An Overview of the Role, Purpose, and Processes of Grand Juries in the Criminal Justice System.
Police Involved in Deadly Shooting in Phoenix, AZ
Tragedy struck home in Phoenix AZ, last week, resulting in the eruption of protests here in the valley. This, following reports of another fatal officer involved shooting of an unarmed suspect.
According to news reports the police officer approached a vehicle in an apartment complex after being given a tip that a drug deal was taking place in an SUV. After the officer saw a gun and drugs in the vehicle, he gave the suspect several commands. The suspect failed to obey them, and fled on foot. The officer chased him, and a scuffle ensued. During the scuffle the suspect reached into his left pocket, for what the police officer claimed he feared was a gun. The officer then fatally shot the suspect. What was later found in the suspect’s pocket was, not a gun. It was a pill bottle of Oxycodone. The officer was uninjured.
According to reports the officer is on paid leave, pending the outcome of an investigation in the fatal shooting.
News Update December 9, 2014: The Medical Examiner’s autopsy revealed that the suspect died of a gunshot wound to the torso, ruling the cause of death homicide. That does not mean that a crime was committed or charges will be filed against the officer. It means that the the suspect died at the hand of another.
Protests continue in Phoenix, at and around the police department. News reports indicate more protests are planned for tonight and this week.
Unrest in Arizona and around the Country
Meanwhile, around the country, protests continue in several other officer involved fatalities in which the suspects were unarmed. Heightened discussions surround three key issues: police use of deadly force, racial profiling, and the practice of using Grand Juries to determine whether or not criminal charges will be brought against the officer(s) involved.
Though each of these elements is intertwined, they are fundamentally unique concepts. All deserve extensive discussion time, and advocacy. Many have expressed a desire to learn more about the Grand Jury process of indictment. So for now in this article, we will focus on gaining an understanding of the Grand Jury Processes, in Maricopa County and in the United States of America.
My goal is to provide clarity and information regarding the Grand Jury processes, for those who wish to learn more. And my hope is that by doing so, those who read it will gain an enhanced ability to understand how the Grand Jury process may impact them, their families suspected of a crime. Further, for others my goal is to heighten awareness, and enhance their knowledge of the processes to enable them to formulate educated opinions in serious and deserving discussions.
Purpose of Grand Juries
Grand Juries have been a key element of the criminal justice system for centuries. However, they are perceived by many as being an obscure or hidden process.
There’s good reason for this. That is because by design, Grand Juries are intended to be secret. In fact, a suspect is often unaware that they are under investigation for a crime, which is one purpose of the secrecy.
Other reasons for secrecy are to preserve facts and evidence and to make sure it doesn’t disappear, get destroyed, or altered. The secrecy is also intended to protect the potential suspect’s reputation, if they are not indicted in the charges.
Grand Juries and Jurisdiction over Cases
Grand Juries may be held at the County, State or Federal level. The primary consideration for jurisdiction will be determined is the nature of the charges.
County Grand Juries consist of at least 12 but not more than 16 jurors. They hear the evidence presented by the Maricopa County Prosecutor and witnesses they have called. The County Grand Jury decision is based on a simple majority as to whether or not probable cause exists to bring criminal charges. County Grand Juries typically hear cases involving crimes against victims such as aggravated assault, sexual assault, burglaries; as well as some drug offenses.
State Grand Juries consist of at least 12 but not more than 16 jurors. They typically hear criminal matters that pertain to the state, at the request of the Arizona Attorney General. These types of offenses generally involve white collar crimes, frauds and schemes, or forgery.
Federal Grand Juries hear evidence by a Federal Prosecutor at least 16 but not more than 23 jurors. They primarily hear evidence in cases pertaining to serious felony cases for which the United States is a party. These include cases involving US Constitutional or Federal violations, bank robberies, interstate drug trafficking and sales, violations of Constitution or Federal Laws, crimes on and land owned by the Government.
History of Grand Juries
Like most elements of American jurisprudence, the grand jury has origins in English law. The Magna Carta, signed by King John in 1215, says that four out of 25 barons selected by other barons will report transgressions.
The U.S. Constitution has a guarantee in the Fifth Amendment that no person will be held to answer for a capital or “infamous” crime outside of the presentment or indictment of a grand jury. However, this provision has not been incorporated to the states, meaning it only applies to alleged violations of federal law.
Most states utilize grand juries in some manner. Grand jury procedure at a state law is determined by state laws, which often differ.
One thing that is consistent across states, including Arizona, is that grand juries do not decide guilt. They do not return a “verdict.” They only decide whether probable cause exists to bring a person to trial for a crime.
Laws and the Grand Jury Process
Arizona does not require a grand jury to bring any type of charge against a person. There are two ways that a person in Maricopa County may face felony charges: 1) Through a formal complaint filed by the prosecutor; and 2) through an indictment by a Grand Jury.
A complaint, filed by the prosecutor, initiates a preliminary hearing, in which a judge hears witnesses and evidence to determine whether there is sufficient probable cause for a criminal trial. Complaints are the more common way that people are accused of felonies in Arizona.
A Grand Jury proceeding is, simply put, another tool at the disposal of the prosecutor. Though it is the judge’s sole discretion to determine if public interest requires the need of a Grand Jury, it is the prosecutor who petitions it pursuant to A.R.S. 21-402 guidelines. The grand jury hears witnesses and reviews evidence provided by the prosecution. If it determines probable cause exists, it issues an indictment.
In Maricopa County, the presiding judge of the Superior Court to call a grand jury every four months. The Grand Jurors are randomly pre-selected individuals selected by the jury Commission or Jury Manager pursuant to A.R.S. 21-331 summons to serve on a grand jury panel for the term. The jury commissioner or manager determines the specific number of persons to be summoned for the court location and date.
The Jury commissioner under Arizona law is a clerk of the superior court for those counties, such as Maricopa County. The Maricopa County Superior Court Judges appoints Jury Commissioners. In Arizona law those who qualify to serve on Grand Juries must be 18 years or older; be a citizen of the USA; be a resident of the jurisdiction in which a grand jury has been summoned at the petition of the prosecution; whose name and address appeared on a master jury list pursuant to A.R.S. 21-30; has no criminal record of a felony conviction; and is mentally competent.
The term of the jurors is 120 days. A typical grand jury in Maricopa County has 16 members, but can have as few as 12 under law. Nine members must be present for the jurors to deliberate.
The county prosecuting attorney decides what evidence will be presented and what witnesses will be called, and then presents alleged criminal offenses to the grand jury. Unlike some other states, the grand jury in Arizona does not initiate investigations. If a grand juror believes a crime has been committed that has not been presented, they are to go to county attorney or the presiding judge.
The grand jury will review the evidence the prosecution has provided to them. The evidence does not have to be admissible in court, and there is neither defense attorney nor any opportunity for the person under investigation to object to or challenge the evidence.
The Grand Jury may hear from witnesses, and can call any other witnesses they believe would be helpful to their decision. Both the jurors and the prosecuting attorney have the opportunity to question the witnesses. The person being investigated does not.
In a trial, the accused is not compelled to testify, and rarely does so. In a grand jury proceeding, though, the person may be called. He or she will be sworn under oath. He or she retains the right to remain silent (and must be reminded of that right).
Under Rule 12.5 of the Arizona Rules of Criminal Procedure, counsel for a witness may be present during a grand jury session if that witness is under investigation. However, that person’s lawyer may not speak during the session to anyone other than his or her client. The attorney may advise the person under investigation during his or her testimony.
If the person under investigation wishes to submit favorable evidence to the grand jury, he or she may request to do so. However, the grand jury is under no obligation to consider it.
An indictment requires at least nine of the grand jurors to agree to the charges. This is called a “true bill.” If the grand jury declines to indict the person, it is a “no bill.”
The grand jury will indict a person if they find probable cause that he or she committed a crime. Probable cause is an objective standard meaning that circumstances would strongly justify a prudent and cautious person’s belief that facts are true — in the case of a grand jury, that a crime had been committed.
Grand jury proceedings are secret. If a person is indicted, they do not have a right to know who testified, what they said or what evidence the grand jury considered. Secrecy is enforced to allow witnesses who would be reluctant to speak in a public hearing speak, to prevent a person from interfering with the investigation, to decrease the likelihood that a person being investigated will flee and to protect the identities of people investigated by a grand jury but not indicted.
Grand juries have been criticized for their secrecy. Historically, they have also been criticized for the tendency of the juries to tilt decisions in favor prosecution. New York Judge Sol Wachtler once famously said a prosecutor could convince a grand jury to indict a “ham sandwich.” This is because the grand jury is “fed” the evidence from a unilateral perspective, of the prosecution. Grand juries are simply put, another tool for use by the prosecutor, whose job it is to get an indictment.
Depending on how the evidence or witness testimony is presented, the prosecution almost always has the advantage. So if they truly want to bring charges, it’s rare that they do not get the indictment.
The grand jury proceedings are informal, and the Prosecutor is the orchestrator, attendant, supervisor, and presenter of evidence. It is inevitable that the Grand Jurors will tilt towards the prosecution, because there are no objections to the evidence made by the criminal defense, and no intervention by defense to have unjustified evidence suppressed. There is no opportunity for a criminal defense attorney to present challenges to Constitutional Rights violations, or argue other defenses that may apply.
This is why in most cases a suspect ends up getting indicted on the charges. The Prosecutor’s goal is to see that the Grand Jury finds probable cause to indict the suspect on charges. Though the Judge is not present during the proceedings, the Judge acts upon the Grand Jury’s decision bring charges and proceed with indictment.
Why Double Jeopardy Rights Do Not Apply to Grand Jury Decisions
Another question that arose in recent weeks is whether protections under the 5th Amendment to the Constitution for Double Jeopardy apply to Grand Jury decisions. The answer is no. This is because Double Jeopardy rights apply only to charges that have been legitimately prosecuted and resulted in a conviction, acquittal, dismissal, or resolved in pre-trial jury negotiations. The Grand Jury rulings merely provide an opinion as to whether or not there is probable cause for charges to be brought.
Further, even if the Grand Jury does not bring charges, it does not negate the Prosecutor’s authority to proceed with filing a complaint in the charges. But it is extremely rare to see the prosecution impose this authority over the Grand Jury.
Why the Grand Juries became a Target of Controversy
This brings us full circle to the current public unrest surrounding recent investigations of police involved fatalities.
Many feel that a trial would have been a more fair process to bring justice than utilizing the Grand Jury because of the due processes in trial, where both prosecution and criminal defense can present their case, where a judge can determine if certain evidence or testimony can be challenged, where constitutional rights violations, and other exculpatory evidence can be presented, and where a formal jury of peers, selected by both the prosecution and defense can decide if the suspect is guilty beyond a reasonable doubt.
This is a court of law young man, not a court of justice.
- Oliver W. Holmes, Jr
Some feel that the Grand Jury process used to hear cases involving police use of deadly force is a conflict of interest and unfair. This perception is a product of the fact that the prosecution works closely with police to get convictions, so both parties are on the same team so to speak. As a result, in these cases people have expressed concerned about the lack of enthusiasm of a prosecutor when it comes to bringing charges against an officer.
However, the fact is that it has always been difficult to prosecute police officers, even if formal charges are brought. Police have a broad range of authority within their job to use deadly force when necessary. With few exceptions, they have historically often prevailed in trial. This is because juries often give law enforcement the benefit of the doubt, and rule in favor of police and public civil servants.
Grand juries were designed a certain way to best serve their purpose. Its compelling however, that the USA is one of very few countries who use Grand Juries at all. Many either never adopted them to begin with, or have abolished them.
With the heightened controversy, I expect to see vigilance and prudence compel serious discussions about possible legislative proposals, and ballot initiatives for reform. It’s not easy to change the constitution, so the other thing we can expect is that it will be sometime before we see changes either at state or federal levels.
Criminal Defense Representation for Pre-Indictment and Criminal Charges in Mesa, AZ
If you are under investigation by a grand jury in Maricopa County, it is important that you consult an experienced legal defense advocate or criminal defense attorney who can advise you of your options for defense including pre-indictment or pre-charge representation. This is a very important stage, and decisions you make now could determine whether you will face a criminal trial. The key to a successful resolution to your charges is early defense representation.
James Novak, Criminal and DUI defense attorney is a former prosecutor who can advise you during these proceedings. If the grand jury indicts you, he can provide legal representation for pre-trial and trial. The indictment is only the beginning of the criminal justice process. It does not mean you are guilty of the charges for which you indicted. There may defenses that you are not aware of that can be used to get a favorable outcome in the charges. If your constitutional rights were violated, this often leads to suppression of evidence, dismissal or acquittal of charges. If retained James Novak will conduct his own investigation of the facts to determine what defenses may apply, and formulate a defense strategy to obtain the best possible outcome in your case.
Other Articles of Interest
I wish to extend a special thanks to Donald Petersen, Consumer Rights Attorney in Orlando, Florida, of Law Office of Donald Peterson for the inspiration and contributions for the content in this article.
Causes and Consequences of Extreme DUI and Super Extreme DUI Blood Alcohol Content (BAC)
The Wednesday evening, before Thanksgiving, is sometimes referred to in pop culture as “Blackout Wednesday”. It earned this nickname, due to the popularity of binge drinking that night.
Though the term is used loosely, binge drinking and its consequences are very serious matters. According to the National Centers for Disease Control (CDC) Binge drinking can lead to loss of consciousness, coma, and death when alcohol is consumed rapidly in large amounts.
The CDC reports that excessive drinking was responsible for 88,000 deaths in 2013. Binge drinking leads to extraordinarily high levels of Blood-Alcohol Content (BAC) at or above .08 percent BAC during a short period of time. It is defined by the National Institute on Alcohol Abuse and Alcoholism as drinking 4 or 5 alcoholic beverages within about 2 hours.
According to the CDC, most people who engage in binge drinking are not typically alcohol dependent. Most recent studies reported by the CDC which were conducted with combined efforts from the Substance Abuse and Mental Health Services revealed that 9 of 10 adults who indulge in alcohol excessively are not not considered physically dependent upon alcohol. But the study also revealed that one out of every three adults did drink in excess, which includes the dangerous activity of binge drinking.
Those that binge drink, however, are often unaware of its hazards to their health, or the fact that it can result in impaired driving, serious injuries, fatal accidents and DUI arrests.
Arizona’s DUI Season Enforcement
The winter holidays bring many travelers to state to visit friends, family and to enjoy the warm weather in Phoenix, and throughout Maricopa County. So for those who plan to visit or drive in Arizona, it is important to be familiar with the laws and the increased DUI law enforcement presence here in the valley, especially this time of the year.
The week of Thanksgiving traditionally marks the beginning of the holiday season, which law enforcement officials frequently refer to as “DUI season.” Until New Year’s Day, drivers in Arizona can expect to see increase patrols on streets and highways. Last year, law enforcement in Arizona made 3,042 arrests in this period for driving under the influence — more than 10 percent of all the DUI arrests made in the state in 2013.
There is usually a heightened presence with formal efforts from combined law enforcement agencies throughout the state. Drivers can also expect DUI checkpoints in areas where there usually increased volumes of traffic.
Arizona has adopted many of the DUI checkpoint guidelines from the National Highway Traffic and Safety Administration (NHTSA). The NHTSA guidelines for staging safety checkpoints also include polices that address public communications from law enforcement agencies or other officials about the checkpoints. The NHTSA’s guidelines require that the locations of the checkpoints are to be widely publicized, with the purpose of producing a deterrent effect. So a small number of motorists hear about then in the media or through word of mouth. But the majority of drivers are unaware of these roadblocks until they find themselves in a DUI checkpoint line-up.
Arizona DUI Sentencing Considerations
Arizona has some of the toughest laws and penalties for impaired driving in the country. A broad range of factors may apply in determining the specific charges a person might face, which will have an impact on the type of punishment received.
With regard to penalties, here are some fundamental Arizona rules:
- The higher the BAC, the longer the jail or prison terms and more harsh the penalties;
- Repeat offenses are treated harshly, and may raise a Misdemeanor to a Felony;
- The more repeat offenses, the longer the incarceration or prison terms;
- Aggravated factors surrounding a DUI will result in a Felony;
- All Aggravated Impaired Driving (Felony) Charges expose a person to prison
Under Arizona law A.R.S. 28-1383 a felony DUI is an impaired driving offense that is elevated to a felony due to one or more of the following Aggravated Factors:
- 3 or more repeat DUI convictions within 84 months;
- DUI while driving on an invalid, revoked, expired, or suspended license;
- Impaired Driving with a passenger under 15 years of age in the vehicle;
- DUI that resulted in a serious injury or fatal accident
Felony DUI charges expose a person to a minimum of 10 to 30 days, and up to 8 months or more in prison; $4,000 in fines, fees, and assessments; revocation of driving privileges for 1 year; installation and use of ignition interlock device (IID) in vehicle at the defendant’s expense for 2 years; possible forfeiture of vehicle; alcohol and substance abuse screening, counseling and treatment.
Arizona Impaired Driving, Extreme DUI, Super Extreme DUI Laws and Penalties
The legal limit for driving under the influence of alcohol is .08 percent BAC. Most people reach this level of intoxication after fewer than two drinks, or two ounces of liquor.
However, in Arizona it is also possible for a motorist to in violation of DUI laws if their BAC is below .08 percent if they are driving “impaired to the slightest degree” under A.R.S. 28-1381 (A) (1); or driving impaired due to drugs or their metabolite under A.R.S. 28-1381 (A) (3).
Penalties for a first time impaired driving with a BAC of .08 to .15 percent call for 10 day jail terms which may be reduced to one day with successful completion of an alcohol/substance program through DUI court; $1,250.00 in fines, fees, and assessments; Driving suspension for 90 days due to alcohol DUI; 1 year driver’s license revocation for Drug DUI; 6 months to 1 year IID; and probation.
Extreme DUI and Super Extreme DUI penalties are costly from the standpoint of the losses in freedom, driving privileges, finances, and other consequences.
An “extreme DUI,” under A.R.S. § 28-1382(A)(1), is an offense in which the accused drove or had actual physical control of a vehicle with a BAC between .15 and .20 percent. A “super extreme DUI,” under A.R.S. § 28-1382(A)(2), means the driver had a BAC at or above .20.
While this may seem very high, when a person binge drinks, he or she may consume multiple “shots” of liquor in a relatively short period of time. This can cause an exponentially higher BAC. It also takes several hours for the liver to process the alcohol. Until that process is complete, the person will have alcohol in their system.
First time Extreme DUI penalties call for 30 day in jail, $2,750.00 in fines, fees, assessments, driver’s license suspension for 90 days; IID for 1 year; participation in alcohol/substance abuse counseling and treatment program; and supervised probation. Other penalties may apply.
First time super extreme DUI convictions call for 45-day jail terms, $2,750.00 fines, fees and assessments; driving suspension for 90 days; IID for 18 months, alcohol/substance abuse treatment program; and supervised probation. Other penalties may apply.
The most severe of DUI Extreme and Super Extreme convictions are reserved for 2nd violations within 84 months. Extreme DUI with a prior impaired driving conviction calls for 120 days in jail; 1 year driver’s license revocation; IID one year; fines fees and for $3,250.00; probation or community restitution. Other penalties may apply.
Second Offense Super Extreme DUI with one prior within 84 months calls for 180 days in jail without eligibility of probation or suspension of sentence; $3750.00 fines, fees, and assessments; driving privileges revoked for 1 year; IID for 2 years; 30 hours of community restitution; and other penalties may apply.
Extreme DUI Defense in Tempe
A person who is arrested and charged with an extreme or super extreme DUI may believe they are in a hopeless situation and the consequences facing them are inevitable. But by law, an arrest does not mean they will be found guilty. They have the right to hire an effective DUI attorney to defend their charges.
In the criminal justice systems, a prosecutor’s job is to prove beyond a reasonable doubt that you are guilty, and get a conviction. They are paid by the jurisdiction or state, and work for them, not the defendant. Judges and Prosecutors are not obligated to point out weaknesses in their case, unjustified charges, constitutional rights violations, or any other defenses that might lead to a dismissal, acquittal or favorable outcome in your case.
For these reasons it is important to retain your own skilled and experienced criminal defense attorney to be your legal advocate. Your DUI defense attorney will make sure your rights are protected, and have not been violated. If applicable, they will challenge the evidence brought forward. DUI tests are not infallible, and their results may be called into question. Your lawyer will investigate every step police took leading up to, during and after the arrest. Any mistakes made while cleaning or calibrating a device can result in test results being excluded by a motion to suppress.
Your lawyer will also examine the circumstances behind the traffic stop or how the checkpoint was set up. If the police lacked reasonable suspicion or failed to follow procedure, the arrest and any resulting evidence may be tossed out. This often leads to charges being dismissed.
15 Tips to keep Your Holidays Celebrations and Driving Safe
• Plan for a designated driver, or alternative ride home if you know you will be drinking;
• Take advantage of free ride programs such as Safe Ride Home by AAA;
• Call a taxi if you have not otherwise prepared an alternative ride home;
• Don’t let friends drink and drive;
• Be aware that other drivers on the street may be impaired, and drive defensively;
• When entertaining be sure to offer alternative non-alcoholic beverages;
• Do not engage in binge drinking
• Raise awareness to friends or family of the dangers, if you see them engaging in binge drinking;
• Get plenty of rest and say alert before traveling;
• If you are going to drink spirituous liquor, make sure you eat food with it;
• Try not to drink more than one spirituous beverage per hour;
• Know the age drinking laws in your state and do not offer, sell, or deliver liquor to underage drinkers;
• Never leave a friend or family member alone if they have drank excessively, engaged in binge drinking; or have become unconscious. Call or seek medical help for them;
• Obey the speed limit, and other traffic laws;
• Do not text or use any mobile devices while driving
The Law Office of James Novak would like to wish everyone as safe and joyful holiday season.
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Qualified Medical Marijuana Users Remain at Risk of DUI Prosecution.
Authorized Medical Marijuana users in Arizona have legal authorization to use the substance, but could still be charged with DUI if considered driving under the influence of drugs, according to a recent Arizona Court of Appeals ruling.
The court ruled Tuesday in the case of Darrah v. Hon. McClennen/City of Mesa, that Arizona Medical Marijuana Act does not protect users from prosecution if there is an active marijuana metabolite or chemical compound in the body when the users get behind the wheel.
Arizona voters approved medical marijuana November 2010. The state law allows people with doctor approval to apply for a medical marijuana card. Patients must have at least one qualifying condition, such as cancer or glaucoma, to legally receive the substance.
The driver in Darrah v. Hon. McClennen/City of Mesa was an authorized medical marijuana user. He was charged with two counts of DUI in violation of Arizona Revised Statutes § 28-1381.
The Arizona law states it is illegal for any driver in Arizona to drive or be in actual physical control of a vehicle while under the influence of intoxicating liquor, any drug or the combination of any liquor or drug if the person is “impaired to the slightest degree.”
This means if a person who legally uses marijuana or ingests cannabis, and then is stopped while driving a vehicle, he or she could be charged with DUI.
This could be compared to the use of prescription drugs. A person who was injured could have a valid prescription for Vicodin, but if he or she took the substance and decided to drive, that person could be considered impaired, resulting in DUI charges.
The driver in the case submitted to a chemical test after the arrest. The test, according to the ruling, revealed his blood contained 4.0 ng/ml of delta-9-tetrahydrocannabinol, also known as THC. THC is an active component of marijuana.
A jury acquitted the driver of one DUI charge which alleged he was under the influence of a drug. However, he was found guilty of one DUI under Arizona Revised Statutes § 28-1381(A)(3), which says a person cannot drive or be in actual physical control of a vehicle with any drug or its metabolite in his or her body. On appeal, the superior court affirmed.
The detection time for marijuana metabolites can vary based on several different factors. Frequency of marijuana use, timing of the test and body fat content all could affect the levels of THC in the blood and impairment.
In the cases of habitual or frequent users, such as those authorized for medical marijuana, THC can remain in the bloodstream and may be detectable for days after a single use, or weeks in chronic users.
The driver argued he was wrongfully charged and cited another Arizona statute that says, “Operating, navigating or being in actual physical control of any motor vehicle, aircraft or motorboat while under the influence of marijuana, except that 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.”
The court, however, disagreed. Judge Michael J. Brown wrote in his opinion that nothing in the voter-approved law supported the defendant’s claim. Arizona voters had not approved the law with the intent to bar the State from prosecuting authorized marijuana users, the judge wrote.
This case is critical when it comes to medical marijuana users and their right to get behind the wheel in Arizona. The rulings do not set any definite limits for how much marijuana has to be in a driver’s system before he or she would face DUI charges.
Discussion and Impact of the Ruling in Arizona
The Justices cited contrasting opinions as to the basis of their decision. But in the end, they concurred that the conviction should stand. The impact is that Qualified Medical Marijuana users are not immune from Drug DUI prosecution and convictions, solely due to the fact that they are authorized users.
In the ruling the court cited a recent Supreme Court case which held that “non-impairing” metabolite of marijuana is not a “proscribed drug” listed in A.R.S. § 13-3401 and therefore, the mere presence of a trace substance in a person’s blood stream does not support a DUI conviction. But this case had differences, for one, an active Marijuana compound, THC, was present in the defendant’s blood stream.
The defendant argued that the Marijuana DUI should be set aside because of the Medical Marijuana language in A.R.S. § 36-2802(D) that serves as an exception to DUI prosecution when the sole presence of metabolites of marijuana exist that “appear in insufficient concentration to cause impairment.”
Notably one Justice agreed that the exception applied in this case. However, the Justice opinioned that the defendant failed to show that the amount of THC found in his system was not sufficient to cause impairment. The prosecution on the other hand, provided expert testimony to the fact that 4.0 ng/ml (nanograms per milliliter) could possibly cause impairment, based on some studies.
In several states where Marijuana has been legalized in some form, statues exists which all for a qualified user to driver with a specified amount in their system for example 5 ng/ml. An amount found that exceeds the specified limit, in the driver’s bloodstream will result in arrest and prosecution.
In contrast, Arizona laws to not specify an amount that is allowable for drivers; only that it must be an amount sufficient to cause impairment.
Consequently, unless the law changes, or there is a scientific and medical consensus that establishes an undisputed quantity that results in impairment, this will continue to be an issue for the courts to decide in Arizona. Litigation will likely continue in this area, and be determined on a case by case basis, and weighted heavily on the evidence presented in those cases.
DUI Penalties and Defense for Marijuana Cases
Marijuana DUI charges present complex issues, and are multifaceted in nature. Especially in light of the Medical Marijuana laws and controversial issues surrounding the determination of driver impairment, it is more important than ever, to retain a highly skilled and experienced drug DUI trial and defense attorney.
DUI allegations involving marijuana are just as serious as DUI allegations involving alcohol or any other intoxicating substance, regardless of whether or not the accused had authorization from a doctor. Like any other DUI offense or marijuana offense, you are entitled to legal counsel. An attorney can represent you in proceedings and advise you on your best options.
A person charged with a first offense Drug DUI can be convicted of a class 1 misdemeanor for a first conviction. This degree of DUI offense is punishable by a mandatory jail term of 10 consecutive days. Other possible penalties include:
- 1 year driver’s license suspension for Drug DUI ;
- Fines, fees, costs and assessments of $1,200.00;
- Alcohol or drug education or treatment program, plus screening;
- Probation; and/or Community restitution;
- Installation of an ignition interlock device for 6 months to one year
Your lawyer will protect your rights and seek the best possible result for the charge you face. Contact a skilled DUI defense lawyer today if you face accusations involving DUI and marijuana.
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A Comprehensive Overview: Arizona Marijuana laws, Mandatory Minimum Drug Sentencing, and Impacts on Society.
Drug Conviction Results in Sentencing Typically Reserved for Murder
John was accused of a first-time, non-violent drug offense. He had no prior criminal record, no evidence of drug abuse, and no prior drug convictions.
The Defendant was convicted and sentenced to the longest known prison term in US history for a drug conviction. A Florida judge ordered John to serve two life terms, plus twenty years, with no chance of parole.
Some reports indicate no Marijuana or other illegal drugs were found or produced in the drug investigation, and that the only evidence used to convict John was testimony by two informants.
Now 67 years of age, John was sentenced to life without parole 17 years ago, for conspiracy to import and distribute marijuana. The arrest took place following a reverse sting operation, in Florida.
John’s family describes him as being a passive model prisoner, subject to the “harshest of conditions and treatment”. John and his family declare his innocence; and say that he was simply at the wrong place, at the wrong time, with people he didn’t know.
Sending a man to die while serving two life sentences in prison, for a crime he did not commit is without a doubt a violation of basic fundamental human rights, and the truest of injustices in and of itself.
If for one moment we try to set aside the issue of innocence over guilt, and look at this punishment, I think most would agree that it is polarizing. If in fact a crime took place, and the defendant played a role in it, does such an egregious punishment fit the crime? In this case, the judge ordered a sentence that is more commonly reserved for one guilty of homicide.
Many people, including Judges, are struggling to make sense of the harsh punishments called for under Mandatory Minimum for drug crime convictions.
Under Mandatory Minimum drug laws, a judge does not have the same discretion needed to reduce a sentence so that it is fitting and just for the crime of which the defendant is convicted. They are held to order minimum long term prison sentencing for drug crimes under those laws, regardless of the circumstances.
This brings our discussion to its core, Mandatory Minimum Sentencing for drug crimes. Currently, Marijuana is the most common drug offense committed in the US. That is, for now anyway. So our discussion will evolve around Marijuana offenses, arrests statistics, sentencing, defenses, economics, trends, and the impacts of Mandatory Minimum sentencing laws in Arizona and the USA.
The Mandatory Minimums Debate: “Justice v. Cruel and Unusual Punishment”
According to recent statistics reported by Families Against Mandatory Minimums (FAMM), the Federal prison population has increased from 28,000 to 218,000, nearly 8 times its size over the last 40 years. Many, including FAMM attribute the skyrocketing prison growth and overpopulation to mandatory minimum sentencing for drug convictions.
Mandatory Minimum (MM) sentencing laws are those that give judges far less discretion in sentencing and require long term minimum prison sentencing for certain drug offenses. They apply even to first-time, non-violent, low-level drug crimes.
These MM long-term and life sentencing guidelines have become the center of much debate in our Country, and prime targets of public scrutiny, and demand by the public. In addition to the exorbitant costs to tax payers, prison overcrowding, another primary element of the debate is the constitutionality of Mandatory Minimum drug sentences. Opponents argue that they are in violation of the Eighth Amendment rights afforded by the Constitution against cruel and unusual punishment.
Mandatory minimum sentencing laws were around long before increased MM laws were passed in the late 1980s by Congress and State Legislatures. They were intended to keep sentencing more consistent for certain crimes. However, the “War on Drugs” escalated in the 1980s during the Reagan Administration. As a response to public outcry over the safety of society in light of drug crimes that plagued the country, more severe MM sentencing was established. It was felt that by creating laws demanding more harsh punishments would reduce the incidents of drug offenses.
Since then, the cost of incarceration has spiked over 12 times what it was before the 1980s “War on Drugs” battle. Before the egregious sentencing mandatory minimums, the USA was spending about $540 million on Federal Prisons as compared to $6.8 billion dollars reported in 2013. Meanwhile tax payers are spending approximately $50 billion dollars a years to support State Prisons.
According to the Federal Register The Daily Journal of the United States Government, the average cost to house and guard an inmate in prison, in 2013 was approached nearly $30,000.00.
For the past the 4 decades the incarceration of non-violent, non-dangerous drug crimes has cost taxpayers trillions of dollars, without any significant evidence that it has reduced incidents of illegal drug offenses, or made streets in the USA safer.
Nearly 50 percent of all Federal prison inmates are serving time for drugs offenses; and one in five inmates are serving sentences for drug crimes in State prisons.
To address these issues, a bipartisan bill SB 1410 was passed by the Federal Senate Judiciary Committee January 30, 2014 known as the “Smarter Sentencing Act of 2014”. It serves to reduce prison sentences for non-dangerous drug offense convictions, which would lead to a reduction of spending of about $4 billion dollar over the next 9 years. The Congressional Budget Office (CBO) estimates that it would lead to a reduction of sentencing and early release of over 250,000 prisoners over that time span in comparison to current laws.
The US Sentencing Commission recently announced that it will continue its work with Congress toward reforms of mandatory minimum drug sentencing for non-dangerous non-violent drug crimes will be a priority over the next year. Earlier in 2014 the Commission unanimously voted to reduce some of the harsh guidelines in mandatory drug sentencing, as starting point in their efforts. The Commission recognizes that addressing these mandatory minimums is critical to reducing the prison overpopulation crisis, and sharply rising costs of incarceration and resources to meet the overpopulation demands.
Marijuana Arrests in the US: FBI and Federal Bureau of Prison Statistics
According to recent statistics by the Federal Bureau of Investigation (FBI), it was estimated that every 42 seconds a Marijuana arrest was made in the United States.
According to the FBI Uniform Crime Reports in 2012 there were over 1.5 million drug crime arrests in the USA. The total drug violations reported was 1,552,432. Of those Marijuana charges constituted nearly 750,000, nearly half of all drug arrests in the country. Of those, a staggering 88 percent, 658,231 were for possession and use, making it the most common drug crime in the country.
In January 2014 The Federal Bureau of Prisons reported that a total of nearly 99,000 inmates were currently incarcerated in Federal Prisons. This means that 49 percent of the all inmates serving in prison are there for drug offense convictions. Most of those are for Marijuana related crimes.
Where Can You Purchase Recreational Marijuana in Arizona?
There is no place in Arizona where a person can lawfully purchase Arizona outside of the AMMA Guidelines. Recreational Marijuana is currently prohibited in Arizona.
In Arizona, All Marijuana violations are classified as felonies. A person is in violation of Marijuana laws if they knowingly possesses or uses Marijuana outside of the scope of AMMA for under A.R.S 13-3405 (B):
- Personal use and possession of 2 pounds or less of Marijuana, will face Class 6 felony charges.
- Possession of at least two pounds of Marijuana will expose a person to Class 5 felony charges.
- Possession of Marijuana equals four pounds or more of Marijuana they may be guilty of a Class 4 felony.
Penalties for convictions expose a person to prison terms. Statutory Threshold Amount for Marijuana possession is 2 pounds. Convictions involving amounts that exceed 2 pounds, or are repeat offense, call for more harsh punishments. With few exceptions, if a person is convicted of possessing more that amount, with few exceptions, a person will not be eligible for suspended sentencing, probation, pardon, or release from incarceration until they have served imposed court ordered sentencing.
In some cases, first time offenders may be eligible for a drug diversion program that will allow them to avoid jail in return for successful completion of a substance abuse program, known as TASC.
Marijuana Arrest Statistics in Arizona
According to the Arizona Department of Public Safety (AZDPS) crime statistics for 2012, there were a total of 28,935 arrests for drug crime violations. Of those, 15,001 or 52% of all drug crimes arrests were for possession or use, making it the most common drug offense in Arizona.
Arizona Marijuana Laws
Under Arizona Law A.R.S. § 13-3405 Possession, personal use, sales, transportation, distribution and production is prohibited. The law requires that the suspect must “knowingly” or “intentionally” be in possession, or be committing one of the other prohibited acts related to Marijuana.
A person may be guilty of violating this law, when the offense is outside of the requirements, provisions, exceptions and limitations afforded with the AMMA guidelines.
It is not a valid defense to claim that the person charged was aware of the Arizona laws. However, in order to prosecute the charges, the prosecution must be able to prove without a reasonable doubt, that the person knowingly used, or possessed the Marijuana.
Arizona Drug Sentencing Factors in Convictions
Sentencing and penalties for marijuana possession convictions vary depending on at least five factors which include:
- First time or repeat drug offense;
- Amount or quantity found in the suspects possession;
- Quantity is below, equal or exceeds the statutory Threshold Amount;
- Prior criminal history;
- Age of persons involved in the offense;
- Other crimes surrounding the Marijuana possession charges;
- Mitigating or aggravated factors;
- Whether or not the possession crime was dangerous, violent, or involved weapon crimes.
Possession of Marijuana or paraphernalia charges, or usually classified as Misdemeanors. However, the quantity of the drug found in a person’s possession is what drives the charges.
By this, it means that the higher the quantity allegedly found in a person’s possession, the more severe the charges and penalties for conviction.
If the quantity the Marijuana possessed exceeds the Statutory Threshold Amount of 2 pounds the possessor will be exposed to prison terms. The Threshold Amount is the street or market value of an illegal substance.
Mandatory prison sentencing guidelines apply for possession of quantities in excess of 2 pounds, even for a first time offense. Exorbitant fines of up to $in amounts $100,000.00 per defendant and up to $1 million for enterprises may be ordered in addition to other penalties.
Possession in any illegal drug, in higher quantities is perceived by law enforcement and prosecution as an indicator that the possessor of the drug was selling it or intending to sell it, distributing it, or transporting it for sale.
Eligibility Guidelines for Participation in a Drug Diversion Programs
In the case of first-time non-serious drug convictions, a defendant may be eligible for the TASC program. TASC stands for Treatment Assessment Screening Center. Successful completion of the charges may reduce it from a felony down to a misdemeanor and may serve to reduce or eliminates incarceration.
Participation in TASC is not an automatic entitlement program. The person must be considered eligible, and acceptance into the program must be agreed upon by the Defendant, Judge, Prosecution, and TASC itself. Though guidelines may vary, here are some general eligibility rules:
- The defendant must plead guilty;
- The Defendant must have displayed signs of drug addiction or abuse which resulted in criminal charges;
- The violation was a first time offense;
- The crime was non-serious, non-dangerous, non-violent;
- The defendant has not been convicted of any prior violent or sexual offenses;
- Criminal charges were limited to use and possession of a small amount of an illegal drug.
The eligibility guidelines, requirements, and limitations may vary between drug courts in which the jurisdiction where the Superior Court is located, and where the TASC programs are operated.
There is no such thing as a successful “cookie cutter” defense. An effective criminal defense attorney will conduct their own investigation, tailor and build a defense strategy that is unique to the facts and circumstances of that case. This is the only way to gain the best results.
10 Criminal Defenses for Marijuana Possession/Use Charges
An effective Criminal Defense Attorney will tailor and build a defense strategy based on the unique circumstances of each defendant’s case. Below are 10 common defense strategies that might be used to challenge drug charges and evidence:
- Unlawful search and seizure;
- No probable cause of arrest;
- Wrong person was arrested;
- Miranda Rights were not read;
- No knowledge that the Marijuana was in your possession;
- No knowledge that the Marijuana was consumed;
- Challenging quantity in possession, especially the Threshold Amount;
- Entrapment by police;
- Actions were within the AMMA laws guidelines
- Procedural rights, trial rights, or other Constitutional Rights violations
It is important to keep in mind that if you wish to challenge your drug charges it is important to plead “not-guilty” and invoke your right to be represented by an effective criminal defense lawyer. This will increase your chances of getting a favorable resolution to your matter.
Some financial experts project that governments that legalized Marijuana would reap revenues that exceed $3 billion dollars annually; and up to $10 billion annually by 2018. Those projections are compelling, and apparently difficult for states and government to ignore, when debating about the legalization of Marijuana.
Each year we are seeing more states are passing laws to legalize Marijuana narrowly, or broadly. Legalization in any form creates opportunities for financial gain from cultivation, dispensary retailers, jobs, and retail profits, state and federal taxation revenues, and opportunities for start-ups.
Photo Credit: Donald Petersen, Law Office of Donald Petersen
On September 17, 2014 The New York Times recently wrote about a Company, Mjardin Management, whose operations involve helping licensed cultivators set up nurseries, grow plants and run their businesses. Spokespersons for Mjardin reported that the company is currently reorganizing in with the long term goal of listing on the stock market with a traditional public offering.
In Arizona it was reported that at least one state lawmaker proposed legalizing recreational Marijuana, to raise tax revenue due to a massive budget shortfall which is projected to be $667 million dollars in 2015, and $1 billion dollars for 2016.
Whether you are a proponent or opponent of legalization, there is no denying that Marijuana is big business. Profits are expected to grow, businesses prosper, and states tax revenues rise sharply over the next 3 to 5 years, as a result of legalization.
Drug Defense Attorney for Marijuana Charges
Any Marijuana charge is potentially serious because all felonies call for prison sentencing. No matter how serious the crime by law you are entitled to retain an effective criminal defense attorney to defend you charges, and protect your rights.
Even if you are interested in applying for TASC it is important that you retain qualified legal representation. It is never a good idea to go to court without proper legal representation, especially if you face drug charges, or other serious criminal charges.
You should always consult an experienced attorney if you face drug possession charges, to discuss your options for defense. If retained, your lawyer will protect your rights and defend your charges. Their goal will be to provide you with qualified representation and secure the best possible resolution to your matter.
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“Patient-to-patient sales and transfers were never intended under the law. Why it’s no longer being prosecuted”.
On-Line Marijuana Purchase Turns Deadly
Recently in Arizona, an incident involving an online Medical Marijuana sale went tragically wrong, and resulted in a shooting death. A 19 year old man answered a Craigslist advertisement from a seller, age 54. The parties arranged for a meeting to conduct the transaction.
After the seller requested to see the buyer’s Medical Marijuana Card, the 19 year old pulled out a gun and pointed it at the seller. He had apparently intended to rob the seller of the Marijuana.
But the seller had a gun of his own, and quickly retrieved it. The seller then fired several shots, one which hit the suspect. The suspect fled away, while returning fire, hitting the seller’s vehicle. The 19 year old suspect died that evening at a local hospital.
Though the investigation is pending, police were reported as saying that based on what the seller had told them, the seller’s actions were justified from a self-defense standpoint. No charges have been brought against the seller at this point.
This case was very tragic, and illustrates the importance of exercising caution in both buying and selling of Medical Marijuana among qualified users.
Where Can You Safely Purchase Medical Marijuana in Arizona?
The laws are strict with regard to where the Marijuana may be purchased. Under the AMMA, a qualified users may only purchase Marijuana from the following sources:
- A licensed and state approved dispensary;
- A patient’s designated caregiver;
- Another qualifying Medical Marijuana Patient;
- Home cultivation when authorized.
In the case above seller that placed the advertisement on Craigslist to sell it, was a qualified user, and qualified patient-to-patient sales is not a prohibited practice in Arizona.
However, selling “patient to patient” was not initially included in the 2010 AMMA law. According to the Director of the Arizona Department of Health Services, William Hubble, selling in this manner was never intended to be a lawful provision in the program.
The practice became acceptable following a July 2, 2014 Arizona Court decision on a criminal case State of Arizona v. Jeremy Allen Matlock.
In the case Jeremy Matlock had placed an ad on Craig’s List which offered to give Medical Marijuana in return for a donation of $25.00 per plant.
Matlock’s criminal defense attorney argued that the provision allowed for a qualified user to transfer or sell Medical Marijuana to another qualified user without the threat of arrest or prosecution. The prosecution argued to the contrary. The decision was left up to the judge who concluded that the 59 word provision that contained no commas, under A.R.S. 2811 was ambiguous, and could be interpreted in more than one way.
Under Arizona judicial laws, if language may be interpreted with a dual meaning, or in more than one way, the court must give leniency to the defendant.
On July 2, 2014 the presiding judge in the case, Honorable Judge Richard Fields, decided that the language that applied to the practice of patient-to-patient sales was so confusing that the suspect could not possibly know he was violating the law. Fields concluded that the language was drafted poorly and needed much work.
Since then, the practice has been accepted for qualified users to sell to other qualified users, as long as the sale meets all other requirements, not in violation of any other AMMA provisions or limitations.
Qualified users see this practice as convenient. While qualified users who sell it, see it as way to profit, and opportunity for Entrepreneurship
Opponents of the practice feel that it leads to safety and law enforcement problems, and abuses; and that it should be appealed. At this point, it is not known if the case will be appealed, or the language of the law rewritten to prohibit patient-to-patient sales and transfers.
A safe practice does not always prove to be lawful. And just because its lawful, does not necessarily make it safe.
AMMA Laws: Past, Present and Future
It’s been four years since Arizona legalized Medical Marijuana since the voters of Arizona passed the Arizona Medical Marijuana Act (AMMA) by a majority in 2010. But licensed dispensaries have only been opened for operation and dispensing for about 18 months. After lengthy court battles related to zoning, and criminal prosecution concerns, the program is finally operational and functioning well.
To reflect on where we’ve been and where we are now, you would never know that implementing it was not easy. It faced legal battle after legal battle in civil courts, and many qualified users, dispensaries, and those with medical or economic interests, pressed on, under the threat of Federal prosecution.
Though Medical Marijuana is legal, those who qualify to use, distribute and sell, are well aware of the narrow limitations that apply under the laws governed by legislation, and created by the Arizona Department of Health Services (ADHS). The ADHS spent significant economic resources to create these guidelines and help regulatory make sure growers, buyers, sellers and distributors are in compliance.
Among the many reasons the laws exist to make sure that Marijuana is sold safely and only to those who qualify, are sold by licensed sellers and distributors who lawfully sell it, and to make sure it does not wrongly fall into the hands of children.
As of June 30, 2014 there were 52,638 qualified users in the state, 1,231 dispensary agencies, and 502 caregivers. There were 38,923 new applications pending at that time.
As of June 30, 2014 there were 94 qualified minors in the program. Use by minors is subject to stringent eligibility and parental supervision guidelines.
Since the passing of the AMMA, the ADHS added Post Traumatic Stress Disorder (PTSD) to the list of qualifying conditions. It will be added with an effective date of January 1, 2015, to allow time for certification of agents, dispensaries, and physicians to develop policies for administration under the guidelines.
The program has been deemed a success thus far, but it continues to evolve. State regulations, case law, police enforcement guidelines, federal and state legislation, governing entities, medicine, taxing, and other economic influences subject to change, and evolution. In four more years, the program may look quite different than it does today.
Protections Not Afforded under Arizona Medical Marijuana Laws
Under the AMMA a qualified user is allowed to purchase and possess 2.5 ounces of Marijuana for treatment and symptoms related to a qualified condition.
If a qualified patient lives more than 25 miles from the nearest dispensary, they are allowed to cultivate not more than 9 plants within an “enclosed locked area”.
There are some state prohibitions however, even with Medical Marijuana. The AMMA does not authorize users to engage in any of the following activities:
- It does not allow a person to drive, or operating any vehicle, aircraft, or boat while impaired to the slightest degree as a result of being under the influence of Marijuana solely or in combination with other drugs or alcohol;
- It does not authorize a person to undertake any task while under the influence, that may result in negligence or professional malpractice;
- A qualified user is not authorized to possess or use on a school bus, or any pre-school through high school grades;
- It does not authorize use of Marijuana in a public place or on public transit;
- It does not require federal assistance programs or health insurers to pay any costs associated with Medial Marijuana use;
- It does not require an owner of private property, or an employer of a work place to allow the use of Marijuana on their property or at work.
- It does not prevent medical facilities, nursing care, hospitals, or other health care facilities from adopting their own necessary and reasonable restrictions on the AMMA guidelines related to storage and use of qualified patients for their safety and the safety of other residents.
- No person under the age of 18 may use Medical Marijuana unless they are examined by a doctor; the parent or guardian of the patient applies on their behalf, and a parent or guardian serves as a designated caregiver.
Out of State Card Holders
Under A.R.S. 36-2804 a qualified user registered in another state to use Medical Marijuana, may possess and use it. However, the qualifying patient registered outside of Arizona is prohibited from purchasing the Marijuana from a dispensary. This is because the dispensaries are prohibited from selling it to unregistered users, not verified by the State’s system.
A “Visiting Qualified Patient” is recognized by law as being one who is not a resident of Arizona; or has been a resident less than 30 days; a person who has been diagnosed with a debilitating medical condition by a medical professional who is licensed authorized to prescribe the drug in their state of residence; or the former State of registry within 30 days of the relocation.
A person may apply and qualify to hold a card in more than one state, as long as they meet all eligibility requirements of the states in which they wish to register.
States that have legalized medicinal Marijuana recognize reciprocity to some extent, in that they recognize qualified cardholders in other states for purposes of use and possession.
However, states may vary with regard to how much may be in their possession, whether or not it can be purchased, and other various provisions.
So if a user is a registered, qualified card holder in Arizona, and plans to visit another state, it is important that they become familiar with the guidelines and laws pertaining to out of state users and possessors. Users visiting or relocating to a different state are bound by the laws, and prohibitions while in that state.
States v. Federal Laws in Legalizing Marijuana
Despite the fact that 23 states have legalized Medical Marijuana and two states have legalized recreational Marijuana, the Federal Government still prohibits Marijuana in all forms, and for all uses.
Not only is it prohibited under Title 1 of the United States Code (USC) 21 Controlled Substances Act, but it is classified as a “Schedule I Drug”. The Federal Drug Law categories drugs into 5 classifications with Schedule I drugs considered to be the most dangerous and addicting.
Much controversy, inconsistencies in prosecution, and litigation has surrounded the conflict of Federal Prohibition and State Legalization of Marijuana.
Historically, the Government has been granted supremacy in the event that there is a conflict with state and federal laws. However, the Government made a the decision not to enforce criminalization, or to intervene into State legalization laws as they pertain to Medical or Recreational Marijuana, as long as the State’s Marijuana Laws are not violated.
The Federal Government enforces violations of the AMMA act, and similar laws in other states. They reserve prosecution for those violations, as well as serious, violent, or dangerous drug crimes, as well as those involving high level dealers v. street dealers; serious offenses; drug crimes that involve smuggling across borders, drug trafficking, and large quantities.
Criminal Defense for Marijuana Crimes
It is important to be aware that violations of the AMMA guidelines are harsh, and expose a person to both civil fines and penalties, and criminal prosecution, in violation of A.R.S. 13 – 3405.
All Marijuana drug crimes are charged as felonies, which expose a person prison sentencing in Arizona. If you or someone you know has been charged with any drug crime, you should consult an experienced criminal defense attorney before going to court for or pleading guilty. James Novak, DUI and Criminal Defense Attorney, provides a strong defense in drug cases. He is a former prosecutor, and exclusive criminal defense attorney serving Phoenix, Mesa, Tempe, Gilbert, Scottsdale, and Chandler Arizona.
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Heroin: Fighting the Epidemic and Clearing its Path of Destruction – Part 2 of 2
After a fatal drug overdose, moments count. Call #911 first. Get emergency treatment. If you are arrested, or Criminal Charges are brought, they can be defended by an experienced drug defense attorney. But you only get once chance to save a life.
Twenty-year-old Stephen Cardiges of Lawrenceville, GA was a week from celebrating his 21st birthday. He was an Eagle Scout, excited about his plans to join the US Navy after turning 21. Stephan slipped into unconsciousness in the back of a Honda Civic, from a Heroin overdose, while his friends drove around town. His companions knew he was unconscious but didn’t want to call #911 or seeking help for him. Why? The reason was, they feared arrested for possession and use of Heroin. Perhaps they thought he would wake up on his own. Nonetheless, after a while, Stephen’s friends allegedly left Stephen there unconscious, in the back of the parked vehicle while they went their separate ways.
An observant officer noticed the youth in the Honda Civic parked in a driveway, with no one else in it, but Stephan. The observant officer approached the vehicle concerned that the youth was having a medical emergency. The officer immediately noticed the Heroin paraphernalia next to Stephen. The officer called for Emergency Paramedics and in the meantime tried to revive him. But it was too late. Stephan had already slipped into a coma. He was pronounced dead at the East Side Medical Center, which was a mere 2 miles away.
Would Stephen be alive today if someone had called #911 or taken him to the Emergency room for medical attention? With the proper medical care, I strongly suspect Stephan would have survived.
The Upward Trend in Heroin Use in the USA
The National Institute for Drug Abuse (NIDA) reports alarming statistics and trends in heroin.
Over 4.2 million people in the USA, in those among the ages of 12 or older, admitted to using heroin at least once. Of those, it is estimated that nearly 25% of those became addicted to it. In 2012, drug overdoses was the number 1 cause of deaths, exceeding motor vehicle accidents in 17 states in the USA.
In the last 7 years, use has been driven sharply upward, especially in young adults, ages 18 through 25. In 2012, a research study by nearly 670,000 Americans reported using it. Of those, ages 12 and over have doubled during that time. It’s been identified throughout the USA as being the most important drug issue plaguing out country, thus being called an epidemic by the NIDA Community Epidemiology Work Group (CEWG). he US Government, other national, and local agencies, including law enforcement agencies, the medical community, and parents seek desperately, for solutions toward prevention, intervention, and treatment.
More Police to Carry “Miracle Drug” for Emergency Fatal Overdose Treatment
Many drug overdose deaths, including heroin overdose fatalities are preventable. They may have been prevented, if victims, friends or family were not afraid of arrest or prosecution.
In our part 1 of 2 segment on this topic, we discussed the fact that the FDA recently approved a life- saving injection “Evizo”, that can be administered by trained first responders such as police officers, family, or other health care professionals. The injection contains the drug “Narcan” (Brand name) or Naloxone (Generic), which has proven effective in reversing a fatal overdose of heroin or other opioid in a patient. It is known to actually revive patients who would otherwise have not survived. This treatment is only temporary and immediate for use to revive the patient until specialized medical treatment can be administered. Also, it has not been effective in reversing other potentially fatal overdoes such as those on cocaine or other methamphetamines, for which other life-saving drugs exist. Nonetheless, it is being called a miracle drug for opioid overdoses. The key to its effectiveness is immediate use, as soon as possible following the over dose.
#911 Good Samarian Laws: Immunity for Seeking Overdose Help
A minority of states have what are known as #911 Good Samaritan Laws. If these are in place, and if people in those states were aware of them, they may be more inclined to seek emergency medical assistance for an overdose.
These Good Samaritan laws are intended to provide a certain amount of immunity from arrest and prosecution for themselves, when they seek emergency medical treatment for overdoses or call #911. But currently, just a handful of states have them. They exist in only 18 states including Alaska, California, Colorado, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Rhode Island, Vermont and Washington. This leaves 65% of the country without #911 criminal immunity laws for witnesses, or overdose victim to call for help.
Drug Good Samaritan #911 Laws vary by state, with regard to provisions and immunities to arrest or criminal charges. But most states extend immunity laws narrowly to drug possession and use crimes, and do not suppress evidence for other more serious charges such as sales, manufacturing, and distribution crimes.
Arizona does not Good Samaritan Laws such as this in place. This presents a great concern, in light of the fact that it is recognized as a 6th highest state in the country for heroin overdose fatalities according to the National Institute on Drug Abuse..
People often to call #911 or seek medical treatment for fear of arrest or prosecution since the use or possession was in violation of Arizona State Drug Laws. And currently there is no protection for those seeking emergency help for themselves or others in absence of these Good Samaritan Overdose laws. This decision, not to seek help, has unfortunately led to preventable fatalities.
It is recognized my many, that the state needs to adopt more of the 10 strategies for states with similarly high drug overdose fatality rates recommended b Trust for America’s Health. Thus far, only 4 of the 10 known strategies were adopted, and did not include immunity laws from arrest or prosecution by a person, or others seeking emergency medical treatment for overdoses.
Heroin Crimes, Laws, Classifications, Penalties
Heroin is an Opiate and is classified as a Narcotic. It is also considered “Controlled Substances” under Arizona Laws and classified as a Schedule I drug. Offenses are prosecuted pursuant to Arizona’s Narcotic Drug Laws.
With regard to Narcotic violations, a person may be found guilty under A.R.S. 13-3408 of Arizona drug law, if they “knowingly”:
- Possess or use a narcotic drug; (Class 4 Felony)
- Possess equipment or chemicals for manufacturing narcotic drugs (Class 3 Felony)
- Obtain a narcotic drug through use of a fraudulent prescription, deceit, or misrepresentation (Class 3 Felony)
- Possess narcotics with intent to sell; (Class 2 Felony)
- Manufacture narcotics (Class 2 Felony)
- Administer a narcotic drug to another person (Class 2 Felony)
- 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 (Class 2 felony)
Narcotics violations in Arizona carry some of the toughest penalties of all illegal drug crimes. Narcotics charges are all classified as felonies. This exposes a person to prison sentencing, and steep fines, along with other harsh punishments in Arizona. Fines for felonies in Arizona can reach up to $150,000.00 per person, per charge; or $1,000,000.00 million per charge, per enterprise.
Arizona’s Statutory “Threshold Amount” under A.R.S. 13 – 3401.36 is one gram. The Threshold Amount refers to the market value, weight or measurement of a particular drug or substance as it relates to criminal drug laws.
Sentencing for convictions involving an amount of controlled substances that are under the statutory “Threshold Amount” may range from 3 years mitigated sentencing to 12.5 for aggravated sentencing for Class 2 felony charges.
Arizona punishments are harsh for repeat offenses, especially if they involve amounts that equal or exceed the “Threshold Amounts” for the given drugs. Sentencing is increased for these convictions can range from 10 to 12 years for maximum non-aggravated offenses; and 12.5 to 15 years for aggravated Class 2 felonies.
If a person is convicted of amounts that equal or exceed the Threshold Amount, more stringent penalties apply. They will not be eligible for sentence suspension, probation, pardon or release from prison until they have served the prison term ordered by the court. The exception to this earned credits, restoration or commutation pursuant to A.R.S.41-1604.07.
Probation is required for those convicted of use or possession of a controlled substance or drug paraphernalia. Participation in a substance abuse education or treatment program is also a required condition of probation for simple possession/use charges. Second offense possession or use penalties may require incarceration as a term of probation.
Drug Treatment Program Alternatives to Reduce or Avoid Incarceration in Arizona
Your criminal defense attorney will work with you, and the court system to determine if you qualify to participate in an educational drug counseling or treatment program in turn for a waiver of incarceration or mitigation of time for which a person is sentenced to incarceration. Certain criteria must be met to qualify, and a defendant must be invited to participate in the program by the prosecution and the courts. They are designed to provide the defendant with the medical counseling or treatment needed, and incentives to help reduce the person’s dependency on illicit drugs, so that they can avoid repeat offenses, and become healthy and constructive in society.
Successful Completion of the program can also lead to a reduction in charges for example, reducing a felony to a misdemeanor to avoid prison terms. If an inmate is incarcerated for drug crimes, they may be offered the option of participating in a substance abuse program voluntarily. If completed successfully, they may earn credits that can be applied to early release due to reform and rehabilitation program guidelines in place.
These programs may also be used as a conditional requirement during parole, or probation, following a term of incarceration. Failing to complete the program would institute the original jail or prison time to the longer term.
Recent legislation as has been introduced with similar provisions and incentives at the Federal Level to reduce prison overcrowding, the costs of incarceration, and the reduction of repeat offenses.
Criminal Defenses for Heroin or Opioid Charges
If you, a loved one, or someone you know experiences a life threatening overdose due to heroin or other opioid, you should call #911 and seek emergency medical attention immediately. Following a potentially fatal drug overdose, moments count. Get emergency medical treatment to save a life. Criminal Charges can later be defended with good legal representation.
If you are subsequently charged or arrested of any heroin or opioid crime, you should consult an experienced drug defense attorney who will defend your charges and protect your rights. James Novak, of the Law Office of James Novak, is an experienced criminal defense trial attorney, who defends drug charges on a regular basis, and provides a strong defense.
James Novak, Attorney at Law, is a former Maricopa County Prosecutor. He has extensive training, and litigation experience defending Heroin Drug Charges, and will fight for your freedom and future. The Law Office of James Novak, PLLC serves Tempe, Mesa, Chandler, Phoenix, Gilbert, and Scottsdale AZ. If you have been arrested or charged in these cities, call today for a confidential free consultation. James Novak, criminal defense attorney will discuss you matter with you or a loved one you have designated to speak on your behalf. He will provide information regarding the criminal justice process, and your defense options.
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Often people don’t seek emergency medical treatment for themselves or others following a potentially fatal overdose of heroin, for fear of arrest or prosecution. But the greatest threat is not criminal charges, its fatality.
Combating the Heroin Epidemic: 7 Heroin Facts; Statistics; Prevention and Treatment
According to the National Centers for Disease Control (CDC), overdoses of drugs in the USA have tripled during the last 25 years and are now the Number 1 cause of deaths. In 2010, they reported 38,329 overdose deaths in the U.S.A, and according to other reports, these numbers continue to rise in epidemic proportions. Accidental overdoses now exceed auto accident fatalities, in adults aged 25 to 64.
According to a recent analysis reported by Trust for America’s Health (TFAH), drug overdose deaths have increased 100 percent in just the last 10 years. One main drug responsible for this increase includes the drug, Heroin.
According to a recent Arizona Department of Health Services (ADHS) Heroine remained the number one illegal drug responsible for overdoses that resulted in deaths in 2013.
FDA Approves Life Saving Proven to Reverse Potentially Fatal Overdoses
We are about to see more police being equipped with a Life Saving Drug for Heroin Overdose Treatment to save lives as first responders.
On April 3, 2014 the U.S. Food and Drug Administration (FDA) announced its approval of a hand-held auto-injector for treatment of overdoes. The injector rapidly delivers a lifesaving drug into a victim who is suffering from a potentially fatal overdose of heroin or other opioid. It’s been approved for use by trained family members and caregivers for emergency treatment.
Evizo (naloxone hydrochloride injection) is the injector. The drug it injects is known by its brand name “Narcan”, also known as “Naloxone” by its generic name, being used by Police Agencies throughout the country.
Narcan or Naloxone is a drug that has proved to reverse heroin or opiate overdose almost immediately. Some police agencies are allowing specially trained officers to carry and administer it in several states around the country to overdose victims. One pilot program conducted by police agencies in Quincy Massachusetts, report that its’ officers administered naloxone 221 times where needed, and it reversed the overdoses 210 times, giving it a 95% earning it 95 percent success rate.
First responder police recently began administering the drug in the field as a result of the soaring numbers overdose casualties. Generally, an opioid or heroin overdose causes a person’s breathing to stop. Narcan in many cases will revive the patient, if it’s administered early enough. The drug is said to keep the patient alive until paramedics arrive or until the patient can get the specialized medical assistance needed to treat the overdose symptoms.
Narcan has proven to be effective for heroin and other opiate overdoses only. It has not been effective t in reviving patients who have overdosed on other drugs such as cocaine or ecstasy.
Naloxone delivery system is through either inhalation, by inserting it into the nasal passage, or injection into the patient. The risks and adverse side effects are said to far outweigh the advantages or benefits of its use following a potentially fatal heroin or opioid overdose.
The FDA warns that Evizo is not a substitute for immediate medical care, it’s simply temporary until paramedics arrive, or until the patient can be taken to the Emergency Room or hospital for further care.
Common side effects include dizziness, weakness, skin flushing, and agitation. Reportedly rare and severe side effects include heart disturbances, neurological damage, lung fluid build-up, seizures, coma and death.
In response to the drug overdose fatality crisis, Evizo was granted “Priority Review” under the FDA’s Priority Review Program. This review is granted where the need is critical; and for those drugs that are proving to be effective, safe solutions, where no other alternatives exists. The benefits of the new drug should be far more significant than existing treatments in place. The product was granted a fast-track designation, and expedited processing by the FDA as they worked with closely with The White House White House’s Office of National Drug Control Policy’s National Drug Control Strategy since 2012.
The device is scheduled to be made available mid-June 2014 due to expedited processing, and will be available in pharmacies which will dispense by prescription.
7 Heroin Facts
Heroin is classified by the Federal Drug Enforcement Administration (DEA) as a Schedule I drug, out of five distinct categories. Schedule I drugs carry the highest potential for mental and physical addiction. They are considered the most dangerous classification of drugs. Heroin is identified by the DEA as having no current legally accepted medicinal use, and possessing a high risk of substance abuse and addiction. The U.S. Department of Health and Human Services (HHS) classifies Heroin addiction as a chronic brain disease.
According to the National Institute on Drug Abuse (NIDA) Heroin is an “Opioid” and a depressant. It is made from Morphine alkaloid in opium, and is considered to be far more potent and addictive and dangerous than Morphine. The drug impacts portions of the brain and body that depress perceptions of pain, and which also impact vital life functioning such as blood pressure, alertness, and respiration. This is why overdosing frequently involves fatality. Overdoes of the drug can suppress or halt the critical breathing processes in body.
(3) How it’s used:
It may be needle injected, inhaled, or smoked. All 3 delivery methods of heroin to the brain are fast, which contribute to its addicting nature, which causes changes in the brain that result in an uncontrollable dependence.
(4) Impacts of heroin on the body
Users who inject heroin, users report feeling a rush at first. Then it is followed by dry mouth, skin flushing, a feeling of heaviness of the arms and legs, confusion, and an alternate wakeful to drowsy state. Habitual users experience brain function changes, which include tolerance. This causes more of the drug needed to experience the euphoric state, and to avoid adverse withdrawal symptoms. Effects associated with Heroin include fatal overdoes, infectious diseases such as HIV, and hepatitis, collapsed veins, heart lining infections, abscesses, GI problems, liver, and kidney diseases, pulmonary collapse, pneumonia, and other respiratory disorders, causing permanent damage or fatality.
(5) Appearance, consistency and street names
Pure Heroin is a white powder, but is often cut with other illicit substances giving it a brownish tint. Another form of Heroin is known as “black tar” which is of sticky or tar-like consistencies, and varies in color from dark to black. Street names include but are not limited to “brown sugar”, “Smack”, “black tar”, “smack” or “junk”.
(6) Signs and Police Drug Testing for Heroin
Detection of Heroin in the body can be revealed by a urinalysis, for up to 24 hours after use. It can be detected by a blood test for up to 72 hours following use of the drug.
Environmental signs of possible use include injection supplies, or paraphernalia such as needles, cotton, towels, spoons, matches, bottle caps other equipment or supplies to heat the drug.
Physical signs include but are not limited to restlessness, drowsiness, diarrhea, nausea, vomiting, chills, involuntary movements of extremities, behavior changes, hyperactivity, disorientation, weight loss, marks, bruising, or scarring of arms and legs, and continued respiratory symptom.
(7) Long Term Treatment for Heroin or Opioid Addiction
Specifically, heron and opioids require medication-assisted treatment (MAT) programs. One of those most effective MAT assisted drugs is buprenorphine used both in a specialty and noni-specialty treatment setting. Traditionally, effective treatment indicated for heroin or opioid addiction required in-patient specialty treatment and counseling.
But since 2011, years specialty in-patient hospital admissions had declined sharply due to a spike in increased outpatient treatment alternatives now available. Out-patient settings are less costly, and more convenient for patients. In 2012 it was reported that accredited physicians treated almost 900,000 patients on an out-patient basis with a combination of buprenorphine/naloxone therapy, in non-specialty treatment settings.
Substance Abuse and Mental Health Services (SAMHSA) oversees compliance of heroin and Opioid Treatment Programs (OTPs), provides certifications to operate. They work with state, local and federal agencies including the Drug Enforcement Administration (DEA) to accomplish their goals. There are currently 1,311 Specialty Opioid Treatment Centers (OTP) in operation in the USA.
Why More Users Do Not Seeking Long Term Treatment Options
U.S. Health and Human Services reported that in 2012 only 10.8 percent of individuals suffering from alcohol or drug abuse including heroin or opioid users, received specialty medical facility known to effectively treat their condition. Other studies showed that 94.6 percent of those who needed treatment did not receive because they refused it or denied their need for the substance abuse treatment. Another 3.7 percent felt they needed it, but did not seek it, due to affordability, lack of insurance or other barrier. Of some of the respondents who reported they needed it but did not seek it, 17.4 percent were worried about negative impacts such as fear of arrest and prosecution, negative impacts on their job, family, transportation, and the inconvenience.
Criminal Defense Attorney for Heroin or other Drug Charges in Phoenix East Valley AZ
Immediate medical attention is critical, and every moment counts. The number one priority following an overdose is to seek immediate medical attention, and to call #911 if you feel a person has taken a potentially fatal overdose. If criminal charges are brought against you, they can be dealt with after the ordeal.
Heroin and Narcotic charges carry some of the most severe penalties of all drug crimes under Arizona laws. All heroin charges are brought as felonies.
If drug charges are brought against you, or you are arrested, you can then consult an experienced criminal attorney to defend the charges and protect your rights. In some cases a person may qualify for a drug treatment program in order to reduce the charges from a felony to a misdemeanor or to avoid incarceration. Not everyone qualifies, and it is not automatic. Your attorney will assist in the process if you meet the criteria. If you do not qualify for the program, other defenses may apply to your case that you may not be aware of.
If your rights were violated, or if the evidence against you is weak or unjust, it may lead to a dismissal of charges. The Law Office of James Novak, PLLC defends Heroin and other serious drug charges on a regular basis. James Novak is an experienced drug defense attorney, and former prosecutor. If retained, he will tailor a defense that best fits your circumstances and that has the potential for the most favorable outcome. Call today for a free consultation. James Novak, DUI and Criminal Attorney to discuss you matter in confidence and to obtain your defense options, if you have active charges in Phoenix, Mesa, Tempe, Chandler, Scottsdale, or Gilbert AZ.