TUCSON CRIMINAL DEFENSE ATTORNEY Interfering with another person's custody rights in Arizona can lead to serious consequences. Child custody can be both complicated and emotional. Loving parents, acting with their child's best interests at heart can come to find themselves in violation of the law and facing potentially serious consequences. The courts offer remedies for seeking or modifying orders regarding custody and parenting time, and it is important to follow the proper family law procedures to address child custody disputes or concerns. Arizona law aims to prevent "self-help" processes like withholding a child by one parent, or taking of a child out of state. Navigating child custody issues, especially once the courts have become involved can be quite complex. Consult with an attorney at Tucson Defenders to discuss some of your rights with regards to custody, as well as how to defend against an accusation or charge of custodial interference. Our office offers free consultations, and has experience with both criminal law and family law matters. What is Custodial Interference? Custodial interference happens when a person (often a non-custodial parent) attempts to disrupt the standard custody rights of a custodial parent to such a degree that causes problems. Depending on the severity of the disruptions, the disrupting parent may face a wide range of legal consequences. Under Arizona law, there are a few different ways in which a person can be guilty of the crime of custodial interference. Most commonly, people commit this crime when they, without any legal right, take or keep a child from the lawful custody of another person. Note that it can also apply to the taking/keeping of an incompetent adult, as well as from the lawful custody of an institution. NOTE: For a child born out of wedlock the mother is the legal guardian unless and until paternity is established. Some Examples of Custodial Interference In addition, a person can commit custodial interference if, without legal right to do so, the person: 1. taking or withholding a child from the other parent prior to the entry of a court order. 2. taking or withholding a child from the physical custody of the other parent when the two parents share joint custody. 3. intentionally failing to return a child to his/her lawful custodian after the expiration of access rights outside the State of Arizona. ARS 13-1302 is the Arizona statute that defines the crime of custodial interference as when a person, without any legal right, interferes with another person’s custody rights – either in relation to the custody of a child or an incompetent person. A violation of this law can lead to up to 8.75 years in state prison (the aggravated term for the most serious cases). Depending on the facts of a case, a violation of this section may be:
Custodial Interference will be filed as a Class 3 felony only where the defendant is someone other than a parent or custodian of the child (or an agent of a parent/guardian). It is a class 4 felony if the child or incompetent person is taken out of state by the parent/custodian. If a parent or custodian (or agent of a parent/custodian) takes or keeps a child from another parent/custodian within the state, it will either be a Class 6 felony or a Class 1 misdemeanor, only if the child is voluntarily returned within 48 hours without any harm Defenses to Custodial Interference Charges? Note that there are very few exceptions listed in in ARS 13-1302 that would allow for a parent to take or keep a child from a legal custodian, but there are a number of available defenses, including:
If you or a loved one has been arrested or charged with custodial interference, or a related offense in Arizona, contact the Tucson Defenders today for a FREE CONSULTATION with a criminal defense attorney. Our office has experience handling family law matters, and can also assist with family law needs such as custody orders, child support, orders of protection, and more. CALL NOW 520-585-5757 RELATED ARTICLES: KIDNAPPING, CHILD ENDANGERMENT AND ABUSE, and INTERFERE WITH JUDICIAL PROCEEDINGS.
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TUCSON CRIMINAL DEFENSE ATTORNEYS  In many criminal cases, a person is arrested during the commission of a crime, or shortly thereafter. Other times, however, a lengthy criminal investigation into potentially criminal conduct culminates in a law enforcement agency presenting a case for prosecution. For example, most DUI arrests take place immediately after the commission of the offense, leaving no time to work with an attorney during the investigative and pre-filing stages. On the other hand, fraud crimes, sex offenses, many federal crimes, and others will move more slowly. Additionally, it is not uncommon for a person to be arrested before a case is submitted for prosecution, in which case there may be an opportunity to present favorable evidence before charges are brought. THERE ARE MANY CASES WHERE EARLY INTERVENTION BY AN EXPERIENCED CRIMINAL DEFENSE ATTORNEY CAN HELP YIELD A BETTER OUTCOME IN A CRIMINAL CASE. IF YOU ARE UNDER INVESTIGATION FOR A CRIME, OR HAVE REASON TO BELIEVE YOU MAY BE THE TARGET OF A STATE OR FEDERAL CRIMINAL INVESTIGATION, CONTACT US TODAY FOR A FREE CONSULTATION WITH A TUCSON CRIMINAL DEFENSE ATTORNEY. 520-585-5757. Pre-filing (also called "pre-charge" or "pre-indictment") representation is where somebody hires a criminal defense lawyer before they have been charged or indicted, sometimes before the police have arrested them and, in the best possible case, before the police have even started their investigation. The benefits of having counsel at this stage are multifold. Criminal lawyers advising people who have not been charged with a crime, but have concern that they could be charged, are said to be providing “pre-charge counsel.” • If you are under investigation and about to be questioned before indictment, by a law enforcement official in Arizona, you must make sure you are defended. Sometimes, if you obtain legal representation in your defense, the criminal charges are thwarted completely. Retaining Criminal Defense at that point, builds a barrier between you and the prosecution. Nicholas Loncar will be your legal wall between you and the state to keep your constitutional rights from being violated, and reduce your chances of unintentional self incrimination. In other words, he will keep you from you saying or doing something that the state will hold against you later. Remember, the prosecution and police are doing everything in their power to build a case against you. • You need legal representation to make sure the state does not twist your words around only to be used against you. You need an experienced Arizona criminal attorney to take control and proactively defend you. Pre-indictment In general, it is simply occurring prior to a formal charge being made against a suspected criminal. investigations are conducted just prior to the police contacting you, or it could be after they have attempted to talk to you. At this point, no formal criminal charges have been filed, and you have not yet been arrested. Again the state is usually just trying to build or strengthen its’ case against you. What your Criminal defense lawyer will do? During this phase before indictment, Nicholas Loncar, criminal defense attorney can help you and will do everything possible to accomplish the following:
reduce the chance of being charged with a crime, and significantly improve the outcome that would otherwise occur. When Charges are Eminent There are certain steps Arizona criminal defense lawyers take to eliminate future charges, but sometimes they are unavoidable. In such a case, skilled lawyers continue working to set up their clients for the best chance of success. They take actions such as: • Interviewing possible witnesses and gathering evidence to better understand the upcoming proceedings, and build a strong case against the coming charges. • Talking with the prosecutor and arranging to present evidence to Grand Jury. TUCSON CRIMINAL DEFENSE LAWYER  One of the more common charges in Arizona's misdemeanor courts is "Interfering with a Judicial Proceeding" pursduant to ARS 13-2810. While this misdemeanor offense is a far cry from being the crime of the century, it is absolutely a crime that judges and prosecutors take very seriously. Courtrooms have rules of decorum which must be followed to avoid possible contempt or even misdemeanor charges. Loud outbursts, communicating with an inmate, even using a cell phone can violate these rules. Further, criminal courts, family law courts, civil courts, etc. all issue certain orders to parties, which of course a party must follow. Court orders may include staying away from a particular person or location, not harassing a particular person, and more.
NOTE: Under some circumstances, a defendant may be required to follow certain "conditions of release" during the pendency of a criminal case; this means that a violation of release conditions could result in a defendant being taken into custody, forfeiting posted bail. IF YOU OR A LOVED ONE HAS BEEN ARRESTED OR CHARGED WITH INTERFERING WITH JUDICIAL PROCEEDINGS, CONTACT A TUCSON CRIMINAL DEFENSE ATTORNEY NOW TO DISCUSS YOUR CASE. FREE CONSULTATIONS 520-585-5757. How Does Arizona Law Define “Interfering With Judicial Proceedings?" ARS 13-2810 is the Arizona statute that defines the crime of interfering with a judicial proceeding. A person commits this offense when they knowingly commit some act, or fail to fulfill a court-ordered duty, in relation to a court proceeding (for example, refusal to be sworn in as a witness). "Interfering with judicial proceedings; classification A. A person commits interfering with judicial proceedings if such person knowingly: 1. Engages in disorderly, disrespectful or insolent behavior during the session of a court which directly tends to interrupt its proceedings or impairs the respect due to its authority; or 2. Disobeys or resists the lawful order, process or other mandate of a court; or 3. Refuses to be sworn or affirmed as a witness in any court proceeding; or 4. Publishes a false or grossly inaccurate report of a court proceeding; or 5. Refuses to serve as a juror unless exempted by law; or 6. Fails inexcusably to attend a trial at which he has been chosen to serve as a juror. B. Interfering with judicial proceedings is a class 1 misdemeanor" To prove their case, the prosecution must show (beyond a reasonable doubt) that the defendant knowingly disobeyed or resisted the lawful order, process, or other mandate of a court. The state will have to show not only that the court order was made, but that the defendant was made aware of the court order, and that it was not so ambiguous that it was unclear which conduct would violate the order. Interfering with Judicial Proceedings is a Class 1 Misdemeanor. If convicted, a person can be sentenced to serve up to 6 months in jail, pay a fine of up to $2,500, and serve up to 3 years of probation. The Court may impose additional terms, like classes, treatment, and, yes, more court orders to follow. Note that these are the maximum penalties, and that a sentence can be reached that does not involve any jail time (and sometimes no conviction at all). What Defenses Apply? A person accused of a crime under this statute can challenge the accusation with a legal defense. A few common defenses to these charges include:
Defending Interfering with Judicial Proceedings cases may entail proving that a defendant was not aware of a court order (difficult if the order was entered in open court with the defendant present), that the order was vague or unlawful, that the evidence of a violation of the order is fabricated, that the evidence of a violation is insufficient to meet the state's burden, as well as attempting to explain the violation as justified, thereby reducing or eliminating the penalty. To discuss a specific case, contact the Tucson Defenders today for a FREE CONSULTATION with an experienced criminal defense attorney. We can go over the facts of your case, begin to evaluate any defenses, and answer any questions you may have about the charges or the process. Related Offenses
Related Articles DUI Causing Death Defense in Arizona In Arizona, there is no distinct law for vehicular manslaughter or DUI causing death. This means that a person charged with vehicular manslaughter will be charged with A.R.S. 13-1103, and will face the same consequences. If you have been involved in a motor vehicle accident where someone was killed, it is very important to obtain legal representation right away. Cases of suspected DUI where a person was killed are very harshly prosecuted in Arizona. Vehicular manslaughter, generally speaking, would be the act of causing the death of a human being due to illegal driving of an automobile. This means that it is possible to be guilty of manslaughter for a fatal accident, even when not under the influence. In other words, not all vehicular manslaughter cases are DUI-related. It is also possible to be deemed reckless while sober, if driving in a very unsafe manner, at an unsafe speed, etc. Vehicular manslaughter requires more than ordinary negligence, which would fall under Arizona's negligent homicide statute (A.R.S. 13-1102). In DUI cases, a driver will be charged with manslaughter if the driving causes the death of another person, including a passenger or an unborn child. Manslaughter is a class 2 felony, punishable by up to 7, 12, or 21 years in prison. Because vehicular manslaughter involves death, it will be punished more harshly, even though the intent was the same. Harm counts, and that is also why DUI causing injury is treated more seriously than cases where no one is hurt. On the other hand, Negligent Homicide (short of recklessness) is a class 4 felony, punishable by a maximum of 3.75 years in prison. Defending DUI Manslaughter cases is complicated. Not only must the defendant defend against the traditional elements of DUI, but also defend against being the cause of another person's death. One can be guilty of Driving Under the Influence by having a BAC of .08 or higher, regardless of actual impairment. A person can feel sober, but will still be in violation of the law if above the legal limit. Additionally, a person can be guilty of DUI while below the legal limit, if impaired. If that impairment also caused bad driving resulting in death, then the driver can be charged with manslaughter. Common Arizona DUI Defenses WHAT QUALIFIES AS RECKLESSNESS UNDER ARIZONA LAW? Under Arizona Law, a person is driving recklessly when he or she consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. This means that the defendant must have not only done something that puts people at risk, but also must have been aware of the fact that the actions put people at risk. Prosecutors will argue that simply driving under the influence is enough to constitute recklessness, and will generally charge manslaughter if they can prove that a person was driving under the influence. HOW TO CHALLENGE CAUSATION A driver involved in a fatal crash can be under the influence without causing the accident. Accidents happen for a wide range of reasons. Accident reconstruction can be conducted to determine what were the different causes of a particular accident. While it will always be difficult to challenge causation in a DUI manslaughter case, the State does ultimately bear the burden of proof beyond a reasonable doubt. This means that the government needs strong evidence to find someone guilty of causing another person's death; the mere fact that a person was under the influence will not, on its own, sustain a conviction for manslaughter. RELATED ARTICLES: Manslaughter, Driving Under the Influence, Drug Crimes, Aggravated DUI, DUI Drugs, DUI Causing Injury, Multiple Offense DUI IF YOU OR A LOVED ONE HAS BEEN ARRESTED FOR DUI AND MANSLAUGHTER, YOU NEED AN EXPERIENCED ATTORNEY ON YOUR SIDE TO FIGHT FOR YOU. CONTACT THE TUCSON DEFENDERS TODAY FOR A FREE CONSULTATION WITH AN EXPERIENCED DUI LAWYER. 520-585-5757 Tucson Criminal and DUI Defense Attorney If you have been arrested and charged with the crime of Driving Under the Influence of Intoxicating Liquor or Drugs (DUI) you are facing a serious offense. You may face some significant consequences, including:
But, not all hope is lost. The task is quite challenging, but DUI cases are defensible. For that, you need a lawyer who understands not only the criminal justice system, but also the unique ways it interacts with DUI charges. Only an experienced DUI lawyer can identify unique issues in your case to identify the best DUI defenses available. Thorough DUI defense requires a strong understanding of the science behind DUI prosecutions, including understanding how BAC testing works, the ins and outs of field sobriety tests, and of course a strong grasp of the constitutional and statutory laws. The following is a list of some of these defenses to give you an idea of how legal and scientific issues form the basis for many types of DUI defenses. This is not an exhaustive list, and intended to give a general understanding of some of the common defenses in Arizona DUI cases. This should not be construed as being a substitute for a consultation with a DUI lawyer. If you or a loved one has been arrested for DUI, contact the Tucson Defenders today for a Free Consultation with a Tucson Criminal Defense and DUI Attorney. ACCUSED WAS NOT DRIVING A VEHICLE Many people overlook what might be the most obvious and glaring defense a person charged with DUI might have. While this defense will not apply to many cases where the defendant was arrested during a traffic stop or at a DUI checkpoint, a no-driving defense may be very viable in a case involving a traffic collision. Considering these often carry the most serious consequences (especially of someone is injured). It is a well settled law that a person who is impaired and not driving a motor vehicle, or who is not in actual physical control of a motor vehicle should not be found guilty of a DUI. As in all criminal cases, the prosecution bears the burden of proving each element of the crime beyond a reasonable doubt. In the case of DUI, driving is an element not to be overlooked. ILLEGAL STOP OF PERSON OR VEHICLE In order to stop a motorist, a police officer must have a reasonable A driver cannot be stopped unless the officer has a just and basis to believe that a person has violated a traffic law or other law. Moreover, in all criminal cases, the State has the burden to prove that all evidence was obtained lawfully and in compliance with the Fourth Amendment of the United States Constitution (which protects the rights of all individuals to be from unreasonable searches and seizures). There have been many favorable precedent-setting court cases reinforcing the rights of motorists to be free from unjustified traffic stops. If an officer's account of the reason for the stop does not suggest enough evidence of criminality, the stop should not be upheld. Further, there may be evidence to contradict an officer's account, particularly with the modern trend to have dash cams, body-worn video, and even surveillance cameras belonging to local homes and businesses. Challenging a traffic stop is not easy, but when done correctly, can result in a dismissal of a DUI case. NOTE: DUI Checkpoints follow a different legal standard, and have been upheld as Constitutional by the United States Supreme Court. NOT GIVEN OPPORTUNITY TO CONTACT AN ATTORNEY DURING THE DUI INVESTIGATION Pursuant to Rule 6.1 Ariz. Rules of Criminal Procedure "A defendant has the right to be represented by counsel in any criminal proceeding. The right to be represented by counsel includes the right to consult privately with counsel, or the counsel's agent, as soon as feasible after a defendant has been taken into custody, at reasonable times after being taken into custody, and sufficiently in advance of a proceeding to allow counsel to adequately prepare for the proceeding.” In DUI investigations, this right is indefeasible because the time frames of a DUI investigation are critical in making the decision to obtain “independent exculpatory evidence.” Denial of that right can result in a DUI case being dismissed. Evidence obtained following the violation of a defendant's right to counsel must be suppressed, and sometimes a dismissal of the charges is the remedy when the State interferes with a defendant's inability to consult with counsel. INACCURACY OF BREATH TESTING Breath tests generally known as "breathalyzers." These devices measure the particles of breath alcohol in your lungs (not the blood) and provide a number meant to correspond the BAC (Blood Alcohol Concentration). This indirect method of measurement means that there is an inherent 10% margin of error, which can mean a falsely high reading. Although two breath tests are often performed, some of the same factors can easily (and usually would be) present for both tests. These factors include:
FIELD SOBRIETY TEST IS INACCURATE OR INVALID Not all Field Sobriety Tests (FSTs) are “standardized” (accepted by NHTSA). Tests like “Finger-to-Nose,” (Modified) Rhomberg balancing test, or reciting the alphabet are not accepted tests for determining impairment. A police officer may determine that a suspect "failed" a field sobriety test, but if there is not a link between that test and impairment to drive, the test does not provide much legal value. Some tests, such as the Horizontal Gaze Nystagmus (HGN) test have been linked to accurately determine alcohol impairment, but must be performed properly in order to yield meaningful results. Questionable administration of FSTs may be used by the defense to challenge an arrest (i.e. the test do not provide enough evidence of impairment to justify the arrest), or may be used at trial to challenge the State's evidence of impairment. In any event, having an experienced DUI lawyer who knows the science and procedure associated with FSTs is imperative. FSTs are tricky, and need to be dealt with thoroughly when the administering officer is on the witness stand. OTHER COMMON DEFENSES INCLUDE: Unlawful Arrest (Violates 4th Amendment), Miranda Violation (5th Amendment), Implied Consent Violations ("Refusal" Cases), Right to Independent Test (Failure to Preserve), Medical Conditions, and more. IF YOU OR A LOVED ONE IS FACING DUI CHARGES IN TUCSON, CONTACT THE TUCSON DEFENDERS TODAY FOR A FREE CONSULTATION WITH A TUCSON DUI DEFENSE ATTORNEY. 520-585-5757 RELATED ARTICLES: Common Defense Strategies, Driving Under the Influence, Drug Crimes, Aggravated DUI, DUI Drugs, DUI Causing Injury, Multiple Offense DUI |
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November 2024
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