James E. Novak
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In an unpublished Arizona appellate decision, a defendant appealed his convictions and the related sentenced for aggravated assault and armed robbery. The case arose when he came up to a cash register in a liquor store in 2012 and demanded money while threatening the clerk with a handgun. He got more than $450 and started to go. The clerk picked up a baseball bat and told him to stop, and in response, the defendant fired his gun at him, barely missing. He fled.

The police didn’t find the defendant right away. However, a few days later, the clerk was working nearby and saw a customer who looked like the defendant. He called the police, and when an officer looked at the surveillance video, he told the officer he wasn’t sure it was him. The detective decided that the customer in the video wasn’t the defendant.

Based on the clerk’s description, the police later identified two other people of interest, neither of whom had previously committed a robbery. An anonymous tip turned up the defendant. The officer showed the victim a six-photograph photographic lineup. The victim had no problem identifying the defendant.

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In a recent unpublished Arizona appellate opinion, the defendant appealed a conviction for aggravated assault, for which he was sentenced to a term of 8 1/2 years imprisonment. The case arose when the defendant’s brother rode a bike to their mom’s house, where his brother lived with the mom. The brother had previously had fights with the defendant. When he came up to the gate, he found it was locked. He realized his mother wasn’t going to come out, so he started to ride off on his bike. His brother fired a gun at him twice, hitting him in the right leg.

The weapon wasn’t located, but police found a bullet in the defendant’s pocket and a bullet in a bag he was carrying right after the shooting. A detective met with the victim in his hospital room and saw a circular wound that looked like a gunshot wound on the victim’s leg. He also observed an x-ray that showed a bullet inside his leg. The victim told the detective that “Cotton” shot him—Cotton was the defendant’s nickname. The defendant was charged with aggravated assault with a deadly weapon, which is considered a dangerous offense.

In jail, the defendant called six family members, asking to make sure his brother wouldn’t come to trial to testify against him. He told his mother, sister, niece, and brother the date of the trial and said that if his brother didn’t show up, he wouldn’t be convicted. He also asked his mother to schedule a family meeting with the brother so that she could remind him that if he testified, the defendant would miss family Christmases. He also asked his niece to tell his brother that he would be disowned if he testified. His sister told the defendant that she talked to the victim, and the victim wasn’t going to be a problem. The defendant made many other efforts to get the victim not to show up at trial.

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In the unpublished opinion State of Arizona v. Scott, an Arizona appellate court considered the defendant’s conviction for disorderly conduct with a deadly weapon. The case arose when the victim and the defendant, who were married, got into a physical altercation. The husband was indicted for two counts of misconduct involving weapons and two counts of domestic-related aggravated assault.

The husband admitted that his wife was hurt and that he used a firearm during the incident. The wife suffered from paranoid schizophrenia and was medicated for it. She admitted on the stand that she’d been previously arrested for aggravated assault against her husband, that she’d previously been committed to a mental institution, and that she was susceptible to memory loss.

The husband alleged she attacked him, and he was simply defending himself. He was allowed to testify about his wife’s prior attacks and descriptions of having violent content of voices in her head, as well as his knowledge of her mental health diagnosis and medications.

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You should be aware that allowing your vehicle or license registration to expire may provide police officers with a reasonable suspicion to stop you while driving in Arizona. Under A.R.S. section 28-2153, you cannot operate a motor vehicle that has not been registered with the department.

In the unpublished opinion of State v. Avalos, the defendant appealed after being convicted of aggravated DUI and aggravated driving with a blood alcohol content of .08 or more while his license was restricted, revoked, or suspended. He had been sentenced to concurrent terms of 10 years in prison.

A Tucson officer stopped the defendant after the officer checked the records and found the registration for the defendant’s car had expired eight days before. The officer approached the car, and the defendant got out and handed him his keys, saying he knew that the officer would tow the car. The officer took him back to the car and saw open beer bottles on the floor of the car at the driver’s seat.

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Arizona Among Highest Increases in Fatal Alcohol-Related Accidents

The good news would be that the East Valley Tribune reported on January 8 that driving under the influence (DUI) arrests in Arizona decreased 14 percent from 2014 to 2016. The bad news, however, is that CBS News reported on December 26, 2016, that 2016 could go down as one of the worst years for drunk driving deaths.

The 10,265 people killed in alcohol-impaired crashes in 2015 was an increase of nearly 300 from 2014, and 2016 was shaping up to be even deadlier. Mark Rosekind of the National Highway Traffic Safety Administration (NHTSA) told CBS News that the agency was seeing increases it had not seen in 50 years.
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How High is Too High to Drive?

In November 2016, Arizona voters rejected a measure to legalize recreational marijuana, with many people citing concerns about a possible increase in driving under the influence (DUI) violations as being the reason behind their opposition. Appellate courts in Arizona, however, have made a number of decisions in marijuana DUI cases that make it more difficult for prosecutors to convict registered qualifying patients under the Arizona Medical Marijuana Act (AMMA).

The most such recent decision came from Division One of the Arizona Court of Appeals. On December 22, 2016, the Court of Appeals vacated the conviction of man charged with driving while marijuana or its metabolite was in his body.

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Article Updated July 28, 2017                        “Public Health Crisis of Historic Proportions”                                                                                           

On December 6, 2016, United States Drug Enforcement Administration (DEA) Acting Administrator Chuck Rosenberg announced results from the 2016 National Drug Threat Assessment (NDTA), the comprehensive annual assessment providing “a national-level perspective of the illicit and remarkably dangerous drug threats facing the United States.” In a DEA press release, Rosenberg said that the report reconfirmed that opioids such as heroin and fentanyl are killing people in the country at “a horrifying rate.” Rosenberg said the country faces “a public health crisis of historic proportions.”

According to the NDTA, heroin overdose deaths more than tripled between 2010 and 2014. The 2016 NDTA found that Mexican transnational criminal organizations (TCOs) continue to act as the biggest criminal drug threat to the United States and are the primary suppliers of heroin as well as cocaine and methamphetamine.

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Proposition 205 Results for Legalization of Marijuana 

In the November 2016 election, five states including Arizona, had legalization of recreational marijuana on the ballot for voters.  Of those, it passed in four states. But Arizona was not one of them.

Proposition 205 gave Arizona voters the opportunity to legalize recreational use of marijuana for individuals 21 or older, failed in Arizona.

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Arizona’s Proposition 205 -Legalization of Marijuana 

If Prop 205 passes, marijuana does not become instantly legal statewide. Sales of cannabis could begin as soon as March 1, 2018. The proposition establishes the creation of a Department of Marijuana Licenses and Control that would be responsible for licensing and regulating retail stores as well as entities involved in growing, manufacturing, distributing, and testing marijuana products. The governor would appoint the director as well as the seven members of the Marijuana Commission—four of whom would have no financial stake in a marijuana establishment and three with a “controlling” interest in a marijuana establishment.

Cannabis would only be sold at shops licensed by the state, and the number of licensed marijuana retail stores would be capped at 10 percent of the number of Series 9 liquor store licenses. Localities would have the power to impose limits on where and when marijuana businesses are allowed to operate. People could also give marijuana to other people, provided that the amount involved is not more than one ounce, there is no money exchanged, and the gift is not publicly advertised.

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Understanding 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:

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