In a recent case decided by the Arizona Supreme Court, the defendant was charged with Marijuana transportation, and challenged the charges using Arizona’s Dress defense.
The defendant testified that smugglers armed with weapons, forced him to carry large bundles of Marijuana into the Arizona desert.
Since that time, police have been required to read suspects their Miranda rights while in custody before they are interrogated.
The Miranda principle has faced many legal challenges, including when police are required to read the rights.
The Arizona Supreme Court recently considered a case involving the question of whether or not the smell of marijuana was enough to establish probable cause to issue a search warrant.
The Court needed to evaluate this issue in light of the Arizona Medical Marijuana Act (AMMA).
The AZ Supreme Court ruled that Marijuana odor can establish probable cause, unless there are other facts that would cause a reasonable person to believe that the suspect’s activities were compliant under the AMMA.
Is this too difficult to imagine?
You’ve just been released from prison. You are struggling to become a productive member of society.
You’re looking for job, and trying to get your life on back on track.
So far, no employer has been willing to hire you, due to your criminal record.
You’ve sold nearly everything you own, including your car to pay outstanding debts, and to try and make ends meet.
Day after day you wait for the bus to take you to town so you can continue your job search.
Then one day, you are approached by a man while waiting for your bus. The man asks you if you will purchase $20.00 of crack cocaine. He offers to pay you $10.00 to do the deal.
You hesitate, and think that selling drugs again was the last thing you ever intended to do.
Weary, desperate, and hungry, you err in judgement and agree.
The man takes you to buy the drugs from an acquaintance. You buy the cocaine for him. You give him the cocaine, and he pays you.
Following the exchange of drugs and money, the man immediately arrests you.
You now face returning to prison, and serving 8 to 10 more years for selling illegal drugs while on parole.
The man who approached you at the bus stop was an undercover police officer. You were clearly entrapped.
But you will not have a chance to gain an acquittal based on the entrapment defense, without doing this one very important thing…
That is, if you wish to challenge the charges by utilizing the entrapment defense, you must admit to the substantial elements of the crime.
In simple terms, you will need to admit that you committed the criminal act for which you were charged.
You are confused by this. It goes against everything you understood about your 5th Amendment rights and protections against self-incrimination. So you do not admit to the crime.
But the fact is, it doesn’t matter how much police deception or inducement was involved. Unless you are prepared to formally admit to the substantial elements of the crime, either in testimony or stipulation, the entrapment defense will not apply.
You are convicted and sentenced to return to prison to serve 9 more years. Your freedom was short lived.
Not only is this scenario imaginable, but the the high court of Arizona recently heard a case with similar circumstances. This statutory requirement was affirmed in that case.
The Arizona Supreme Court held that the entrapment defense afforded under A.R.S. 13-206, is reserved for cases in which the defendant admits to the substantial elements of the crime.
In this article we examine the often misunderstood entrapment defense, and include the following featured topics:
- Overview of recent Arizona Supreme Court ruling in a cocaine case;
- 7 questions and answers regarding application of the entrapment defense;
- The requirements of making a valid entrapment claim in Arizona;
- The burden of proof for entrapment;
- Arizona entrapment law A.R.S. 12 – 206;
- 10 other drug crimes defenses besides entrapment;
- Criminal defense for drug charges in Phoenix AZ
Questions before the Court
The Arizona Rules of Criminal Procedure afford parties the right to request a change of judge before trial. But these rights are not without limitations.
In a recent case, an Arizona appellate court reviewed a defendant’s conviction for misconduct involving weapons. The appeal centered around two arguments, one being the defendant’s request for a new judge.
First, defendant had requested a peremptory change of judge under Arizona Rule of Criminal Procedure 10.2, which was denied by the trial court.
Secondly, the defendant challenged the sufficiency of the evidence used to obtain the conviction.
In this article we will also, take a closer look at the arguments, and summarize three concepts related to the Rules of Criminal Procedure for trial, which were addressed in this case:
- The Right of the Parties to Request Change of Judge;
- Special Actions v. Direct Appeals; and
- Judgement of Acquittal
We will also discuss the proceedings, final ruling, the right to bear arms, procedural and evidentiary challenge in trial, and criminal defense for weapons charges.
In a recent Arizona Supreme Court drug case, a man convicted of 11 drug-related crimes was sentenced to concurrent, consecutive presumptive terms of imprisonment.
The defendant appealed, challenging five convictions related to violations of A.R.S. § 13-3417(A) to facilitate or conspire to commit felony drug crimes.
In this article we provide an overview of the case and the Appeals Court Ruling; how it impacts Arizona; and privacy rights v. the public safety debate of cell phone searches.
This article also includes a special featured segment by Scott Greene, Senior Technology Forensics Expert, who will provide additional insight into cell phone and mobile device forensics.
The case arose when Arizona narcotics agents were told that the defendant was selling drugs.
An undercover agent began talking to the defendant by cell phone and arranged to buy methamphetamine from him. Below is the outcome of the efforts initiated by the undercover agent:
- The first transaction took place as planned.
- The agent again contacted the defendant and arranged another purchase. However, the woman who was supposed to deliver the drugs never showed up to complete the sale.
- Another purchase was set up, and as a result, the defendant’s co-defendant (another person charged in the crime) sold the meth to the agent.
- The next transaction did not go through because only the undercover agent arrived and no one met him to complete the sale.
- The next transaction resulted in another codefendant meeting the agent and selling him rock salt rather than meth.
- Two weeks later, the police arrested the defendant. Upon searching him, they found a bag of marijuana in his possession, as well as the cell phone with the same phone number used by the undercover agent to initiate the sale.
The defendant and his two codefendants were indicted on multiple counts, found guilty, and sentenced. The defendant appealed.
The appellate court was faced with the issue of whether the defendant, who was the seller in the drug transaction, was properly convicted of an A.R.S. § 13-3417(A) violation.
The primary question was whether or not there was sufficient evidence to prove that the defendant used a wire or electronic communication to “facilitate” or “conspire” to commit the felonies.
This question evolved around the fact that there was no other evidence presented involving wire or electronic communications by the defendant except for that of the buyer, the undercover agent.
The defendant also argued that the offenses that were charged in connection with the wire communications statute involved the sale of rock salt, an imitation substance that falls under A.R.S. chapter 34.1 for Imitation Drugs; not chapter 34 for Drug Offenses, or chapter 23, for Organized Crimes, Fraud or Terrorism, as stated in the language of the statute pertaining to the wire communications statute.
The state responded that the cell phone was used to communicate with the undercover agent about the sale of an unlawful drug.
Therefore, it was irrelevant that the drug was an illegal imitation substance provided after the communication.
The appellate court explained that they found no published precedent case that interprets the statute.
Therefore, in these situations the court looks to the plain language and the meanings of “facilitation” and “conspiracy” in its effort to interpret the statute.
An Arizona statute provides that “facilitation” is committed if someone who knowingly provides another with the means or opportunity to commit a crime. They do so, knowing that the other person is committing or intends to commit the crime.
An Arizona statute provides that a “conspiracy” is committed when three elements exist:
- At least one of them or someone else will act in ways that constitute that crime; and
- Someone agrees with one or more people, intending to promote or help in the committing of a crime; and
- One of the people commits an overt act to further that crime.
The court used these statutory definitions of facilitation and conspiracy to interpret the wire communications statute.
It held that prohibited use of a wire or electronic communication is to knowing or with intent:
- Provide someone else with the means and opportunity to commit a crime; or
- To agree with someone else, that one of them, or another will act in ways that constitute a crime and commit an overt act to further the crime.
In several of the sales, the defendant was the seller and the agent was the buyer, and both were necessary to the transaction.
The defendant didn’t use the phone to facilitate or promote anyone else’s efforts to complete the sale, nor was their evidence that the defendant was conspiring with anyone else about the sale.
The defendant’s communications with the other people who delivered the drugs in certain transactions were in person.
In other transactions, the undercover agent came to buy drugs, but the defendant didn’t show up to sell them. Continue reading
If you are placed on probation for a drug crime in Arizona, you have a reduced expectation of privacy than you had before.
This means that, depending on the probation conditions, the privacy protections you thought you had under the Fourth Amendment of the United States Constitution related to search and seizure may not apply.
In a recent Court of Appeals case the state of Arizona appealed after the lower court granted a defendant’s motion to suppress the evidence of a warrantless search.
In this article we will examine a recent Court of Appeals case which centered around the challenge of a warrantless search at the residence of a probationers.
We will also take a closer look at some key legal concepts that the court examined in the process establishing a ruling in this case. The legal concepts we will discuss following the overview and court ruling summary include:
- Privacy rights for warrantless searches under the U.S. Constitution 4th Amendment;
- Privacy rights for warrantless searches of a person’s residence under the Arizona Constitution Article 2, Section 8;
- A comparison of the two, and discussion as to why the more liberal privacy rights afforded under Arizona law did not apply;
- Assessing “Totality of the Circumstances” for reasonableness of a warrantless search on a probationer’s residence.
The Arizona Supreme Court provided a unanimous decision in a recent Marijuana DUI ruling. The court took a closer look at how the AMMA impacts prosecution.
The Supreme Court ruled that Medical Marijuana card holders are not immune from prosecution under the state’s DUI law, which prohibits drivers from having in their blood marijuana or another chemical compound that causes impairment.
At the same time, the court also ruled cardholders, do in fact, have a limited affirmative defense under the AMMA. But it is a limited DUI Defense. The AMMA does not, and does not provide general immunity from prosecution.
If a qualified user is facing marijuana DUI charges, they can provide a evidence or testimony showing they didn’t have a high enough concentration of the active ingredient THC, in Marijuana, to cause driving impairment.
If they are successful in their challenge of impairment, they may avoid a conviction.
This article will cover the following topics:
- Arizona Supreme Court Ruling on Marijuana DUI;
- Impacts of Ruling on Arizona Drivers;
- Affirmative Defenses in Arizona;
- When the Safe Harbor defense for Medical Practitioner Prescribed Drugs applies;
- 5 types of evidence that can be used to provide a showing of non-impairment;
- How many puffs does it take to cause Driver Impairment?
- Criminal Defense for Marijuana DUI Charges Mesa AZ
Arizona Supreme Court Case Overview
“Petitioners made no effort to show that the marijuana was in an insufficient concentration to cause impairment.” – Arizona Supreme Court
The case involved two defendants, both charged with two counts of driving under the influence: a violation of A.R.S. § 28-1381(A)(1) and a violation of A.R.S. § 28-1381(A)(3).
The former, (A)(1), prohibits someone from driving while under the influence of any drug if he or she is impaired to the slightest degree.
The latter, (A) (2), prohibits driving while there is any of certain enumerated drugs or their metabolites in the person’s body. Both defendants had taken blood tests that showed they had marijuana and its metabolites in their bodies.
One of the defendants wanted to present evidence of her medical marijuana card in another state, but the municipal court denied her motion. The other held an Arizona medical marijuana card, but the municipal court granted the state’s motion to preclude this evidence from being introduced.
The State dismissed the (A)(1) charge, for driver impairment.
But the defendants were convicted of the (A)(3) charge which states that a person is in violation of a violation of the DUI law if they are driving with any drug found in their system which falls within the state’s drug definitions A.R.S. 13-3401 that includes “Cannabis”.
The defendants appealed to the Maricopa County Superior Court, which affirmed the convictions. They then appealed to the Arizona court of appeals, which ruled that there was no immunity for defendants holding marijuana cards when charged with (A)(3).
The defendants asked the Arizona Supreme Court to review the case.
The Court explained that with an (A)(3) charge, unlike an (A)(1) charge, the state isn’t required to prove actual impairment.
The defenses for these charges are also different. With an (A)(1) charge where a person is in violation of the law if they are driving impaired due to drugs or alcohol. With that, it is not a valid defense against impairment to challenge the violations on the ground that the user has a medical marijuana card.
With the (A)(3) charge involving driving under the influence of the state’s defined drugs, there is an Affirmative Defense available. This defense makes it lawful to drive under the influence of the state’s defined drugs, if they the drugs are prescribed by a licensed doctor.
The Court explained that the Arizona Medical Marijuana Act (AMMA) immunizes registered qualifying patients for their medical use of marijuana, but the immunity is limited.
AMMA’s § 36-2802 provides immunity to qualified patients who use marijuana to the extent that a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.
The Court also held that possessing a registry card can create a rebuttable presumption that a particular person is using marijuana as permitted by AMMA, as long as he or she isn’t in possession of more than the permitted amount. This means that the police, prosecution, and court will assume it is true, unless the facts are challenged and proven otherwise.
Generally a defendant may be convicted of an (A)(3) violation if the state is able to prove beyond a reasonable doubt that the driver had marijuana or an impairing metabolite in her body while driving a vehicle.
As a defense, the defendant may show by a preponderance of the evidence that use was authorized by AMMA, and that the amount of marijuana was not enough to cause impairment. Simply presenting a registry card is not enough to establish this defense.
The defendants argued that it was unfair to place the burden of proof on them because there is no threshold that is commonly accepted as → Continue reading
♦ 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 serious crimes in progress.
So why then, must we be concerned with 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 dictates.
Second, the police, prosecution, court and jury may not feel the actions were as justified as we did under the same circumstances.
So while it is true we have these rights, 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 appealed his conviction, challenging the jury instructions provided in the trial.
At the heart of the case were two important legal concepts, that proved to be central to the verdicts:
- Arizona’s “Justification – Crime Prevention” Defense;
- The importance of accurate and complete Jury Instructions
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 Aggravated Assault Charges in Arizona
Part I – The Incident
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, and brandished his own gun.
The defendant stood there, with his gun. But 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 the defendant guilty. He was sentenced to 5 years in prison for Aggravated Assault with a deadly weapon. Read More… Continue reading