Archive for May, 2009

May
26

Mesa criminal courts to be consolidated downtown

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Presiding Judge Barbara Rodriguez Mundell announced that the five criminal divisions currently located in the Maricopa County Superior Court Southeast Facility in Mesa will be relocated to downtown Phoenix.  The move is fashioned to save taxpayers the costs associated with the transportation of inmates to that facility and other associated expenses.  In addition to saving taxpayers dollars, the move should also help expedite the completion of the Courts’ daily business.  All too often, attorneys are double or triple booked in different courts located in different areas of the valley on the same day.  With all the felony criminal courts under one roof, downtime associated with the commute of attorneys between the various courts should be minimized.

Categories : Criminal Law
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May
24

Commonly used Intoxilyzer 8000 cannot tell difference between breath alcohol and mouth alcohol

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Any forensic alcohol expert will tell you that the amount of alcohol in a person’s mouth (e.g. residue from a recently consumed beverage or regurgitation of unabsorbed stomach contents) is NOT an accurate measure of their blood alcohol level. This video gives a great demonstration of how the presence of mouth alcohol can result in artificially high results with the Intoxilyzer 8000 which is used by numerous law enforcement agencies in Maricopa County in connection with DUI charges…

 

Contact DUI Attorney Joshua S. Davidson today if you are facing DUI charges in Scottsdale or Phoenix.

Categories : DUI, Dui Law
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May
24

Improperly requested jury instruction not considered on appeal

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The Arizona Court of Appeals recently issued a published opinion in the matter of State of Arizona v. Tracie Renee Geeslin. Ms. Geeslin was convicted at trial of a number of felony offenses including theft of means of transportation. During trial, Ms. Gesslin requested that the jury be permitted to consider the less serious crime of unlawful use of means of transportation. On appeal, she challenged the trial court’s rejection of that request.In its decision the Arizona Court of Appeals essentially held that, although it implicitly agreed with Ms. Geeslin that the jury should have been allowed to consider the less serious offense, the issue had not been properly raised during trial and therefore could not be considered on appeal. Specifically, Ms. Gesslin’s attorney apparently made the request to the judge and the prosecutor in an informal email and neglected to follow up by filing a formal motion with the court. Because emails of this nature are not considered part of the court’s official record, the request was treated by the court of appeals as if it was never made. Like most issues on appeal, a request for a specific jury instruction must be formally made during the course of trial in order for issue to be addressed on appeal.

This Court of Appeals decision underscores that the importance of “protecting the record” cannot be overstated. Because the defense attorney did not incorporate the request into the official court record, Ms. Gesslin forever lost the opportunity to raise that issue on appeal. Regardless of how strong her argument was that the court should have granted the request, the Court of Appeals would not even consider the issue.

While Geeslin
persuasively argues that unlawful use pursuant to A.R.S. § 13-
1803 (2001) is a lesser included offense of theft of means of
transportation pursuant to A.R.S. § 13-1814(A)(5), and that the
trial court should have given the lesser included instruction,
we are unable to address the issue. The record does not contain
the requested jury instruction and we will not find that a trial
court erred in failing to give an instruction that we cannot
review.

Criminal charges are serious and require serious legal representation. If you are in need of legal representation, have an experienced criminal defense attorney in your corner who will make sure your rights are properly protected. Contact the Law Offices of Joshua S. Davidson today for your free initial consultation.

Categories : Criminal Law
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May
23

Three months after his escape, convicted sex offender Adrian Cruz remains at large

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On February 18th, Adrian Cruz was left unattended and walked right out the front door of the Maricopa County Superior Court during a recess in his trial. Over three months have passed since his escape and he remains at large. Mr. Cruz was already serving a life sentence for a previous sex offense and was being imprisoned in the secure confines of the Arizona State Department of Corrections. His escape has drawn criticism not only towards the Sheriff’s Office, but also towards Andrew Thomas and the Maricopa County Attorney’s Office for bringing charges against Mr. Cruz in the first place.

Contact Phoenix Sex Crimes Attorney Joshua S. Davidson today if you or a loved one have been accused of child abuse, molestation, or other sex crimes offense in Arizona.

Categories : Criminal Law, Politics
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May
16

Presiding Criminal Judge relaxes position on releasing in custody defendants

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For several months, the sheriffs office has been failing to transport inmates for their court appearances in Maricopa County Superior Court.  Most defense attorneys, prosecutors and judges agree that the disruption created by this policy continues to be much more than a mere nuisance.  Not shockingly, the sheriffs office cites budgetary reasons, but many agree that the entire issue is politically motivated by the sheriffs office.  After all, the sheriff seems to have all the money he needs to enforce those accused of immigration violations, even though the federal government is responsible for enforcing those laws.

 

According to news reports, the presiding criminal judge had previously threatened to begin release those defendant who were not be transported to their court dates but has since backed away from taking that action.  Apparently, the court never intended on compromising public safety by taking such a drastic measure, but needed to raise the issue just to get the sheriff’s attention.  Whether the county taxpayers will need to continue funding the unnecessary court costs occasioned by the Sheriff’s gamesmanship remains to be seen.

Categories : Politics
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May
06

Sentencing in Arizona Criminal Cases

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The trial court is the decision-maker in determining the appropriate sentence. (In some states the jury imposes the sentence.) The options available to the trial court include imprisonment, or various types of probation. The trial court is bound by the sentencing guidelines passed by the state legislature. The legislature has determined that certain offenses warrant a more stringent sentence. Some of those offenses include drug offenses, crimes committed with a deadly weapon or a dangerous instrument, crimes against children, crimes committed while on release (probation, out of custody, parole), and crimes committed by repeat offenders. For example, a defendant found guilty of a dangerous crime against children in the first degree (e.g. crimes of violence, sexual conduct and sexual abuse, commercial sexual exploitation of a minor, and kidnapping) “shall be sentenced to a presumptive term of imprisonment for 20 years.” A.R.S. §
13-604.01(A).

Also, a defendant who commits an offense while released on bail or on the defendant’s own recognizance “shall be sentenced to a term of imprisonment 2 years longer than would otherwise be imposed.” A.R.S. § 13-604(R).

The trial court has the discretion to sentence a defendant to a term of imprisonment within the statutory guidelines. A.R.S. § 13-702-10. The sentence ranges includes a mitigated, presumptive, and aggravated term of imprisonment. Felonies range from a class 2 felony to a class 6 felony. A class 2 felony is the most serious offense other than first-degree murder. A class 6 felony is the least serious felony. The sentencing range for felonies increases with the seriousness of the offense.Prior to imposing sentence, the trial court must consider the aggravating circumstances presented by the state and the mitigating circumstances presented by the defendant. The trial court also considers the probation officer’s recommendation and the victim’s statement.

The trial court is not required to accept the aggravating and mitigating circumstances at face value. Rather, the trial court has the discretion to evaluate the relevance and credibility of evidence. For example, often times the defendant will express remorse of their offense. The trial court determines whether a defendant’s expression of remorse is genuine. In some cases the trial court finds that the defendant is only remorseful for getting caught and facing a prison term. Additionally, in capital cases, the Arizona Supreme Court has consistently rejected a defendant’s claim in mitigation that they were raised in an abusive childhood, finding that, “The remedy for one who has been molested is not to molest others and ask to be excused, but rather to submit to therapy, which, as noted above, defendant has repeatedly refused to do.” State v. Atwood, 171 Ariz. 576, 655, 832 P.2d 593, 679 (1992).

If the defendant is convicted of a probation eligible offense, the trial court may suspend the imposition of a prison sentence and impose probation. There are many types of probation including intensive probation (A.R.S. § 13-913), supervised probation, and unsupervised probation. A.R.S. § 901. In all types of probation, the trial court has the discretion to sentence the defendant to serve 1 year in jail. Intensive probation has very strict requirements, including that the defendant must contact his/her probation officer on a weekly basis, must be employed, actively seeking employment, or in school. The length of probation ranges from 7 years for a class 2 felony, to 3 years for a class 5 or 6 felony. A.R.S. § 13-902(A). These periods of probation may be shortened or lengthened by the trial court. Additionally, the trial court has the discretion to impose lifetime probation for defendants who are convicted of sexual offenses, sexual exploitation of children, and child or vulnerable adult abuse.

The trial court also has the option at sentencing to classify a class 6 felony as an “open-ended offense” or an “undesignated offense.” Following the defendant’s successful completion of probation, the trial court has the discretion to designate the offense as a misdemeanor. This provides further incentive for the defendant to comply with probation. A class 6 undesignated felony offense is considered a felony for all purposes until the trial court makes a final designation.

Following a sentence of imprisonment, the defendant has 30 days to file a notice of appeal in the Arizona Court of Appeals. The defendant is entitled to legal representation on appeal. If the defendant is unsuccessful in his/her direct appeal, he/she can file a petition for review in the Arizona Supreme Court. The Arizona Supreme Court has discretionary review of petitions for review and accepts only 10% of the petitions filed.

Arizona State Board of Nursing guidelines for sexual misconduct and boundary violation cases

Categories : Criminal Law
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May
06

Criminal Trials and Guilty Pleas

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A criminal case may be resolved either by a guilty verdict following trial or by the entry of a guilty (or no contest) plea. Both result in a criminal conviction.

A defendant who proceeds to trial is entitled to representation if he/she is unable to afford an attorney. As in civil cases, the defendant makes all the substantive decisions about the case after receiving advice from defense counsel. The criminal case then proceeds to discovery. The criminal discovery rules are very liberal. There is no trial by ambush in Arizona; both parties have a duty to disclose prior to trial. The trial court has broad discretion to sanction parties who fail to timely disclose witnesses or required discoverable material. Following discovery, the state might offer the defendant a plea. In the event of a plea offer, the negotiations can be extensive and time consuming.

If the defendant proceeds to trial, the state is bound by strict time deadlines. The rules of
evidence apply in a criminal trial, unlike in an administrative hearing. The state has the burden of proving each element of a criminal offense beyond a reasonable doubt. This is the highest standard of proof (much higher than the preponderance of the evidence standard applied in administrative hearings). The defendant is not required to testify and the jurors are instructed that they cannot consider the defendant’s silence in deciding the case. The defendant is entitled to an 8-person jury when the possible sentence is under 30 years. The defendant is entitled to a 12-person jury for capital offenses and cases that carry a possible sentence of 30 years or more. The jury verdict must be unanimous to either convict or acquit the defendant. If the jury is “hung”, the state can retry the defendant.

A defendant who enters a guilty or no contest plea is afforded significant constitutional
protections under the United States and Arizona Constitutions. These protections are codified in the Arizona statutes and in the Rules of Criminal Procedure. The trial court is required to advise a defendant of his or her rights and the consequences of pleading guilty or no contest. Rule 17.2. Ariz. R. Crim. P. The trial court must determine whether the defendant knowingly, voluntarily and intelligently entered the plea. The defendant is questioned in detail, on the record, in the trial court regarding whether any force, threats, or promises were made to induce the plea. The defendant must also provide the trial court with the “factual basis” for the plea; meaning the defendant must admit that he/she committed the elements of the offense. The failure of the trial court to follow the rules of criminal procedure may be grounds for setting aside the plea. The Arizona Supreme Court has rejected a defendant’s later claim that he pled guilty, but did not mean what he had avowed to the court, because accepting the claim would in effect mean that the trial court condoned perjury.

Arizona State Board of Nursing guidelines for sexual misconduct and boundary violation cases

Categories : Criminal Law
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May
05

Police set to crack down on Cinco de Mayo DUI offenses

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Officers of several valley agencies are participating in an announced DUI taskforce scheduled for this evening. The task force will reportedly be patrolling the areas of Tempe and Old Town Scottsdale.

Please enjoy your holiday responsibly. If you are in need of a DUI attorney, contact the Law Offices of Joshua S. Davidson today.

Categories : Criminal Law, DUI, Police
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May
05

How felony charges are filed in Arizona

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Many clients often express confusion regarding the process by which felony cases are brought to court in Arizona.  I recently encountered the following article entitled guidelines for sexual misconduct and boundary violation cases (Arizona Board of Nursing) which provides a good explanation.

A criminal case is charged by either the grand jury or a criminal complaint. If a case is charged
by the grand jury, the prosecutor presents evidence to the grand jurors. The grand jury issues a
“true bill,” indicating that a crime has been committed and the defendant is the perpetrator. The
grand jury proceedings remain secret until the “true bill”/indictment is issued. The grand jury
indictment is then filed in superior court and is contained in the defendant’s court file.

The state may file a criminal complaint. The complaint is filed under oath by a peace officer
alleging the offense. Complaints are usually filed in city court.

After the offense is charged, the defendant is then serviced with a criminal summons to appear in
court. A summons is the preferred method as opposed to an arrest warrant. Rule 3.1(b), Ariz. R.
Crim. P. If the defendant fails to honor the summons, the trial court issues a warrant for the
defendant’s arrest.

The defendant makes an initial appearance before a magistrate. Rule 4.2, Ariz. R. Crim. P. If
the defendant fails to honor the summons, the trial court issues a warrant for the defendant’s
arrest.

The defendant makes an initial appearance before a magistrate. Rule 4.2, Ariz. R. Crim. P. The
magistrate informs the defendant of the charges against him/her, determines the defendant’s
release, and appoints counsel if the defendant is eligible. A defendant who is charged by
complaint is entitled to a preliminary hearing for a determination of probable cause. Rules 4.2
and 5.2, Ariz. R. Crim. P. The defendant charged by indictment is not entitled to a preliminary
hearing because the grand jurors made a finding of probable cause prior to their issuance of the
“true bill.”

Categories : Criminal Law
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The Arizona Defense Law Blog is published by Phoenix DUI and criminal defense attorney Joshua S. Davidson. Nothing on this website is intended to create an Attorney-Client relationship and the information provided herein is for general information purposes only.

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