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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.

Case #1 Overview 

The incident arose from a search warrant requested by police officers after they reported smelling a strong odor of marijuana from a multi-unit warehouse.

The judge issued the warrant, finding that the odor served as probable cause for search.

Prior to Arizona Medical Marijuana Act (AMMA) which passed in 2010, the courts recognized that the smell of marijuana indicated the probability of criminal activity, because Marijuana in any form was unlawful.

When the police arrived at the warehouse and entered, they found it empty.

So they requested a second warrant, to enter another building nearby based on the odor of Marijuana traced to that building.

The magistrate granted another warrant to search the second building.

In the second warehouse, they found dozens of marijuana plants and growing equipment.

They discovered that that young child and defendant both resided there.

The defendant was charged with child abuse, possession of marijuana for sale, production of marijuana, and possession of drug paraphernalia.

The defendant filed a motion to suppress the evidence on the grounds that the marijuana scent was not enough to establish probable cause of criminal activity.

The trial court denied the motion, finding that the AMMA didn’t affect probable cause determinations.

The defendant was convicted of the charge, and sentenced to concurrent prison terms, the longest of which imposed a 3.5 year term.

The defendant appealed his convictions arguing that the AMMA should change the probable cause analysis with respect to the smell of marijuana.

One effect of the AMMA was that Marijuana may be lawful in other places now, for example, where it’s cultivated.

As a result, it is in both possession as well as other places where Marijuana is considered lawful.

And other circumstances now exists besides “mere possession itself”  where criminal conduct v. non-criminal activity must be determined.

Based on this rationale, the Court ruled that multiple circumstances should be considered along with the marijuana odor factor, in order to determine if police have sufficient probable cause for search.

In its decision, the appellate court explained that probable cause exists when a reasonably prudent person, based on the facts known to the police officer, would be justified in concluding that the items sought are related to criminal activity and will be found in a particular location.

The Court held that the odor of Marijuana does not necessarily mean that criminal activity has happened or will happen.

Lawful operations that take place under the AMMA such as medical marijuana dispensaries will cause the buildings in which they occur to smell.

Accordingly, the court found that the smell of marijuana is now insufficient by itself to provide probable cause for a search warrant for a building.

There must be some circumstantial evidence of criminal activity beyond the mere smell of marijuana in order to find probable cause.

The court expressly limited the holding since it was the odor of Marijuana from a building that raised suspicion that a crime was in process, and not actions of a suspect.

The Appeals Court did not address the issue of whether the smell itself constituted reasonable suspicion to conduct an investigative stop or detention.

The Justices noted that despite the protections under the AMMA, smoking Marijuana in or in an automobile can still suggest a crime has occurred as prohibited; as well as smoking Marijuana in public prohibited under A.R.S. 36-2802.

Therefore the smell of marijuana smoke in public places or from a vehicle may still give rise to probable cause and reasonable suspicion for investigation, depending on a reasonable assessment of the circumstances.

Arizona Appeals Court Ruling – Case #2 (No. 1 CA-CR 14-0072)

The second case  opinion filed July 23, 2015, heard in Arizona Court of Appeals Division One, was an appeal for misdemeanor possession or use of marijuana.

During the proceeding in Maricopa County Superior Court, the defendant’s motion to dismiss a warrantless search of his vehicle was denied, resulting in the conviction.

 Case #2 Overview 

The Appeals Court found no error in denying the suppression of the evidence and affirmed the conviction.

This incident arose after police on routine patrol noticed a vehicle had window tinting darkness in violation of Arizona window tinting laws.

When they approached the vehicle they smelled a strong odor of Marijuana coming from inside of the vehicle.

The officer asked the defendant to step out of the vehicle. The defendant complied  without incident.

The police officer then searched the vehicle, and noticed an empty prescription medication bottle in the center console.  He opened it and smelled a strong odor of burnt marijuana.

Under the driver’s seat the officer then found what was described as a “marble size’ amount of unburnt marijuana.

Police arrested the suspect.  Following the arrest, the suspect’s Miranda Rights were read.

At that point the suspect admitted that the pill bottle that contained the burnt marijuana belonged to him.

During the lower court proceedings the defendant argued that automobile exception to the search based on “plain smell of marijuana” doctrine no longer authorizes police to search vehicles, due to the enactment of Arizona Medical Marijuana Act (AMMA) A.R. S. 36-2801.

The Superior Court denied this argument citing the Plain Smell doctrine.

“Plain smell” standard adopted in State of Arizona v. Harrison, which holds that the AMMA does not eliminate the “Plain Smell” Doctrine.

The Court also rejected the argument by the defendant that under protections of the AMMA Police must presume that any odor of marijuana they smell is lawful, and no longer an incriminating characteristic to establish probable cause of a crime.

The Appeals Court recognized that under the AMMA laws of Arizona A.R.S 36- 2811 a registered and qualifying patient is not subject to arrest, prosecution, or penalties for use as long as are using in accordance with the provisions of the AMMA law.

The Justices also noted the impacts that the Medical Marijuana Law does not have:

  • The AMMA does not immunize suspects from being subject to searches under the Plain Smell Doctrine.
  • The AMMA does not disqualify the plain smell of marijuana to be used as sufficient evidence to establish probable cause for search in Arizona.
  • The AMMA does decriminalize marijuana in the State.
  • The AMMA does not reduce the significance of Marijuana as an indicator of criminal activity.

The Appeals court held that the defendant did not show how the AMMA would extend immunities to him in this case.

The Court reviewed the “Plain Smell” Doctrine adopted by Arizona, that includes a three prong test. The doctrine makes the warrantless searches legal under the doctrine when the following criteria is met:

  • The officer is lawfully in a position to smell the evidence;
  • Incriminating character of the evidence is immediately apparent; and
  • The officer had lawful right of access to the evidence Arizona Baggett, 2013.

The Justices noted that there was no challenge to the fact that the officer was lawfully in a position to smell the marijuana, possessed lawful access at that time,  or that the marijuana odor constituted sufficient probable cause that a crime was in progress or had been committed.

This information verifying that the three three-prong-test standards were met during lower court proceedings.

Thus, the Appeals court ruled that the Superior Court did not error, in denying the motion to suppress.

Therefore the decision of the lower court to deny the motion to suppress, and the convictions were affirmed.

Analysis and Discussion: Comparison of Two Contrasting Verdicts; and Marijuana Odor as Probable Cause

The two Appeals Courts did, in fact, have conflicting opinions in one primary challenge in both cases.

That was whether or not the AMMA effects or dismisses marijuana Smell to be used as a determinate for probable cause.

(1) In the first case, the Appeals Court ruled that the AMMA did impact the plain smell doctrine and whether or not it could be used to determine probable cause.

The first Appeals Court ruled in its case, that under the AMMA where Medical Marijuana is legal, there is potential to smell Marijuana in a number of places such where it is lawful such as where it is being cultivated, stored, or sold. This was not the case before AMMA enactment.

In the first case the source of smell was a warehouse, which narrowed the ruling to the context of the inside of a building.

Use of Marijuana in a vehicle, or in public is prohibited under AMMA and Arizona Law.  Use of a Marijuana in a vehicle is still suggestive of criminal activity such as impaired driving.

These factors were paramount because to the Appeals Court decision to vacate the convictions.

(2) In the second case the Appeals Court rejected the idea that the AMMA impacted the “Plain Smell Doctrine” when determining probable cause for search; and that the Arizona Medical Marijuana Act does not immunize suspects from being subject to “Plain Smell” of Marijuana being sufficient for probable cause to search.  It only provides protections from arrest prosecution and any penalties.

Further, the source of the Marijuana smell was a vehicle, reinforcing their decision affirm the convictions since use in a vehicle is prohibited under AMMA;  Arizona Statute; and is still suggestive of criminal activity.

Marijuana smoke on a public road to still constitute reasonable suspicion or probable cause in the context of a vehicle search.  There are still some points that may need clarification.

The fundamental circumstances in the two cases are different, meaning it is unlikely that any changes in police policy related to Marijuana odor evidence at this point.

If in the first case, the odor of the marijuana had originated from an automobile, or while the suspect was in public, then a conflict in verdicts would have existed in Arizona case law.

It seems only a matter of time before these or other cases involving Probable Cause for Search based on Plain Smell of Marijuana cases end up in the Arizona Supreme Court.

Arizona and all other states progressing in Marijuana passage in some form, can expect repetitive ad continuing disputes that impact them at a state-wide level.

The state will continue to progress in setting forth laws or precedent guidelines that address the impacts the AMMA will have on reasonable suspicion or probable cause determinations in the future.

Considering the fact that the Federal laws still prohibit Marijuana under the Federal Controlled Substances Act, it is unlikely that they would agree to hear State Court disputes involving Marijuana.

So for now and unless the cases are heard in the Arizona Supreme Court, the Appeals Court decisions will be looked to as precedent cases.   And each case will need to be reviewed on a case by case basis.

Criminal Defense for Marijuana Crimes in Mesa AZ  

Marijuana and other Drug crimes in Arizona are very serious.  Even if a person is a qualified Medical Marijuana user, they may also be exposed to criminal charges if they are accused of violating the AMMA laws.

If you face Marijuana or any of drug charges it is crucial that you consult a criminal defense attorney to discuss your defense options and retain them for your charges. There may be defenses that can be used to challenge the charges.

In the cases above challenges were raised in the following areas:

1) Constitutional – Fourth Amendment Rights Violations for unlawful search and seizure;

2) Evidentiary –  Motions to dismiss evidence based on no probable cause for search; and

3) Statutory Challenges – Effect of AMMA on “Plain Smell” of Marijuana Doctrine to determine probable cause.

To protect your rights, and avoid self-incrimination, you should not make any statements to police regarding the charges until you speak with an experienced criminal defense attorney.

James E. Novak, Drug Crimes Defense Attorney, is a former prosecutor, experience trial lawyer, and dedicated drug defense attorney.  If retained he will provide you with a strong defense for your charges.

James Novak, of The Law Office of James provides a free consultation for active criminal charges and serves Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale Arizona.  Call today for a confidential and free consultation at (480) 413-1499.

Additional Resources

A.R.S. § 36-2801 (Arizona Medical Marijuana Act)

Arizona 13-3925

Requirements and Exceptions to Lawful Search Warrants in Arizona

Other Articles of Interest

Violations of “Search and Seizure” Laws: How they Impact Prosecution, July 23, 2013

U.S. Supreme Court Rules No Warrant Needed To Collect DNA If Arrested, June 9, 2013

Yes, You Have Constitutional Rights At An Arizona Checkpoint, July 5, 2014 Continue reading

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
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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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All Meth crimes in Arizona are Charged as felonies; all felonies expose a person to prison.

215628_addiction.jpgLaw enforcement officers recently conducted the biggest methamphetamine bust in Maricopa County’s history. Sheriffs investigated for several months before locating 18 bricks of meth (51 pounds) worth almost $1 million. The twenty-six year old suspect who possessed the bricks was arrested for meth possession and other felony charges. As outlined below, he may face serious prison time, depending on his prior felony record and other factors.

Earlier this year, Phoenix AZ participated in “Operation Justice V” sponsored by the U.S. Marshall. In one week 231 persons without outstanding felony warrants were arrested. A large number of those were wanted for “Dangerous Drug” offenses including Meth crimes.

The possession and sale of meth is a growing illegal drug market in Arizona, and some believe it has reached crisis proportions, now affecting teenagers as well. Even though Arizona’s teenage meth use has declined in recent years, Arizona remains among the top 10 states for teen meth use.

Meth is highly addictive and affects the neurotransmitter dopamine. It can be smoked, injected or snorted. Users experience a rush as well as increased energy, reduced appetite, and increased respiration. There is a danger of violent behavior, irritability or psychosis. Importantly, long-term use of methamphetamines can cause brain damage that is akin to Alzheimer’s.

Due to the addictive nature of Methamphetamines and other Dangerous Drugs, they have been found to lead other serious crimes by users, and dealers that include theft, burglary, assault, sexual assault, aggravated assault, home invasions, even murder.

Meth is classified in the Arizona Revised Statutes as a “dangerous drug.” Other “dangerous drugs” include LSD, ecstasy, mushrooms, mescaline and GHB. Willful possession of a dangerous drug can subject anyone who is convicted to serious punishments at the sentencing stage.

Possession of methamphetamine is a Class 4 felony, until someone possesses more than 9 grams, as in the case described above. Then it is charged as a Class 2 felony because it is assumed to be possession for sale. It is important to note that possession of methamphetamine cannot be charged simply as a misdemeanor, even if you have no priors.

Penalties are increased substantially for possession of large quantities of meth. If someone possesses more than 9 grams and it is a first offense, the presumption is that it is for sale. In that case, the minimum imprisonment sentence is five years, the presumptive sentence is 10 years and the maximum sentence is 15 years. However, if someone possesses more than 9 grams and it is not a first offense, the increase in sentencing jumps dramatically. A minimum imprisonment sentence for possession for sale of meth on a second offense is 10 years.

First time drug offenders are eligible for a deferred prosecution program in which they participate in probation during which the offender is subject to drug testing among other things. If they do not meet conditions of their probation, they may face jail time.

The Arizona Revised Statutes permit mitigation or enhancement of a sentence for reasons such as prior criminal convictions, the amount of the drug, and more. If charged with a Class 2 felony and aggravating factors, a defendant can face over 12 years in prison.

The sentencing laws are even harsher for those convicted of manufacturing methamphetamine. In response to the meth crisis, in 2000, Arizona’s child abuse law was expanded to include a presumption of endangerment when children or vulnerable adults are found at meth labs.

Additional Resources:

About Meth (Arizona Attorney General)
Arizona Drugs Defined Under Criminal Code
Mesa AZ Police Department

Possession of 2-4 pounds indicator of commercial dealings. Convictions call for mandatory prison.

131369_pot_of_gold.jpgCultivation or manufacture of marijuana for non-medicinal purposes (or growing outside the strict guidelines provided in connection with medical marijuana cards) remains a felony in Arizona. Those arrested and prosecuted for felony marijuana manufacturing can face serious punishments at sentencing.

There have been several significant arrests in Phoenix and Tucson for cultivation of marijuana recently. In mid-May, Tucson police found a house where 356 marijuana plants in various stages of growth were growing. They also found $18,000 in cash. On June 3, 2013 a canine unit from the Arizona Department of Public Safety found a driver carrying 7 pounds of marijuana. After arresting him, the Arizona Department of Public Safety searched his house in Phoenix and found 100 marijuana plants as well as handguns and growing equipment.

Marijuana cultivation for non-medicinal purposes is not only illegal, but can also be physically dangerous. On June 6, 2013, a marijuana grow house with about 1 dozen marijuana plants caught fire. The firefighters observed lighting, heaters, and Styrofoam insulation. Equipment used to grow marijuana can require an enormous amount of electricity.

As a result of the equipment used to grow large quantities of marijuana, circuits can get overloaded and wires get overheated, resulting in a fire. An entirely sealed room may require a dehumidifier, which also consumes electricity. Failure to control humidity can lead to mold or rotted wood. If propane powered generators are used, there is also the chance of explosion. Depending upon the circumstances, causing a fire and the ensuing property damage or injury to a person can lead to additional civil or criminal penalties beyond those levied for marijuana manufacturing.

Marijuana cultivation for non-medicinal purposes carries different punishments based on the dried weight of the marijuana. In addition to jail or prison time, those convicted of marijuana cultivation must also pay $750 in fines. If convicted of cultivating an amount less than 2 pounds, sentencing may be for a Class Five felony. As a first offense, marijuana manufacturing can be punished with prison for between 6-2.5 years in custody. A judge may offer a first time offender probation instead. If the defendant has one or more prior felony convictions, incarceration times increase even for this small amount.

If convicted of cultivating a quantity of marijuana with a dry weight of 2-4 pounds, the cultivation is a Class 4 felony that carries a mandatory prison sentence of 1 to 3.75 years of incarceration. With one prior felony conviction, the mandatory prison range is 2.25-7.5 years prison. The amount of mandatory prison time increases the more prior felony convictions a defendant has.

Marijuana cultivated in an amount that exceeds 4 pounds dried is a Class 3 felony with a mandatory prison sentence of 2-8.75 years in prison. This amount can increase up to 25 years of incarceration with two prior felony convictions.

Other penalties may apply in a situation involving a marijuana grow room or outside crop. A defendant may be charged not only with manufacture or cultivation, but also possession, sales, or trafficking depending upon the circumstances. As mentioned above, there may be property damage or other problems associated with a grow room.

There are several defenses to a charge of cultivating marijuana that an experienced criminal defense attorney may be able to raise. A number of these have a constitutional basis and involve the police following flawed procedures. For example, if the police coerced you into making a confession or failed to read you your “Miranda rights,” the evidence obtained this way is not admissible at trial. Similarly, where search warrants were not obtained or obtained improperly, they may violate Fourth Amendment rights.

Under certain circumstances, people are arrested and charged who were not aware of marijuana cultivation. This may happen, for example, on a rental property if marijuana is growing outside in a small part of a garden.

If you are arrested for manufacturing marijuana or for another marijuana-related offense, you should retain an attorney knowledgeable about these types of cases to defend and protect your rights. Contact The Law Office of James Novak at 480-413-1499 for a free consultation.


Additional Resources:

Arizona Drug DUI Laws
Arizona Drugs Defined Under Criminal Code
Mesa AZ Police Department

More Blogs

Arizona’s Medical Marijuana Law Stands Ground, Phoenix DUI Lawyer Blog, June 4, 2013
Marijuana DUI: The Impact of Montgomery v. Harris, Phoenix DUI Lawyer Blog, March 13, 2013

But Medical Marijuana Card Holders Not without Risk

540325_plantator.jpgAlmost three years after passage, Medical marijuana remains controversial in Arizona. Medical Marijuana was legalized in 2010 through voter passage of the Arizona Medical Marijuana Act (AMMA). The purpose of the AMMA is to protect patients with debilitating medical conditions, so that they can obtain necessary relief.

AMMA allows patients to get a registration identification card to show law enforcement officers that they are permitted to use marijuana for medicinal purposes. Visitors from another state that recognizes medical marijuana, like California, with equivalent cards are also protected.

Notwithstanding these state protections, some law enforcement officers refuse to recognize the card. Federal law, which trumps state law, does not recognize or permit a medicinal use for marijuana. An appellate case heard earlier this year further legitimized medical marijuana cards, but the facts of the case illustrate that it there are still risks from a legal perspective to be a medical marijuana user in Arizona.
In the case, a California driver (the defendant) was stopped when she entered Arizona. The authorities found and seized marijuana and other contraband. The State filed drug charges against the driver, dismissing them only after she produced proof of permission to use marijuana for medical purposes. The Superior Court ordered that the driver’s marijuana be returned.

The State appealed. It argued that the superior court could not order the sheriff to return the marijuana and that Arizona law not only requires “summary forfeiture” of any marijuana seized by law enforcement, but the sheriff could not return the driver’s marijuana or risk violating federal law and getting prosecuted.

The appellate court reasoned that law enforcement officers did not seize the marijuana in connection with a drug offense, since the driver was permitted to possess marijuana for medical purposes. Nor could the State win on the grounds that it could keep marijuana that came into its possession. This was because to do that would require either bringing civil forfeiture proceedings, or to be holding drugs possessed in a crime. Since AMMA decriminalized medical marijuana, the latter situation did not exist.

The State also argues that the AMMA did not expressly require them to return marijuana from a qualifying patient. The appellate court disagreed. It noted that no penalty could be placed on a qualified patient under the statute.

The State had also argued that the sheriff could be prosecuted for transferring marijuana under federal law. This, too, the appellate court repudiated. Federal law “immunizes” law enforcement officials who follow a court order.

The State’s final argument was that the superior court could not order that the driver’s marijuana be returned to her because her possession was a federal crime. The appellate court declined to decide whether federal law preempted AMMA for purposes of adjudicating this case. There was no actual or threatened prosecution of the driver under federal law, and the State was not a party with a personal stake who had standing to argue that federal law prevented the driver from possessing the marijuana. Accordingly, the appellate court affirmed the ruling of the superior court.

It’s clear that this will not be the last time a defendant will have to deal with a situation in which state law enforcement attempt to ignore AMMA. Officers may continue to arrest drivers, requiring them to come to court to fight the charges brought against them.


Additional Resources:

Arizona Drug DUI Laws

Arizona Court of Appeals Division 1

Arizona Drugs Defined Under Criminal Code

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Criminal Rights and Exceptions of Right to Counsel

A person’s rights to counsel can be found in the State’s Rules of Criminal Procedures; The US Constitution 5th and 14th Amendment; the Arizona Constitution; and Under Arizona Criminal Code A.R.S. 13-114. This segment focuses on the Rules of Criminal Procedure in Maricopa County.

Arizona Rules of Criminal Procedure – Right to Counsel

Rules 6.1 (a.) & (c.) entitle a defendant to be represented by counsel in DUI and criminal proceedings. However, they are not entitled to counsel if the offense has no possibility of resulting in jail or prison if they are found guilty.

A defendant may waive their right to counsel at any time.

Arizona Rules of Criminal Procedure – Withdrawal of Waiver of Right to Counsel
Rule 6.1 (e.) allows for a person who previously waived their right to counsel, to also withdraw their waiver of right to counsel, at any time.

There is one exception to withdrawing a waiver of right to counsel at any time: A person is not entitled repeat a proceeding, they previously waived their right to an attorney, on the sole ground that they were unrepresented.

When Legal Counsel is Necessary

Defense services of qualified legal counsel are needed in all stages of criminal proceedings, that expose a person to jail or prison, if they are found guilty of the charges. These stages include:

• Pre-trial Services;
• Trial Representation;
• Sentencing
A person should also consider hiring a lawyer to represent them in pre-indictment cases, when a suspect is being investigated for serious charges, but has not yet formally been charged.

Legal Representation for DUI and Criminal Charges in Mesa AZ

It is unwise for a person to waive their right to legal counsel for DUI or criminal charges in which a person may be exposed to incarceration in jail or prison if found guilty. If a person moves forward with criminal proceedings unrepresented, irreversible harm can result in their case, and their defense may be compromised.

A defendant should always retain an attorney as early as possible in order to preserve all rights and defenses that may be used in the future to challenge or defend the charges.

If a defendant has jeopardized use of defenses, waived rights, or provided self-incriminating testimony, an attorney generally can’t undo the damage that has been done. They can’t go back and abolish the proceeding on the sole basis that the defense was compromised as a result of the defendant’s waiver of right to representation by an attorney.

In general, defendants usually do not secure favorable resolutions to their charges when they go unrepresented. A person who represents themselves if expected to adhere to all Rules of Criminal Procedure; understand their rights and laws; and consequences of their decision in the event they are found guilty of the charges. Early retention of a criminal defense attorney is a key factor in obtaining any favorable outcome in criminal cases.

Additional Resources:

AZ Supreme Court – Rules of Criminal Procedure

Maricopa County Superior Court

Right to Counsel under Criminal Code

US Constitutional Amendments

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Criminal Arrest Phoenix AZ.jpgDomestic Violence Charges

The police and prosecution take domestic violence very serious. They egregiously pursue convictions in these cases because they are considered to be a crime against a victim.
Domestic violence refers to a familial relationship. The victim may be a spouse, partner, brother, sister, grandparent, child, or other persons residing together.

Police have the burden on the scene to distinguish the aggressor from the victim. Often the victim is cited or arrested when the police are unable to identify which party was the aggressor at the scene. It can also occur when false accusations are made against a victim by the aggressor.

Police Departments keep logs of incidents where the police have been called to a residence before. In many of these cases, an arrest will be made, or both parties will be cited, or arrested and forced to defend their charge in court.

Arizona Domestic Violence Laws

Domestic Violence (DV) crimes are described under Arizona Law ARS § 13-3601. This law applies to specified domestic persons who become victims of assault, homicide, threat, intimidation, neglect, abuse or other act of violence.

Offenses may be classified as felonies or misdemeanors, and penalties vary depend on circumstances involved. They include: aggravated or mitigated factors; age of the victim; nature and severity of injuries; if a weapon was used; and whether or not the crime was dangerous or non-dangerous; and if the crime was a first time or repeat offense.

Penalties for Non-Dangerous Domestic Violence Offenses
Non-dangerous Misdemeanor DV charges call for minimums of 30 days to 6 months in jail; and fines from $500.00 to $2500.00.

Non-dangerous Felony DV charges call for 6 months to 18 months in prison, minimums; and 4 to 10 years maximum ranges.

Persons convicted of non-dangerous domestic violence offenses may be ordered to participate in domestic violence offender or anger management counseling programs.

Penalties for Dangerous Domestic Violence Offenses

Dangerous Felony first time offenses expose a person to a minimum of 18 months to 3 years in prison; and maximum penalties of 7 years to 21 years on prison.
Felony domestic violence offenders will be exposed to court ordered fines that can reach a maximum of $150,000, plus restitution.

Persons convicted of domestic violence offenses will be ordered to participate in domestic violence offender or anger management counseling programs. Additional Court ordered penalties may apply such as community service, or probation.

Criminal Defense Attorney for Domestic Violence Crimes Mesa, AZ

If you have been charged with any domestic violence offenses you should consult a criminal defense attorney before pleading guilty. There may be defenses that can be used to challenge the charges, lead to suppression of evidence, or even a dismissal of charges. It is never a good idea to go to court without qualified legal representation for any criminal offense. If retained, an attorney will protect your rights, defend your charges. If the case can’t be dismissed, they will work to mitigate sentencing to help you avoid or reduce harsh jail or prison sentencing.

Additional Resources:

Arizona Coalition Against Domestic Violence .

City of Mesa Police – Family Violence Unit can also provide assistance

Arizona Court – Domestic Violence Information and Resources

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Arizona DUI BAC Drink chart.GIFDid you know that the National Impaired Driving Enforcement Campaign is in effect August 17, 2012 to September 3, 2012? You have probably seen the Television commercials airing the messages: “Drive Sober or get Pulled Over;” Don’t drink and drive; and “They’ll see you before you see them”. The efforts involve increased police presence, DUI Task Forces; media outreach; national and local advertisements geared at raising public awareness. According to the National Highway Traffic Safety Administration (NHTSA) launched a new anti-impairment driving campaign to support high visibility enforcement (HVE) of police officers nationwide. The campaign is intended to help reduce drunk driving, and raise awareness about the hazards of driving impaired due to alcohol or drugs. The efforts focus combining resources: • Community outreach programs and education; • DUI Task Force administration guides and materials; • Heightened Presence of Police for basic traffic safety; • Paid media communications, advertisements and marketing; • Social media and internet campaigns to communicate the messages Every state has their own laws regarding the legal limit or level of impairment that will result in criminal charges. It is important that you be familiar with the laws in your state, or any state that you plan to visit or reside. Blood Alcohol Content (BAC): Legal Limits Arizona All states in the country comply with at least 0.08% as the legal limit. Other states have more strict legal limits for example 0.05%. Under Arizona law A.R.S. § 28-1381 A (2) a person may be arrested for DUI if their BAC is 0.08% or greater while driving or in actual physical control of any vehicle. In Arizona, a motorist may also be charged with DUI, even if the BAC is below 0.08% down to 0%. This is called being “impaired to the slightest degree” under the influence of alcohol or drugs A.R.S. § 28-1381 A (1). The penalties for DUI convictions are some of the harshest in the country. A first time Misdemeanor DUI, non-extreme BAC (below 0.15.%) conviction carries jail terms; 90 day suspension of driver’s license; Ignition Interlock Device on vehicle; mandatory drug or alcohol counseling; probation; fines and fees. DUI Attorney for defense of charges in Chandler AZ If you face any type of DWI or drunk driving charges, you should always consult a criminal defense attorney to discuss your matter, and defense options. It is never a good idea to go to court alone or try to go without legal representation. If retained, your lawyer will provide legal representation throughout the criminal justice process; make sure you are treated fairly; defend your charges; and look for mitigating factors that will help you avoid a conviction or harsh penalties. If you “Like” this article please let us know with a +1! Feel Free to subscribe and “Share • National Highway Traffic Safety Administration – Driving Safety • National Impaired Driving Enforcement Crackdown • Arizoan Legislature – Arizona Revised Statutes Continue reading

On July 29, 2012 Arizona’s Governor Jan Brewer denied the request to halt implementation of the Medical Marijuana Law voted in by Arizonans in November 2010.
Governor Brewer stated in a letter to the Yavapai County Attorney, that she is “duty-bound” from such halt because “the voters approved it”. Approximately 29,500 people have received their Medical Marijuana cards.
The letter signed by Arizona County Attorneys in 13 Counties, including Maricopa County, requested an immediate halt due to the following concerns:

• Arizona Medical Marijuana laws are preempted by the federal Controlled Substances Act (“CSA”);
• Imminent threats of seizures and closures of dispensaries in Arizona by the U.S. Attorney exist;
• State employees involved or who participate in conduct that is in violation of Federal offenses is compelling enough to take immediate action to halt of ADHS licensing.

Despite the fact that Governor Brewer did not support the passage of the Arizona Medical Marijuana Act (AMMA), she feels strongly she has a duty to support its’ existence which was voted into law by the people of Arizona. She stands on firm ground with her decision, and will move forward with implementation until and unless she is notified by the higher Court that State employees will be prosecuted by administration of the law within their duties.

Arizona Laws

As it stands now Medical Marijuana laws allow for, among other things the following provisions:

• No limit exists as to the amount an approved and licensed dispensary may grow;
• Qualified Patients with valid Medical Marijuana cards may purchase 2.5 ounces every two week.

Arizona Drug DUI and Marijuana DUI Laws

All medical marijuana users should understand that although they are qualified users, with valid cards, that do not prevent them from being arrested for Drug DUI.
Under A.R.S § 13-3401, any person “driving impaired to the slightest degree” due to the influence of alcohol, drugs, or Marijuana, they may still be charged with a DUI. The other fact to keep in mind is that Marijuana stays in the blood stream much longer than alcohol. So even in small amounts, it may show positive on DUI blood or chemical testing days or even weeks after it was smoked or ingested.

Consequences of DUI with Drugs or Marijuana DUI

If you are arrested in Arizona for a Drug DUI, or Marijuana DUI you should consult a criminal defense attorney to discuss your matter and defense options. Penalties for Marijuana DUI Convictions are as severe as those for Alcohol related DUI charges. They carry mandatory jail sentencing; suspension of driver’s license; probation; alcohol/drug education, counseling and screening; fines, fees, and assessment costs. You should retain proper legal representation for your charges. They will make sure your rights are protected; that you are treated fairly; and work to get the best resolution in your case. Favorable outcomes may include dismissal of charges, reduction of sentencing; avoidance of jail or other harsh penalties.

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