Monday, August 21, 2017

Arizona Law on Bail

Article 2, §22(A) of the Arizona Constitution states:

All persons charged with crime shall be bailable by sufficient sureties, except:
  1. For capital offenses, sexual assault, sexual conduct with a minor under fifteen years of age or molestation of a child under fifteen years of age when the proof is evident or the presumption great.
  2. For felony offenses committed when the person charged is already admitted to bail on a separate felony charge and where the proof is evident or the presumption great as to the present charge. Originally seen published on http://www.azleg.gov/const/2/22.htm
  The Arizona Court of Appeals has held that defendants held pursuant to Art. 2, §22(A) are entitled to a bail hearing according to Simpson v. Owens, 207 Ariz. 261, 85 P.3d 478 (App. 2004). The hearing must have the following procedural safeguards: (1) the right to counsel; (2) the opportunity to testify and present information; (3) the opportunity to cross-examine opposing witnesses; (4) the statutory factors governing the preventive-detention decision-making process; (5) a requirement of findings of fact and a statement of reasons for the decision; and (6) a requirement of proof by clear and convincing evidence. See Id., 207 Ariz. 261, 274, 85 P.3d 478, 491. On February 9, 2017, the Supreme Court of Arizona held that Article 2 section 22(A)(1) of the Arizona Constitution and A.R.S. § 13-3961(A)(2)-(4) were unconstitutional because they violated the 14th Amendment due process guarantee in Simpson v. Miller, CR-16-0227-PR (¶ 2). The Court found that such defendants are instead subject to A.R.S. § 13-3961(D): “Because Martinez is charged with a felony, he would be subject to A.R.S. § 13-3961(D), which allows the court to deny bail on the state's motion if the court finds by clear and convincing evidence following a hearing that (1) "the person charged poses a substantial danger to another person or the community," (2) "no condition or combination of conditions of release may be imposed that will reasonably assure the safety of the other person or the community," and (3) "the proof is evident or the presumption great that the person committed the offense." This procedure is essentially the same as the one upheld in Salerno. Under this provision, the state may deploy the entire range of permissible conditions of release to ensure community safety, including GPS monitoring. The court may deny bail altogether for defendants for whom such conditions are inadequate, which may well include many or most defendants accused of sexual conduct with a minor under age fifteen. Under our reading of Salerno, the state may deny bail categorically for crimes that inherently demonstrate future dangerousness, when the proof is evident or presumption great that the defendant committed the crime. What it may not do, consistent with due process, is deny bail categorically for those accused of crimes that do not inherently predict future dangerousness. The State urges that we should not hold the challenged provisions unconstitutional on their face because they may not be unconstitutional in all instances. Seee.g., Salerno, 481 U.S. at 751. The State, however, is confusing the constitutionality of detention in specific cases with the requirement that it be imposed in all cases. Sexual conduct with a minor is always a serious crime. In many but not all instances, its commission may indicate a threat of future dangerousness toward the victim or others. But because it is not inherently predictive of future dangerousness, detention requires a case-specific inquiry. Accordingly, we hold that the provisions of article 2, section 22(A) of the Arizona Constitution and A.R.S. § 13-3961(A)(3), categorically denying bail for all persons charged with sexual conduct with a minor, are unconstitutional on their face. Defendants for whom future dangerousness is proved may still be held under A.R.S. § 13-3961(D) as set forth above.” ( ¶ ¶ 29-31). Arizona superior courts are following Simpson v. Miller by setting bond amounts and other release conditions for defendants previously held without bail under Article 2, section 22(A) of the Arizona Constitution. If you or a loved one is being held without bond, you need an experienced attorney to see if pretrial release is possible. Attorney Gary Rohlwing has over thirty years experience. Call him today for a free consultation.   Gary provides experienced criminal defense services in: Glendale Misdemeanor Criminal Defense Peoria Defense Lawyer Avondale Criminal Legal Assistance    

Arizona Law on Bail is available on http://www.criminal-duiattorney.com/blog/

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Friday, August 11, 2017

Arizona State Criminal Courts Different Legal Articles

Article VI § 1 of the Arizona Constitution provides that Arizona’s integrated judicial department consists of “a supreme court, such intermediate appellate courts as may be provided by law, a superior court, such courts inferior to the superior court as may be provided by law, and justice courts.” Arizona state criminal courts are city courts, justice courts, superior courts, the Court of Appeals, and the Supreme Court. Arizona city courts hear misdemeanor and petty offense cases that occur within their city or town limits such as DUI, shoplifting, and domestic violence. Some city courts do not require that city court judges be attorneys. Arizona justice courts hear misdemeanor and criminal traffic cases that occur on the freeways, county land, or state land. There are 26 justice courts in Maricopa County. Arizona law allows individuals who are not attorneys to be elected as justice court judges. Arizona superior courts hear felony cases that occur in their particular county and misdemeanor cases that are otherwise not provided for by law according to Article VI § 14(4) of the Arizona Constitution. All superior court judges must be attorneys. Article VI §9 of the Arizona Constitution specifies that the jurisdiction, powers, duties and composition of the Court of Appeals shall be as provided by law. Arizona has two divisions of the Court of Appeals. Division One of the Court of Appeals hears appeals from cases originating in Maricopa County, Coconino County, Apache County, Yavapai County, Mohave County, La Paz County, Navajo County, and Yuma County while Division Two hears appeals from cases originating in Cochise, Gila, Graham, Greenlee, Pima, Pinal and Santa Cruz counties. A.R.S. § 12-120.21(A)(1) states that the Court of Appeals has appellate jurisdiction in all criminal actions except crimes for which a sentence of death has actually been imposed. A.R.S. § 13-4033(B) provides that a defendant may not appeal from a judgment or sentence that is entered pursuant to a plea agreement or an admission to a probation violation. Article VI § 5(3) states that the Supreme Court has appellate jurisdiction in all criminal actions except those originating in courts not of record unless the action involves the validity of a tax, impost, assessment, toll, statute or municipal ordinance. City courts and justice courts are considered courts not of record so any appeal has to challenge the validity of the statute or municipal ordinance under which the defendant was prosecuted. You need an experienced criminal defense attorney to help you through the criminal proceedings in the Arizona state criminal court system. Attorney Gary Rohlwing has over three decades of experience in the Arizona state criminal court system. Call him today for a free consultation.   Law Offices of Gary L Rohlwing 7112 N 55th Ave Glendale, AZ 85301 (623) 937-1692 http://www.criminal-duiattorney.com/ http://www.criminal-duiattorney.com/blog/

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Wednesday, August 2, 2017

Dealing with Stress When Your Charges Are Pending

Having pending criminal charges is extremely stressful.

Here are some practical ways to deal with the stress: Tell someone who believes in you about your charges. For most people, that is a spouse or significant other. A family member or friend is an excellent substitute if you don’t have a spouse or significant other. You will need this person for invaluable emotional support in the days ahead. Explore other ways to obtain money. You will probably need more money to pay your attorney, fines, and fees. Other ways to make money could include taking on extra work, getting a second job, obtaining a home equity line of credit, or signing up for contract work through guru.com. Brainstorm the potential problems a criminal conviction can cause you and try to solve them now. For example, you may need someone to take temporary custody of your child while you are incarcerated. You should reach out to family members now to solve this problem instead of waiting until after you are sentenced. Continue living your life without committing any more crimes. Don’t put your life on hold just because your criminal charges are pending. Plan fun events that you can enjoy and participate in now. These fun events should not involve drinking too much, using drugs, excessive spending, or any other activity that isn’t legal or moral. Eliminate unnecessary spending. Unnecessary spending causes additional stress that you don’t need. Some examples are cable TV, designer clothes, the latest iphone, gym membership, Starbucks coffee, buying DVDs, and eating out all the time. Brainstorm how to get your needs and wants met for little or no money. For example, you need and want to keep watching new DVD movies but have decided it’s unnecessary to keep buying them. Apply for a public library card and start checking them out for free instead. Hire an experienced defense attorney. His experience and compassion can relieve a great deal of stress. The Law Offices of Gary L. Rohlwing has over three decades of experience. Call him today for a free consultation. Learn more about Gary's practice areas by visiting http://www.criminal-duiattorney.com/practice-areas.html You may have noticed a common theme: these tips all require you to do something positive instead of sitting around worrying and feeling sorry for yourself. Doing something positive helps distract you from your stress. Many times, it will even relieve your stress. Try it!

The following post Dealing with Stress When Your Charges Are Pending is republished from www.criminal-duiattorney.com

Law Offices of Gary L Rohlwing

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Friday, July 28, 2017

ACLU Challenges Constitutionality of Arizona Victims’ Rights Law

On May 8, 2017, ACLU of Arizona filed a complaint in federal district court challenging the constitutionality of A.R.S. § 13-4433(B) and (C) known as the Arizona Victims’ Rights Law. The information below comes from the complaint.  

A.R.S. § 13-4401(19) defines “victim”:

“Victim” means a person against whom the criminal offense has been committed, including a minor, or if the person is killed or incapacitated, the person’s spouse, parent, child, grandparent, or sibling, any other person related to the person by consanguinity or affinity to the second degree or any other lawful representative of the person, except if the person or the person’s spouse, parent, child, grandparent, sibling, or other person related to the person by consanguinity or affinity to the second degree or other lawful representative is in custody for an offense or is the accused.” Originally found on http://www.azleg.gov/ars/13/04401.htm
 

A.R.S. § 13-4433(B) states:

“The defendant, the defendant’s attorney or an agent of the defendant shall only initiate contact with the victim through the prosecutor’s office. The prosecutor’s office shall promptly inform the victim of the defendant’s request for an interview and shall advise the victim of the victim’s right to refuse the interview.”  

A.R.S. § 13-4433(C) states:

“The prosecutor shall not be required to forward any correspondence from the defendant, the defendant’s attorney or an agent of the defendant to the victim or the victim’s representative.” Read all victim’s rights at http://www.azleg.gov/ars/13/04433.htm
These laws are unique to Arizona. While the goal of protecting victims from potential defense harassment and intimidation is admirable, the laws actually prevent defense attorneys from interviewing victims since few victims consent to defense interviews once the prosecutor informs them that they have the right to refuse them. Many crimes pit the defendant’s credibility against the victim’s; sex offenses are serious crimes where it’s often the defendant’s word against the victim’s. The laws force defense attorneys to literally interview the victims when they cross-examine them at trial. The United States Supreme Court has deemed it imperative that a defense attorney in a capital case at the very least reach out and attempt to make contact with all witnesses in the case in Wiggins v. Smith, 539 U.S. 510 (2003). As the ACLU argued in the complaint:
“40. In a capital case, the defense team’s duty to investigate often includes making overtures to the family of the deceased in an effort to understand whether they desire the death penalty for the perpetrator or would be satisfied with a lesser sentence, such as life imprisonment without parole. Victim impact testimony is often critical to the jury’s determination of the appropriate sentence in a capital case and if defense counsel can persuade the victim’s family not to desire the death penalty, it can literally save the life of a defendant. In addition, prosecutors will sometimes acquiesce to the wishes of the victim’s family and drop their demand for death. A.R.S. § 13-4433(B) prevents the defense team from engaging in these efforts. Read more at http://tucson.com/news/local/crime/criminal-defense-attorneys-seek-changes-to-arizona-s-victims-bill/article_fe1e4a59-51b8-5d4f-800a-391fc00abc30.html
41. In capital cases where a relative of the defendant is the victim, often the best sources of evidence regarding mitigation critical to saving a defendant’s life is found with the defendant’s family, which is also the victim’s family. A.R.S. § 13-4433(B) precludes the Plaintiffs from speaking to those crucial witnesses except by using the prosecutor as an intermediary” The Plaintiffs, Arizona Attorneys for Criminal Justice and individuals adversely affected by the laws, argued that A.R.S. § 13-4433(B) violates their First Amendment right to attempt to speak to witnesses who are defined as “victims” without the compulsion to use a government go-between and that A.R.S. § 13-4433(B) is unconstitutionally overbroad since it eliminates all speech of any kind between them and victims. If you are charged with a crime, you need an experienced defense attorney (Like Gary Rohlwing) who knows how to effectively represent you in spite of the Arizona Victims’ Rights Law. Attorney Gary Rohlwing has over three decades of experience. Call him today for a free consultation. Cities I Service:  

The following post ACLU Challenges Constitutionality of Arizona Victims’ Rights Law was first published to Gary Rohlwing

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Sunday, July 23, 2017

Should You Represent Yourself? Pros and Cons

Should You Represent Yourself or Hire an Attorney?

You don’t qualify for a public defender. Should you represent yourself? Here are some questions you should ask to help you decide: Do I have the time to learn the law that applies to my criminal charges? The learning curve is steep even for a misdemeanor offense. You would have to sacrifice limited personal time to do so. Can I control my emotions enough to communicate effectively with the prosecutor? It’s difficult to control your emotions when you’re the defendant. You would have to remain polite and calm in communicating with the prosecutor. Can I come up with a valid legal defense? Knowing the law is one thing; coming up with a valid legal defense is another. You would likely experience a lot of uncertainty and frustration trying to come up with a valid legal defense. Can I handle the stress of representing myself? Drinking too much, using drugs, spending too much, or withdrawing are all bad ways of dealing with stress. Representing yourself on your criminal charges is stressful because of the many negative emotions you may experience such as anxiety, depression, anger, fear, and frustration. Representing yourself is difficult. Hiring an experienced defense attorney is easy. Attorney Gary Rohlwing has over three decades of experience. Call him today for a free consultation.

Should You Represent Yourself? Pros and Cons was first seen on Law Offices of Gary Rohlwing - criminal-duiattorney.com/

Law Offices of Gary L Rohlwing

7112 N 55th Ave

Glendale, AZ 85301

(623) 937-1692

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Thursday, July 13, 2017

Collateral Consequences of Drug Convictions

According to the American Friends Service Committee-Arizona, “Collateral consequences” are legal punishments and other restrictions imposed on people because of their criminal convictions that are in addition to any term of incarceration, fines, fees or supervision imposed by the courts as punishment for the crimes. As Gabriel Chin wrote in “The New Civil Death: Rethinking Punishment in the Era of Mass Conviction”: “As a practical matter, every criminal sentence contains the following unwritten term: The law regards you as having a “shattered character.” Therefore, in addition to any incarceration or fine, you are subject to legal restrictions and limitations on your civil rights, conduct, employment, residence, and relationships. For the rest of your life, the United States and any State or locality where you travel or reside may impose, at any time, additional restrictions and limitations they deem warranted. Their power to do so is limited only by their reasonable discretion. They may also require you to pay the expense of these restrictions and limitations.” On their website, The National Inventory of Collateral Consequences of Conviction lists 170 collateral consequences in the State of Arizona arising from a drug conviction. Some of the well-known ones are:

  • Prohibited possessor of firearms;
  • Loss of employment and employment opportunities;
  • Loss of public benefits such as student aid;
  • Loss of housing and difficulty finding housing; and
  • Loss of child custody
The collateral consequences of drug convictions in Arizona are wide ranging and serious. Criminal Defense attorney Gary Rohlwing has decades of experience in helping clients mitigate the collateral consequences of their drug convictions. Call or e-mail him today. Felony Attorney Services - http://www.criminal-duiattorney.com/felonies.html Misdemeanor Attorney Services - http://www.criminal-duiattorney.com/misdemeanors.html

Collateral Consequences of Drug Convictions was originally seen on Glendale Arizona Law Offices of Gary Rohlwing



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Saturday, July 8, 2017

Arizona Enacts Provisional Licensing for Former Felons

A Fact Sheet published by the National Employment Law Project on August 1, 2016, conservatively estimated that roughly 70 million people in the United States have some sort of criminal record. Having a criminal record can make it difficult to obtain an occupational license required by the State of Arizona. On May 1, 2017, Governor Ducey signed a bill adding A.R.S. § 41-1093 which gave state licensing boards the authority to issue either a regular license or a provisional license to an otherwise qualified applicant who has been convicted of an offense. A provisional license is valid for one year and the ability of the applicant to subsequently obtain another such license in the future is within the discretion of the licensing authority. The law does not preclude a licensing authority from exercising its existing discretion to issue a license to individuals who are not covered under this law. If an applicant is employed in a licensed assisted living or skilled nursing facility, the provisional license must include a condition that the provisional licensee may only work under the direct supervision of another licensee who is not a provisional licensee, and the supervising licensee must sign a verifying affidavit. If a provisional licensee was convicted of an offense that involves a violation of Title 13, Chapter 15 (criminal trespass or burglary) or 19 (theft) within the last ten years and if the occupation is one in which a licensee regularly enters private residences, the provisional license must include a condition that the provisional licensee only work under the direct supervision of another licensee who has no criminal record during all home visits and the supervising licensee must sign a verifying affidavit. If the offense occurred more than ten years ago, the condition is discretionary with the licensing authority. The regular license may include this condition if the licensing authority determines that the condition is warranted. The licensing authority may conduct reasonable enforcement activities to ensure this supervision condition is complied with over the course of the license term. The licensing authority may revoke a provisional license if the provisional licensee is charged with a new felony; commits an act or omission that causes the provisional licensee’s community supervision, probation or parole to be revoked; or violates the law or rules governing the practice of the occupation for which the provisional license is issued. The new law does not apply to the following applicants:

  • Convicted of a crime that results in the death or physical injury or any criminal use of a deadly weapon or dangerous instrument according to A.R.S. § 13-901.03;
  • Convicted of public sexual indecency to a minor according to A.R.S. § 13-1403(B);
  • Convicted of sexual abuse, sexual conduct with a minor, sexual assault, sexual assault of a spouse, molestation of a child, continuous sexual abuse of a child, sexual misconduct by a behavioural health professional, commercial sexual exploitation of a minor, or sexual exploitation of a minor according to A.R.S. § 13-1420;
  • Convicted of kidnapping according to A.R.S. § 13-1304;
  • Convicted of a crime involving forgery and related offenses, credit card fraud, business and commercial frauds, fraudulent schemes and artifices, or fraudulent schemes and practices where the licensee owes a fiduciary duty to a client according to A.R.S. Criminal Code Title 13 chapters 20-22, A.R.S. § 13-2310-11. Some examples of occupations where a licensee owes a fiduciary duty to a client include real estate agent, certified public accountant, certified financial planner, lawyer, doctor, architect, and professional engineer;
  • Any occupation where the licensee would be supervising vulnerable adults or children;
  • Convicted of committing a crime in the course of performing the duties of the occupation or a substantially similar occupation; or
  • Repetitive offenders according to A.R.S. § 13-703.
If you are currently facing criminal charges that may keep you from obtaining a provisional license, you need an experienced defense attorney. Attorney Gary Rohlwing has over three decades of experience. Call him today for a free consultation.

Arizona Enacts Provisional Licensing for Former Felons See more on: http://www.criminal-duiattorney.com/blog



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