BOND/ BAIL MODIFICATION FOR ARIZONA CRIMINAL CASES
What is a Bail Bond?
A bail Bond is simply a financial guarantee (promise) made to the Court,
guaranteeing the appearance of the defendant to each and every one of his
hearings. If the defendant fails to appear, the cash value of the bond would be
paid to the Court. Suffice to say, A bail bond is a payment made by a bail
bondsman on the defendant’s behalf in exchange for a defendant’s release from
jail until their trial.
The Arizona Constitution provides that all persons charged with crimes shall be bailable unless the accused is charged with a crime that falls within an exception and the proof is evident or the presumption great that he committed
that crime. Ariz. Const. art. 2, § 22(A).
What is a Bond Modification?
A Bond Hearing is one of the first events to occur after an arrest. There are two main combined factors that the Judge will consider at the hearing-
• Risk Of Flight -It is when the Judge determines the likelihood of the accused appearing for any court date. The duration of your residency in a community is an important factor of this decision.
• Threat to the Community -Which is usually tied directly to the charge against the accused which can be summed up as the more serious the offense, typically the higher the Bond. Prior criminal history of the accused is also evaluated.
What is the purpose of Bond/Bail Modification?
The very purpose of it is to release the defendant upon conditions as to make sure that you the defendant not run away from the law or present a threat to others in the community and to make sure that defendant will appear in court

for trial or other hearings.
Moreover, it also talks about the conditions to be imposed upon such release of defendant that, release conditions should be proportionate to the criminal charge.
What is the A.R.S. section 13-3972 ?
Under A.R.S. section 13-3972, you are not supposed to be subject to more restraint than what is necessary to answer the charge, moreover the conditions are not supposed to be used as a pre-trial punishment.
A bail bond represents your promise to appear in court when you are required to do so. You buy the bail bond by paying a non-refundable premium, which is

usually about 10% of the amount of the bond. Exception to the General Rule
Under Arizona Revised Statutes section 3-3961, you are not admitted to bail if the presumption is great that you are guilty of certain crimes, such as Sexual Assault, capital offenses, sexual conduct with a minor who was under 15, molestation of a child who was under 15, or a serious felony offense if

there is probable cause to suggest that you came into or stayed in the United States illegally. However, each case is unique, and you should retain a lawyer both to request a modification if you need it and to defend against the charges.

What is a Grand Jury?
A grand jury is a jury of citizens, which considers a criminal case in order to decide if someone should be tried in a court of law.  The grand jury listens to the prosecutor and witnesses, and then votes in secret on whether they believe that enough evidence exists to charge the person with a crime.  NOTE:  This is much different from a criminal trial jury, who listen to evidence put on by both sides and then must decide whether the prosecution has proven each element of the crime beyond a reasonable doubt.

A grand jury views evidence put on by the prosecution only, and must simply decide whether enough evidence exists to charge (indict) a possible defendant.  They also may decide not to charge an individual based upon a lack of evidence, in which case no indictment would come from the grand jury.

All proceedings and statements made before a grand jury are sealed, meaning that only the people in the room have knowledge about who said what about whom. The grand jury is a constitutional requirement for certain types of crimes (meaning it is written in the United States Constitution) so that a group of citizens who do not know the defendant can make an unbiased decision about the evidence before voting to charge an individual with a crime.

Practically speaking, a grand jury is a group of between 9 and 16 people whose job it is to review potential criminal charges that the prosecutor wants to file against a defendant.  They are chosen from the general population and instructed on the grand jury process, and on the law applicable to a particular case.

Who can be a Grand Jury?
Grand jurors can be nearly any member of the public. They do not need to have a legal background. There are only a few qualifications to be a grand juror. Jurors have to:

• be at least 18 years old,
• be a U.S. citizen,
• be a resident of the jurisdiction in which the grand jury is going to sit,
• not have a felony-level conviction on their criminal background or, if they do, their civil
  rights must have been restored, and
• not been adjudicated mentally incompetent or insane.
  

What is the Time Period of Service of Grand Jurors?
The time period for Grand jurors depends on the size of their county:
• 120 days, if the county has more than 200,000 people in it, like in Pima or Maricopa County, or
• 180 days, if the county has fewer than 200,000 people.

How Grand Jury Proceedings takes place?
How a grand jury works is much more relaxed than normal court room proceedings. There is no judge present and frequently there are no lawyers except for the prosecutor. The prosecutor will explain the law to the jury and work with them to gather evidence and hear testimony. Under normal courtroom rules of evidence, exhibits and other testimony must adhere to strict rules before admission. However, a grand jury has broad power to see and hear almost anything they would like.

How Does a Grand Jury Differ from a Preliminary Hearing?
While all states have provisions in their laws that allow for grand juries, roughly half of the states don't use them. Courts often use preliminary hearings prior to criminal trials which are adversarial in nature. As with grand juries, preliminary hearings are meant to determine whether there is enough evidence, or probable cause, to indict a criminal suspect. Unlike a grand jury, a preliminary hearing is usually open to the public and involves lawyers on both sides and a judge (not so with grand juries which only involve the jurors and the prosecutor). Sometimes, a preliminary hearing precedes a grand jury. One of the biggest differences between the two is the requirement that a defendant request a preliminary hearing, although the court may decline a request.

What happens after a grand jury indictment?
If the grand jury decides to indict the person under investigation, the prosecutor will present
a draft indictment that lists the criminal charges to be filed. The grand jury can alter this draft indictment. The final version of the indictment is the true bill. It names the criminal charges that are actually to be filed against the defendant. All necessarily included offenses in each charge are implied in the indictment.

The grand jury may then issue the defendant a summons to appear in court, or an arrest warrant for the defendant. If the defendant is arrested, he or she has a right to an initial appearance within 24 hours.  At the initial appearance, the arraignment and an initial pretrial conference will be scheduled or, if the defendant takes a plea agreement, a sentencing date will be set.

Challenging Grand Jury Proceedings
Because Grand Jury proceedings are conducted in secret, a defendant does not have the opportunity to object to, or to present any of their own evidence at the hearing.  However, if the grand jury does indict someone, a transcript of those proceedings is made available to the defense.  In the event that evidence was presented in an unfair way, i.e. the prosecution had exculpatory evidence that it failed to present, or presented knowingly false evidence at the hearing, the defendant can challenge the indictment.  The process by which this is done is called a motion to dismiss or remand, wherein a defendant asks the court to review the transcript and consider whether the evidence was properly presented.  If not, the court may dismiss the case, or send it back for new grand jury proceedings, this time without the evidentiary error that occurred the first time.

IF YOU OR A LOVED ONE HAS BEEN CHARGED WITH A CRIME IN ARIZONA, CONTACT THE TUCSON DEFENDERS FOR A FREE CONSULTATION WITH A CRIMINAL DEFENSE ATTORNEY.  520-585-5757.

UNABLE TO AFFORD AN ATTORNEY, BUT STILL WANT TO CHOOSE YOUR OWN LAWYER?
In Arizona, criminal defendants who have appointed counsel (e.g. Public Defender, Appointments Panel, etc.) may have the option of hiring an attorney of their choice to work with their appointed attorney.  This process applies to individuals who are indigent and are unable to afford to hire an attorney of their choice to handle the entire case, but can still hire an attorney to do a portion of the work on their case.

The concept of Knapp Counsel is based on an Arizona Supreme Court case that is Knapp v. Hardy in which the Court held that ‘a Defendant has the right to have a Private Attorney associate with the Public Defender’s Office in defense of their case.  What this means is that a private criminal defense lawyer may assist an appointed attorney, in the form of joint representation, for the betterment of a Defendant’s case.  Simply having two attorneys working on a case instead of one will generally be advantageous, but there may also be more specific reasons a defendant may wish to bring on a private attorney to join in their defense.

The most obvious benefit of having a private defense attorney represent you as Knapp counsel, is that this means you will be able to get an attorney of your choice on your side for a fraction of the cost.  People in serious situations have two legal minds cooperating for their benefit, along with the advantages of having government resources available to aid in their defense.  Every lawyer, just like every person, will have their strengths and weaknesses.  When two lawyers with different strengths work together, the results can be great. 

This type of association is not well known by the public, but those who discover its advantages can definitely reap the benefits.  In more ways than one, this costs less than having the private lawyer replace the public defender as attorney of record.  Not only will the private attorney be doing less work on the case, and thereby not charging for the work done by the appointed attorney, but indigent defendants who hire Knapp counsel still receive the benefit of the state paying for some of the ancillary costs of litigation.  Investigators, expert witnesses, transcription services, etc. can become quite costly, and are all costs which indigent defendants are entitled to have covered by the court.  When a defendant has private counsel, they may still seek the appointment of an investigator or expert at county expense, but it will be less likely to be granted, potentially denying a defendant the ability to prepare the best defense.

It should be noted that most appointed attorneys, particularly those who work for a public defender agency, have undergone extensive training in criminal law, and will typically have a great amount of experience in criminal law.  Under no circumstances should a criminal defendant assume that retained counsel is necessarily better equipped to defend the case.

According to the judgment of the Supreme Court, court opined that “Counsel should be provided to any person who is financially unable to obtain adequate representation without substantial hardship to himself or his family. Counsel should not be denied to any person merely because his friends or relatives have resources adequate to retain counsel or because he has posted or is capable of posting bond.” 

“A defendant may have more than one attorney, and the public defender's office may assign one or more attorneys to represent a particular defendant depending upon the seriousness of the case and the competency and experience of the attorneys assigned. We have been unable to find anything which prevents the association of private counsel with the public defender's office in the defense of an indigent. It is, of course, not improper for a relative of the defendant to hire people to help and assist, and the fact that the indigent defendant already has the aid of the public defender's office does not limit the help a defendant may receive. We feel that it is preferable to have counsel thus assisting to be associated and made a counsel of record with reciprocal rights and duties under our Rules of Criminal Procedure and subject to the direction of the court as to the particular case in which he is involved.”

If you or a loved one is in need a criminal defense attorney, and has already been appointed counsel, you might consider exploring this additional option for a team defense.  Contact the Tucson Defenders today for a FREE CONSULTATION.  520-585-5757.

One of the more common inquiries our Tucson criminal defense law firm receives from individuals seeking to clean up their past criminal record is from individuals seeking to restore their right to own a firearm.  Firearm ownership is a fundamental right in the United States, and for many the chosen means of protecting ones home and family.  For those who have suffered certain types of criminal convictions, however, gun ownership is prohibited, and exposes a person to prosecution in Arizona state court, or even in federal court for being a prohibited possessor or felon in possession of a firearm. 

In addition to the Second Amendment to the United States Constitution providing Americans with the right to bear arms, Article II, Section 26 of the Arizona Constitution provides a clear individual right to bear arms, providing as follows:  "The right of the individual citizen to bear arms in defense of himself or the state shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men."

It should be noted that the aforesaid right can be taken away in Arizona, usually as the result of certain criminal convictions, or, in some cases, upon the granting of an order of protection.  Both federal and Arizona law provide for mental health-related firearm prohibitions.  Arizona law also prohibits firearm possession and ownership by illegal immigrants.

For many people, the right to own or possess a firearm can be restored.  In the case of a disqualifying criminal conviction, this restoration process requires applying for restoration in the court where the conviction occurred.  Depending on the severity of the underlying conviction, there are different waiting periods and requirements to restore firearm rights.  Notably, the right is not automatically restored, and a person who is eligible for restoration of their firearm rights will still be prohibited from owning or possessing firearms until following the necessary steps to have the right restored.  A person who is caught with a firearm without having had the right restored faces a class 4 felony, which carries a presumptive term of two and a half years in prison, and an aggravated term of three and three quarters years.  Depending on the prior conviction, the punishment can actually be even greater.

Felony convictions suspend firearm ownership rights, as well as other civil rights (right to vote, right to hold public office of trust or profit, the right to serve as a juror).  The restoration of other civil rights is a separate process from that to restoration of firearm rights, and is, in some cases, automatic.

There are two ways in which a person can apply for restoration of their firearms rights.  First, a "set aside" application can be filed in the court where the past conviction(s) occurred.  This procedure applies to those convicted of non-serious offenses and misdemeanor domestic violence offenses.  Those convicted of serious offenses are ineligible for a set aside.  The other method of restoring firearm rights, which applies to more serious criminal convictions, is a firearm rights restoration application, pursuant to A.R.S. § 13-910.  Like a set aside application, this application must be filed with the court where the past conviction(s) occurred. 

• A person convicted of a non-serious offense in Arizona may apply to have their firearm rights restored TWO years after the completion of their sentence. 
  
• A person convicted of a serious offense in Arizona may apply to have their firearm rights restored TEN years after the completion of their sentence.
  
• A person convicted of a dangerous offense in Arizona may not apply to have their firearm rights restored.
  

IF YOU OR A LOVED ONE HAS SUFFERED A PRIOR CONVICTION IN ARIZONA, AND WISHES TO SEEK RESTORATION OF THEIR FIREARM RIGHTS, CONTACT THE TUCSON DEFENDERS TODAY FOR A FREE CONSULTATION WITH A CRIMINAL DEFENSE LAWYER.  520-585-5757.

Visit our page about Set Aside/Expungement/Cleaning Up Your Record, generally.

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:

• a Class 3 felony, punishable by a state prison term of up to eight years and nine months,
• a Class 4 felony, punishable by a prison term of up to three years and nine months,
• a Class 6 felony, punishable by a prison term of up to two years, or
• a Class 1 misdemeanor, punishable by a jail term of up to six months

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:

• Exempt Due to Domestic Violence / Danger to the Child
  
• Legal Right to Take or Keep a Child
• False Accusation by Other Parent (Vindictive)

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.

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:

• Prevent filing of charges.
• Reduce charges.
• Assist with surrender and avoid arrest.
• Divert allegations into an informal resolution.
• Contacting the detective and notifying the investigator that you are
  being legally represented and all communications with you, should be
  take place through the attorney
• Scheduling for a polygraph or a risk-assessment on a confidential basis,
  where the results of such exams would not be revealed to the prosecution or investigator, unless helpful to you. This may help to exonerate you as a target of an investigation;
• Inform the Court you wish to present exculpatory evidence and testimony to the Grand Jury should the State choose to pursue indictment.
• Refuse speaking with the police or investigators
• Request an attorney to be present when speaking with police
• Have your attorney speak with the police or investigators
• Request an attorney to be present when speaking with police
• Have your attorney speak with the police or investigators
• Enforce your constitutional rights

• People who have the benefit of pre-charge legal counsel often can significantly
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.

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:

• lack of knowledge of the order,
• lack of understanding of the order (the order must itself be unclear),
• false accusations (common with restraining orders),
• mistaken identity (someone else did the act that would violate an order if done by the defendant),
• there was an emergency, and/or
• a court order was not lawful in the first place.

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

• Stalking – ARS 13-2923,
  
• Threatening or intimidating – ARS 13-1202, and/or
  
• Failure to appear – ARS 13-2507 and ARS 13-2506.
  

Related Articles

• Tucson Domestic Violence Lawyer
• What is a Warrant?
• Sentencing in Tucson
• Arizona Threatening or Intimidation Defense
• Common Defenses and Strategies
• Alternatives to Jail or Prison

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

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:

• Loss of Driver's License
• Criminal Conviction
• Probation
• Mandatory Fines
• Alcohol Classes
• Possibility of Jail (Though not common for a first offense)

More About DUI Cases, Generally

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:

• Mouth Alcohol - Alcohol remaining in the mouth (particularly with dentures, bridges, crowns, etc.) can provide a falsely high reading.
• Recent Alcohol Consumption/Regurgitation - Alcohol consumed orally is still absorbed in the duodenum, in the intestines.  This means that it can take hours for alcohol to be absorbed into the blood stream (especially if eating).
• GERD - Gastroesophageal Reflux Disease, or heartburn, may contaminate a breath sample.  The breathalyzer is meant to test the air from the lungs, but a person suffering from GERD may blow air from their stomach into the sample, throwing off the ratio.
• No 15 Minute Observation Period - A police officer is supposed to continuously monitor a subject for 15 minutes prior to administering a breath test.  In reality, officers do a lot of other things during this time, and can easily miss a person burping or regurgitating, which can affect testing accuracy.  NOTE:  The increased use of cameras helps to challenge the officer's assertion that they conducted a proper observation.

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

Sex crimes, particularly those involving minors, are among the most aggressively prosecuted crimes in Arizona, both under state law, and in Federal court.  In addition to investigating accusations of sex crimes against children, law enforcement agencies engage in significant undercover operations to

POLICE STING OPERATIONS
Police sting operations account for a large number of child sex crimes arrests and prosecutions.  Police will pose as minors (or a person with a relationship to a minor) in order to entice people to engage in illegal activity.  These undercover officers will post ads on websites that they know to be used for prostitution purposes, and will engage in conversations that are intended to show their target's desire to engage in sexual acts with a minor.  While police are often left to investigate a crime after it happened, with sting operations, they are along for the ride the whole time.  This means that they are a party to any messages, texts, phone calls, meetings, and record all of them.  The goal is to gather evidence of attempts to engage in sex acts or prostitution.  Of course there are many different kinds of sting operations, and undercover officers will always make an effort to change up their procedures so as to not have an easily recognizable pattern.  While this may seem like "entrapment" to a reasonable person, know that police have specially tailored their process for sting operations, and much of the time know what would constitute crossing the line for entrapment purposes.  This does not mean that entrapment cannot be a valid defense to a crime involving a sting operation, but means that such a defense will often fail. 

CHILD COMPLAINANTS
Of course not all child sex crimes arrests or prosecutions are the result of undercover operations.  These cases are very emotional and often are the most difficult due to society's strong condemnation of sex crimes against children.  This is especially true where the police, prosecution, judge, or jury believe that there is a "real victim" to the crime.  Not only does the public condemn the alleged conduct, but there is also a sense of wanting to "get justice" for the "victim."  Though these cases may not have the same strong evidence as a sting operation, testimony from a child accuser can be very powerful and difficult to overcome.  It is important to investigate all possible motives for a false accusation, including efforts by other adults to influence the accusation.  Unfortunately, false accusations of child sex crimes are exceedingly common in messy divorces, where one parent will manipulate a child to make an accusation against the other parent.  While police and prosecutors know there are false accusations, they have been more and more likely to believe an accusation, even if there are flags.  Because the law enforcement investigation will not have been conducted through the correct lens, it is vital to have an experienced attorney and investigator to build the defense in a false accusation case.

PUNISHMENTS FOR CHILD SEX CRIMES
Most child sex crimes are very seriously punished, both under Arizona law and under Federal law.  Arizona law has severe sentencing enhancements for a category of crimes called "Dangerous Crimes Against Children" (A.R.S. 13-705).  Some such crimes are punishable by life imprisonment (e.g. Sexual assault of a minor 12 or younger, child sex trafficking with a prior).  For sexual assault of a minor who is twelve, thirteen or fourteen years of age, taking a child for the purpose of prostitution, child sex trafficking, commercial sexual exploitation of a minor, sexual conduct with a minor who is twelve, thirteen or fourteen years of age, continuous sexual abuse of a child, the sentencing range is 13, 20, or 27 years for a first offense.  Those convicted of molestation of a child, sexual exploitation of a minor, aggravated luring a minor for sexual exploitation, child abuse or kidnapping face 10, 17 or 24 years in prison for a first felony offense.  Individuals with a felony prior face even longer possible sentences, even if the prior did not involve children or sex offenses. 

Federal sentencing for child sex crimes is equally harsh.  A person convicted of a federal sex offense against a child, who also has a prior for a sex crime against a child faces life imprisonment (the prior can be state or federal).  Receiving child pornography carries a minimum sentence of 5 years, and 15 years for repeat offenders.  Because federal sentencing guidelines are based on the specific offense, and the offenders criminal history level, calculating the exact possible punishment for such a broad category as sex crimes against children requires a case by case analysis.  If you are facing federal sex charges in Arizona, speak with an experienced defense lawyer right away to better understand what you might be facing, and what defenses and defense strategies might apply.

SOME CHILD SEX CRIMES OFFENSES INCLUDE:
Child Molestation  -  Sexual Exploitation of a Minor  -  Child Pornography (Possession/Distribution)
Furnishing Harmful/Obscene Materials to a Minor  -  Sexual Conduct with a Minor
Failure to Register as a Sex Offender  -  Luring a Minor for Sexual Exploitation
Child Sex Trafficking  -  Child Sexual Assault and Rape  -  Sexual Abuse of a Minor
Aggravated Sexual Abuse  -  Sexual Crimes Crossing State Lines or on Federal Lands

Many child sex crimes are prosecuted in Federal court, due to the US Attorney's strong desire to punish sex crimes against children.  Further, many of the state prosecutions are handled at the Attorney General, rather than County Attorney level.  While these prosecutions will still apply state law, they are prosecuted by attorneys who work for the Arizona Attorney General's office.

Of course not all child sex crime cases will go to trial.  We have previously discussed case defense strategies here, and there is always a possibility of getting a case dismissed or working out a favorable plea deal that avoids trial.  Still, understand that these cases are difficult and prosecutors know that they are likely to have a jury view child sex crimes prosecutions favorably, and view defendants very unfavorably.  This means that they will often overcharge a defendant, and/or be more willing to go to trial in these cases.  It is therefore very important to have an attorney who is not only familiar with the law and procedures, but is a skilled trial attorney who can relate to jurors - even in the most difficult cases.

RELATED ARTICLES:
SEX CRIMES
SEXUAL CONDUCT WITH A MINOR (STATUTORY RAPE)
SEXUAL ASSAULT/RAPE
CHILD ENDANGERMENT AND ABUSE
KIDNAPPING
ASSAULT CRIMES
PROSTITUTION/SOLICITATION
DOMESTIC VIOLENCE

If you or a loved one has been arrested, charged, accused, or may be under investigation for a sex crime involving a minor, know that the possible consequences are very severe.  Do not wait to discuss your case and possible defense strategies with an experienced criminal lawyer.  Contact the Tucson Defenders today for a FREE CONSULTATION.  520-585-5757.