Brown & Little, P.L.C. » Arizona Cases
Your "Privilege" to Drive
A lot of things will get your driver’s license suspended, canceled, revoked or refused here in Arizona. Not paying child support, getting too many tickets, not paying tickets, numerous things involving DUI short of an actual conviction, and convictions for various felonies and misdemeanors will all prevent you from driving. In Arizona, it’s practically impossible to get by without driving. Public transportation is generally inadequate in urban areas, and in rural areas, it’s basically non-existent. Cabs are very expensive. Most people I know who take advantage of buses or the light rail still have to drive a few miles to get to a park and ride. My clients who can’t drive are severely limited in where they can live and work. Not having a car leads to … Read entire article »
Filed under: Arizona Cases, DUI, Government Rants, MVD Hearings
My Last Post on Lesser Included Offenses
Okay, I promise this will be the last post I’ll put up on the subject of lesser included offenses. It’s an interesting area to me not only because of cases like this and this, or because and the rule in Arizona is frustrating in general, but also because it can create a strange situation for a defense attorney. Here’s the dilemma: imagine a burglary case where intent is the only real issue. It’s clear the defendant shouldn’t have been there, but it’s tough to know whether he entered or remained unlawfully with the intent to commit a felony or any theft. If the defense attorney gets a lesser included offense instruction on criminal trespass despite the relevant case law, the defendant could be spared a lot of prison … Read entire article »
Filed under: Arizona Cases, Arizona Statutes
More on Victim Interviews
I started responding to some comments on this post, but I ended up writing way too much for one little comment. No harm in putting up another post, right? Anyway, to give you some background (for those of you who don’t like reading blog comments), I brought up in a comment that A.R.S. § 13-4433(B) says “the defendant, the defendant’s attorney or an agent of the defendant shall only initiate contact with the victim through the prosecutor’s office.” Andrew Becke asked: “is there a way to initiate contact with the victim through a motion to the court, thus requiring the prosecutor to respond in a pleading that the victim doesn’t want to talk? That might enhance their desire to be honest.” My answer would be that there are a few … Read entire article »
Filed under: Arizona Cases, Victim's Rights
Another Irritating Non-Lesser Included Offense
Felony flight isn’t the only crime with an irritating non-lesser included offense. In State v. Malloy, the Supreme Court of Arizona decided criminal trespass was not a lesser included offense of burglary. Burglary requires entering or remaining unlawfully with the intent to commit any theft or a felony, and criminal trespass just requires knowingly entering or remaining unlawfully. Although criminal trespass does contain the additional element “knowingly,” the Court in Malloy noted that “knowledge in the sense that the criminal act must have been voluntary” is implicit in all criminal offenses. However, the Court thought the word knowingly in the criminal trespass statute “must have some additional meaning” and decided that, in order to convict someone of criminal trespass, “the prosecution must prove not only that the defendant … Read entire article »
Filed under: Arizona Cases, Arizona Statutes
An Irritating Non-Lesser Included Offense
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 … Read entire article »
Filed under: Arizona Cases, Arizona Statutes
Jury Trial Shenanigans
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 … Read entire article »
Filed under: Arizona Cases, SCOTUS Cases, US Constitution
Lesser Included Offenses
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 … Read entire article »
Filed under: Arizona Cases
Felony Flight
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 … Read entire article »
Filed under: Arizona Cases, Arizona Statutes
Juror Questions
Every once in a while I come across a ruling that’s so unfair I can hardly believe what I’m reading. State v. Detrich, a 1997 Arizona Supreme Court case, contains one of those rulings. The defendant argued that the trial court erred in refusing to use his proposed jury questionnaire, which included questions about jurors’ racial attitudes, biases, and prejudices. The Court ruled against the defendant because he did not show that the trial judge’s failure to submit his questionnaire to the jury “resulted in a biased jury or rendered his trial fundamentally unfair.” The Court claimed the defendant offered no evidence of bias or prejudice of the jurors. Although the defendant argued there was no way of knowing whether they might have had some kind of racial animus … Read entire article »
Filed under: Arizona Cases
Recent Comments