Arizona Criminal Defense DUI Attorney Christopher Winchell

Is disrespect towards a police officer a crime?

2006-08-23T16:00:00.000-07:00

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?

2006-08-17T17:50:00.000-07:00

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?

2006-08-11T13:59:00.000-07:00

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

2006-08-01T07:43:00.000-07:00

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?

2006-07-27T10:05:00.000-07:00

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

2006-07-24T09:09:00.000-07:00

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

2006-07-21T08:41:00.000-07:00

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/.

Plain and Simple: If There’s Something To Find, Don’t Consent To The Search

2006-07-20T09:42:00.000-07:00

We have all seen the episodes of the television show "Cops" where the police pull over a vehicle for a minor traffic violation and the police officer asks the driver whether the driver will consent to a search of his vehicle. Despite the fact that the vehicle contains drugs or drug paraphernalia, the driver consents, the contraband is found, seized, and the driver is taken off to jail. When these individuals are asked why they consented to a search of their vehicle, the usual response is that they didn’t think they had a choice and that the police would find the drugs anyway. This reasoning clearly demonstrates a lack of understanding by most citizens regarding their constitutional rights.

With certain narrowly tailored exceptions, without a warrant, probable cause, or consent to search, a police officer has no right to search your personal property. What this means is that without a warrant, a police officer must rely upon your consent or probable cause to conduct a lawful search. If the police officer lacks probable cause (a reasonable belief that the area to be searched contains illegal contraband), than he must rely upon consent to conduct the search. If the individual refuses to consent, then without probable cause or a warrant, the police officer must return to his duties and let the driver go. If the driver consents to the search, then their defense attorney does not have much to work with in attempting to suppress the seizure of any illegal contraband. However, if the driver refuses to consent, and a police officer goes forward with the search anyway, a defense attorney can attack the search, arguing that the police officer did not have actual probable cause. If successful, the illegal contraband seized will not come into evidence and the charge will most likely be dismissed. For more information on Arizona drug offenses, including typical charges and possible defenses, please visit my web site at www.win-law.com.

Diversion Programs Offer a Second Chance to First-Time Misdemeanor Offenders

2006-07-18T10:27:00.000-07:00

Most everyone has completed a job application as part of an interview process. The question will usually be asked whether or not the applicant has ever been convicted of a crime other than a minor traffic offense. Unfortunately, many young people in college and elsewhere get into trouble with the law for underage drinking, public intoxication and other minor alcohol-related offenses. To brand them as a criminal and have the conviction follow them for the rest of their life does not seem justified based upon the type of offense committed and the fact that it was a first-time mistake. However, many city prosecution offices offer a pretrial diversion program whereby a defendant charged with a first offense misdemeanor involving minor misconduct is allowed to attend classes and counseling in lieu of a court conviction. Following successful completion of the classes and/or counseling, the prosecutor's office dismisses the charges and no record of conviction goes onto the individual's record. For further information, please visit my web site at www.win-law.com.

Do I Have To Let the Police Search My Vehicle?

2006-07-07T10:23:00.000-07:00

While driving down the road your vehicle is pulled over for a minor traffic offense. The police officer asks for your license and registration and takes it back to his police vehicle to run it through the system. The officer comes back and informs you that he is giving you a speeding ticket for going 15 miles over the posted speed limit. He also asks if you would consent to having him search through your vehicle. Do you have to consent to the search? The answer is no. If you don't consent, will the police officer be able to search the vehicle anyway? The answer depends upon whether the police officer has a reasonable belief that the vehicle contains illegal contraband.

Let's first discuss where the police officer can search without your consent. If the police officer possesses a reasonable belief that the driver or passenger is dangerous and may gain immediate control of weapons, the police officer has the right to conduct a search of be vehicle's passenger compartment (glove compartment), even without a search warrant or consent. However, without this reasonable suspicion, the police officer is not authorized to conduct a search of the glove compartment without the consent of the owner of the vehicle. Regarding other areas of the vehicle, in order to conduct a warrantless search without the consent of the owner, the police officer must have probable cause to believe that contraband exists in the vehicle. Probable cause can arise from a variety of different sources. The smell of marijuana emanating from the vehicle may give the police officer probable cause to search the vehicle for marijuana. A drug pipe in plain sight, may not only allow the police officer to seize the pipe, but allow him to search the entire vehicle for drugs. Additionally, a drug detection dog, which conducts a sniff test around the vehicle and displays positive signs for the existence of drugs may provide the officer with probable cause to believe that the vehicle contains illegal contraband. A failure to give consent to a search does not give the police officer probable cause to believe the vehicle contains contraband, as it is the right of the vehicle’s owner to refuse consent. Without evidence that the vehicle contains contraband, the police officer is not authorized, absent the owner's consent, to search the vehicle.

The bottom line is that if, for some reason, you believe your vehicle may contain illegal contraband, you have the right not to consent to a search. By consenting to a search, you leave your defense attorney with very little room to work with when contraband is discovered in the vehicle. Without consent, your defense attorney can attack whether the police officer had probable cause to believe that the vehicle contained contraband, and seek to suppress from the evidence items seized in the search. For more information on typical charges brought in Arizona, including potential punishments, and possible defense strategies, please visit my web site at www.win-law.com.

How are DUI checkpoints legal?

2006-07-05T14:50:00.000-07:00

You are driving home from a July 4th fireworks display and you see the traffic backed up ahead. You know of a faster way home by taking a shortcut, so you veer around the car in front of you and turn down a side street to avoid the traffic. Just after doing so you are pulled over by the local police who request to see your driver's license and registration. The police officer goes back to his vehicle to run your license and plates. So much for the shortcut. He comes back and asks you why you were attempting to avoid the checkpoint. Not noticing any signs of intoxication, he returns your driver's license and registration. Are DUI checkpoints legal in the first place?

If kept within limits, DUI checkpoints are legal. Pursuant to applicable case law, brief detentions to check licenses, registrations, and sobriety are legal. The police must be following set procedures for stopping vehicles and cannot randomly chose vehicles to stop based upon the look of the vehicle or its occupants. What about in the above example? Can the police pull over a vehicle if they see the vehicle attempt to avoid the checkpoint? The police would need something more. Although the police could follow a vehicle they see turn off onto a side street, they would have to have another reason to pull over the vehicle, such as a traffic violation for speeding or weaving. However, if a vehicle goes through a checkpoint without stopping, the police can pull over the vehicle immediately.

Can the police go further and set up checkpoints for the purpose of stopping vehicles as part of drug interdiction efforts? After stopping vehicles at the checkpoint can the police, as their primary purpose, look inside your vehicle and have a drug dog conduct a sniff test? The answer is no. In the Supreme Court case of City of Indianapolis v. Edmond, the U.S. Supreme Court banned vehicle checkpoints as part of a drug interdiction effort, holding that vehicle checkpoints as part of general crime control are not authorized. However, one federal court has upheld the use of drug detection dogs at a license and registration stop, Merrett v. Moore, an 11th circuit opinion. It could, however, be argued that the use of drug detection dog makes the license and registration stop a mere pretext for a drug interdiction. For more information on DUI and drug offenses, please visit my website at www.win-law.com

Case Update: Definition of Insanity up to the States

2006-06-30T09:16:00.000-07:00

On Thursday, the U.S. Supreme Court, in the case of Clark v. Arizona, upheld Arizona’s insanity test statute, holding that due process does not prohibit Arizona’s use of an insanity test stated solely in terms of the capacity to tell whether an act charged as a crime was right or wrong. In Clark, a 17-year-old undisputed paranoid schizophrenic shot and killed a Flagstaff police officer. Lawyers for the defense argued that the Defendant believed the police officer he killed was an alien from outer space. They argued that he belonged in a mental hospital rather than a state prison. Prosecutors introduced evidence at trial that Clark had earlier told a friend that he was thinking of creating a disturbance to attract police officers to a particular location so he could shoot them dead. They said the murder of a law-enforcement officer was therefore a premeditated act.

The traditional English rule insanity test established in the landmark M’Naghten case asks about cognitive capacity: whether a mental defect leaves a defendant unable to understand what he was doing. The test also has a second part, an alternative basis for recognizing a defense of insanity, testing moral capacity: whether a mental disease or defect leaves a defendant unable to understand that his action was wrong. The Arizona Legislature at first adopted the full M’Naghten statement, but later dropped the first test, and decided to just go with the later. Currently, the test in Arizona reads that a defendant will not be adjudged insane unless he demonstrates that at the time of the crime, he was afflicted with a mental disease or defect of such severity that he did not know the criminal act was wrong. In reviewing the tests of other states, the Court concluded that the varied tests by each state made clear that no particular formulation has evolved into a baseline for due process, and that the insanity rule, like the conceptualization of criminal offenses, is substantially open to state choice.The opinion can be read at: http://www.law.cornell.edu/supct/html/05-5966.ZS.html

Prosecuting nonviolent illegal immigrants in Arizona won't work

2006-06-28T10:49:00.000-07:00

Maricopa County Attorney Andrew Thomas and Maricopa County Sheriff Joe Arpaio have recently teamed up to arrest and prosecute illegal immigrants as felons. Arizona's "anti-coyote law," which went into effect last year makes it a fourth degree felony to transport or procure the transportation of illegal immigrants into the state of Arizona. The immigrants themselves are being prosecuted as conspirators in their own transportation. Maricopa County Superior Court Judge Thomas O’Toole recently denied motions by defense attorneys seeking to dismiss the conspiracy charges, allowing the prosecution to go foward.

Now, apparently the goal in all of this is to lower the number of illegal immigrants, by making it known that they will be prosecuted if they are caught. However, as first time offenders, they will most likely only receive probation and be deported. If given prison time, they will merely clog up the prison system with nonviolent offenders. Arizona recently passed Proposition 200, which prevented first and second time nonviolent drug users from receiving prison time. One of the main reasons for this law was to keep nonviolent offenders out of the overcrowded prison system, in order to save taxpayers money. Do those who are arresting and prosecuting these immigrants really believe that these cases will deter those pondering whether they should come over the border illegally? Many of them risk their lives in the first place, traveling through the heat of the desert. Is the threat of probation or minimal prison time really going to deter them?

Why do the immigrants come here illegally in the first place? Because they don't want to wait to apply and they know they will be employed when they arrive. No threat of prosecution, probation, or minimal confinement sentence will deter them. However, not being able to get a job would certaintly be a deterent. So why then is all the plublicity and effort towards the prosecution of the illegals themselves, rather than those who employ them? Is it to misdirect our attention away from the real problem? The truth is that many U.S. companies, agricultural, construction, etc., hire undocumented workers. Many of them do so because they cannot find documented workers who are willing to do the job. The problem is much more complicated and will not be solved by prosecuting the illegals themselves.

For more information on Arizona criminal law, please visit www.win-law.com.

No Constitutional Right to Engage in Prostitution

2006-06-27T07:36:00.000-07:00

In the recent Division One opinion from the Arizona court of appeals, State v. Freitag, the court continued with the longstanding interpretation that there is no constitutional right to engage in or solicit prostitution. In the case, the appellant cited the recent U.S. supreme court opinion in Lawrence v. Texas, 59 U.S. 558 (2003), as support for his right to engage in consensual commercial sexual activity. In Lawrence, the U.S. supreme court ruled that a Texas statute prohibiting certain sexual activity between members of the same sex was unconstitutional. However, the Supreme Court didn't declare that this liberty interest was a fundamental right. Instead, the Supreme Court reasoned that the Texas statute furthered no legitimate state interest to justify the intrusion into the personal and private life of the individual. The Arizona court of appeals refused to find a fundamental constitutional right to engage in prostitution. In holding that the law was constitutional, the court reasoned that there was a legitimate interest in criminalizing such activity, in order to control disease, exploitation, and other criminal activity that surrounds the prostitution industry. However, couldn't such legitimate state interests also be fulfilled by regulating the industry, rather than criminalizing it? There are certain portions of Nevada where the industry is regulated, rather than criminalized. Is the law there more to enforce morality, rather than to protect against the legitimate state interests cited?

For further information on Arizona sex offenses, including typical charges, potential punishments, and possible defenses, please visit www.win-law.com.

"I was convicted by a taperecording": The admissibility of 9-1-1 tapes.

2006-06-23T07:42:00.000-07:00

It sometimes happens in the context of a domestic violence situation that the accuser calls 9-1-1 to either request help or to report an alleged attack. What happens if the accuser refuses to testify and is unavailable for trial? Can the prosecutor introduce the recorded 9-1-1 tape? Two recent cases have addressed this issue, one from the United States Supreme Court, Davis v. Washington, rendered June 19, 2006, and an earlier decision from Division One of the Arizona Court of Appeals, State v. King, rendered April 20, 2006.

The answer depends upon whether the statements are considered testimonial or not. If testimonial in nature, then the defendant has a right to cross-examine the witness against him/her pursuant to the Sixth Amendment to the U.S. Constitution's Confrontation Clause. In Davis v. Washington, the U.S. Supreme Court held that the 9-1-1 phone statements were not testimonial and that they could be used as evidence. The Court reasoned that a 9-1-1 call is primarily designed to describe current circumstances requiring police assistance. In the case, the accuser on the recording was speaking of events as they were actually happening, rather than describing events that had occured hours earlier. Moreover, the Court reasoned that the accuser was facing an ongoing emergency and that the statements elicited were necessary to enable the police to resolve the present emergency rather than simply to learn what had happened in the past. Finally, the Court looked to the level of formality in the conversation, citing that the accuser provided frantic answers over the phone, in an environment that was not tranquil, or even safe. Thus, the Court found that the circumstances of the accuser's interrogation objectively indicated that its primary purpose was to enable police assistance to meet an ongoing emergency and, therefore, she was not acting as a witness or testifying.

In the recent Arizona case, State v. King, Division One of the Arizona Court of Appeals was also deciding whether a 9-1-1 recording should be admitted into evidence. The Court stated that a primary factor in determining if a hearsay statement is testimonial is whether “a reasonable person in the position of the declarant would objectively foresee that his statement might be used in the investigation or prosecution of a crime.” The Court cited factors to consider in evaluating whether a 9-1-1 call should be treated as testimony. First, each case should be analyzed on a case-by-case basis. Second, 9-1-1 calls that are primarily “loud cries for help” are nontestimonial. These nontestimonial statements are usually made in the context of immediate danger either from physical injury or threat of injury or harm. Third, 9-1-1 calls that are made for the primary purpose of identifying a suspect or reporting evidence in an alleged crime that has already occurred will usually be testimonial.

Further information on the right to confrontation can be found at the very informative blog: http://confrontationright.blogspot.com/ (Professor Richard D. Friedman, University of Michigan, Right to Confrontation blogspot). The opinion in Davis v. Washington can be read at http://www.supremecourtus.gov/opinions/05pdf/05-5224.pdf. The opinion in State v. King can be found at http://www.cofad1.state.az.us/opinionfiles/CR/CR040269.pdf.

Further information on Arizona Criminal Law can be found at www.win-law.com.

Luring a minor, wrong charge brought

2006-06-22T06:59:00.000-07:00

We have all seen the TV reporter who pretends to be a minor on myspace. A conversation with an adult eventually turns to the topic of sex and a meeting is arranged, whereby the adult is confronted by the reporter. Can a defendant be found guilty of luring a minor for sex if the person being lured was not a minor? In the recent Arizona Supreme Court case of Mejak v. Granville, a television reporter pretended to be a 13 year-old girl and eventually confronted the defendant after a sexual encounter was arranged. The prosecutor charged the defendant with luring a minor for sex, but not with attempt. After his conviction, the defendant appealed. The Arizona Supreme Court held that a defendant cannot be held criminally liable for a completed crime when it is impossible to commit it. The court explained by analogy that a defendant who possesses what he thinks to be an illegal drug, but is not, cannot be charged with possession, but only attempted possession. Likewise, the defendant should have been charged with the attempted luring of a minor. The Court held that unless the person who pretended to be the minor is a police officer, the person lured must be a minor for the defendant to be guilty of the completed crime of luring a minor. An attempt carries with it less punishment than the completed crime. The crime of luring a minor for sex is a class 3 felony, whereby the attempt could only be a class 4 felony.

For further information on Arizona sexual offenses, their potential punishments, as well as possible defense strategies, please visit www.win-law.com.

Arizona no jail time for first or second possession of drug for personal use

2006-06-20T06:10:00.000-07:00

Pursuant to Arizona Proposition 200, those found guilty on a first or second offense for possession of drugs for personal use do not get a confinement sentence. They are afforded the opportunity to receive drug treatment, as they are not seen as violent offenders. Proposition 200 was enacted in response to the growing jail population, which began to be occupied by an ever increasing number of drug offenders.

For a first offense, if all treatment is properly completed, the case can actually be dismissed, leaving no permanent conviction of the individual's record. The enactment of Proposition 200 is a step in the right direction for Arizona's treatment of nonviolent drug offenders. However, further progress needs to be made. Under the laws as presently written, a first time offender who is found in possession of one marijuana cigarette can actually be charged with a class 6 felony. If they fail to complete the drug treatment, and the offense is not later reduced to a class 1 misdemeanor, the person can actually come through it all as being a convicted felon for possession of a small amount of marijuana.

For further information on this topic, as well as other crimes in Arizona, please visit my website at www.win-law.com.

They didn't read me my rights, will the case be dismissed?

2006-06-19T06:23:00.000-07:00

It is a common belief that some people have that because the police did not read them their Miranda rights, they cannot be prosecuted. This is not the case. When questioning someone in custody, it is the law that the police must read the suspect certain rights, known as Miranda rights. These rights explain that the individual has the right to remain silent, that anything they say will be used against them in court, and that they have a right to have an attorney present for any questioning, etc. What would happen if a person suspected of a DUI is taken in custody and then interrogated at the station, without the police reading any Miranda rights? After questioning, the person admits to having consumed 12 beers and being drunk while driving. Could they still be prosecuted for a DUI? The answer is yes. Although the accused's' attorney could file a Motion to the court to suppress the confession, which would most likely be granted by the judge, the prosecutor could still go forward with the case with other evidence, other than the confession. This other evidence may consist of physical signs of intoxication, such as slurred speech, the inability to walk a straight line, odor of alcohol, etc. It may also consist of the results of a BAC test.

For further information on crimes and possible punishments in Arizona, please visit my website at www.win-law.com.

What's the difference between a DUI and a DWI?

2006-06-18T22:05:00.000-07:00

When the average person hears the phrases DUI or DWI, they don't know the difference, but they do know it somehow involves drinking and driving. For a DUI, which stands for "Driving Under the Influence" of alcohol, the prosecutor must prove that you were under the influence of alcohol or drugs while driving. He or she doesn't have to show the results of a Blood Alcohol Content (BAC) test. The prosecutor will attempt to introduce evidence of how the driver acted in order to prove this offense. Such evidence may include odd driving; glassy, bloodshot eyes; slurring of speech; coordination problems; etc.

On the otherhand, for a DWI, which stands for "Driving While Intoxicated," the prosecutor need only prove that the driver had a Blood Alcohol Content (BAC) of .08 percent or higher within two hours of driving. A DUI carries with it the same punishment as a DWI, both of which are Class 1 Misdemeanors.

So why have two crimes, a DUI and a DWI? As can be seen, a DWI is easier for the prosecutor to prove, as it usually comes down to science, i.e., is the BAC test producing an accurate reading. However, a person can still be charged with a DUI if their BAC was below .08. Take, for example, someone who has never consumed alcohol before and has two drinks within one hour. Generally, the average person will not have a BAC of .08 or higher after consuming two drinks in one hour. However, the inexperienced drinker may still be guilty of a DUI because they are impaired by the alcohol, having never experienced the physcological effects before.

For more information on DUI and DWI, with possible sentences and discussions for other DUI type offenses, please visit my website at www.win-law.com