Arizona Criminal Defense Attorney Blog

Aggravated Assault - Justification Defense for Crime Prevention: AZ Appeals Court Overturns Conviction


♦ Featuring Tips from Authorities: How to Safely Respond (or not) to Road Rage ♦

Our Federal and State Constitutions afford us the right to bear arms, to protect ourselves, our families, and others from immediate harm due to a serious crimes in progress.

So why then, must we be concerned about facing criminal charges if we exercise those rights?

The answer to this question is two-fold.

First there’s a fine line between what we may feel is justified and what the language of the law states is justified.

Second,  the police, prosecution, court and jury may not perceive the same imminent threat that we did at the moment the actions were taken.

So while it is true we have the right to protect ourselves, families, homes, and even to prevent a crime, we must be prepared to defend our actions.

In this article , we outline a recent Arizona Court of Appeals case that began as a road rage incident.

The defendant was convicted of Aggravated Assault with a deadly weapon.  He challenged his conviction based the Appeal on flawed jury instructions provided to the jurors.

At the heart of the case were two important legal concepts, central to the decision by the Trial Court and the Arizona Appeals Court verdicts in this case:

  1. Arizona’s “Justification – Crime Prevention” Defense in a Road Rage incident;
  2. The critical impact of Jury Instructions on the verdict.

The discussion topics in this article are broken down into the following 8 segments:

  • Incident – Circumstances that led up to the incident;
  • Why the Jury got it Wrong/ Why the jury ruled the way they did;
  • Appeals Court Extended Summary;
  • Arizona’s 15 Justification Defenses;
  • Justification Use of Force – Crime Prevention;
  • Arizona Aggravated Assault with Deadly Weapon Laws;
  • What to do if you find yourself the target of Road Rage;
  • Criminal Defense for AZ Aggravated Assault Charges

                                                           Part I – Incident   

               [Arizona Court of Appeals Division II.  No. 2 CA-CR 2014 – 026  7 Filed 8/9/15]

The defendant was driving with his fiancé and her 4 year old daughter in the vehicle.

Following a minor traffic mishap, another driver began honking and tailgating them.

The angry driver (victim) pulled up alongside the defendant’s vehicle in road rage.

The angry driver waved a gun while pulled up next to their vehicle, frightening the passengers.

At the next stop light, the defendant got out of his vehicle, brandishing his own gun.

The defendant stood there, with his gun. He did not move to harm the victim;

The light turned green.  The defendant got back in his vehicle, and drove away.

The victim continued to chase him, and ran two red lights in the process.

The victim then called #9-1-1 reported the defendant.

The Police dispatcher repeatedly urged the victim to stop chasing the defendant, and to return to a nearby shopping center to meet an awaiting police officer.

The victim did not immediately obey the dispatcher, but did finally retreat and return to the shopping center.

The victim then took a detour to another area of the shopping center before meeting the officer.

Once stopped, the officer searches the victim’s vehicle but did not find any weapons. The victim denies having a gun.

The defendant was subsequently charged with aggravated assault with a deadly weapon.

The defendant chose to go to trial to prove his innocence.

The jury found him is “guilty.”

The defendant was convicted and sentenced to 5 years in prison for Aggravated Assault with a deadly weapon.

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Your Vote Counted - We made it to The Expert Institute’s Best Blog Contest Finals.

Thanks to each of you who nominated our blog for the Expert Institute’s Best Legal Blog Contest.

♦You can cast your vote right from this page for the finals.♦

We would sincerely appreciate your help in sharing this with our call to action as well.

We are grateful to announce that our Arizona DUI & Criminal Defense Lawyer Blog, has been selected for the competition finals as one of 250 law blogs from a field of more than 2,000 potential nominees.

Now that the blogs have been nominated and placed into their respective categories, it is up to you, the readers to select the very best to win one of the largest competitions for law article writing online today of its kind.

The next stage of the competition will run from August 27, 2015 to until the close of voting at 12:00 AM on October 9, 2015; the votes will be tallied and the winners announced.                                       

Can We Get Your Vote?

Vote Here

To vote, simply visit this The Expert Institute’s Blog Contest Voting Page. 

Then vote for James Novak, Law Office of James Novak’s Arizona Criminal Defense Blog.

Just check the “Vote” box.

Thank-you for Voting!

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What to do if you are being assaulted by police: Your rights, defenses, & remedies in Phoenix, AZ

Part I of II


This collaborative two part series was inspired by my friend and colleague, Eyitayo Ogunyemi, LL.B, B.L, Attorney and Human Rights Advocate in Lagos, Nigeria.

Nigeria USA Flag

This is part I of II which applies to Phoenix, AZ laws, in the USA.

Eyitayo Ogunyemi has written Part II, which applies to Lagos, Nigerian laws.

To symbolize human rights, we have chosen the number “15”, to represent 15 Universal Declaration of Human Rights, that often involve police brutality if violated. They include:

Freedom from slavery; Freedom of opinion or expression; Right to peacefully assemble; Freedom from non-discrimination;  Freedom from brutality and torture; Freedom inhumane or degrading treatment;  Freedom from arbitrary arrest, detention or exile; Freedom of thought, conscience and religion; Right to equality;  Right to life, liberty and security;  Right to remedies for violations of human rights under the law; Right to trial; Right to presumption of innocence until proven guilty; Right to adequate shelter, food, clothing, medical care and other fundamental needs; Right to protection against interference or attacks against privacy, family, home, honor, reputation,  or correspondence.

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Why Two Appeals Court Rulings Contrasted: Justices Review Effects of AMMA on Marijuana Odor on Probable Cause.

In late July, two different Appeals Courts in Arizona released contrasting opinions involving appeals to dismiss the Marijuana evidence due to lack of probable cause for the search.

In both cases the defendants argued that the effects of Arizona Medical Marijuana Act (AMMA) were that the smell of Marijuana should not be used for determination of Probable cause.

In one case the conviction was reversed.  In the other case the conviction was affirmed.  Here we find out why they differed.

Arizona Appeals Court Ruling – Case #1 (No. 2 CA-CR 2014-0181)

On July 20, 2015, the Arizona Court of Appeals Division Two issued the first ruling.

The Court considered the effect that the Arizona Medical Marijuana Act (AMMA) had on probable cause to for issuance of search warrant, based on an odor of Marijuana.

In this case, the Appeals Court ruled that the scent of marijuana alone was insufficient evidence of criminal activity.

Therefore, it was not adequate to justify probable cause for search and seizure warrant.

The Appeals Court held that in order to satisfy the probable cause standard, the scent of the Marijuana would need to be combined with other evidence or facts, which were not presented in this case.

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Your Guide to Understanding Consequences of DUI with Accidents; and Unforeseen Parental Liability Actions


In a tragic turn of events, Phoenix police reported that a 14-year-old boy, driving a mid-size sedan, allegedly under the influence, sped through a red light signal and crashed into an SUV.

The SUV was carrying three people, a man, his girlfriend and his girlfriend’s three-year-old daughter.

The toddler was thrown from the SUV and sustained life threatening injuries.  The man suffered head and lung injuries.

The man’s girlfriend, a passenger in the SUV is listed in stable condition but still in the hospital late last week.

The 14-year-old driver of the sedan that ran the red light signal, and his 17- year-old passenger whom the police report were under the influence of alcohol both suffered minor injuries.

It is unclear who owned the sedan driven by the 14-year-old was driving.

The driver was later taken to the Juvenile Court Center.  The 17-year-old passenger was released to his family.

The 14-year-old has reportedly since been charged as an adult, and faces 4 counts of aggravated assault with a deadly weapon.

According to Maricopa County Prosecutor and Court records, the decision to prosecute the youth as an adult was based on the severity of the accident and victim’s injuries.

A secured release bond was ordered by the judge for $100,000.00, and the next court date set.

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Police officers are not exempt from search warrant requirements, in order to perform community caretaking duties.

Unlawful Home Search Under the Fourth Amendment of the U.S. Constitution and the Arizona Constitution, you have a right to be free from unreasonable searches and seizures.
This means that in most cases, a warrant is required to search your home, with few exceptions.

The exceptions include situations where “exigent circumstances” exist.

This allows police to make a warrantless entry when they have probable cause to arrest a suspect who has fled, or to stop the imminent destruction of evidence.

Another exception is that the police may make a protective sweep incident to a lawful arrest.

Still another exception is an entry due to an objectively reasonable basis for believing someone within the house needs immediate aid.

Recently, the Arizona Supreme Court limited warrantless searches in connection with the “Community Caretaking Exception,” which is the topic of this discussion.

The Incident

In this case, police officers and paramedics went to the defendant’s residence after receiving calls from neighbors, complaining that the defendant was behaving erratically.

When police and paramedics arrived, the defendant told them that he and his family had been handling up to seven pounds of mercury inside the home, which was being kept in the home in a glass jar.

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Overview of new law: Qualified first responders and training; Liability & Immunities; Good Samaritan Laws; Criminal Penalties & Defense

Overview of AZ HB 2489: Combatting Heroin Overdoses

A bill we have been following closely, AZ HB 2489 was passed on April 10, 2015. The expected  effective date is July 3, 2015. Arizona now joins 26 other US states that have passed similar legislation.

First responder’s administration of opiate reversal injections, have been credited with saving over 10,000 lives in the USA where overdoses were reversed.

According to the National Centers for Disease Control (CDC), accidental overdose is now the number one cause of death in the USA, exceeding even automobile accidents for people among the age of 25 and 64.

Earlier this year, the CDC reported that heroin overdose deaths nearly quadrupled between 2000 and 2013.  An increasing number of Arizona residents have been overdosing on heroin and opiate-based painkillers like Codeine.  Arizona is now the sixth-highest state for heroin overdose fatalities.

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Case analysis; Impacts of Ruling on Arizona; Your 4th Amendment Rights at a Stop: Arizona Criminal Defense

Police cannot prolong stop’s duration beyond its initial purpose, without reasonable suspicion.

The United States Supreme Court recently decided an important case  that tilted in favor of 4th Amendment protections against unlawful detention, search and seizures.

Police dog

The case arose when a K-9 police officer pulled over the defendant for moving traffic violation.  The driver was in driving on a highway shoulder, in violation of state law.  The officer took the driver’s and passenger’s driver’s licenses, registration and proof of insurance.

The officer returned to his patrol car and began a records check of the driver.  The officer then returned to the suspect’s vehicle, and began questioning both the driver and passenger about where they were coming from and their destination.

After conversing with the driver and passenger the officer returned to his patrol car, and finished the records check.    Following the completion of the records check, the officer called for backup.

While waiting for back-up, the officer began writing a warning ticket to issue to the driver for the traffic violation.  For the third time, the officer returned to the suspect’s vehicle where he issued the warning ticket to the driver.

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Your Rights at a Stop; 10 Defenses for Drug Charges; Mitigating Sentencing; Drug Trafficking Laws; Penalties.

Police Stop Arizona

This is Part 2 of our Case Study on a recent Arizona Court of Appeals ruling involving Marijuana Trafficking charges.

If you’re just joining us, here’s a quick summary of the case: Recently, an Arizona Superior Court granted suppression of the Marijuana evidence that led to the State’s dismissal of the charges. The State promptly appealed arguing that the lower court erred in dismissing the Marijuana evidence found in the vehicle the suspect was driving.   The state argued on Appeal that the detention of the suspect for 40 minutes while awaiting the drug K-9 unit was not unreasonable.

The Appeals Court agreed, and overturned the lower court’s ruling, based on totality of the circumstances at the time.   The factors that the Appellate Court considered were the police officers extensive knowledge and experience in drug trafficking detection; prior drug crimes history of the suspect; voluntary statements made by the suspect at the time of the stop; and the suspect’s consent to search the vehicle he was driving.

In this discussion we focus on criminal rights at a stop, common defenses for drug crimes, laws, and drug trafficking penalties in Arizona.

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Suspect’s 40 minute detention, while awaiting drug K-9 unit was not unreasonable.

Arizona Drug K-9 UnitIn a case decided earlier this month, an Arizona Appeals Court ruled that an officer had enough “reasonable suspicion” to detain a suspect 40 minutes while awaiting the drug K-9 unit.

The court considered the “Totality of Circumstances” or “the whole picture”, to conclude that the detention was not unreasonable.

Case Facts

The suspect was pulled over, after the police officer observed the driver swerving and traveling at varied rates of speed.

The officer approached the vehicle, and requested the driver’s license, and registration.  The driver complied as well as providing the rental car agreement.

The officer asked the driver where he was going, at which point the driver provided several answers. The officer reported that the answers were inconsistent, “confusing” and “perplexing”.   The officer reported that the responses raised the officer’s suspicions.

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