Arizona Criminal Law & Sex Crimes Post

Jackee Coe of the Arizona Republic had a recent story in which an anti-underage drinking coalition staged a mock Arizona DUI crash Buckeye.  

The Way Out West Coalition hosted the demonstration to raise awareness about the dangers of underage drinking and promote a social-host ordinance that took effect April 1. The ordinance holds adult enablers of underage drinking legally responsible.

The ordinance the article refers to is a statute that means:  

Adults who provide alcohol to minors will receive civil or criminal citations depending on the severity of the offense. The civil fines range from $250 to $1,500.  A "host presumption" provision states that adults who "knew or should have known" about the alcohol but didn't take appropriate steps to prevent it will be held accountable, even if they were not home at the time.

What would be very interesting is if there was an attempt at making adults responsible for underage drinkers who are found guilty of underage or juvenile dui.  That is because both the penalties and consequences for an underage Arizona DUI conviction are so harsh.

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I am about to describe something that happens all the time Arizona DUI cases. Imagine the following: a police officer sees a driver late at night make a right turn, and instead of turning into the curb lane, the driver turns in the median lane.  The officer pulls over the driver for not making a turn "into the first available lane."  When he comes up to the driver, he can smell alcohol on him; he asks the driver to do some field sobriety tests and a portable breath test. The driver tells the officer "I had a few at the bar down the street". The officer then arrests the driver and the blood alcohol result is well above the legal limit. During the search incident to arrest, the officer finds a gram of methamphetamine on the driver, and he orders a drug screen as well of the driver's blood.  

Now consider the fact possession of methamphetamine is a class 4 felony, while a first time DUI is almost always, with a couple of exceptions, a misdemeanor.   With that in mind, which of the two crimes, drug possession of crystal meth or a first time misdemeanor DUI, do you think brings more jail time?  The answer is the DUI.  For a first time DUI, the time in custody is at least 24 hours and can be up to 180 days in jail. The state required minimum for a first time conviction for methamphetamine is no time in custody, and under most circumstances, it is illegal to be sentenced to prison for a first or second conviction.  

Considering the fact one always has the right to a jury trial for felonies and the penalty for a DUI is greater than some felonies, one would assume that you would get a jury trial for a misdemeanor DUI as well.  That has always been the law, but that might just change.   According to Paul Davenport of the AP, Senate Bill SB 1200 would: 

A bill approved by the Arizona Legislature would end misdemeanor DUI defendants' automatic right to a jury trial for a first offense... The House formally approved the bill Monday, and the Senate followed suit Tuesday afternoon. The Legislature adjourned its session early Wednesday morning, and the bill is now among 168 measures awaiting action by Gov. Jan Brewer by May 2.

According to Lester Pearce, a Maricopa County justice of the peace for north Mesa:

Eliminating a blanket right to jury trials for first-offense misdemeanor DUI cases will save millions of dollars statewide in court costs and other expenses, primarily because trials will be shorter and because direct jury expenses will be eliminated in many cases. 

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What exactly is "sexting"? Here is a good explanation from clutchmagonline: 

According to a recent survey on the parental control website parentalcontrolapps.com of all teens are sexting; 22% of girls and 18% of boys. Sexting includes sending and receiving sexual photos and text messages. It’s sex and written text colliding in a technology driven society and dubbed “sexting” that has young people moving into fast paced relationships that leave little left to the imagination.

Sexting has caught the attention of politicians: 

With sexting on the rise, parents, school officials, law enforcement agencies and legislators are scrambling to deal with the issue. Nationwide, teens have been arrested and charged with possession of child pornography for having copies of the lewd photos on their cell phones and computers.

While the State of New York is considering legislation, Arizona already has strict laws against sexting.  In particular Arizona Revised Statute, 13-3553. Sexual exploitation of a minor:

A. A person commits sexual exploitation of a minor by knowingly:

1. Recording, filming, photographing, developing or duplicating any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct.

2. Distributing, transporting, exhibiting, receiving, selling, purchasing, electronically transmitting, possessing or exchanging any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct.

B. If any visual depiction of sexual exploitation of a minor is admitted into evidence, the court shall seal that evidence at the conclusion of any grand jury proceeding, hearing or trial.

C. Sexual exploitation of a minor is a class 2 felony and if the minor is under fifteen years of age it is punishable pursuant to section 13-705.

ARS 13-705 has a presumptive sentence of 17 years in custody flat time. 

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I talk to people all the time about DUI's,  whether it be clients, police officers, other Phoenix DUI lawyers, or prosecutors.  And one of the things that comes up quite a bit is the reason for the officer stopping a DUI suspect.  This question is not trivial, and is in fact very important.  

An officer cannot stop random vehicles, regardless of the time of day or location, in the hopes that any random stop will lead to a DUI arrest.  An officer can only stop a driver for one of three reasons: first, a equipment failure; second, a civil traffic violation; and three, reasonable suspicion that a crime has been committed. 

Equipment failure means exactly that: there is something about the car that violates Arizona laws for safe vehicles.  Of course, equipment failure does not necessarily mean the car is unsafe, just unsafe enough for the officer to pull over the driver.  That could be something as little as a tiny crack in the windshield or one of the license plate lights is not operating and visible past 50 feet. It could also be something serious like the car is on fire. 

A civil traffic violation means the driver has violated traffic laws.  It could be something like speeding or expired registration.  It could also be something like not making a turn into the first available lane.  My experience is that not turning into the first available lane will not get you pulled over at 1 PM, but will certainly get you pulled over at 1 AM.

Finally, reasonable suspicion means the officer has reasonable cause to believe that a crime is being committed.  That would mean something like weaving heavily, not moving for a green light, asleep at the wheel etc...   Of course, most officers will cite multiple reasons for pulling over a driver because that way, they could justify the stop on multiple reasons. 

Assuming the officer had valid reasons to pull you over, what should you do? 

Niki D'Andrea of the Phoenix New Times has a very interesting article concerning Arizona's new medical marijuana law.  

Get a card, and you can buy, possess, and use up to 2.5 ounces of marijuana every two weeks — or grow up to 12 plants. Follow the law, and cops can't arrest you, landlords can't discriminate against you, and employers can't penalize you (unless you're high on the job).

The card that Mrs. D'Andrea is referring to is the card that "the Arizona Department of Health Services will begin accepting applications for medical marijuana patient and caregiver cards. The ADHS will review and approve or deny each application within 10 business days."

Of course, this law changes things quite dramatically from the previous state of affairs in Arizona. Previously, regardless of what your doctor may have thought of your medical condition, possessing marijuana, even for personal use, was a felony.   Of course, even now, if you do not follow proper procedure, you could still be charged with a felony even if you have valid medical reason for possessing marijuana. 

While the prosecutor's office always had the right to charge marijuana possession as a felony, Arizona had quite progressive laws in general regarding drug possession.  For example, unlike almost every other state in the United States, Arizona voters passed Proposition 200 and 302.  Those laws required any person convicted of drug possession for personal use, even for a second offense, to get probation so long as they met certain requirements.  Those requirement include not having more than one drug conviction, no violent history, and they are willing to accept drug treatment as a condition of probation. 

I can't help but think this is good news.  The stories of jails overcrowding is well known, but even more to the point, I would hate the idea of young person or sick person having a drug possession felony on their record for the rest of their life because they had some marijuana on them.  I don't think drugs should be legal, but we should not treat all the drugs the same.  Marijuana is no where near remotely as destructive or dangerous as methamphetamine, yet before the new medical marijuana law, Arizona essentially treated them the same. 

Gary F. Dunham Jr.is the principal of Alliance Bail Bonds LLC in Mesa, Arizona.  He has kindly agreed to answer the following questions, which I get asked all the time, about bonding out of custody from an Arizona jail.

If a family member is out the state and cannot come to Arizona, can you help them bond a friend or family member out of an Arizona Jail?  

If someone is out of state and cannot come to Arizona, they are able to post a bond via telephone and fax/email using either a credit/debit card, wire transfer or a piece of property. If someone calls us collect from the jail, we are able to gather the information they provide to us, contact their family/friends for them and arrange a bail bond. Once arranged, then we can post a bond to get the defendant released from custody.

If the judge orders “cash only” bond, what does that mean? 

Cash Only means that the jail will accept only "Cash Money" as a form of payment to secure a defendant's release from custody. Not a paper bond. "Cash or Bond" means that the jail will accept either a "Paper Bond" or "Cash Money" as a form of payment to secure a defendant's release from custody. Both can be considered appearance bonds unless the "Cash Only" designation is for unpaid fines, in which case the "Cash Money" paid to secure the defendant’s release from custody is likely to be applied to the unpaid fine amount by the court. 

How does the bail bonds process work? In other words, let’s say someone has a $30,000 secured bond, and a family members wants to get him out but they do not have $30,000 on hand, what would should they do? 

The first thing to do is to contact a reputable Bail Bond Company to arrange the bond.  In this example of a $30,000.00 bond the required in accordance with the law is to secure collateral (Something that has a value of $30,000.00 or more) that the Bond Company could hold in their possession or attach a lien to.  The Bond Company will also charge as their fee for posting the bond 10% of the bond plus expenses. ($3,000.00 + expenses) Expenses vary and are mostly related to costs of lien attachments, notarization of documents and time of day the bond is posted, although Bond Companies fees can vary. 

A lot of people assume that if a bond is secured, they can get out by only paying 10% of the bond amount and no other property or cash is require. Is that correct? 

That is a common misconception. If you contract with a Bail Bond Company the fee govened by law is 10% of the bond + expenses. But collateral is required on all bonds posted in the State of Arizona.

Do you handle all the court paperwork once someone hires your company as far as filing with the court? 

Yes, we produce all the court required documents necessary to secure the release from custody of a criminal defendant after we are contracted with.

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Mr. Solomon Kanu is a well-established immigration and criminal defense lawyer in Phoenix, Az.  He has graciously agreed to an interview regarding the overlap between criminal law and immigration law. 

Mr. Kanu:

1) If someone is charged with a misdemeanor, for example a DUI or assault, and they are not a US citizen, should they be concerned about ICE or possible deportation?

Oh yes. Even long term permanent residents can be put in Removal proceedings because of some criminal conviction that is as simple as DUI. Many times when a non-citizen is booked into a jail, ICE is notified and they can place an Immigration detainer (hold) on the defendant making it imperative that even if he or she bonds out of the jail, ICE picks them up. It is important to consult with an immigration lawyer with criminal defense knowledge or have your criminal defense lawyer retain an immigration lawyer for you right away.

2) What if someone is not a US citizen and they are convicted of a felony, will they automatically be deported?

No. It depends on the offense and other factors of the conviction. Even then, there are several forms of relief that may be available.

3) What should a person who is facing criminal charges, for example, they are in custody in the county jail, do if an ICE agent asks to speak with them?  Can they invoke Miranda rights and refuse to talk to an ICE agent?  Is there anything in immigration proceedings similar to a suspect's Miranda rights in a criminal matter? Does someone have the absolute right to consult with an attorney during an ICE investigation as they would in a criminal investigation?

They can refuse to speak and ask that their lawyer be present in any interview with ICE. Whatever information they give then remains a permanent record in their immigration file.

4) When should a person be concerned about his immigration status?  If ICE has put a hold on someone while they are in custody for a criminal matter, can they bond out? And what does the immigration court consider when determining release conditions?    

A person should be concerned about their immigration status before they get into any trouble at all. If they are in jail already and ICE puts a hold it means that bonding out is to be released to ICE. It is sometimes risky because they may not be able to attend the next court hearing with the criminal court if they are detained in the Immigration Detention Centers in Eloy, Florence etc.

5) How has Arizona's recent law on immigration, SB 1070, changed how you practice law?

I don’t think it has changed anything.

6) If you could tell a person who is facing criminal charges and is not a US citizen one thing, what would that be?

Do not take any chances or take any pleas until you have been advised of the possible immigration consequences of the offense/conviction.

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Is innocence different?  Is there something about not convicting the innocent of a crime that is fundamentally more important than any other goal in the criminal justice system?  Professors Michael Risinger and Lesley Rissenger seem to think so.

But what has been generally overlooked is that “innocence is different” also.   What we mean by this is that the protection of the actually innocent from conviction should be a paramount goal of the criminal justice system against which all procedural rules should be judged. Despite the traditional rhetoric that recognizes this, too often the protection of the innocent takes a back seat to other goals, such as the conviction of the guilty- or even, ironically, the protection of the guilty. 

But, as the writers also note, there may be "stiff opposition" against reform of the criminal justice system from, as the authors actually are willing to claim,"[t]he defense bar may fear that some reforms will bring new disadvantages to the majority of their clients (the factually guilty ones) for the benefit of the innocent minority."  The writers then go on to list a number of proposals that would in their minds, free the innocent and convict the guilt better than the current system does. 

My opinion is that while there is certainly good reason to reform the criminal justice system, the manner in which they propose is not realistic.  First, as someone who has tried many cases and dealt with many juries and judges, I believe we have reached the limit of society’s ability to determine guilty from innocent, especially when the matter turns on intent or the state of mind of the defendant. We are at the point of irreducible uncertainty, and any attempt to increase the accuracy of the current system is doomed.   I would also add that as a former public defender and current criminal defense lawyer, the suggestion that the defense bar would oppose any reform that would increase acquittals of the innocent is, in polite terms, complete nonsense.  No ethical defense attorney wants anything more than the innocent to be free.

But my biggest complaint is that in the entire paper, the writers do not mention sentencing or incarceration rates in the United States. With their singular focus on guilt and innocence, it seems the writers have fallen into what Nietzsche called decadence and the anarchy of the atoms.  But one cannot intelligently discuss reforming criminal procedure without discussing prison sentences.   It would be like a doctor discussing drug treatment without mentioning getting better.  Any reform of criminal procedure must take into account the staggering American incarceration rate, which leads me to the ultimate point:  of course, setting the innocent free is of utmost important, but the ultimate goal of the criminal justice system is not setting the innocent free, but rather, making society conform to a set of behavior with the least onerous terms possible. That would mean keeping Americans safe with the fewest number of Americans in prison.  As I previously wrote: 

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