♦ 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…
Part II. The Most Common Reason Juries get it Wrong
[Arizona Revised Jury Instructions 2015]
The United States of America is in one of about 40 percent of Countries Internationally that allow trial by jury. We see it here in the USA as a right, and a privilege.
The remaining 60 percent of countries have either eliminated them, or never had them. Some have stringent restrictions as when they are allowed.
There are a number of reasons for the absence of juries in criminal justices systems.
One reason is that some do not consider it fair to ask a juror to make a decision about guilt or innocence, on a law for which they may be unfamiliar. This, despite the fact that they are capable, competent and may be well versed on an infinite number of other topics.
This is why it is important for jury instructions to be accurate, and applicable to the issues, defenses and laws in the case—all that apply.
The jury instructions that are given at a defendant’s criminal trial can make a big difference to the jury’s decision.
Most Jurors have good intentions. They understand their role, and usually want to reach the most accurate verdict they can.
The judge provides instructions about what laws apply to the case including the burden of proof required for a conviction, and the conduct required for deliberations.
The jury is held to reaching a verdict based on those specific and limited instructions.e explained in plain and understandable language.
This takes place after final arguments by both the prosecution and defense.
If the instructions are incomplete or inaccurate, chances are that someone will be wrongfully convicted.
This is especially true in trials involving Justification defenses, and other complex laws.
While it is not the only element that can result in a wrongful conviction of an innocent person, it is a common reason.
In this case the defendant formally raised the Justification – Crime Prevention Defense.
But the trial court decided it was not necessary to instruct the jury on the law, ruling that it was adequately covered by the statutory language in the other Justification defenses raised in the case.
The defendant then Appealed, challenging the fact that the Judge did not address the Justification – Crime Prevention instructions, which the Defendant raised in trial.
Part III. Appeals Court Extended Summary
[Arizona Court of Appeals Division II. No. 2 CA-CR 2014 – 0267 Filed 8/9/15]
In this case, the court heard an appeal on the grounds that the trial court failed to give proper jury instructions pertaining to Arizona’s criminal law, A.R.S. § 13-411, the “crime prevention justification.”
Among other things, A.R.S. § 13-411 allows someone to threaten deadly physical force against another if he believes that this force is necessary to prevent any of the crimes listed.
Aggravated Assault with a deadly weapon is one for the crimes against a defendant may be justified in using force or deadly force. Other crimes to which this defense may apply include kidnapping, sexual assault, armed robbery, and arson of an occupied structure.
This case arose when the defendant was driving a car carrying his four-year-old son and fiancée. The victim was driving by himself. The defendant made a turn that cut off the victim, who hit the brakes. According to the testimony of the defendant’s fiancée, the victim responded by honking and tailgating them. She also said that the victim waved a gun. In the moment, she told the defendant about the victim’s gun.
When the cars pulled up to a stoplight, the defendant got out and stood next to the car with his own gun. The light changed to green, and the defendant got in his car and kept driving. Instead of letting it go, the victim gave chase, running two red lights.
The victim called 911, and the dispatcher told him to stop chasing, but the victim continued for a while. The dispatcher then sent a police officer to meet the victim in a nearby shopping center. The victim went to the wrong place in the center but eventually met up with the officer. The officer searched the victim’s car and didn’t find a weapon. The victim claimed he never had one.
The defendant was arrested and put on trial. The trial court gave instructions on self-defense, defense of others, and defensive display of firearms. The trial court refused to give the defendant’s requested instruction on A.R.S. § 13-411, Use of Force – Crime Prevention Justification, on the grounds that there was no evidence to support it.
The defendant was convicted of Aggravated Assault with a deadly weapon and sentenced to 5 years in prison.
On appeal, the defendant argued that the judge should have given the jury instruction he requested on A.R.S. § 13-411.The state argued that the meat of the instruction was already covered by other instructions, so it didn’t matter that the trial court denied the request.
The instruction requested would have told the jury that his threat of deadly physical force was justified if he reasonably believed it was necessary to prevent an imminent aggravated assault. More importantly, the instruction also would have told the jury that a defendant is presumed to have acted reasonably if he is acting to stop what he reasonably thinks is imminent aggravated assault (or one of the other listed crimes).
The appellate court explained that a defendant is entitled to a jury instruction as long as it was on a theory supported by some small amount of proof. The court found that looking at the evidence that supported the defendant’s version of events; a rational jury could decide the victim acted as an aggressor. In this case, the defendant might reasonably have believed he needed to display the gun, while he was in the “zone of danger” in order to prevent an aggravated assault.
The appellate court further explained that it didn’t matter if a jury might not find the defendant’s evidence believable. When deciding whether to give a jury instruction requested by the defendant, the trial court must look at evidence in the light that supports the defendant.
The appellate court also explained that the state was wrong holding that the requested crime prevention instruction was substantively covered by the self-defense and defense of third-person instructions. The crime prevention justification lets a jury know that a defendant is presumed to be acting reasonably in acting to stop an imminent aggravated assault.
The state has the burden of proving the lack of justification. If the state fails to prove the defendant was unreasonable, the defendant must be acquitted.
In this case, if the crime prevention instruction was given, it would have let the jury know about the defendant should be presumed to have acted reasonably if his actions were to prevent the imminent or actual commission of an aggravated assault.
The appellate court reversed the conviction and sentence. Because of the presumption that the defendant acted reasonably and the burden on the state to prove otherwise, the crime prevention justification is an important one for defendants. However, a petition for review was filed to the Arizona Supreme Court, so this issue may still be in flux.
Part IV. Arizona’s 15 Justification Defenses
[A.R.S. 13 – Chapter 4]
Justification Defenses are some of the most common defenses used at trial to challenge Aggravated Assault with Deadly Weapon Charges.
Self-defense is a well-known Justification Defense. However, it is not the only one. Arizona has 15 different Justification Defenses, including the following: circumstances:
- Execution of public duty;
- Use of physical force;
- Use of lethal or deadly force;
- Defending a third party;
- Defending premises;
- Defending property;
- Use of physical force in the course of official law enforcement duties;
- Use of deadly force in the process of official law enforcement duties;
- Use of force – Crime Prevention;
- Actions under duress;
- Use of reasonable and necessary means, by a correctional officer to prevent the escape of a prisoner from custody or from a correctional facility; from taking another person hostage, or causing serious physical injury to another person;
- Necessity Defense
Each of these defenses contains different statutory language which will call for different jury instruction. Consequently the Jury Instructions will differ depending on which one the defendant raises in trial.
Part V. Justification Use of Force – Crime Prevention
Under this law a person’s actions are justified in threatening and use of physical and deadly force, if the person reasonably believes that it is necessary to prevent another person’s immediate commission of serious crimes against a victim or their property. Several examples of crimes under the statute include burglary of an occupied structure, arson, aggravated assault, or murder.
The Appeals court noted in this case that Actual danger is not necessary to justify the use of physical or deadly physical force.
Under this law in Arizona there is no duty to first retreat.
The law applies to any incident which occurs in Arizona where the defendant has the right to be.
Part VI. Aggravated Assault with Deadly Weapon Laws in Arizona
[A.R.S § 13-1204]
Aggravated Assault in Arizona is a Felony Assault. Among other definitions, a person may be convicted of a Felony Assault if the act meets the definition of a Misdemeanor assault under A.R.S. 13-1203, but the person uses a deadly weapon or dangerous instrument in the process of the crime.
To break it down further as it applies to this case. The assault crime was the act of causing someone to fear that physical injury was imminent.
Then since a firearm was displayed, this escalated the assault charge to Aggravated Assault with a deadly weapon.
This was the case, even though the victim was not physically injured.
Part VII. What to do if you become the target of Road Rage
[Personal Injury Attorney Dave Abels; Arizona Department of Public Safety; The National Safety Council]
For this segment, we explore the safest ways to deal with a road raged driver. We turn first to and experienced personal injury attorney in Phoenix AZ.
Following that, are tips from The Arizona Department of Public Safety; The National Highway Traffic and Safety Administration; and the National Safety Council.
Experienced Personal Injury Attorney in Phoenix AZ Dave Abels of Abels & Annes, PC. Personal Injury Lawyers, represents victims and their families whose injuries or wrongful were caused by road rage incidents.
Abels & Annes offers these tips on their web page dedicated to raising awareness, safety and prevention of road rage: “While you cannot control the behavior of other drivers, you can control your own behavior behind the wheel. If a driver exhibits dangerous or threatening actions, do not engage with that driver and instead increase the distance between yourself and the aggressive operator. If needed, turn onto another road or call local authorities for assistance. The best way to avoid a road rage collision is to remain aware of those around you and to avoid hazardous situations when possible.”
Abeles & Annes recent Blog post: “Road rage is a crime for good reason – driving in that manner can be reckless and significantly increases the odds that a collision will occur, making it possible that the drivers and passengers involved will be injured. If you find yourself in a frustrating or threatening situation while in Phoenix, try to remember to remain calm, avoid escalating the situation, and put distance between yourself and an aggressive driver to ensure your safety.”
[Arizona Department of Public Safety]
The Arizona Department of Public Safety provides these tips for confronting a road raged drivers:
- Stay Calm: Try to relax and ignore their hostilities;
- Focus on driving safely: Keep your eyes on the road, obey the speed limit, signs and signals;
- Get out of the way: If the hostilities and aggression continue, let them pass, and try to stay out of their way;
- Put pride aside: Do not challenge them or speed up to provoke them;
- Avoid eye contact: Eye contact enrage an aggressive driver;
- Ignore hand gestures: Refuse to return them;
- Report serious aggressive driving: Get the license plate and the description of the vehicle.
- Take into account the consequences of your own actions.
[The National Safety Council]
The National Safety Council (NSC) had these tips to share:
- Let aggressive drivers pass that are following too closely;
- Keep emotions in check;
- Give the road raged driver plenty of space;
- Take responsibility for your own actions;
- Continue to drive at a safe speed;
- Don’t take your eyes off the road;
- Continue to be respectful and use an apology gesture;
- If you are concerned about your safety or that of others drivers, call 9-1-1.
[Conclusion to Road Rage Safety Tips]
Count to 10, and think”Safety First”
The Authorities agree that the important thing is to avoid conflict. Remember that these are general tips and guides. All encounters hold their own unique set of circumstances. Remember that you can’t control what the other person is doing or thinking. Any actions can provoke a worse response. If you keep these tips in mind, stay calm, vigilant, and avoid conflict, you will likely reach your destination safely and without stress. So Count to 10 and think “Safety First”.
Part VIII. Penalties & Criminal Defenses for Aggravated Assault with Deadly Weapon Charges
[Criminal Code Sentencing Provisions 2015-2016]
If you are charged with Aggravated Assault your freedom and future are at stake. It is important that you consult an experienced Arizona criminal defense attorney to defend your charges and protect your rights.
When the charges involve a firearm or other deadly weapon, it adds an aggravated factor to sentencing and convictions will result in longer prison terms.
Charges may be brought as a Class 2 or 3 felony based on the nature of the offense, which will expose a person to 5 years minimum and 15 year maximum prison sentence; however, the maximums will be longer if the victim is a person under 15 years of age, a prosecutor, or on duty police officer doing their job.
It is important to retain an experienced criminal defense attorney who understands the nuances of all possible defenses. There are a number of defenses that may apply to your case.
In the case study above, both pretrial and post- trial defenses were used.
In pre-trial all the valid Justification Defenses that applied to the circumstances were used.
An appeal was made in post-trial on the grounds that the Jury Instruction were not provided for the Justification – Crime Defense challenge, which was successful, and the conviction was overturned.
Justification Defenses are the most common types of pretrial challenges to aggravated assault charges. And while not often used, they applied here, and the Jury Instruction challenge proved to be effective in this case.
- Constitutional Rights violations;
- Burden of proof not satisfied by Prosecution;
- Forensic evidence challenges;
- Violations in court, police procedures;
- Violations in the handling and storage of evidence;
- Conflicting or prejudicial testimony;
- Miranda Warning Violations;
- Lack of, or insufficiency of evidence;
- Changes in Laws (Statutory);
- Jurisdiction challenges.
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A.R.S. § 13-411 (Crime Prevention justification)
A.R.S. § 13-1203 (Misdemeanor Assault)
A.R.S § 13-1204 (Aggravated, Felony assault)
A.R.S. § 13-404 (Self- defense justification)
National Safety Council
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