Brown & Little, P.L.C.

I was recently stuck in court dealing with a case that should have been dismissed long ago. The prosecutor thought my client wasn’t complying with the terms of a mental health diversion program, but I had personally verified that he was in compliance less than a day before. To satisfy the state and avoid reinstatement of the charges, I just needed to get some up-to-date written proof.

My first step was to try to call my client’s mental health case manager. One person told me the case manager was on vacation, and another told me he was in court. They accidentally hung up on me twice. Eventually, I got through to a lady who seemed to be able to help me. I explained to her that all I needed was something saying that my client was complying with his mental health case plan as ordered. Providing that kind of documention is part of what the organization does, so it should have been easy, right?

I wouldn’t be blogging about this is if the answer was “yes.” Her response was to ask me for an “ROI.” It’s a “release of information” form, which is necessary because someone has to provide written authorization in order to have their mental health records released in a lot of situations. Welcome to the age of HIPAA. Even if you’ve previously gotten authorization, it probably won’t count. Forms expire, circumstances change, and everybody loves extra paperwork. Here’s roughly how my conversation with her went:

ME: I am a lawyer. My client needs updated written proof of compliance to get his criminal case dismissed. Here is my client…
CLIENT: Hi, please tell them how I’m doing. I don’t want to go to jail.
ME: Did you hear that?
THEM: Yes, but I need the release in writing.
ME: Can’t you just fax him something saying he’s been doing a good job?
THEM: Our policy requires a written release.
ME: But he’s asking you to send him a letter detailing his own progress.
THEM: We need a release.
ME: But it’s his own information, and you’ll be sending it to him at a court’s fax number.
THEM: We still need a release.
ME: You need a written release to release my client’s own information to himself?
THEM: We don’t have a release.
ME: Isn’t he the one who has to sign the release?
THEM: We can’t give out information without a release.
ME: But you’ll just be giving the information to him.
THEM: We must have a release.

The prosecutor had called as well. He couldn’t get in touch with his three primary contacts in the company, and when he did get through to someone, they first told him my client had a completely different case manager (who was actually the head of the entire division and seemed to have no clue who my client was) then decided the actual case manager was on vacation. They wouldn’t tell him anything else because he didn’t have a release. Apparently, he was angry enough to say something along the lines of “what do you mean you can’t tell me? I’m the government!” I would have loved to have heard that.

I asked them to fax me a blank ROI form so I could fax it back, thinking they understood the urgency of the matter. I realized I was wrong when they took their sweet time faxing me the authorization form. On top of that, when I finally got it, they had no idea whether my client or his permanent guardians were supposed to authorize release, and they weren’t sure if there was a limit on who could receive the information, how the information could be used, or how long the release would be valid.

The completed ROI I faxed back to them was a very amusing document. I had my client and both of his guardians sign in the spots authorizing release, and I designated myself and the judge as the recipients of the information in question. The release was to be valid until the case was dismissed. I still don’t know if I did it the way they wanted, but in the end, they gave me what my client needed: a very basic letter saying he was doing what he was supposed to do. The case was dismissed after roughly three hours.

At no point in all of this did it ever matter who really had authority or what was or was not required by law. What mattered was what a group of employees believed was the agency’s policy based on some training they received back in the day. HIPAA is so complex that a lot of attorneys, myself included, aren’t completely familiar with all the ins and outs. Honestly, I’m still not sure if someone could have gotten into trouble had they faxed the letter to my client, who would’ve in turn provided it to the court.

All of this was exacerbated by the fact that most people hate dealing with lawyers. That’s not entirely unreasonable, as there are a lot of sneaky, manipulative lawyers out there. When I was trying to figure out why they would not release to my client his own information, the conversation probably would have gone better if I told her I was from Nigeria and needed her to give me my client’s bank account numbers so I could transfer some lottery winnings.

People aren’t necessarily being irrational when they worry about inadvertently disclosing too much information. I bet a lot more people get fired for being too helpful and open than get fired for refusing to give out information. I can understand why disclosure rules exist, but does it really make sense to be so worried about someone’s privacy that we’re willing to hurt that person in order to protect it? What harm could faxing my client his own information have done? For the HIPAA experts out there, is it really prohibited?

I recently discussed lesser included offenses. Although Arizona’s practice of looking to the statute instead of the facts is frustrating enough in principle alone, there are some instances where I am particularly bothered by what a defendant can’t get as a lesser included offense.

One instance involves felony flight. In an unpublished decision released this past September, Arizona’s Division One Court of Appeals looked at whether someone accused of felony flight could request a lesser included instruction for failure to stop. The felony flight statute applies to a driver who wilfully flees or attempts to elude a police vehicle with lights and sirens, and the failure to stop statute applies to a driver who knowingly fails or refuses to bring his or her vehicle to a stop after being given a visual or audible signal or instruction by an officer. In both instances, the driver doesn’t stop. In one instance, the driver just fails or refuses to stop. In the other, the driver does that, but also willfully flees or attempts to elude the officer. The former is therefore a lesser included of the latter, right?

Unfortunately, it isn’t that simple. Arizona’s Division One Court of Appeals previously used ridiculous reasoning to create a nonsensical interpretation of the felony flight law that encompasses any refusal to stop for an officer in a car. Because of that, although Division One acknowledged failure to stop is a lesser-included offense of felony flight because the greater offense of felony flight cannot occur unless failure to stop also occurs, the court decided you can’t get a lesser included offense instruction. The court basically reasoned that, notwithstanding the plain language of the statutes, the only difference between them is that one involves flight from an officer in a vehicle and the other one doesn’t. You can’t be convicted of failing to stop if the officer is in a vehicle because an officer in a car automatically makes any refusal to stop felony flight. If the officer has a car, you don’t get a lesser included offense instruction.

The US Constitution says you get an impartial jury “[i]n all criminal prosecutions.” The Arizona Constitution says you get an impartial jury “in criminal prosecutions.” A misdemeanor is a criminal prosecution, so you get a jury trial, right?

If you agree, it probably means you haven’t had the good fortune of spending three years in law school. Those three years are essential if you want to learn the super-important lawyer skill of looking at something really clear and interpreting it to mean something different from what it obviously means. The most important lesson lawyers-to-be learn in law school is that constitutions, statutes, and rules don’t always mean what they say. Sometimes, they don’t even mean what they mean.

Nowhere are those important law school lessons more impressively put to use than when US and Arizona courts interpret our constitutional rights to a jury trial. According to the US Supreme Court, the US Constitution’s right to a jury trial “in all criminal prosecutions” guarantees you a jury trial only in those criminal prosecutions where you can be incarcerated for more than six months. Misdemeanors in Arizona are punishable by a maximum of six months in jail, so the federal right doesn’t apply. However, Arizona courts have generously decided that you can get a jury trial for some misdemeanors. According to the Arizona Supreme Court, the Arizona Constitution’s right to a jury trial “in criminal prosecutions” gives you a jury trial in misdemeanor prosecutions where the crime either 1) has a common law antecedent that guaranteed a right to trial by jury at the time of Arizona statehood or 2) is sufficiently serious. Makes sense, right?

When it comes to our jury trial rights, the courts really take essential law school lessons to heart.

In many cases that go to trial, it is important to request that the judge give the jury a lesser included offense instruction. That means that you ask the judge to tell the jury that the crime with which the defendant has been charged includes a lesser crime and that, if they feel the facts warrant it, they can find the defendant guilty of the lesser crime instead of the charged crime. For instance, in Arizona, theft is a lesser included offense of robbery, so if you are accused of robbery, the judge can tell the jury that they can find you guilty of theft instead.

Some jurors don’t like the fact they only have two options (guilty or not guilty), so a lesser included offense instruction gives them a third, more appealing option. I’m sure many defendants have avoided a lot of extra prison time by giving the jury the option of finding them guilty of a lesser offense. Unfortunately, like many things that can benefit a defendant in our criminal justice system, lesser included offense instructions are not always easy to get.

To get a lesser included offense instruction in Arizona, you have to show that the more serious offense can’t be committed “without necessarily committing the lesser.” The elements of the crime as contained in the statute determine whether a crime is a lesser included offense, not the facts of the case. That means the facts of a specific case might support a lesser conviction, but if it was not charged in the indictment, the jury can’t find the defendant guilty of the lesser offense.

Not every state looks to the language of the statute instead of the facts of the case. Arizona’s Division Two Court of Appeals has noted that both Colorado courts and the 9th Circuit federal courts look to the facts of the case when deciding whether a lesser included offense instruction is merited. I’m sure many other jurisdictions do as well. However, the court explained that is not the test in Arizona. As far as I can tell, the rule in Arizona can be traced back to the 1954 Supreme Court of Arizona case State v. Westbrook, which cited two out-of-state cases and a legal encyclopedia for the following proposition: “[t]he test to be applied is simple: Is the first offense one that cannot be committed without necessarily committing the second?”

The problem with that test is the word “necessarily,” which seems to be what binds Arizona courts to looking at the statute and not the facts of the case. Because a court half a century ago decided to look to what Maine and California were doing, countless juries since then have been prevented from deciding which statute best matches the facts of a case. Why not give them another option? Other than “because it’s how we’ve always done it,” is there any good argument for looking to the language of the statute instead of the facts of the case? Why not liberally permit any lesser included the facts support? It won’t result in any harm to a defendant, and I can’t see why a prosecutor wouldn’t want to convict a defendant of the crime best suited to what he or she actually did. Do the courts have any legitimate purpose in limiting a jury’s options?

If your answer to that question is “yes,” there’s a chance your vehicle is going to become property of the State of Arizona at some point in the future. A.R.S. § 28-4594(A) provides that when the VIN of a vehicle or of a major component of a vehicle has been removed, defaced, altered or destroyed without the permission the Arizona Department of Transportation, the vehicle is contraband. If the state decides your vehicle is contraband, it can seize and destroy it.

That might mean that every vehicle with a non-manufacturer or out-of-state VIN on any major component could be seized when driven or ridden through Arizona. When a new VIN is attached by another state to any major part of a recovered vehicle, that vehicle might be forever barred from use in Arizona.

Are you merely an innocent purchaser? Was it previously titled in another state? Is the VIN just tough to make out because it’s an old vehicle? Based on the language of the statute, you could be out of luck. Looks like Gilbert might have some competition for the title to your vehicle.

In Arizona, a defendant who pleads guilty cannot file a direct appeal. Instead, his only remedy is filing a Rule 32 Petition for Post-Conviction Relief. Most of my clients think that winning a petition for post-conviction relief is always a good thing. Unfortunately, in some cases, people may end up being worse off for having filed a successful petition.

If I file a rule 32 petition arguing that a trial court did not have jurisdiction because the statute of limitations had expired, the case essentially goes away if the court of appeals agrees with me. Similarly, the state likely will not bother with a case if essential evidence is suppressed due to constitutional issues or if a criminal statute is held unconstitutional.

However, a number of clients want to argue their trial counsel was ineffective and that they would not have accepted the plea had it not been for their lawyer’s unprofessional errors. Often, the client signed a plea stipulating to prison time, albeit a lesser sentence than they would have received had they lost at trial.

Let’s say the client’s lawyer did a terrible job. He didn’t file any motions, didn’t conduct any interviews, and didn’t try to negotiate a better plea agreement. He missed deadlines and failed to spot key issues. If he is deemed ineffective, the whole process will basically start over.

If the client gets a better attorney, there is no guarantee that he will win at trial or receive a better plea agreement. He could end up with a much longer prison sentence. That means that whenever someone wants to argue ineffective assistance, they should seriously consider the chances of a better outcome should their requested relief be granted. Sometimes, although it’s a shame someone had a truly ineffective lawyer, I will advise them against filing a rule 32 petition.

If you are caught driving and have a revoked or suspended driver’s license, Gilbert will impound your car. The same is true if you never had a driver’s license, if you are arrested for Extreme DUI or Aggravated DUI, if you are under the legal drinking age and have any alcohol in your body, or if you are operating a vehicle without a certified ignition interlock device and you’re supposed to have one.

Gilbert’s policy isn’t uncommon in Arizona. What is uncommon, at least as far as I can tell, is what Gilbert does after it takes your car. Take a second and read this. To me, it sounds like all you have to do to get your car back is show up on the 30th day, pay the town their fee, get the release form, pay the tow company, and present your paperwork to them. Doesn’t it make it sound like you only need a hearing if you want your vehicle back before the 30 days are up? This also makes me think you only need a hearing if you want your vehicle back in less than 30 days. However, that page also adds the interesting twist that you must request your hearing during the first 10 days after your vehicle is impounded if you want a hearing at all.

The pamphlet the Gilbert Police give you when they impound your vehicle also indicates that the only reason you would need a hearing is to get your car back early. The only difference I can find between the pamphlet and the website is that the website says the towing company has 10 days after the 30 days are up before they can file for an abandoned title to your vehicle, whereas the pamphlet says they can do that right after the first 30 days are up.

Here’s what amazes me: you cannot get your vehicle back from the Gilbert Police Department unless you have a hearing. That’s right, they don’t tell you that you must request a hearing, but if you show up on the 30th day looking for your car, they will make you call the “hearing hotline” and schedule a hearing. It may take you a couple of weeks to get a hearing, and one person I spoke with confirmed that you won’t get a hearing at all if you don’t request it within the first 10 days. On top of that, I know of one instance where either the town or the towing company had filed for a lien by the 32nd day of impound, though the police were nice enough to give that person a hearing date despite the fact she did not request it in the first 10 days.

Basically, the town takes your car for 30 days and doesn’t tell you that you must request a hearing to get it back. When you show up on the 30th day, you are ready to pay the fee but can’t get your car because you didn’t request the hearing they didn’t tell you about. There may already be a lien on your car, and you may never get a hearing at all because you didn’t ask for it in the first 10 days, though you didn’t know you had to ask for it. If they do give you a hearing, it will probably not be until after they have filed for a lien. On top of that, if they really are weeks behind scheduling these things, you might not get a hearing by the 30th day even if you do request it in the first 10 days.

The final kicker is that, when I spoke with someone from the “hearing hotline,” they informed me that the hearings are held in front a Town of Gilbert police officer and happen every 30 minutes on weekdays. Not a judge, not a commissioner, and not even an admin law judge. A cop. Does anyone else, like me, wonder if the Town of Gilbert is in the business of stealing cars?

In Arizona, a driver who “willfully flees” or “attempts to elude” a pursuing official law enforcement vehicle using an audible signal and lights is guilty of a class 5 felony. The only in-depth analysis of what “willfully flees” and “attempts to elude” mean came in a 1993 opinion from the Court of Appeals of Arizona, Division One.

In State v. Fogarty, an officer tried to stop the defendant, who had been passing other traffic in a forty-miles-per-hour zone. The officer thought the defendant was going about fifty miles-per-hour and caught up with him at a red light. The light turned green, and the defendant drove ahead at about forty-five miles per hour. The officer turned on his flashing red lights, and after the defendant failed to stop for several blocks, the officer turned on his siren. The defendant kept going, obeying all traffic laws. At a stop light, the officer heard the defendant yell, “leave me alone, what do you want me for?” The officer called in the defendant’s license plate number and continued to follow him, but never attempted to block him or cut him off. The police officer eventually gave up, and the defendant was later arrested at his home.

The court analyzed whether the defendant’s conduct violated the felony flight statute. To do that, it looked at the definitions of “flee” and “elude” contained in the Oxford English Dictionary. The court decided the evidence did not support a finding that the defendant “attempted to elude” the officer, but that it did satisfy one of the seven definitions for “flee,” which was “[t]o make one’s escape, get safely away.” The court could not find a single case in any jurisdiction where defendants who didn’t “elude” or drive at high speeds were convicted under similar statutes. The court also acknowledged drivers commonly go fifty miles per hour in a forty-miles-per-hour zone and that the felony flight statute was “arguably designed to discourage” high-speed chases.

However, the court decided to look at what it felt were the purposes of the statute: making sure motorists stop on command and avoiding accidents. The court noted the fact failing to stop is particularly dangerous when two vehicles are involved and explained “the failure of a motorist to stop may provoke a pursuer into dangerous driving.” The court decided that, in its opinion, “any refusal to stop on command of an officer who is in a police car violates the felony flight statute because of the potential for personal danger inherent in vehicular pursuit, even if that pursuit does not attain excessive speeds or involve reckless driving.”

I had to read the opinion about four times to believe what I was reading. The court acknowledged that the defendant’s conduct was neither uncommon nor dangerous, that the statute was arguably designed to proscribe different conduct, and that no other jurisdiction has ever applied a similar statute to conduct like that of the defendant. However, the court thought the defendant was rightfully convicted of a class 5 felony despite the plain meaning of the statute (as evidenced by six out of seven possible definitions of the key term that might have applied to the conduct in question) because the officer might have done something dangerous trying to pursue him.

Reading Fogarty almost makes me want to donate money to the Federalist Society. When people say it is emphatically the province and duty of the judiciary to say what the law is and not what it should be, they usually pick much less egregious examples of “activist” judges than the ones in Fogarty. The text of the felony flight statute is fairly clear, yet the court interpreted “willfully fleeing” and “attempting to elude” as encompassing “any refusal to stop on command” simply because of the danger inherent in vehicular pursuit. It does not even matter that there was no danger in the actual pursuit in question. The legislature could have proscribed “any refusal to stop,” but it chose two fairly specific terms.

When people get upset about judges reading statutes too broadly and giving people rights they should not have, I am usually not very receptive to their arguments. On the other hand, what the court in Fogarty did bothers me immensely. If courts can take a fairly clear criminal statute and make it apply to conduct its text does not plainly proscribe, nulla poena sine lege comes to mind. I hope the reason Fogarty has not been cited by a single Arizona court since it was published is because other courts realize people should not be punished for doing something that is not actually prohibited by law and that we should not have courts creating common law crimes.

When an officer stops you and requests to see your registration, there are a number of possible outcomes. If you give the officer your registration and everything checks out, you’re obviously okay. On the other hand, if you do not have proof of registration because the car is not registered, you will owe hundreds of dollars. If you don’t have your registration in the vehicle but it is registered, you will likely owe well over a hundred dollars even if you provide the court with proof of registration.

Although I personally think it’s absurd to fine someone for not having proof of something an officer could easily look up, the law is at least logical. You were obligated by law to carry something in your vehicle, and you failed to do so. What doesn’t make sense to me is the outcome when you have your registration but the officer either incorrectly enters your information or the MVD has made some kind of error. The officer will likely cite you for having no current registration and send you on your way.

The real trouble for you will start when you begin dealing with the courts. You can provide proof of registration, but that will only drop your ticket down to what you would have gotten had you failed to have your registration with you in the vehicle. In order to avoid paying a fine altogether, you will likely have to either A) convince the court to dismiss the ticket, B) convince the officer to dismiss the ticket, or C) go to a hearing.

Option A is not only difficult, but expressly prohibited by some courts. They will claim that they can’t dismiss the ticket altogether because the officer might say at the hearing that you didn’t have your registration in the vehicle. Even if you have a sworn statement from the officer saying you had a registration but he couldn’t verify it, every court I know of will still refuse to dismiss the ticket. They will likely not be able to give you a reason why the sworn statement is not enough, and the odds of you getting that sworn statement in the first place are astronomical.

Option B is at least as difficult, if not impossible. I have never seen an officer dismiss a ticket, nor have I ever heard anyone else mention an officer dismissing a ticket. I’ve never gotten a straight answer about why the police can’t or won’t do it, but I have some theories. My best guesses involve the fact they like getting overtime pay for showing up in court and don’t like admitting mistakes, but maybe I’m being cynical.

Option C is what normally happens. A lot of the time, the officer will testify that you didn’t have your registration card in order to salvage the ticket and avoid looking bad. It’ll be your word against his. On the other hand, if he is truthful, you will still have to prove that your registration was valid at the time he stopped you. Expect to take a good bit of time off of work not only for court, but for getting official proof of registration from the MVD. On top of that, the court may not find your evidence to be reliable. Some judges give so much deference to police officers that they would consider the official MVD records you provided less reliable than the officer’s recollection of what his computer told him by the side of the road weeks earlier.

When it comes to traffic laws, frustration is par for the course, and this is just one of the many irritating, unjust situations that people likely find themselves in every day. Everyone I know who has received a ticket has some kind of complaint about how the system works, yet no one seems to want to change it. Any idea why that is?

I could make a very long list of idiotic misconceptions police officers have about drugs, but my favorite by far is the legendary marijuana green-tongue. Believe it or not, police officers are actually trained to look for a green tongue as an indicator of marijuana use. In fact, the dreaded green-tongue even made it on the NHTSA’s website. I couldn’t make this stuff up.

I seriously doubt there is any real scientific research supporting that theory. Sure, the NHTSA claims it’s true and cites plenty of studies, but I’m not about to read every single resource they cite to see how exactly they came to the conclusion that a green-tongue means recent marijuana use. Can anyone point me to the specific study? If there is a study, is it peer-reviewed?

I’m going to go out on a limb here and say that there’s no way any self-respecting, independent scientist would have a bunch of test subjects smoke marijuana so he could note the color of their tongue. My guess is that some drug-prohibitionist government lackey who had never actually used marijuana or even associated with marijuana users was asked to list every conceivable sign of marijuana use. Something as stupid as the infamous marijuana green-tongue just had to come from the government.