Is disrespect towards a police officer a crime?

A person pulled over for speeding displays contempt, directing obscenities at the police officer who asks for his driver’s license. As the driver hands his license over, he continues to be disrespectful and bark out profanity. Can the police officer arrest the driver for disorderly conduct or is the speech protected under the First Amendment? Arizona Revised Statute §13-2904 prohibits the use of “abusive or offensive language or gestures to any person present in a manner likely to provoke immediate physical retaliation by such person.” However, a person has a right to free speech. This right includes the right to engage in offensive expression and criticism of government officials. However, all speech is not protected. The law prohibits the use of “fighting words,” those words that would likely provoke immediate physical retaliation. When interacting with a police officer, what are “fighting words” and what is considered free speech? In deciding, the courts have looked at the position of a police officer, who is trained to deal with the public in very stressful situations, and is trained to remain calm. Yelling “fuck you all” at a police officer; stating “I’m tired of this God damned police sticking their nose in shit that doesn’t even involve them;” and calling the police officer a “son of a bitch,” have all been held as protected speech by various U.S. courts. However, referring to the police officer as a “white, racist motherfucker” and wishing his mother would die and referring to the police officer as a “fucking asshole” and then attempting to spit on the officer have been declared “fighting words,” not protected by the First Amendment.

While the display of an attitude towards a police officer is not going to get you out of a speeding ticket, neither should it land you in jail, as long as your speech is not considered “fighting words.” For more information on issues affecting Arizona criminal defense, please visit my website at www.win-law.com.

I’m charged with a DUI! Can I beat a breath test?

There are some who believe that a breathalyzer test result is the end of the case. They automatically infer guilt based upon the reading produced. Are there ways to combat a breathalyzer reading? Of course there are. Here are but a few. First, the breathalyzer devise may not have been calibrated or working properly. Second, certain ailments such as low blood sugar may be causing chemicals to be produced in the mouth, which the devise inaccurately interprets as alcohol. Third, small particles of certain foods, such as breads, that were previously eaten may be still lodged in the mouth, producing mouth alcohol, which the devise inaccurately displays as blood alcohol content (BAC). Tests have been conducted whereby a completely sober person eats bread and thereafter takes a breathalyzer. Readings as high as .05 have been found just from the bread consumption alone. Fourth, other chemicals the person came into contact with such as paint fumes and gasoline can produce a higher breathalyzer BAC reading. Fifth, elevated body temperature levels caused by sickness or just random fluctuation can cause a mistakenly high breathalyzer reading. These are but a few of the ways a breathalyzer can overstate a person’s actual BAC. Instead of automatically trusting breathalyzer results, maybe we should be asking why anyone trusts these devises at all? Further information on Arizona DUI charges can be found at www.win-law.com.

When Can Law Enforcement Conduct a Search Without a Warrant?

Generally, there are five situations where the law permits law enforcement to conduct a search without a warrant. First, a warrant is not required when law enforcement conducts a search of the person “incident to an arrest.” When law enforcement conducts an arrest, they may search the individual and the area within his immediate control. This is to make sure the individual does not bring with him any weapons or contraband. Secondly, law enforcement may conduct a warrantless search when they stop a vehicle and they have probable cause to believe that the vehicle contains contraband. This exception also includes the right to inventory the contents of a vehicle after the individual is taken into custody. Third, a warrant is not required when law enforcement is in “hot pursuit” of an individual who runs into a house. Forth, the police may seize contraband or other evidence if it is in plain view and they are in a place they are lawfully entitled to be at. Lastly, a warrant is not required when the individual consents to the search.
Visit www.win-law.com for for information on Arizona criminal defense.

Constructive Possession of Contraband

The question often arises as to how a criminal defendant can be convicted of possession of contraband, such as an illegal drug, when he/she was not in actual possession. For example, a vehicle is pulled over for a minor traffic offense. The police officer looks through the window and sees a pipe and what looks like a bag of marijuana sitting on the passenger side floor board. Can both driver and passenger be arrested for possession of marijuana? The answer is yes.

Under the legal concept known as construction possession, a defendant can be convicted of possession if it can be shown, through circumstantial and/or direct evidence, that the defendant knew of the presence of the contraband and had the power to exercise dominion and control over it. Multiple defendants can be in constructive possession of contraband at the same time. What will constitute the power to exercise dominion and control is fact specific to each case. For instance, mere proximity to a controlled substance or presence at the scene is insufficient. There must be other evidence to establish a link between the defendant’s presence where the drugs are found and his right to control the drugs. For example, courts have not found constructive possession where the police found a marijuana pipe in the pocket of a coat lying on the front seat of a car in which the defendant was a passenger. The coat belonged to another passenger. The court held that because the owner of the coat was present in the vehicle, and because the coat and its owner were in the front seat while the defendant was in the back seat, there was insufficient evidence to support an inference that the defendant was in constructive possession of the pipe. In another case, constructive possession was found where drugs were found through a search warrant at the house of the defendant’s mother. In the case, the defendant was observed coming and going from his mother's house in the week before his arrest. Upon execution of the search warrant, the police located clothing and shoes belonging to defendant in a bedroom of the house; two automobile rental agreements in defendant's name and, most telling, a leather bag containing money which matched the money used to fund the drug buy. As can be seen, the outcome of each case will depend upon the facts and how these facts are argued to the judge or jury.

Further information on Arizona drug offenses can be found at my website http://www.win-law.com/

Should I Plead Guilty, Not Guilty or No Contest?

If you're charged with a crime, the most important decision you will make in your case is to decide whether to plead guilty, not guilty or no contest. If you plead guilty to the charges against you, you are admitting that you committed the charges as alleged and your admission can be used against you in a later criminal or civil proceeding. For instance, if you're charged with reckless driving in a case where you are the cause of a traffic accident and you plead guilty, in a later personal injury action against you, the plaintiff will be able to prove that you were driving recklessly by merely placing into evidence your guilty plea and conviction. By pleading guilty, you give up the right to a trial of the evidence and also agree to give up the right against self-incrimination and answer any questions by the judge as to why you believe you are guilty.

By pleading not guilty, you are contesting the charges, which then requires the prosecutor to prove all charges against you beyond a reasonable doubt. With a plea of not guilty, you retain your right against self-incrimination and cannot be forced to take the witness stand and testify in the case. The last form of plea, a no contest plea, simply means that you are not contesting the charges, but you are also not admitting guilt. In the above example concerning reckless driving, if a personal injury action is later brought against you, you're no contest plea cannot be used as an admission. With a no contest plea, the judge will review the evidence and if the evidence is sufficient to convict you, the judge will find you guilty of the offenses charged.

If you are charged with a crime, it is the duty of your defense counsel to conduct damage control. This means that he or she should conduct a thorough review of the evidence against you and interview any and all relevant witnesses. After a complete and thorough review of the evidence is completed, your attorney should be able to provide you with an opinion on the probability of success if you were to contest the case by way of a trial in front of the judge or jury. If the chances of success are small, and the prosecution is offering a good plea agreement, it may be in your best interest to plead guilty or no contest in the case, thereby reducing your punishment in the end. Alternatively, if the chances of winning at trial are good and the prosecution is not offering much in the way of a plea agreement, it may be in your best interest to plead not guilty and contest the case, hoping to obtain a not guilty verdict, and no punishment in the end. No matter what the evidence is against you, it is your constitutional right to plead not guilty and force the prosecution to prove its case against you beyond a reasonable doubt.

For more information on typical criminal offenses charged in Arizona, as well as potential sentences and possible defense strategies, please visit my web site at http://www.win-law.com/.

Arizona Asset Forfeiture Law

Under Arizona's asset forfeiture law, law enforcement is allowed to seize assets they have probable cause to believe were used in the furtherance of certain crimes. The burden then shifts to the owner of the property to essentially prove the property's innocence. Assets can include vehicles, money, houses, and just about any other asset that can be used to further a crime. As can be seen, an innocent owner, who lends property to another, who then uses the property to further a crime, is subject to having their property forfeited to law enforcement. An owner of the property who had no knowledge that the property was being used to further a criminal venture can reclaim the property if he can show: (a) He acquired the interest before or during the conduct giving rise to forfeiture; (b) he did not empower any person whose act or omission gives rise to forfeiture with legal or equitable power to convey the interest, as to a bona fide purchaser for value, and he was not married to any such person or if married to such person, held the property as separate property; and (c) he did not know and could not reasonably have known of the act or omission or that it was likely to occur.

A subsequent purchaser of the tainted property can reclaim seized property if he can show: (a) He acquired the interest after the conduct giving rise to forfeiture; (b) he is a bona fide purchaser for value not knowingly taking part in an illegal transaction; and (c) he was at the time of purchase and at all times after the purchase and before the filing of a racketeering lien notice or the provision of notice of pending forfeiture or the filing and notice of a civil or criminal proceeding, reasonably without notice of the act or omission giving rise to forfeiture and reasonably without cause to believe that the property was subject to forfeiture. If unsuccessful in an action to reclaim property, the court can order the claimant to pay the prosecution attorney fees and costs of the action. Unfortunately, Arizona's forfeiture laws can lead to unintended results and subject innocent owners to hefty costs and legal fees in order to reclaim their property. Further information concerning Arizona criminal law can be found at my website www.win-law.com.

Entrapment: A Police Officer Doesn’t Have To Reveal His/Her Identity When Asked

Entrapment exists when the police create the crime. This takes place when the idea to commit the crime comes from the police, or someone working on their behalf. It must be shown that the accused never would have thought of committing the crime or the means of committing it if the police hadn’t suggested it. Additionally, the accused must not have been otherwise predisposed to commit the crime involved, which means that he/she wouldn't have committed this type of crime had they never met up with the police. For example, a drug dealer who is approached by a police officer who asks the dealer to sell him some cocaine is generally not being entrapped, because the drug dealer is already predisposed to committing the crime, as he is in the business of doing so.

Does the defense of entrapment exist when a police officer goes undercover and fails to reveal his/her true identity when asked? This is a common misconception as an undercover police officer is not required to reveal himself/herself when asked whether they are a police officer or not. For further information on Arizona criminal law, please visit my website at http://www.win-law.com/.