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Photo Radar

I regularly receive calls from people who want to fight their photo radar tickets. They are generally furious about the situation, calling the cameras “the devil’s work,” “big brother watching us,” and other far more colorful things I won’t mention here. Although people caught by the cameras hate them, I’ve found that most people I meet think the cameras are great. If you’ve read this blog much, I’m sure you can guess what I think. A lot of people justify photo radar because they think it will prevent speeding and free up law enforcement personnel to deal with more serious offenses. In general, I doubt photo radar will really do what its proponents claim, but I’d rather save that argument for a later post. … Read entire article »

Filed under: Government Rants

Roving Packs of Pit Bulls, Drunk Drivers

I had a discussion a month or two ago with someone who really embraced the idea of outlawing pit bulls. His concern was that if people weren’t limited in what kind of dog they could own, some people would breed and train extremely powerful, vicious dogs who’d eventually wreak havoc on society. There would be roving packs of pit bulls bred and trained to kill. I hear a similar argument every time I criticize DUI laws. When I suggest lesser penalties (and especially when I suggest eliminating DUI laws altogether), people say that if there weren’t strict DUI laws, everyone would drive drunk. In essence, there would be roving packs of drunk drivers liquored up and ready to kill. Sure, eliminating DUI laws might result in an … Read entire article »

Filed under: DUI

Terrible Policies

I won’t name names here, but there is one prosecutor’s office in Arizona that has particularly rigid and often ridiculous office policies regarding plea bargains and a number of other important things that, in my opinion, should be left to the sound judgment of individual prosecutors. Some of the office’s policies are so draconian and inflexible that they are known by pretty much anyone who is even minimally involved with Arizona’s criminal justice system. I imagine 99% of people reading this post instantly knew which office I meant after reading the first sentence. Anyway, in two cases this year where I wrote the assigned prosecutors letters presenting overwhelming exculpatory evidence and requesting the cases be dismissed, I had conversations like this: Me: Have you looked over what I gave … Read entire article »

Filed under: Practice in General, Professionalism, Prosecutors

Precluding the State's Objections to a Motion

Rule 16 of the Arizona Rules of Criminal Procedure governs Pretrial Motion Practice. Rule 16.1, which is entitled “General Provisions,” includes the time periods in which motions and responses must be filed. The rule provides in relevant part that “[a]ll motions shall be made no later than 20 days prior to trial” and “[t]he opposing party shall have 10 days within which to file a response.” As a remedy for untimely filing, the rule provides that “[a]ny motion, defense, objection, or request not timely raised . . . shall be precluded, unless the basis therefor was not then known, and by the exercise of reasonable diligence could not then have been known, and the party raises it promptly upon learning of it.” It seems clear enough. … Read entire article »

Filed under: Procedural Rules, Prosecutors

Actual Control (Again)

Recently, I was surprised when Division Two looked at an issue very close to (if not the same as) something I previously discussed in a post. The issue in State v. Zaragoza was “actual control,” and most of the commentary I’ve read seems to claim that the opinion narrows the term significantly. Here it is. Although I have no doubt that it’s a step in the right direction and may well assist me in future motions, I am skeptical about how positive an effect the opinion is likely to have. Like any appellate opinion, it can be narrowed by its facts. The time line isn’t entirely clear to me, but I think the officer was on top of things as soon as the defendant got in … Read entire article »

Filed under: Arizona Cases, DUI

Arizona's Most Irritating Statute?

There are a number of laws in Arizona that bother me, but the one that most consistently makes me shake my head in disgust is A.R.S. 13-1207. It provides that an inmate who “commits assault upon another person with the intent to to incite riot or who participates in a riot is guilty of a class 2 felony.” It’s a serious charge, so it seems like the statute should be pretty well written. Unfortunately, it isn’t. Although making it a class 2 felony seems excessive, I think I have a good grasp of what constitutes an assault with intent to incite riot. On the other hand, I have no clue what participating in a riot means, and the legislature and the courts haven’t provided any helpful … Read entire article »

Filed under: Arizona Statutes

Nationwide Insanity

In determining whether a sentence is cruel and unusual punishment, courts often look to three factors: (1) the gravity of the offense and the harshness of the penalty, (2) the severity of the penalty as compared to penalties imposed for other criminal acts in the jurisdiction, and (3) the severity of the penalty as compared to penalties imposed for the same crime in other jurisdictions. The first factor is fairly easy to satisfy, as many sentences are disproportionate to the crime. For instance, Arizona’s laws regarding personal possession of child pornography or so-called “dangerous” offenses often result in unbelievable sentences even though the crime may involve no real, identifiable victim. The second factor is also easy to satisfy in most cases. Luckily, every kind of crime doesn’t get enough … Read entire article »

Filed under: Uncategorized

Classes of DUI

A DUI can be either a misdemeanor or a felony. For your run-of-the-mill first DUI, whether you have a blood alcohol concentration just over the legal limit or a blood alcohol concentration three times the legal limit, although the mandatory jail sentences differ, the charge will be a class 1 misdemeanor. However, a regular DUI can become a felony and be considered “aggravated” if, among other things, you had a suspended license, two prior DUIs in the past seven years, or a person under fifteen years of age in the car. A DUI that’s aggravated because of a suspended license or two prior DUIs in the past seven years is a class 4 felony, and a DUI that’s aggravated because there was a child in the … Read entire article »

Filed under: Arizona Statutes, DUI

Historical Priors

This seems like a simple concept, but there are a couple of nuances that regularly cause problems for attorneys. Having one or more historical priors has an incredible impact on sentencing, so I’m always surprised when lawyers don’t know how it works. Obviously, for a conviction to be an historical prior conviction, it must precede the conviction for the present offense. But what happens if the offense conduct of the so-called “prior” occurred after the conduct underlying the present offense? Interestingly, the type of offense involved in the “prior” is the determining factor. For the convictions listed in A.R.S. § 13-604(W)(2)(a) and (d), the only requirement with regard to ordering is that the conviction for the offense being used as an historical prior felony conviction precede the conviction … Read entire article »

Filed under: Arizona Statutes

Super-nosed Cops

I recently had a case where a police officer claimed he was able to smell a very small amount of unburnt marijuana. The amount was the same weight as a level teaspoon of salt, yet the officer pulled over the truck and performed a search of the vehicle without the client’s permission based solely on the odor of unburnt marijuana. The marijuana was located in the back of a closed camper inside two sealed plastic baggies inside a nylon gym bag filled with clothes. I have absolutely no doubt that the officer couldn’t have possibly smelled that marijuana. However, as a defense attorney few tools exist for me to challenge the claim on a scientific basis. I’ve only located one case where a court … Read entire article »

Filed under: Police, Search and Seizure

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