Brown & Little, P.L.C. » Arizona Statutes
Self-Defense, Depublication, and Uncertainty
In Arizona, felons who haven’t had their rights restored can’t possess firearms. It’s a class 4 felony, and because alleged offenders are obviously likely to have at least one historical prior felony conviction, defendants charged with misconduct involving weapons under the prohibited possessor subsection usually face a pretty significant mandatory prison term. What if they possess the firearm in self-defense though? The self-defense statute justifies “threatening or using physical force against another.” It doesn’t necessarily justify possessing a firearm if you’re a prohibited possessor. Another statute justifies the defensive display of a firearm, again not specifically allowing a prohibited possessor to possess a firearm, and the statute governing the use of force in defense of a residential structure or occupied vehicle and the statute governing the use … Read entire article »
Filed under: Arizona Cases, Arizona Statutes, Procedural Rules
Wasted Anger
I keep thinking about something I saw in court a little while ago. The judge, a former sex crimes prosecutor with a temper that makes her unpopular among attorneys on both sides, decided to take a page out of Judge Judy’s playbook and dramatically castigate a defendant at sentencing. “I’m very sorry, and I will not let it happen again,” the defendant said. The judge attacked before he could even finish, asking him why things were going be different this time. She threw his priors at him when he tried to explain. She rubbed in the fact he was on probation when it happened. She expressed her disbelief by rolling her eyes, and she made sarcastic remarks. His pleas fell on deaf ears. She … Read entire article »
Filed under: Arizona Statutes, Courts
Senate Bill 1070
Everyone has an opinion about Arizona’s Senate Bill 1070. Unless you’ve been living under a rock, you probably love it or hate it. You may have a strong opinion about it even if you have no clue what it says. If so, you aren’t alone. S. B. 1070 makes it so the government can’t create a policy limiting the enforcement of federal immigration laws. If any part of the government does make a policy restricting enforcement of federal immigration laws, citizens have standing to sue. If they win, they get court costs and attorney fees. This doesn’t mean an officer will be sued just for not arresting a particular person or group of people. There will have to be a policy, not just one officer failing … Read entire article »
Filed under: Arizona Statutes, immigration
The Price of Being Right
Arizona’s Revised Statutes are filled with mandatory sentencing provisions. For instance, A.R.S. 13-703 says that a repetitive offender in “category three,” someone who has been convicted of a felony and has two or more historical prior felony convictions, “shall be sentenced” within certain sentencing ranges. The range for a category three offender convicted of a class 2 felony is 10.5 years to 35 years. A.R.S. 13-704 contains another mandatory sentencing scheme. A “dangerous offense” is one “involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury on another person.” If someone is convicted of a “dangerous” class 2 felony, the statute says that he or she “shall be sentenced” to a term of … Read entire article »
Filed under: Arizona Statutes
Judges Aren't Always Right
A week or two ago, I saw a judge make a ruling completely contrary to the law. It happens, but usually not so obviously. The judge was hearing a number of pleas at once. Two of the defendants were in custody and pleading to aggravated DUI. Pursuant to A.R.S. § 28-1383(D) and (E), certain types of felony DUI require that a defendant spend a certain amount of time in prison before being placed on probation. In Arizona, prison and jail are different. Jails are run by counties and cities, and felony defendants spend their time in county jail pending resolution of their criminal matters. Prisons are run by the state. You can only go to prison if you are sentenced. Both of those pleading defendants were in … Read entire article »
Filed under: Arizona Cases, Arizona Statutes, Courts, DUI
The Motorcycle That Could Not Be
I recently finished working on a pro bono forfeiture case. The short story is that a guy puts a new engine and forks on a 1970s Harley Davidson in California in 1991. He registers it in California, and they give it a new VIN because the new motor serial number doesn’t match the frame. This is a common practice for motorcycles. My client enters the picture in 1992 or 1993, when he buys the motorcycle. He registers it in California and operates it for years with no issues. He moves to Massachusetts and registers it with no problem. In 2004, he moves to Arizona to be closer to his children and grandchildren. When he takes the bike to the Arizona MVD in 2007 (he didn’t ride … Read entire article »
Filed under: Arizona Statutes, Bikers' Rights
Arizona DUI Stupidity
Imagine you’re sitting in the comfort of your own home, enjoying a glass of fine single barrel Kentucky straight bourbon whiskey. It’s about midnight, and you’re on your third or fourth when you hear the back window of your home shatter. You can hear that someone is trying to break into the house, and you run to call 911. As you frantically rush through the house, you see someone breaking in through the front window as well. You have no time to think, and not knowing what else to do, you swing open the door leading to your garage and jump in your car. You lock your doors, fire up the engine, open the automatic garage door, and speed off while calling the police. Congratulations, you … Read entire article »
Filed under: Arizona Cases, Arizona Statutes, DUI
A Couple of Suggestions
I regularly hear lawyers make the same stupid mistakes. Here are a couple of suggestions to help them avoid two very common mistakes: 1) Don’t argue ineffective assistance on direct appeal You can try, but it isn’t going to work. I’ve seen judges appoint new counsel for a direct appeal because they thought appellate counsel might want to argue ineffective assistance. Lawyers have told me they intend to argue ineffective assistance on direct appeal. Please, have a look at State v. Spreitz, 202 Ariz. 1, 3, 39 P.3d 525, 527 (2002). The Supreme Court of Arizona explained: [I]neffective assistance of counsel claims are to be brought in Rule 32 proceedings. Any such claims improvidently raised in a direct appeal, henceforth, will not be addressed by appellate courts … Read entire article »
Filed under: Arizona Cases, Arizona Statutes, Practice in General
Mandatory Minimums, Maximums
Arizona’s sentencing statutes contain ranges of permissible prison sentences for different classes of felonies. Defendants with historical prior felony convictions face ranges with longer minimum and maximum sentences. If a defendant has more than two historical priors, the additional priors may be considered aggravating factors which merit a longer sentence within the statutory range, but there aren’t any special statutory sentencing ranges for people with three, four, or five historical priors. Usually, the most a judge can give someone with two historical priors will be the same as what the judge can give someone with three or more historical priors. Prosecutors regularly get that wrong. I recently had a prosecutor argue that my client, who had a ton of historical priors and was charged with a class two felony, … Read entire article »
Filed under: Arizona Statutes, Practice in General, Prosecutors
Some Terrifying New Legislation (Maybe)
One thing Bennett Kalafut mentioned in passing in this post over at Goldwater State caught my attention. Is it really possible that Arizona may soon have a law declaring undocumented aliens to be trespassing? Curious, I had a look at the text of the resolution. Here it is. If that ever became law, it would have pretty much everything any frothing-at-the-mouth anti-illegal-immigration-type could ever want. It would make it so that aliens in this country in violation of the federal improper entry statute would be committing criminal trespass simply by virtue of being in Arizona. It wouldn’t matter whether they’re on public or private land. The first time, it would be a misdemeanor, but after that, it would be a class 4 felony. That’s … Read entire article »
Filed under: Arizona Statutes, immigration, Legislation
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