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Arizona Courts Maintain Discretion to Deny Prosecution’s Request for a “Sexually Violent Person” Screening

The Supreme Court of the State of Arizona recently issued an opinion setting forth the procedure for determining whether an individual is a “sexually violent person” (SVP). The case arose after prosecutors charged the Arizona defendant with one count of sexual conduct with a minor. The defense moved for a competency examination, and the trial court found him not competent and not restorable (NCNR).

In response, the prosecutors requested an SVP screening, arguing that the procedure was warranted under § 13-4518(A). The defendant argued that the statute did not require a screen, and it is an abuse of discretion for a trial court to order one when the record does not support the order. At a hearing on the issue, the defendant argued that although the State met two elements of the statute, that alone did not require the trial court to grant the request. Nevertheless, the trial court ordered the screening.

Under Arizona’s SVP Act, a sexually violent person is one who has “been convicted or been found guilty but insane of a sexually violent offense” or was charged as such and was found guilty but insane and has a mental disorder that makes it more likely that they will engage in sexually violent acts.

The Court reviewed the statute’s language and found that the statute’s plain language gives trial courts the discretion to order an SVP screening. Thus, the Court reasoned that providing the state with complete discretion regarding whether to request a screening once the statutory conditions are met would violate a defendant’s due process rights.

In line with that decision, the Court determined that the trial court abused its discretion in ordering a screening. In this case, the trial court believed that they did not have the discretion to deny the request because the State proved two of the statute’s requirements. The Court found that the trial court’s erroneous conclusion amounts to a legal error and an abuse of discretion.

In addressing this issue, the Court concluded that trial courts must consider whether the prosecutor has reasonable grounds to request an SVP screening. Further, the trial court must review evidence and arguments before deciding whether to order an SVP screening. Ultimately, the Court vacated the trial court’s ruling and the appeal’s opinion, remanding the matter to the trial court to decide whether to grant the request.

Have You Been Charged with a Sexually Violent Offense in Arizona?

If you are under investigation or have been arrested and charged with an Arizona sex offense, contact the criminal defense lawyer at the Law Office of James E. Novak. James Novak is a highly skilled criminal defense attorney with nearly 20 years of litigation experience. His office handles Arizona DUI charges, drugs and narcotics offenses, vehicular crimes, sexual offenses, felonies, and misdemeanors. The Law Office of James E. Novak works exclusively on criminal defense cases, allowing clients to reap the benefits of years of refined criminal defense experience. Contact Attorney Novak at 480-413-1499 to schedule a free and confidential initial consultation to discuss your Arizona criminal case.


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