Arizona Criminal Defense Attorney Blog

United States Supreme Court.jpgArizona police are allowed to use some force if necessary. But only to the degree that is necessary to prevent a suspect from fleeing; or to avoid harm, or injury to others.

Police are not allowed to use excessive physical or lethal force. The justifiable amount of force that can be used is dictated by given set of circumstances.

Although there is no known precise definitions, below low are some situations that would fall within the meaning of police brutality or use of excessive force:

• Physical force against a person who is already in custody; in hand cuffs; restrained or housed by police;
• Physical force against a person or their property if they are not resisting arrest;
• Physical force used by police such as punching, kicking, choking, slamming, or throwing a person down or against a fixed object such as a wall or vehicle, if the suspect is passive or non-violent;
• Improper use of Police Dogs that cause harm to a suspect;
• Use of a weapon including: gun; baton, tear gas, toxic spray; Taser; or dangerous weapon; against an unarmed individual, and for which it can be reasonably presumed that they do not possess a weapon;
• Use of Taser or other weapon against a non-violent and non-threatening individual;
• Threatening or Intimidating a suspect in order to obtain a statement or confession;
• Violent force or suppression of a peaceful activist or protestor;
• Failure of a Police officer to intervene or stop another officer who is using excessive force;
• Carelessly causing death
Laws that Protect against Police Brutality or use of “Excessive Force”
Rights that protect a person from police brutality and use of excessive force originate from the US Constitution and State Constitution.

I. Federal Laws

• US Constitution Amendment IV – Freedom from unlawful search of person or property and seizures;
• US Constitution Amendment V – Freedom from: self-incrimination; deprivation of life, liberty, or property absent due process;
• US Constitution Amendment VIII – Rights against cruel and unusual punishments
• US Constitution Amendment XIV – Freedom from: states to deny the privileges and/or immunities of citizens of the United States; deprivation of life, liberty, or property, absent due process; denial of persons within its jurisdiction equal protection of the laws.

II. Arizona State Laws
• Article 6 – Right to due process under law;
• Article 6.1 – Right to petition and assemble;
• Article 7 – Freedom of speech and press;
• Article 8 – Right to privacy;
• Article 12- Freedom from self-incrimination;
• Article 14 -Freedom of religion;
• Article 15 – Equal privileges and immunities
• Article 16 – Habeas corpus
• Article 17 – Freedom from cruel and unusual punishment;
• Article 30 – Trial by jury; Rights of accused in criminal prosecution; fair and equal treatment with freedom from discrimination
Your rights if excessive force is used

If the level of force used by police was not justified, then it is a violation of your constitutional rights. If right have been violated, your defense attorney may file a motion to suppress any evidence obtained after the rights violation. This leads to dismissal of the criminal charges.

You chances of getting evidence suppressed or criminal charges dismissed will increase if you have qualified legal representation of a criminal defense attorney. .
Civil laws exist that enable victims of police brutality or their families, in the case of wrongful death, to file complaints and law suits against police officers and their agencies against the police officers, and their department.

Resources

Arizona Constitution

United States of America Constitution

US Constitution Amendments

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Drunk Driving Phoenix AZ Car Keys Alcohol.jpgWith Labor Day 2012 fast approaching and ASU back in session, police are increasing presence in and around East Valley Cities.

DUI Task Forces will be set up again this weekend on Mill Ave, in Tempe AZ. Police will also be organizing Traffic, Pedestrian, and Bike Safety checks.

The DUI Task Force officers will be looking for persons engaging in underage drinking; and binge drinking. They will also be seeking out motorist who are driving “impaired to the slightest degree” due to alcohol or drugs.

Basic DUI Laws in Arizona

• The legal limit in Arizona is 0.08% or greater (A.R.S. §28.1381.A. 2);
• A motorist may be charged for DUI if they are under the influence of drug or alcohol and found to be driving “impaired to the slightest degree” (A.R.S. §28.1381.A).
• The higher the Blood Alcohol Content BAC, the more severe the penalties;
• Sentencing for first time Misdemeanor DUI charges will result in Mandatory Jail Terms, Ignition, Interlock device, and driver’s license suspension;

Under Age 21 Drinking Laws

• The legal drinking age is 21 in Arizona: (ARS § 4-244(34);
Underage 21 Drinking DUI convictions in Arizona are subject to “Zero Tolerance” laws. Motorists convicted of driving under the age of 21 with any alcohol or drugs will be exposed to criminal penalties which include: Jail terms; Ignition Interlock Device on Vehicle; 2 years driver’s license suspension or denial; Probation or Community Service; Alcohol/Drug screening and treatment.

“Binge Drinking”
Binge Drinking is the Number 1 cause of Alcohol Poisoning. It is also the number one cause of drunk driving and resulting DUI and DUI with Auto Accidents. Binge drinking is defined as having 4 to 5 alcoholic drinks or “shots” within a short time span. It can result in serious illnesses, acute and long term disease and even death. It is the result of the body’s inability to metabolize the alcohol as fast as it is ingested. It takes a least an hour, for the liver to metabolize one drink. Other factors are taken into account for metabolic speed including body weight; food ingested with the alcohol; other medications; medical conditions; alcohol tolerance level and other factors. So in a binge drinking situation, the alcohol or “shots” ingested may just begin to shock the body which feels it effects long after the last drink, once they have left the bar.
Criminal Defense Attorney Tempe AZ

If you were arrested for DUI it is important that you consult an experienced criminal attorney to discuss your case and defense options. The laws and penalties are some of the harshest in the country. With so much at stake, you should always retain qualified legal representation for any alcohol or drug related criminal offense. If retained, your lawyer will protect your rights, defend your charges, and provide an effective defense that can preserve your future and freedom.

Resources:

National Centers for Disease Control

Arizona Revised Statutes – AZ Legislature

Arizona Department of Public Safety

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Phoenix Criminal Defense Attorney (2).JPGTypes of Robbery Charges

There are three classifications of robbery in Arizona:

1) Robbery;
2) Armed Robbery which involves a weapon;
3) Aggravated Robbery which involves an accomplice
Even if a robbery offense does not involve a weapon or an accomplice it is serious felony charge. Maricopa County prosecutors pursue them egregiously because they are considered crimes against a victim. If convicted, a person may be exposed to long term jail and prison sentencing.

Arizona Robbery Laws A.R.S. § 13-1902

A.R.S. § 13-1902 Robbery is theft that occurs; is intended; or attempted while the owner, caretaker or authorized party overseeing the property stolen is present at the time of the incident.
Robbery occurs when items (s) are stolen forcefully or against a person’s will. Robbery also includes acts or words of intentional intimidation, force or threat used against the owner or caretaker of the property in an effort to cause them to surrender the property against their will.

In order to get a conviction for robbery, the intent to commit robbery must exist. A person may be found guilty of robbery or attempted robbery, even if no property was taken; or even if a victim was unharmed.

A person may be guilty of robbery, or attempted robbery, even if they did not get away with any of the property; an even if the victim or witnesses were not harmed.

Robbery Sentencing Mesa AZ

Robbery charges without aggravated circumstance are Class 4 Felonies under Arizona Law. All robbery charges are felonies and sentencing is harsh. If convicted a person will be exposed to prison sentencing of up to 3.75 years in State Prison;, or jail sentences up to one year. Other penalties include fines; fees; victim restitution; property damage, community service, and other penalties the judge deems appropriate. A sentence may be mitigated, which means reduced, or aggravated which mean increased based on certain factors. Factors may include prior criminal record repeat offenses; nature, monetary value, and number of items stolen.

Robbery Lawyer for defense in Mesa A
Z
If you have been arrested for robbery, you will need to hire an experienced criminal attorney to defend you. They will make sure you are treated fairly; defend your charges; and look for defenses that may apply to your case; and provide the court with mitigating factors on your behalf. Retaining a qualified lawyer will increase your chances of getting a good outcome in your case.

Arizona Legislature

Arizona Criminal Defense Attorney for Robbery

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550-0038-0409-0105-2144.jpg45 years after Miranda v. Arizona – Its impact on the US Criminal Justice System
Over the last 45 years, legal controversies and challenges have continued to plague the “Miranda Rights”. Yet still it is recognized by all states in country. Following an arrest, the police must inform or warn a person of their “right to remain silent” and their right to defense counsel.

In Arizona the right to remain silent is afforded by both the United States Constitution and the Arizona Constitution. The right to remain silent is a privilege, because it enables a person to a avoid self-incrimination.
Under the Fifth Amendment of the US Constitution a person shall not be compelled to be witness against themselves in their criminal case. When you hear someone say they are “pleading the 5th”, this is usually what they are referring to.

Article 2, Section 10 of the Arizona Constitution states that no person shall be compelled to testify or provide testimony, or statements against their own defense.
The right to avoid self-incrimination existed long before the landmark case. But since the US Supreme Court ruling in favor or Ernesto Miranda, in Miranda v. Arizona in 1966 they have been referred to as “Miranda Rights or “Miranda Warning”. In this case, the defendant Ernesto Miranda made a confession, which led to a conviction based on his statements. Ernesto Miranda appealed the decision and prevailed in the US Supreme Court. His argument was that he had not been made aware of his right to remain silent during interrogation, or criminal defense attorney.

If a person is arrested for a DUI or crime, it is important that they invoke their rights. After an arrest and before any interrogation the police must read a suspect their Miranda Rights. Invoking one’s right to remain silent helps avoiding self-incriminating statements that can later be used against them.
To invoke the right to remain silent one must verbally or in writing put police on notice that they wish to do so. If a person simply remains silent, they will be perceived by police as being uncooperative. It’s also important for a suspect to answer routine questions regarding identity and residency as well as the booking process.

Criminal Rights Attorney Chandler AZ

If you have been arrested, be sure you invoke your right to remain silent regarding the charges, until your defense attorney can be present, or has given you other instructions. If your rights have been violated, it may lead to dismissal of charges, other challenges or defenses in your case. You should always consult a criminal defense attorney if you face active charges to discuss your matter, and options for defense.

Additional Resource Links:

Arizona State Legislature – AZ Constitution

Miranda Rights Q. and A.

Justia Law Summary: Miranda v. Arizona 1966

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Phoenx Criminal Defense Attorney.jpgAggravated assault charges are assault charges that involved “aggravated factors” which elevated a Misdemeanor to a Felony. One aggravating factor that will raise a misdemeanor to a felony assault is if the offense was against a police officer. These types of charges carry long term prison sentencing and exorbitant fines. Conviction for this offense is egregiously pursued by the State of Arizona and Prosecution.

Felony Assault against a Police Officer
A.R.S. § 13-1204 (A)

A person is guilty of aggravated assault if they commit assault as defined in
A.R.S. § 13-1203 Assault, and knows or has reason to know that the victim is a police officer, or peace officer professionally engaged in their official duties; and
• A person causes serious physical harm or injury to the officer; or
• A person commits the assault by any means of force that causes temporary but substantial disfigurement, temporary but substantial loss or impairment, body organ or part or a fracture of any body part; of the officer; or
• A person uses a deadly weapon or dangerous instrument against the officer; or
• A person takes or attempts to gain control of a police officer’s firearm or other weapon.

Penalties for Felony Assault

Charges for Felony Assault may range from a Class 6 felony to a Class 2 felony which is more severe. The only charges higher than Class 2 are Class 1 felonies which are reserved for the most serious of crimes, homicide.

Depending on the seriousness of the assault, and number of offenses, and other factors, sentencing may include prison terms of 1.5 to 3 years for a Class 6 felony; and 7 to 21 years in prison for a Class 2 felony.

Fines for conviction may be ordered as high as $150,000.00, plus victim restitution, costs; fees; assessments, counseling, probation or parole; community service; and other harsh penalties.

If convicted, Felony Assault or Aggravated Assault Penalties can include lengthy prison sentences, long term felony criminal records that will follow you for a lifetime, exorbitant fines, fees, counseling, restitution to the victim, adverse impacts on your job and future job opportunities, negative impacts on your ability to get credit or loans in the future and any other punishments the Tempe court determines is necessary and appropriate.

Criminal Defense Attorney Felony Assaults Phoenix AZ
It is imperative to consult an experienced criminal defense attorney if you face aggravated assault charges. You can discuss your matter, and they will provide you with options for defense. If retained, they will protect your rights; make sure you are treated fairly; defend your charges; and look for evidence in your favor. They will represent you through the proper channels of the criminal justice system. There may be defenses that can be used, could lead to dismissal of charges; reduction in penalties or other favorable outcomes. For charges of this serious nature you should retain qualified legal representation as early as possible so they may begin working on your defense. This will also help you to avoid any unintended self-incrimination that could harm your case.

Resource Links:

Arizona Revised Statutes
Law Office of James Novak – Assault Laws and Penalties

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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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Guy Drinking Bar - shutterstock_40585228_edited-1.jpgDUI Field Sobriety Tests

Field Sobriety Tests are a battery of preliminary roadside test that police administer to detect DUI drivers. National Highway Traffic Safety Administration (NHTSA) developed to these roadside tests to be used in early detection of DUI impaired, and DWI drivers. Police officers are formally trained and accredited to administer the tests. They are conducted on the roadside at a DUI stop. The police must have a motorist’s consent of the driver in order to administer them, because they are not mandatory in Arizona.

Standard Field Sobriety Tests
Police officers have been known to conduct other DUI sobriety tests. However, NHTSA has only approved three official FSTs, known as Standard Field Sobriety Tests (SFST):

1. The Horizontal Gaze Nystagmus (HGN);
2. The Walk-and-Turn;
3. The One-Leg Stand.

If any other FSTs were conducted, outside of the SFSTs, your criminal defense attorney can move to have the results suppressed, so the results cannot be admitted as evidence against a suspect.

Consequences of Refusing Field Sobriety Testing in Scottsdale AZ

A driver stopped for DUI investigation, has the right to refuse the FSTs since they are not mandatory in Arizona. However, persons should be aware, that there are consequences of refusal. If you refuse the FST and the police feel they have other “probable cause” to make a DUI arrest, the may proceed with arresting someone on “suspicion of DUI”.

Why You Should Refuse to Take FSTs

Most attorneys will advise you to politely refuse to participate in any Field Sobriety Testing. You have a constitutional right to avoid self-incrimination. In most cases these roadside tests will not serve to help a suspect’s defense, whether they are driving impaired due to alcohol or drugs or unimpaired. There are many reasons for this:

• Historically, and statistically, even the Standard FSTs have proven inaccurate;
• The FSTs are administered, judged, and graded unilaterally by police officer who is trying to arrest you, often resulting in bias or non-objectivity of results;
• Many people unimpaired by alcohol or drugs cannot pass the roadside tests. If the suspect fails, it can be used as evidence against them, even if they were not under the influence of drugs or alcohol;
.
• NHTSA rules have strict guidelines regarding instructions and administration of the test; environmental factors; lighting; clothing; landscaping; traffic conditions; candidacy of persons taking it that relate to age, weight, medical conditions and more. If strict guidelines are not followed, the tests results may be invalid;
• They are generally used as evidence against a person and rarely if ever help their defense;
If you have taken or refused a field sobriety test and been arrested for DUI, you should always consult an experienced criminal defense attorney regarding your charges and defense options.

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DUI Arrest Based on Blood Test Results Mesa AZ

The police have discretion of whether or not to conduct a blood test or a breath test following a DUI stop in Arizona. Here are 5 reasons why an officer may decide to conduct a blood test over a breath test:

• Breath Test Refusal by the suspect:
• Suspect is not a good candidate;
• Breathalyzer machine non calibrated or in need of repair;
• Police Suspect a motorist is under the influence of chemical or drugs;
• Initial Portable Breathalyzer Test (PBT) was negative for alcohol.

Breath Test Refusal

In Arizona, a motorist has the option of refusing a breathalyzer test. However if they refuse and police believe they have probable cause to believe a person is under the influence of drug or alcohol, they will get a warrant to conduct a blood test. Also, if a suspect refuses the breath test, their driving privileges will be suspended for one year.

Not a Good Breathalyzer Test Candidate
In order for the breathalyzer test to be accurate or valid, optimal conditions must exist. Police must be sure to avoid substance interference. Medical Conditions such as heartburn or gastric reflux disease may skew the results of a BAC reading. Trial results have proven that stomach fluids may find their way into a suspect’s breath such as chewing tobacco; cough drops; belching or vomiting, or even alcohol may cause interference, causing test results to be inaccurate.


Breathalyzer in Need of Calibration or Repair

The official DUI Breathalyzer Intoxilyzer 8000 must be regularly maintained, and records to support its maintenance needs to be kept. Some machines, especially those that have been in use for a while, may have a history or needed repairs, or be in current need of repairs.


Police Suspect Drug DUI

Circumstances may cause the police to suspect a driver is under the influence of drugs instead of alcohol. Some reasons may include a person admits to being under the influence of drugs; the police witnessed a person using drugs; the police saw an illegal drug in plain sight when they approached a vehicle.

Initial Portable Breathalyzer Test (PBT) was negative for alcohol.
Generally, the police will first conduct a Portable Breath Test (PBT). Arizona does not allow the results of the PBT to be used as the sole source of evidence to obtain a conviction. This is because they are not maintained, calibrated, or subject to strict maintenance reporting guidelines like the official Breathalyzer Intoxilyzer 8000 machine. Its main purpose to either show positive or negative for alcohol use. If the results of the PBT are positive the police will proceed with formal breath test. If the results are negative, but police have probable cause to believe a person is under the influence of drugs, they will proceed with a blood or chemical test.

If you wish to defend your DUI charges, blood test, or breath test evidence you should always retain an experienced DUI attorney to represent you.

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Dring & Keys.JPG •The Laws in Arizona for DUI are strict, harsh, and frequently changing. If you are unrepresented, you are held to the same standard as an experienced criminal defense attorney. This means you will be held responsible for meeting time lines, filing appropriate motions, challenging your charges with the authority of proper legal citation; representing yourself at hearings; following rules of criminal procedures. Winning cases and losing cases, is often the result of a successful argument or challenge of any of these aspects and the different facets of a DUI.

• You may be completely not-guilty of the charges for which you were arrested or on trial, but the prosecution will not “tell your story” or produce any evidence that will help prove your innocence. That is not their job. The prosecutor generally will not point out weaknesses in the State’s case against you. Only your criminal defense attorney will look for defenses, mitigating factors or evidence that may lead to a dismissal or reduction in sentencing;
• Any information or answers to questions regarding your charges can result in unintended self-incrimination. You have a constitutional right to remain silent and retain legal counsel to defend your charges, and be present during any questioning or testimony. Representing one’s self increases a person’s chance of unintentional self-incrimination.

• The Presiding judge can only intervene on motions; plea agreements; granting or prohibiting evidence from being admitted; and sentencing. The Judge can’t dismiss the charges without formal or proper legal arguments or challenge is made on the evidence; to the law; or other matters surrounding your case; or there is a “Not-Guilty” verdict returned by the jury.

Arizona DUI laws are strict and penalties harsh. A first time Misdemeanor DUI calls for mandatory jail sentencing Ignition Interlock Device on vehicle; suspension of driver’s license; probation, costly fines, fees and assessments. DUI charges result in both criminal charges which are held in criminal court, and civil charges relating to the negative actions on a person’s driver’s license. A qualified criminal defense firm will protect your rights; defend your charges; make every effort to help avoid jail terms and other harsh sentencing.

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“Aggravated DUI” charges are Felony DUI offenses. Misdemeanor DUI charges are elevated to Felonies when specified ‘aggravating” factors under law surround it. One of the most reasons a Misdemeanor DUI is charged as felony is due to repeat DUI offenses. A third DUI charge, with two existing DUI convictions in 84 months or 7 years, will result in Aggravated DUI charges.
Aggravating Factors

Aggravated Factors” are those circumstances that elevate a Misdemeanor DUI to a Felony DUI under ARS § 28-1383 and include:

• Two prior DUI Conviction from any state in any state within in 7 years;
• DUI while driving with a suspended or revoked license;
• Drunk driving or driving impaired due to alcohol or drugs, with a minor, age 15 or under, in the vehicle;.
• DUI with accident that causes serious bodily harm to another person;
• DUI manslaughter – When the DUI and Auto accident results in a fatality of another
Felony DUI Penalties for 3rd DUI charge with two conviction in 7 years

Felony DUI charges are a class 4 felony. These convictions call for the following penalties under ARS 28 § 1383:

• 4 months in prison for 3rd DUI conviction/ months in prison for subsequent;
• Fine at least $750
• Assessment fees $3250.00
• Abatement fees
• Evaluation Costs
• Drug or Alcohol Treatment & Counseling Costs
• Probation and associated fees
• Driving Privileges may be revoked for up to 3 years
• Mandatory Court ordered Ignition Interlock Device (IID) 3 added to your vehicle at your expense, following reinstatement of license
• Court ordered drug or alcohol rehab or counseling treatment, and their costs
• Mandatory Community Service
• Criminal Record to include a Felony
• Restitution if an accident or injury was involved
• Other penalties may be apply if the Court deems necessary and appropriate
DUI defense attorney Tempe AZ
If you face Tempe DUI charges, you should consult a qualified criminal defense attorney regarding your matter. They will provide you with information concerning your charges, as well as your defense options. Arizona has harsh penalties for DUI charges. It is important that you understand the consequences before “pleading guilty” without proper legal representation. If you wish to invoke your right to retain an attorney on your behalf, you should “Plead Not Guilty” at your Arraignment. If you are not being represented, you must appear for your Arraignment. Failure to appear will result in a bench warrant for Arrest. If you hire legal counsel, they will advise you further regarding the proceedings. If retained your attorney will protect your rights, defend your charges, and work to get the best possible outcome in your case.

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