.R.S. §§ 36–2801–2819 which allows a person who has been diagnosed by a physician as having a debilitating medical condition to apply for a card identifying the holder as a registered qualifying patient. After becoming a registered qualifying patient, the person may possess and use limited amounts of marijuana for medical reasons.

The AMMA broadly immunizes the patient from prosecution for using medical marijuana consistent with the Act. The AMMA broadly immunizes registered qualifying patients for their medical use of marijuana, providing:

A registered qualifying patient … is not subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege, including any civil penalty or disciplinary action by a court or occupational or professional licensing board or bureau: (1) For the registered qualifying patient’s medical use of marijuana pursuant to this chapter, if the registered qualifying patient does not possess more than the allowable amount of marijuana. (A.R.S. § 36–2811(B)(1)).

The Court noted that the grant of immunity is not absolute. The Court noted that the AMMA does not prohibit prosecutions for operating a motor vehicle or water vessel while under the influence of marijuana under A.R.S. § 36–2802(D). However, in those cases, “a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.”

On the other hand, Arizona’s DUI laws identify “separate offenses for driving while a person is under the influence of marijuana and ‘impaired to the slightest degree,’ A.R.S. § 28–1381(A)(1), and driving while there is marijuana or its metabolite ‘in the person’s body.’ § 28–1381(A)(3).”

Therefore, an § 28–1381(A)(3) violation, unlike an (A)(1) violation, does not require the state to prove that the defendant was in fact impaired while driving or in control of a vehicle.

The Court also noted that (A)(1) and (A)(3) offenses for DUI also differ with respect to possible defenses. The Court noted that this was the first case in which the Supreme Court was called upon to resolve how the AMMA affects (A)(3) prosecutions.

The court noted that “Section 36–2802(D) does not say that registered qualifying patients cannot be prosecuted for (A)(3) violations. Instead, it provides that such patients, who use marijuana ‘as authorized’ by the AMMA, id. § 36–2802(E), cannot “be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.” Id. § 36–2802(D) (emphasis added).”

The Affirmative Marijuana AMMA Defense in a DUI Case

In setting forth the parameters of the Affirmative Marijuana AMMA Defense in a DUI Case the court noted that:

Section 36–2802(D), rather than § 28–1381(D), defines the affirmative defense available to a registered qualifying patient to an (A)(3) charge. If their use of marijuana is authorized by § 36–2802(D), such patients cannot be deemed to be under the influence—and thus cannot be convicted under (A)(3)—based solely on concentrations of marijuana or its metabolite insufficient to cause impairment.

Possession of a registry card creates a presumption that a qualifying patient is engaged in the use of marijuana pursuant to the AMMA, so long as the patient does not possess more than the permitted quantity of marijuana. A.R.S. § 36–2811(A)(1). That presumption is subject to rebuttal as provided under § 36–2811(2).

A qualifying patient may be convicted of an (A)(3) violation if the state proves beyond a reasonable doubt that the patient, while driving or in control of a vehicle, had marijuana or its impairing metabolite in the patient’s body. The patient may establish an affirmative defense to such a charge by showing that his or her use was authorized by the AMMA—which is subject to the rebuttable presumption under § 36–2811(2)—and that the marijuana or its metabolite was in a concentration insufficient to cause impairment.

The patient bears the burden of proof on the latter point by a preponderance of the evidence, as with other affirmative defenses. See A.R.S. § 13–205 (“[A] defendant shall prove any affirmative defense raised by a preponderance of the evidence.”).

Problems with Assigning the Patient the Burden of Showing Lack of Impairment

By limiting the defense to an affirmative defense, the Court essentially assigned to qualifying patients “the burden of showing that they did not have marijuana concentrations sufficient to cause impairment….” As a practical matter, this is a difficult task because there is no commonly accepted threshold for identifying marijuana concentrations sufficient to cause impairment. In fact, the courts in Arizona have previously explained that there are “no generally applicable concentration that can be identified as an indicator of impairment for illegal drugs.” Cf. State ex rel. Montgomery v. Harris (Shilgevorkyan), 234 Ariz. 343, 347 ¶ 24, 322 P.3d 160, 164 (2014).

The Court, nevertheless, decided that the “risk of uncertainty in this regard should fall on the patients, who generally know or should know if they are impaired and can control when they drive, rather than on the members of the public whom they encounter on our streets.”

The Court ultimately noted that the drivers in the case before them had made no effort to show that the marijuana in their bodies was in an insufficient concentration to cause impairment. Instead, they argued that the AMMA categorically barred the (A)(3) charge. As such, the only evidence they offered was their respective registry identification cards into evidence. The court noted that evidence of possession of a registry card would generally be admissible in an (A)(3) prosecution to invoke the presumption that the patient was using marijuana pursuant to the AMMA, but it does not suffice to establish the § 36–2802(D) affirmative defense. Therefore, any error by the trial court in excluding evidence of the registry cards was harmless under the particular facts of that case.

The Court found that instead of “shielding registered qualifying patients from any prosecution under A.R.S. § 28–1381(A)(3), the AMMA affords an affirmative defense for those patients who can show, by a preponderance of the evidence, that the concentration of marijuana or its impairing metabolite in their bodies was insufficient to cause impairment.”

Ultimately, the drivers’ convictions were upheld. But the decision at least provides a road map to other people in a similar position to have their Arizona or out-of-state-issued medical marijuana registry identification cards into evidence or prove other evidence of its existence. The decision would also allow the driver to present the affirmative defense of showing, by a preponderance of the evidence, that the concentration of marijuana or its impairing metabolite in their bodies was insufficient to cause impairment.

Additional Resources

Arizona Supreme Court Rules on Medical Marijuana in DUI Cases — Visit The Arizona Republic to find an article by Michael Kiefer and Yvonne Wingett Sanchez which was published on November 20, 2015. The article discusses the new affirmative defense announced by the Arizona Supreme Court on Friday.

Legally Speaking: Change in Arizona DUI law gives medical marijuana holders fair shake — Article published by Monica Lindstrom on November 20, 2015 about the Supreme Court’s recent decision to add an affirmative defense to Arizona’s DUI laws on Friday for qualified card holder under the Arizona Medical Marijuana Act.
Arizona Drugged Driving DUI — Visit the website for the National Organization for the Reform of Marijuana Laws to learn more about the so-called drugged driving laws in Arizona including affirmative defenses, implied consent, penalties, sobriety checkpoints, per se drugged driving laws and case law.


If you were charged with DUI involving a blood test showing the presence of THC and/or its impairing metabolite hydroxy-THC, then contact an experienced criminal defense attorney at the Law Office of James Novak. Call us today to discuss your case and the best ways to present the Affirmative Marijuana AMMA Defense in your case.

Posted in Arizona Courts, Arizona DUI Defense, Crime News, Criminal Defense, Drug Crimes, Marijuana Offenses, Supreme Court, Vehicular Crimes | Tagged | Comments Off on New Affirmative Defense for DUI Marijuana or Impairing Metabolite in Arizona

Why the New Ban on Texting and Driving in Tempe May Lead to More DUI Arrests This Halloween

Plus 3 Safety Tips for Drivers to Begin Your Year-End Holiday Festivities  

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This holiday season we wish to remind Arizona drivers that the new ban on Texting and Driving in Tempe AZ is in effect.

Tempe joined Phoenix, AZ, and several other cities to ban texting and driving with what is being called the toughest law in the State.

Police will be on the lookout for drivers with cell phones in their hands.

Under the new law it is against the law to use a mobile device if their driving poses a risk to themselves or others.

The police may issue a ticket if the officer observes a driver texting; or has other evidence including an accident, pr other reason to believe a person using a mobile device is driving unsafely  and poses an articulable danger on the roadway.

The law will result in hefty civil fines and penalties.  But for incidents that do not involve an injury accident, it can still lead to a DUI or other criminal charge.  This is because it gives the police officer a reasonable suspicion that a violation of the law is in process. Therefore, they can stop a driver for further investigation.

If the driver who was using a mobile device is involved in a serious injury accident, and use of the mobile device was the proximate cause of the incident, then use of the mobile device will result in a Criminal Charge, Class 1 Misdemeanor.  In that case other more serious criminal would likely be brought as well.

Halloween Calls for Increased Vigilance for Child and other Pedestrian Safety         

This year’s Halloween promises to be especially raucous, as it  falls on Saturday. People who may normally miss the festivities on a weekday will be out. Most people celebrating will have no more consequences  than a hangover. However, those who get in their vehicles and drive after drinking may face very severe and life-changing consequences.

In this article we will offer some words of advice from a Tempe DUI defense lawyer for those who are heading out to Halloween festivities in Maricopa County to help avoid a DUI arrest.

Tip #1: Avoid driving if you can; and distracted driving  

According to the National Highway Traffic Safety Administration, nearly half (48 percent) of accidents on Halloween night involve a drunk driver.

That statistic alone should give anyone pause who is considering driving anywhere on Halloween night. Even people who are not under the influence face a risk of being involved in an accident. According to annual data from the The Obrella Insider reported that Arizona was identified as having the 6th highest pedestrian fatality rate in the USA, with Halloween being consistently on one of the top three deadliest days of the year for pedestrians.

The American College of Emergency Physicians reported that a child’s risk of being hit by an automobile is 4 times higher on Halloween than any other night of the year.

According to the National Highway Traffic and Safety Administration (NHTSA), some of reasons for this include but are not limited to the following:

  • Increased pedestrian traffic;
  • Distracted Driving and inattentiveness;
  • Texting and Driving;
  • Speeding in neighborhoods where children are out;
  • Careless entering and exits of driveways and alleys.
  • Impaired driving due to alcohol and/or drugs;
  • Inability to see Trick or Treaters due to dark costumes without illumination;
  • Increased BAC due to the social nature of the holiday.  Of the pedestrians involved in fatal crashes in 2012, one in three had a BAC of (34%), or 4 times the legal limit of 0.08 percent in Arizona

Police plan to make sure the streets of Arizona are safe and get drunk drivers off the road. Arizona law enforcement has been attempting to combat Extreme DUI (Blood Alcohol Content BAC .15 percent or greater) and Super Extreme DUI (BAC 0.20 percent), are still challenged with reducing them.

Driver’s with Blood Alcohol Content in excess, are at the highest risk of being involved in a fatal accident as reported by NHTSA.

Arizona drivers can count on an increased presence including have saturation patrols and check points this weekend, seeking out impaired and drunk drivers.

There will be many children out in the streets trick or treating, possibly late into the night.

If your vehicle strikes a child or any pedestrian one of them and you are accused of being intoxicated, not only will the child suffer, but you may, as well.

So if you are driving stay alert and focused, and avoid driving distracted.

If a person is accused of causing another person injury while driving under the influence, the charge is elevated to an aggravated DUI. An aggravated DUI is a Class 4 felony, punishable by:

  • 1.5 years to 3 years in prison,
  • Fines up to $150,000,
  • Driver’s license revocation for at least three years,
  • Mandatory drug and/or alcohol screening and counseling,
  • Mandatory traffic school,
  • Up to five years of probation,
  • Mandatory community service,
  • Driving record points, and/or
  • Installation of ignition interlock device on all vehicles.

Walking is not always an option, so take a cab if you can. Avoid getting behind the wheel on Halloween night.

Tip #2: Leave your vehicle overnight.   

Halloween falling on a Saturday means that many people will be out late on Halloween because they do not have to go to work the next day, freeing them to sleep in late. Not having to go into work the next day, however, also frees many people to make another choice: Leaving the car parked overnight and picking it up the next morning.

Sometimes, people who have been drinking make the mistake of believing they are fine to drive home. They may count the number of drinks they’ve had and think they must have a BAC (blood alcohol content) below .08.

However, people are prone to mistakes when they attempt to do that. They may forget one or more drinks they have had. They may underestimate the amount of alcohol in a drink, or make a mistake on the size of a drink.

Further, a person can be charged with a DUI even if their BAC falls below .08. Under Arizona Statute §28.1381, a person can be convicted of a crime if prosecutors can prove they were driving or in actual physical control of a vehicle and were under the influence of intoxicating liquor, any drug, or a vapor releasing substance that impairs the person to the slightest degree.

If a person has an alcohol concentration above 0.05 but below 0.08, there is no longer a presumption of intoxication under the law, but that fact may be used alongside other evidence to prove a DUI charge.

A person charged with a first time, non-extreme, non-aggravated DUI under these circumstances could face, if it is their first charge:

  • A fine of at least $250,
  • Installation of an ignition interlock device for at least one year,
  • Community restitution,
  • Assessment of $500 to be deposited in the prison construction and operations fund,
  • Assessment of $500 to be deposited in the public safety equipment fund,
  • Alcohol or drug screening,
  • Alcohol or drug education or treatment program,
  • Court costs,
  • A driver’s license suspension for 90 days, and/or
  • A criminal record.

Waiting for alcohol to dissipate or counting your drinks is not a good strategy. Even if your BAC is below .08, you could face charges and conviction for DUI.

You won’t have to wake up early tomorrow to catch a cab or a ride with your spouse or friend to go pick up your car, so take advantage of that fact and leave it overnight.

The slight inconvenience is heavily outweighed by the fact that you will avoid much more serious consequences if arrested for DUI.

Tip #3: If You Have Your Kids with You, Do Not Partake in Alcohol at All

Not every Halloween event is reserved for just kids or just adults. For instance, some families may go to Trick or Treat Main Street in Mesa and then head to one of the nearby restaurants for dinner afterward.

If any of the adults have a few drinks with dinner and get behind the wheel, though, they could suffer grave consequences.

Arizona law is harsh for those convicted of driving under the influence with a minor, defined as someone younger than 15, in the car.

It is a class 6 felony to drive or have actual physical control of a vehicle with a minor inside. Penalties include:


  • A mandatory one day in jail;
  • Up to two years in prison;
  • A minimum fine of $4,600;
  • Driver’s license revocation for one year;
  • Alcohol counseling; and
  • An ignition interlock device for two years.

These are the penalties for any level of intoxication. A person could also face charges of child endangerment or child abuse.

If you are taking your kids out to a Halloween celebration, your best bet is to remain completely sober.

DUI and Criminal Defense Attorney in Tempe, AZ

No one that drinks and drives go out wanting or expecting to be arrested for impaired driving.  But people make mistakes and misjudgments that can easily lead to making a poor decision to drive impaired, and finds themselves arrested.

If this happens to you or anyone you know it is important that you consult a DUI defense attorney to protect your rights and defend your charges.  James Novak, of the Law Office of James E. Novak, PLLC is a former prosecutor and experienced DUI and criminal defense attorney.  He provides a free initial consultation for active DUI and criminal charges in his service area.  This includes Phoenix- Metro and surrounding East Valley Cities including Tempe, Chandler, Scottsdale, and Gilbert.  Call today (480) 413-1499, to speak directly with Attorney James Novak.

Additional Resources:

Other Related Posts by Law Office of James E. Novak, PLLC:

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The Rise of Flakka: Criminal Defenses for Flakka and other Synthetic Drug Charges

Four defenses used to challenge flakka and other synthetic drug charges in Arizona; laws, penalties; and what you need to know about Flakka. 

pills-tablets-3-1524565Each day we are learning more about the deadly effects of the new street drug “flakka” – a drug described as being so dangerous, that even dealers and those suffering from drug addictions are afraid to use it.

The DEA reported an alarming 780 percent increase in cases over the last three years, largely due to its affordability and accessibility.

Now many questions are being raised about the drug’s legality, as well as other synthetic drugs of its kind.

Among many other impacts, flakka, bath salts, and other synthetics are changing the face of state and federal drug legislation and case laws setting precedents.

This article focuses on drug laws, criminal penalties, criminal defenses that apply flakka and other synthetic drugs.

It will also provide important facts and resources about “flakka”.

Laws that Apply to Flakka and other Synthetic Drugs in Arizona

Flakka is unlawful in Arizona.  It is both a Controlled Substance and a Dangerous Drug, which carries the most severe penalties.

Synthetic drug manufactures and sellers, are presenting unique challenges to police, prosecution, and state officials making it difficult to prosecute synthetic drug offenses.

This is due to the fact that synthetic drugs, including flakka, are continually evolving in their ingredients.

New chemicals and substances are being introduced in to their mixtures faster than laws can be enacted to ban them.

After several legislative changes, over recent years, the Legislature unanimously passed House Bill 2327 in 2013.  This bill added the alpha-PVP, which is the main active ingredient in flakka, to Schedule I of the state’s Controlled Substances Act to the Arizona Drug Laws, those drugs and substances regarded as being the most dangerous.

The bill also banned all synthetic versions of marijuana cocaine and ecstasy, labeling them as “Dangerous Drugs” defined under A.RS § 13 – 3407.

Defenses for Flakka and Synthetic Drug Charges – Lack of Knowledge; Mistake of Fact; Mistake of Law and Constitutional Violations 

While many defenses exist to challenge drug charges in Arizona, we will focus on three common defenses, and one recent uncommon defense heard in the United States Supreme Court recently.

The four defenses that will be discussed are:

  1.   Lack of Knowledge;
  2.   Mistake of Fact;
  3.   Mistake of Law; and
  4.   Constitutional Violations

Lack of Knowledge 

Under A.R.S. 13-3407, a person may be in violation of the dangerous drug laws if they knowingly possess, use, manufacture, transport, offer to transport for sale, sell, or distribute dangerous drugs.

As provided under Arizona Law A.R.S. 13-202 the word “knowingly’ expressly provides a mental state or culpability which must exist in order for a person to be prosecuted for a drug crimes offense.

Not all criminal laws contain this language.  For example this language is not included in the Arizona DUI laws.

With that, the burden rests with the prosecution to prove beyond a reasonable doubt that the defendant had knowledge that they were using or possessed an illegal drug.

There are a number of situations where “Lack of Knowledge” may apply.  In one example, a person borrows a friend’s car to go to work and is stopped by police for speeding.

During the traffic stop the police see the drugs which appear to be cocaine or flakka, on the back seat floorboard of the borrowed vehicle.  The driver is then arrested for possession of a dangerous drug.

The driver did not have knowledge that the drugs were in the back seat when he borrowed it from his friend.

In this scenario, the suspect could utilize this defense.  They would need to provide a showing that they did not know the drugs were there, and no reasonable person would not, or should have known under the same circumstances.

Mistake of Fact

Mistake of fact exists when a person honestly and genuinely believes they are not committing a crime, when they engage in an offense.

Thus, a person acknowledges that they carried out an act, but did so under purely innocent circumstances.

One example of the applicability of this defense is if a person purchases a dangerous drug, but thought they were making a purchase for candy, a lawful edible substance.

However, what the consumer did not know at the time, was that the manufacturer intentionally disguised or mislabeled an unlawful product such as flakka, bath salts, or other synthetic drugs.

Recently, a Consumer Alert was issued in June 30, 2015 by the Miami-Dade Police Department’s Forensics Services Bureau.

Officials found a variety of substances being sold that resembled a variety of popular candy sold in retail stores.  Officials later discovered the candy was coated or laced with flakka, and its derivatives.

Thus, if a person unknowingly purchased the product that any prudent person would have reasonably thought was a lawful edible, this is both a material and mistaken fact.

Such circumstances would present a valid criminal defense, in this case.

Search and Seizure Law Violations 

Drug charges are often challenged as a result of Constitutional Rights violations.

Suspects have afforded by both the state and federal constitution.

One of the most common Constitutional challenges in drug defense cases is for violations of “search and seizure laws.’’

If material evidence is obtained by police unlawfully, a motion can be filed with the court to suppress the evidence.

An example of an unlawful search and seizure would result, if evidence was obtained by police without a valid search warrant.

If the court agrees, the evidence will then be inadmissible against the defendant for prosecution.

There are exceptions under A.R.S. 13-3925.  If one does not apply, then generally suppression of material evidence leads to dismissal of the charges, or other favorable outcome in the case.

Some exceptions include:

  • Exigent circumstances;
  • Protective sweeps;
  • Searches incidental to arrest; or
  • Consent by the suspect to search home or property

In a recent Arizona Supreme Court case the Justices analyzed the Arizona statutes relating to privacy rights.

In their ruling, the high court justices  acknowledged that based on the language in the Arizona statutes, the state of Arizona affords it residence more privacy than the Federal laws.

The Arizona Supreme Court also reaffirmed that a higher standard of privacy protections exist for a person in their home or residence over their vehicle.

Mistake of Law

Under A.R.S. 13-204 the Arizona laws basically states that a mistaken belief of the law does not relieve a person of criminal liability unless it negates or contradicts a culpable mental state.

Under Arizona law, having a culpable mental state means to act intentionally, knowingly, recklessly, or with criminal negligence in committing an offense.

Generally, the lack of knowledge of the law usually is not a valid defense. But successful challenges in a synthetic drug case in the US Supreme Court, contradicted that rule.

In a landmark case June 18, 2015, the U.S. Supreme Court handed down a landmark ruling involving mistake of law dealing with synthetic drugs.

In McFadden v. United States, the defendant successfully argued that he did not know the “bath salts” he was distributing were regulated as an Analogue Drugs under the Federal Controlled Analogue Enforcement Act.

As a result, the U.S. Supreme Court vacated and remanded the two lower court decisions on the grounds that the Analogue Act requires the prosecution to prove beyond a reasonable doubt that the defendant knew he was distributing a Controlled Substance under the Act.

The complicated mixtures of synthetics, ever changing laws to ban them, and mistaken understanding of whether or not they were lawful or unlawful, impacted the US Supreme Court Decision in this case.

The High Court opined that “A defendant needs to know more than the identity of the substance…  [He] needs to know that the substance is controlled.”

While the full impact of ruling on Arizona Laws on future cases has not yet played out, it may arise as an effective defense.

10 Sentencing Considerations – Classifications – Penalties   

The classification of an offense dictates the range of penalties for drug charges, and penalties.

Arizona Revised Statutes § 13-3401(6)(c)(iii) defines alpha-PVP as a “dangerous drug.”  A person convicted of a crime involving a dangerous drug can face increased penalties us ARS § 13-3407.

Ranges of penalties exist within each Classification.  The Judge has the discretion of providing mitigated, presumptive, or aggravated sentencing within those ranges.

  • First-time or repeat offense;
  • Quantity of the drug found;
  • Under or over the Statutory Threshold Amount
  • Intended Purpose (use v. sale)
  • Age of the defendant;
  • Prior criminal history;
  • Eligibility for Drug Court Program;
  • Other Drugs found in possession;
  • Other crimes committed during the same incident
  • Whether or not a firearm or other deadly weapon was involved

Classifications for Dangerous Drugs A.R.S § 13- 3407 (B) 

  • Possession or use Class 4;
  • Possession of chemicals, and/or equipment used for making narcotic drugs Class 3 Felony:
  • Administration Class 3 Felony:
  • Possession of equipment, and/or chemicals Class 3;
  • Intent to sell or sales of the dangerous drug Class 2;
  • Transfer of the drug, or offer to transfer for the purposes of selling Class 2.

The mere knowing possession of a dangerous drug is a class 4 felony. Conviction can lead to a presumptive sentence of 18 months to three years in prison, with a presumptive sentence of 2.5 years, along with a fine of $1,000 or up to three times the value of the possessed substance with a maximum fine of $150,000.

If a person is accused of possessing flakka for the purpose of sale, transporting flakka for sale or import into the state or manufacturing flakka, they face class 2 felony charges. The sentence for these offenses is a prison sentence of seven to 21 years, with a presumptive sentence of 10.5 years.

Any drug-related conviction can also have profound collateral consequences. You may be ineligible for financial aid for school. You will have a permanent criminal record that could impede any future job search.

In addition, to other penalties, Drug Treatment programs are mandatory for first time, and repeat offenses.

What is Flakka?

Put simply, flakka is a synthetic version of cocaine, but far more dangerous.  It follows “bath salts” as the next generation of synthetic drugs.

You may also have also heard it referred to as “Gravel,” “$5.00 Insanity,” “powered psychosis,” “mind melt,” or “$5.00 intensity.

It can be used through means of vapor, injection, smoking or ingesting in pill or other edible form.

According to the National Institute on Drug Abuse, “vaping” the drug will send the drug into the bloodstream very quickly and can rapidly cause overdose.

One of the reasons it is considered deadly, is because the dosage is hard to control. As a result, there is a fine between achieving the desired “high” and death.

Synthetic drugs presently fall into two categories: synthetic cannabinoids and synthetic cathinones. Synthetic cannabinoids include Spice and K2, and are purportedly intended   mimic the effects of ingesting marijuana. Much observation has shown that the actual result of ingesting these synthetic cannabinoids is far different than those of smoking marijuana, though.

Flakka, sometimes called “gravel,” is categorized as a synthetic cathinone. Cathinones are stimulants, often called “uppers,” including cocaine and methamphetamine. A synthetic cathinone, therefore, is intended to simulate the effects of ingesting one of these stimulants. Substances identified as “bath salts” are often considered synthetic cathinones.

The chemical name for the drug called flakka is alpha-Pyrrolidinopentiophenone (alpha-PVP).

What $5.00 a hit really buys you: Adverse effects of flakka

As a synthetic cathinone, flakka is intended to act as a stimulant: To speed up the heartrate, making the user more awake.

The actual effects of ingesting the substance, however, are very hard to predict.

Flakka is produced using chemicals, and the exact chemicals may vary. Alpha-PVP, according to the National Institute on Drug Abuse, is intended to cause and “excited delirium.” Reported effects have included:

  • Death
  • Seizures
  • Heart failure
  • Mental disturbances. short and long term
  • Hyperthermia
  • Kidney Failure
  • Severe Hallucinations
  • Bizarre behavior
  • Paranoia
  • Hyper-stimulation
  • Violent aggression
  • Screaming, struggling, flailing
  • Extreme rise in body temperature
  • Dehydration due to extreme body temperatures and overactive behavior

Serious, and sometimes fatal injuries indirect injuries which include but are not limited to suicide, homicide, self-inflicted wounds, injuries or fatalities resulting from police attempting to subdue the suspect; suspects running out in front of speeding vehicles, including trains.

Some have reported that the drug gives them the false impression that they possess “super human strength”.  This is more likely a combination of its hallucinogenic quality coupled with its tendency to lead to violent behavior.

Flakka incidents frequently involve nudity because the spike in body temperature can lead a judgment-impaired person to strip their clothing off, and the inability to reduce their body temperature.

However, the combination of effects on the body, in addition to their extremely unpredictable nature, is very dangerous, both to the user and to others.

A flakka user in Florida was charged with child neglect after she blacked out and abandoned her one-year-old on the street.

In addition to the inherent health risks of the drug, use can result in harm or death when law enforcement officers are called on the scene to subdue a violent, or dangerous behavior while under the influence of Flakka.

Failure of the suspect to obey police commands or orders to retreat, will result in the suspect being tased, or fatally wounded.  Police have been finding it necessary to use deadly force and are unable to subdue a suspect in an effort to protect public safety.

Synthetic Drug Defense Lawyer Mesa, AZ

Arrests are being made for use and possession of unlawful synthetic drugs, throughout the country, and penalties are severe.

If you are arrested and alleged to be in possession of flakka or any other synthetic drug, it is important to realize that you have not been convicted.

It is important not give up hope.  You should never plead guilty before talking to an experienced drug crimes defense attorney to discuss your charges, and defense op tions.

There may be defenses applicable to the circumstances of your cas0 e that may be used to obtain a favorable outcome on your behalf.

Options like Drug Court may be available, and in some cases are mandatory depending on the charges.

If a defendant is eligible, they may qualify for a drug treatment program as an alternative to more harsh sentencing, longer prison terms,  or reduction of felony charges to a misdemeanor.

An experienced criminal defense attorney will protect your rights, defend your charges, and determine the best defense strategies, and present your case in an effort to obtain the best possible outcome on your behalf.

A former prosecutor, James E. Novak understands both sides of the criminal courtroom. He puts his experience to work for those accused of drug offenses and other crimes in Maricopa County, including Tempe, Mesa, Scottsdale, Phoenix, Chandler and Gilbert.

If you have been arrested for any crime involving flakka or synthetic drugs, contact James Novak today to schedule a free initial consultation.

Other Articles of Interest:

Additional Resources:

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Underage Drinking & DUI Safety Guide for Deadliest Driving Day of Year

♦ Little-known facts revealed, and why they matter.♦

“Underage Drinkers at Highest Risk of Fatal Accidents, Arrests – New Studies Find Links between Youth Alcohol Abuse, Learning Disabilities and Long-Term Brain Impairments.”

Dont Drink and DriveOver the last decade the National Safety Council (NSC), and The National Highway Traffic and Safety Administration (NHTSA) have reported Independence day and the New Year Holiday as being the deadliest driving days of the year.

These conclusions were based on the number of impaired driving crashes, and alcohol related fatalities.

Last year in Arizona, the Governor’s Office of Highway Safety (AGOHS) reported a sharp increase in the number of DUI arrests over the July 4th holiday last year from the preceding year.

Particularly during the summer months and around the holidays, it is easy for drinkers to lose track of how much they are drinking.

This is particularly true for teenagers, adolescents, and underage drinkers.

Consequences of youth drinking have been largely understood.

We are now learning about new research which suggests links between adolescent alcohol abuse and interruptions during the brain developmental process.

This intrusion on the brain’s development is said to be responsible for causing some learning disabilities, and long term brain dysfunctions.

We will discuss this research in more detail, as well as the following topics as we focus on Underage Age Drinking Safety, Prevention, and Criminal Defense:

  • Underage DUI and drug arrest statistics from AZ Governor’s Office of Highway Safety;
  • Underage DUI laws, penalties and consequences;
  • Consequences of youth drinking from the National Centers for Disease Control;
  • Youth Drinking Prevention Tips from the Substance Abuse & Mental Health Services Administration;
  • Safety tips from the Arizona Department of Highway Safety;
  • The importance of criminal defense for charges.

Increase in Underage DUI and Drugs Arrests

On June 18, 2015, the Arizona Governor’s Office of Highway Safety (AGOHS) announced that our State was named as the harshest state in the Country in penalizing DUI convictions, based on a study conducted by an independent finance company.

Penalties include jail sentencing and extended use of ignition interlock devices on vehicles as well as other criminal and civil punishments. This is the case even for first time DUI charges.

In an effort to keep impaired or drunk drivers off the road, Arizona drivers can expect increased presence, DUI Checkpoints, and patrols over the Independence Day holiday weekend this year.

According to AGOHS, the number of DUI arrests statewide increased from 421 in 2013 to 534 in 2014 on the Fourth of July holiday.

The state agency attributed the increase in arrests to an increase in the number of officers on the road. Unstated was the fact that Fourth of July occurred on a Friday.

A typical weekend night will have more arrests that a typical weekday night. This year, the Fourth similarly falls on a Saturday.

In addition to an overall increase in the number of arrests, last year was also notable for a significant increase in two statistics: The number of underage DUIs and the number of drug-related DUIs. The former statistic went up 27 percent, and the latter went up a staggering 74 percent.

No Tolerance for Underage DUI

In Arizona, a person 21 or older who is not operating a commercial vehicle may face DUI charges if accused of being in actual physical control of a vehicle with a blood-alcohol content of 0.08 or higher, or if he or she is under the influence of an intoxicating substance, drug or vapor to even the slightest degree.

A person younger than 21, the legal age at which a person may purchase and consume alcohol,  may face DUI charges if there is ANY alcohol in his or her blood or breath. A 20-year-old could be arrested and convicted if his or her BAC was 0.01, regardless of whether he or she was under the influence of the alcohol to the point that his or her faculties were impaired.

The law, Arizona Revised Statutes § 4-244, lowers the BAC at which a person is considered legally impaired for a person under 21, but it does not lower the punishment. An underage person convicted for the first time of a DUI with a BAC less than 0.10 may face penalties including:

  • A $250 or more fine,
  • Assessment of $500 to be deposited in the prison construction and operations fund,
  • Assessment of $500 to be deposited in the public safety equipment fund,
  • Court costs,
  • Installation of an ignition interlock device for at least one year,
  • Community restitution,
  • Alcohol or drug screening,
  • Alcohol or drug education or treatment program,
  • A driver’s license suspension for 90 days, and/or
  • A criminal record.

A BAC of 0.10 could result in a charge of extreme DUI, with heightened penalties. For a BAC at or above 0.15, the charges could be for super extreme DUI.

Subsequent offenses also carry increasing penalties. A third or subsequent drunk driving charge, for example, is a felony.

No Tolerance for Drugs in the System While Driving

Under Arizona Revised Statutes § 28-1381, a person may face criminal charges if accused of being in actual physical control of a vehicle while under the influence of a controlled substance or if there is any controlled substance or any metabolite of a controlled substance in their body.

This is a strict approach that means that any lingering metabolites could lead to a person being charged with DUI.

Controlled substances can take days or even weeks after use to disappear from blood or urine tests (DUI urine tests are rare, but blood tests are routinely given).

They can last long after the effects on a person’s faculties have worn off.

For example, a person who took a prescription painkiller – prescription drugs are controlled substances – in the morning may have stopped feeling its effects hours later.

However, the metabolite may still be in the system, and that person may be arrested when a blood test shows positive results.

This is particularly important for the many people who utilize Arizona’s medical marijuana law. Marijuana metabolites stay in the blood much longer than most other controlled substances.

Regular users commonly show positive drug test results for 10 days or more after last use.

It does not matter that the person is legally using the substance. He or she will still face DUI charges.

It is not clear why there was such a spike in drug-related DUIs last year. However, Arizona law enforcement has made strides in their Drug Recognition Expert (DRE) program.

An officer trained as a DRE will look for signs that a person is under the influence of a controlled substance.

He or she can testify in court as evidence of intoxication or as evidence for reasonable suspicion or probable cause.

A person convicted of a drug-related DUI will face the same penalties listed above for a person charged with a DUI with a BAC under 0.10.

New Studies Reveal Link between Adolescent Drinking and Long Term Brain Damage

The National Centers for Disease Control (CDC) reported that Alcohol is the number one drug of choice among teens in the USA, and considers alcohol a major health problem among persons under age 21.

Binge drinking is dangerous for adults but even more dangerous for teens. This is because generally their bodily functions and brains are still in a developmental stage.

New studies reveal the alcohol, especially binge drinking can delay maturity, and have life-long adverse impacts on parts of the brain that control learning, memory and cognitive functions.

Researchers say that the brain continues to refine, mature, and develop until a person reaches their mid-twenties.

So the brain abnormalities are the result of alcohol intruding on cells in parts of the brain that have not completed their development.

More independent studies are revealing that teenage binge drinkers are more prone to acquire psychiatric disorders including alcoholism later in life.

Underage non-experienced drinkers or do have not built up a tolerance to alcohol are more likely to consume more alcohol than adults during one session.

As non-experienced drinkers they are often not capable of recognizing when they’ve had enough, and need to stop drinking.

Other Consequences of Underage Drinking

We’ve discussed the criminal consequences of underage drinking, the auto accident risks.

New studies are now being reported that reveal a connection between alcohol use, and binge drinking on the brain, and cognitive functions.

According to the CDC youth drinking can also lead to or cause other adverse consequences including but not limited to the following:

  • Alcohol poisoning in the case of binge drinking which can result in coma or death;
  • Acute, or long term medical conditions;
  • Increased risks of suicide;
  • Propensity to commit other crimes such as physical assault, sexual assault, or other violent crimes including homicide;
  • Suffer or cause other intentional injuries such as drowning, falling, burns;
  • Use or abuse of other illegal drugs;
  • Suffering from other acute and chronic illnesses due to alcohol;
  • Unplanned pregnancies or acquisition of sexually transmitted diseases;
  • Behavioral, educational, social problems at school and domestically;
  • Anger, mood changes, confusion, irritability;

According to the CDC, the risks of experiencing these consequences increased when the youth engaged in binge drinking.

For men, binge drinking is defined as having 5 or more drinks within 2 hours.  For women it is defined as have 4 alcohol beverages within 2 hours.

How Parents Can Help Prevent Underage Drinking – Safety and Prevention Tips

Below are some tips complied from a variety of resources including Substance Abuse and Mental  Health Services Administration  (SAMHSA) to help parents address underage alcohol use, and safety:

  • Discuss medical hazards, underage drinking and DUI laws; penalties and consequences;
  • Be a good role model- If you are going to drink, drink responsibly;
  • Welcome discussions and be approachable, and make it easy for them to talk;
  • Help your teens to find ways of having fun without alcohol;
  • Encourage your teens to be involved in family life, and chores, including taking care of siblings;
  • Don’t allow your teens to attend parties where alcohol is being served;
  • Give them independence. But set, and enforce clear rules with consequences for violating them;
  • Know where your teens are, who they are with, and whether or not alcohol will be served there; Make sure alcohol is not available to them in their home and do not offer it to them;
  • Explain the hazards of riding as a passenger in a vehicle with someone who has been drinking, and provide them with alternative options for a sober ride home.

 A Message from the Arizona Department of Public Safety to all Drivers

On July 2, 2015 the Arizona Department of Public Safety (DPS) issued a Press Release to announce their increased presence particularly on highways and high collision areas.

Their efforts will focus on highway safety to avoid fatalities, DUI enforcement, and seeking out distracted drivers of those who will be traveling on the roads this weekend.

The Arizona DPS offered these safety tips for those who will be traveling on the roadways:

  • “Expect the Unexpected”;
  • Keep emergency supplies in your vehicle in the event you find a highway is closed off while   in route. The emergency pack should include extra drinking water, snack foods, fully charged cell phones and other emergency supplies;
  • Choose someone to be a sober Designated Driver in advance;
  • Call 911 to report dangerous driving or behavior to help avoid crashes;
  • If your vehicle breaks down call 911 for assistance;
  • If you are under age 21 and you plan to drink, plan ahead, and drink responsibly.

The Importance of Criminal Defense for Alcohol Related Charges Tempe AZ

If you are the parent of an underage drinker or driver, and you have never received the call in the middle of the night or early morning hours notifying you that they have been arrested, or worse involved in a DUI accident, you are one of the fortunate ones.

If you have received the call, then you know how traumatic it can be for parents and those arrested.

A criminal conviction can turn a person’s world upside down, jeopardizing the future and freedom.

It is particularly disruptive to underage drinkers who have a need to drive to get to school, work, to sport activities, scholastic activities or other extracurricular activities.

A conviction will adversely impact their eligibility to drive for an extended period. It may also prevent them from qualifying for schools, scholarships, student loans, or employment.

It can also result in loss of existing scholarships, job, driver’s license, active enrollment, or job if they had one at the time of the arrest or conviction.

This is why it is critical to retain a highly skilled and experienced DUI or minor consumption defense attorney to protect their rights and defend their charges.

Without an effective legal advocate a conviction will be swift and severe.

It is crucial that they retain a qualified attorney to protect their interests, and challenge any constitutional rights violations, or weak evidence in their case.

Officers may make mistakes in the cleaning and calibration of the devices, or may make errors in storing or transporting the evidence.

Even if your son or daughter has a DUI test showing alcohol in your system and they are under age or controlled substances if you are of any age, and were arrested in Maricopa County, there is no reason to give up hope.

A flawless process can be critical to prosecutors’ cases, particularly when the results involve a low BAC.

Mistakes in cleaning could easily lead to test result showing a low BAC, such as one used in the prosecution of a person younger than 21.

Likewise, the testimony of DREs can be effectively challenged by a lawyer. Any errors in their judgment can lead to charged being reduced or dismissed.

Generally when evidence is suppressed, it cannot be admitted in court. So suppression of material evidence or unlawful searches can lead to dismissal, or acquittal of charges.

James Novak is a former prosecutor, and dedicated exclusively to providing DUI and criminal defense. He is a highly skilled and effective and represents people of all ages charged with alcohol related crimes.

James Novak believes in second chances, making sure a person’s rights are protected, and that they get the strongest most effective defense available for their charges.

If a loved one or someone you know has been arrested for alcohol related crimes or other criminal offenses, contact James Novak, at The Law Office of James E. Novak today for a free consultation.

James Novak services clients who have received charges in Phoenix, Tempe, Mesa, Scottsdale, Chandler, or Gilbert, AZ.

Additional Resources

 Additional Articles of Interest: 

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