Arizona Criminal Defense Attorney Blog

October 10, 2019

Medical Marijuana Patients Breathing Easier Now That They No longer Face The Threat Of Prosecution For Possessing Cannabis Alternatives, After Recent Arizona Supreme Court Decision

Your Essential Resource Guide to Current Cannabis Laws in light of recent landmark case ruling, and new Arizona legislation

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

Series: Part 1 of 2

The AMMA Cannabis Controversy

It’s been nearly a decade since the state passed the Arizona Medical Marijuana Act (AMMA).

According to the DHS statistics for 2018, the number of active qualified Arizona medical marijuana cardholders totaled 198,017. At year-end, there were an additional 108,819 new applications pending for qualified patient status under the AMMA.

Amidst the success of the program, the state has continued to grapple with how to interpret the law.

The most recent controversy was whether qualified patients had immunity under the AMMA law to possess hashish, resin, or other forms of cannabis besides dried leaves, buds and flowers.
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June 11, 2019

Arizona’s High Court Finds Defendant’s Consent to DUI Blood-Test Not Involuntary, Simply Because Police Advised Him of the Consequences of Refusing the DUI Test

When is Your Consent to a DUI Breath or Chemical Test Considered Involuntary, under the State's Implied Consent Law?

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

A DUI breathalyzer or chemical test is considered a protected search under the 4^thAmendment of the U.S. Constitution. This means that police need a warrant with probable cause to conduct a DUI breath, blood or urine test, even under Arizona’s Implied Consent law.

There are a few exceptions to the warrant rule, one of which is voluntarily consent. If the driver expressly consents to a breath or chemical test, the officer is not required to have a warrant.

Arizona courts have held that if a person was coerced by the officer to take the DUI test then their consent is not voluntary (State of Arizona v. Valenzuela, 2016). An involuntary consent does not relieve police of the requirement of obtaining a warrant.

May 1, 2019

When Drug Courier Profiling Evidence Is Used Against You at Trial for the Purpose of Proving Guilt, It Deprives You of an Essential Right

Arizona Supreme Court clarifies standards for determining if a fundamental and prejudicial error occurred at trial.

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

The U.S. Supreme Court has long held that when the prosecution uses drug courier profiling evidence mainly as a way to prove guilt, it violates a person’s constitutional right to a fair trial.

While police can use drug courier profiling evidence to establish reasonable suspicion for purposes of stopping someone to investigate a crime, this evidence cannot be used at trial largely to prove they are guilty.

This is because by doing so, the defendant is essentially prosecuted for the conduct of others, rather than that of the defendant.

August 28, 2018

New Law Makes Wearing Mask or Disguise While Committing a Crime Aggravated Factor in Sentencing

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

Arizona lawmakers recently passed House Bill 2007 (HB2007), adding an aggravating circumstance to the list of 26 that were previously enumerated in the statute. The law became effective August 3, 2018.

The newest aggravating circumstance is triggered when a defendant “uses a mask or other disguise to obscure the defendant’s face to avoid detection” during a crime.

To be clear, the new aggravating circumstance doesn’t criminalize wearing a disguise. Rather, it allows for an increased punishment for those who are convicted of committing a crime, while wearing a mask or disguise.

August 2, 2018

What You and Your Passengers Need to Know about Police GPS Tracking

Your Rights and Arizona GPS laws

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

The U.S. Supreme Court previously held that Global Positioning System (GPS) tracking on a driver’s vehicle comprises a search under the 4^th amendment. This means that police need a warrant to conduct GPS tracking on a vehicle owned or driven by a suspect when the vehicle is legally in their possession.

Earlier this year, the Arizona Supreme Court issued a landmark opinion in an Arizona drug trafficking case in which the passenger in a GPS tracked vehicle was arrested in addition to the suspect driver.

In the case, the Arizona Supreme Court ultimately affirmed the defendant’s conviction, finding that the officers who conducted the search relied on previous case law in place, that held the conduct was permissible. With that, the court determined that the police acted properly and did not suppress the evidence, based on the good faith exception.

May 23, 2018

How to Avoid Self- Incrimination while in Custody for Aggravated Assault Charges

3 self-incrimination traps to avoid; How to invoke your rights; Aggravated assault penalties in Arizona; How to resolve your criminal charges

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

Arizona jails and prisons have measures in place to assure no criminal activity is in progress related to the defendant’s communications.

Authorized jail and prison officials screen mail, and record suspects’ phone calls.

The information they obtain may be used to prosecute pending or future criminal charges. The exception to this would be privileged communications between a defendant and their criminal attorney.

February 16, 2018

Does Enhanced Sentencing Apply under DCAC if Victim is Fictitious?

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

The Arizona Supreme Court recently ruled that enhanced sentencing does not apply if the victim is fictitious.

Under Arizona’s Dangerous Crimes against Children statute (DCAC), a person convicted of a sexual crime against a child is subject to enhanced sentencing. These penalties are severe and designed to provide greater punishments to those convicted of the offenses.

The question for the Court in this case was whether or not enhanced sentencing should be imposed under A.R.S. § 13-705(P) (1), when there was no actual victim.

November 4, 2017

Admissibility of Expert Testimony in Domestic Violence Charges

Arizona Supreme Court Limits Admissibility of “Cold” Expert Testimony

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

If you were arrested for domestic violence or assault, the prosecution may attempt to use profiling evidence or “cold” expert witness testimony against you.

Profiling evidence and “cold” expert witness testimony is not always admissible. The decision about admissibility is a decision for the court. When making this determination the court will consider the rules of criminal evidence, content, relevance and objectivity of the testimony.

If improper witness testimony is admitted, it can potentially lead to an unfair guilty verdict. Therefore, proper challenges should be made as to the admissibility of planned expert witness testimony.

September 13, 2017

How to Challenge Your Narcotics Transportation for Sale Charges

A Review of 3 Uncommon Criminal Defenses Used for Drug Trafficking Charges

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

In a recent Arizona Court of Appeals drug case, the court considered a defendant’s conviction for narcotic drug trafficking charges. The defendant was sentenced to a presumptive five-year term of imprisonment and appealed the conviction.

The defense argued that (1) the drugs found in his car should have been suppressed, (2) improper profile testimony was admitted, and (3) the sanction imposed for a Batson violation wasn’t adequate.

Drug trafficking charges are multi-facet in nature, and challenges can take place on numerous fronts. In this article three types of challenges will be discussed:

August 21, 2017

What You Should Know about Threats, Guns and Assault Laws

Criminal Defense for Intimidation, Threats, and Firearms on School Grounds Mesa AZ

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

Currently the state of Arizona limits circumstances in which firearms can be carried onto school grounds.

Unless specifically outlined by law, carrying a loaded firearm on any school grounds will result in criminal charges under Arizona’s Weapons Misconduct law A.R.S. 13- 3102(12).

This article outlines the weapons misconduct laws related to guns on school grounds, threatening and intimidation (assault) laws; and criminal defense for weapons misconduct and assault charges.