Arizona Criminal Defense Attorney Blog

November 10, 2022

Arizona Court Decides Defendant Need Not Own a Car to Comply with Ignition Interlock Statute

Recently, an Arizona court of appeals had to decide the implications of a statute that allows defendants convicted of extreme driving under the influence to be released from jail early if they install an interlock device on their car. Specifically, the statue says that defendants guilty of extreme DUI can have 31 days cut off their jail time if they install interlock devices in their vehicles. In this instance, the court had to decide what would happen with a defendant convicted of extreme DUI if she or he did not, in fact, own a car in the first place.

Facts of the Case

According to the opinion, the defendant was charged with aggravated and extreme aggravated driving under the influence. The defendant sold her car to pay for a lawyer, later pleading guilty to the felony. The court sentenced the defendant to 45 days in jail, adding that all but 14 of the days could be suspended if the defendant were to equip her car with an ignition interlock device for 12 months.

The defendant asked to be released early from probation, but the State pointed out she had not installed the required ignition interlock device and that she would still have to serve her full 45 days in jail. In response, the defendant argued she did not install the device because she no longer owned a car, and thus that she should not be subject to the full time in jail. The superior court decided to release the defendant early, and the State appealed.

October 28, 2022

Arizona Court Denies Defendant’s Appeal in Case Involving Altercation with Police Officer

by James E. Novak, P.L.L.C.

In a recent case coming out of an Arizona court, the defendant appealed his conviction for aggravated assault on a police officer. On appeal, the defendant argued that the judge in the lower court should have informed the jury that they could have reasonably found he was acting in self-defense against the police officers. Considering this argument, the higher court concluded that the self-defense instruction was not appropriate, and the defendant’s appeal was denied.

Facts of the Case

According to the opinion, law enforcement received a service call to investigate the defendant’s fifth-wheel trailer in a backyard. A police officer arrived at the scene, knocked on the trailer door, announced that he was from the police department, and ordered the defendant outside to talk.

The officer informed the defendant that he was under arrest. When the officer began putting the defendant in handcuffs, the defendant threw his elbows out, pulled away, and turned on the officer. A fight ensued. At one point, the defendant struck the officer with several solid objects. The officer then drew his pistol and fired a single round into the defendant’s neck.

October 14, 2022

Arizona Court of Appeals Sides with State in Dog Sniff Case

by James E. Novak, P.L.L.C.

In a recent case before the Arizona Court of Appeals, the defendant unsuccessfully argued that a police officer’s canine search of her vehicle was unwarranted. Originally, the defendant was charged, convicted, and sentenced for possession of a narcotic drug for sale. On appeal, she argued that the evidence of the drugs should have been suppressed at trial because the officer did not have a legal basis for having his canine search her car. The court of appeals disagreed with the defendant and affirmed the lower court’s decision.

Facts of the Case

According to the opinion, a state trooper stopped the defendant and her friend because they had been following other cars too closely on the road one evening. The officer pulled the car over, asked the defendant and her friend a few questions, and requested that each individual hand over their identification. Neither the defendant nor her friend had a valid driver’s license.

The officer asked the pair if his dog could sniff around the car, and they both consented to the sniff. At that point, the dog alerted near the passenger door, and a search of the car revealed 275.6 grams of heroin under the defendant’s seat. A second search of the car revealed an additional 272.2 grams of heroin.

September 20, 2022

Arizona Court Denies Defendant’s Appeal in Arizona Murder Case, Affirming His Conviction and Sentence

by James E. Novak, P.L.L.C.

In a recent Arizona murder case, the defendant unsuccessfully appealed his conviction and sentencing for second-degree murder. In the appeal, the defendant argued on many counts, challenging the lower court decision through the Arizona separation-of-powers doctrine, disputing evidence introduced at trial, filing motions to suppress evidence, disputing jury instructions, and arguing that his sentencing was also improper. The appeals court denied his appeals and affirmed both his conviction and his sentence.

Facts of the Case

According to the opinion in May of 2015, the defendant, a Lance Corporal in the United States Marine Corps, lived with his wife and twenty-month-old step-daughter at the Marine Corps Air Station in Yuma. On May 18, his wife spent time playing with the daughter, and neither she nor their neighbor observed any injuries on her. Photographs taken by the defendant’s wife that day also do not reveal any evidence of injuries to her daughter. That night when the defendant picked up his wife, she was upset that he did not bring her daughter because she did not like leaving her daughter alone. The defendant told her during the ride home that he had spanked the daughter because she had been misbehaving. When they arrived home, the defendant’s wife went directly to bed, while the defendant checked in on the daughter before going to sleep.

The next morning, when the wife went in to see her daughter after the defendant had left for work, she found her “laying halfway off the bed with her head on the floor.” Her daughter’s body was cold and stiff. She saw marks that resembled burns and called 911. When paramedics arrived on the scene they were unable to resuscitate the daughter, who had no pulse. She was then transported to the hospital where she was pronounced dead. The defendant was subsequently interviewed and investigated by Naval Criminal Investigative Service (NCIS) agents as well as the Yuma Police Department. During his interviews with the NCIS agents, the defendant made several incriminating statements and signed a waiver relieving them of the need to advise him of his constitutional rights.

September 10, 2022

Arizona Defendant Loses Appeal in Case Involving Aggravated Assault Against Police Officer

by James E. Novak, P.L.L.C.

Late last month, an Arizona Court of Appeals ruled on a defendant’s appeal of his conviction for aggravated assault against a police officer. In writing its decision, the court considered the defendant’s argument that his trial result should be overturned due to unfair testimony offered by a police officer on the stand. Ultimately, the court disagreed with the defendant’s contentions, and the original verdict was affirmed.

Facts of the Case

According to the opinion, police were responding to a report of theft in the parking lot of a Family Dollar store when they spotted the defendant in this case. The defendant matched the description of the suspect they were looking for, so they approached him to investigate the situation. As soon as the officers approached, the defendant began running away, at which point one officer took the defendant by the arm and reached for his handcuffs.

Subsequently, the defendant swung his elbow back towards the officer and pushed the officer away. The officer fell to the ground, and the defendant continued to run. The officer was later treated at the hospital and diagnosed with a head injury as a result of the incident.

August 31, 2022

10 Instances Where Breathalyzer Tests Can Be Inaccurate

by James E. Novak, P.L.L.C.

Quantifying the impact of alcohol upon a person has long been a goal of the scientific community, with studies dating back as early as 1874. In the contemporary legal setting, the breathalyzer test, also known as alcohol breath testing, is touted as a highly accurate and definitive tool for detecting Blood Alcohol Content (BAC). BAC is a vital measure for determining if someone is operating a vehicle under the influence of alcohol. Unfortunately, breathalyzer tests are not always as accurate as they are portrayed to be. Here are 10 instances where breathalyzer tests can miss the mark:

Breath machines are responsive to temperature and will provide inaccurate readings if not calibrated to adjust to a change in ambient temperature.
The pattern of breathing may affect the validity of a test. Holding your breath for 30 seconds could result in an increase of a BAC of .07% to .081% or more.

August 11, 2022

Arizona Court Denies Defendant’s Appeal in Arizona Drug Case, Rejecting Defendant’s Argument That He Was Categorized Incorrectly

by James E. Novak, P.L.L.C.

In a recent appellate opinion in an Arizona drug case, the defendant unsuccessfully appealed his conviction of one count of possession or use of dangerous drugs and one count of possession of drug paraphernalia with the aggravating circumstance that he was on release from confinement and had historical prior felony convictions. In the appeal, the defendant argued that he was incorrectly charged, as the two prior felony convictions used to enhance his sentence did not qualify as historical prior felony convictions. The appeals court affirmed the lower court decision, finding that because the defendant did not argue that his prior convictions were too remote in time to qualify as historical prior felony convictions, the issue could only be reviewed for fundamental error. Subsequently, the appeals court ruled that defendant did not show that the superior court did not commit a fundamental, prejudicial error by sentencing him as a Category 3 offender.

Facts of the Case

According to the opinion, the defendant was arrested and charged with possession or use of dangerous drugs and possession of drug paraphernalia. The defendant was on parole at the time and had at least three prior felony convictions, placing him in Category 3 as a repeat offender. His prior convictions were possession of a dangerous drug, a class 4 felony, committed on April 2, 2016, possession of drug paraphernalia, a class 6 felony, committed on November 20, 2013, and a class 6 felony, committed on December 26, 2013.

The Decision

On appeal, the defendant argued that his convictions for possession of drug paraphernalia, committed on November 20, 2013, and December 26, 2013, do not qualify as historical prior felony convictions because he committed those offenses more than five years before he committed the present offenses on June 2, 2019. In superior court, the defendant and defense counsel expressly stated that they acknowledged his parole status and his three prior felony convictions. The appeals court found that because the defendant did not argue to the superior court that his 2013 drug offenses were too remote in time to qualify as historical prior felony convictions, the appeals court could only review the decision for fundamental error. To prevail under fundamental error review, the defendant must establish both that fundamental error exists and that the error caused him prejudice. Fundamental error review goes to the foundation of the case, deprives the defendant of a right essential to his defense, or is of such magnitude that the defendant could not possibly have received a fair trial. The appeals court acknowledged that the improper use of a conviction as a historical prior felony conviction for enhancement purposes constitutes a fundamental error.

July 26, 2022

Arizona Defendant Unsuccessfully Argues Against Unfair Identification Method on Appeal

by James E. Novak, P.L.L.C.

In a recent weapons case coming out of an Arizona court, the defendant argued on appeal that the pretrial identification used in his case was both suggestive and unreliable. According to the defendant, the identification should have been conducted in a more objective manner, and his convictions for misconduct involving weapons should be overturned on these grounds. The court of appeals disagreed with the defendant and ultimately affirmed the original convictions.

Facts of the Case

According to the opinion, the defendant was walking with a woman one evening when he allegedly began firing shots into traffic on the road. A driver, who happened to be close to the scene at the time, observed the defendant firing into traffic. He immediately pulled over at a convenience store and called 911, giving the operator a general description of the defendant and of what he had seen.

July 11, 2022

Defendant in Arizona Drug Case Loses Appeal, Despite Argument That Evidence was Insufficiently Authenticated

by James E. Novak, P.L.L.C.

In a recent case coming out of an Arizona court, the defendant appealed her convictions and sentences for several drug-related crimes. On appeal, the defendant specifically argued that the prosecution failed to provide a sufficient foundation for some of the evidence presented against her at trial. After considering this argument, the court of appeals affirmed the defendant’s original convictions.

Facts of the Case

According to the opinion, a confidential informant reached out to the police and offered to set up a drug deal with a specific dealer he knew – that dealer later became the defendant in this case. When the police officers agreed to the set-up, the officers met up with the informant and observed as he reached out to the defendant to organize the logistics of the transaction. The officers then drove the informant to the previously agreed-upon location, which was a parking lot nearby.

The officers observed the drug deal take place, then picked up the informant and retrieved the drugs as well as the recording device that were both on his person. The officers then obtained a search warrant to retrieve the defendant’s private Facebook messages. After further investigations, the defendant was charged with the sale of a dangerous drug as well as participating in a criminal syndicate.

June 26, 2022

Arizona Court Denies Defendant’s Appeal of Denial of Motion for Mistrial

by James E. Novak, P.L.L.C.

In a recent gun case coming out of an Arizona court, the defendant’s appeal of the court’s decision in his case was denied. The defendant was originally charged with aggravated assault and disorderly conduct, and he was found guilty of disorderly conduct after a jury considered the facts of his case. On appeal, the defendant argued that the trial court should have granted him a mistrial because of one officer’s unfair and inaccurate testimony. The higher court disagreed with the defendant, affirming his original conviction.

Facts of the Case

According to the opinion, police officers arrived at the defendant’s apartment one evening in 2019 after receiving six emergency phone calls about an individual with a weapon. When the officers got out of their vehicles, they saw the defendant, who matched the descriptions that the 911 callers had provided. The defendant was walking in circles with two guns hanging from his waistband. One witness at the scene told the officers that the defendant had pointed the gun in his direction. Another witness insisted that he had not seen the defendant point the gun at anyone.

Regardless of whether the defendant had pointed the gun at any individuals, the officers recognized he posed a direct threat to the people around him. After finding four additional magazines on the defendant’s person, the officers arrested him and charged him accordingly.