Arizona Amends Civil Asset Forfeiture Laws to Help Innocent Claimants

In October 2016, the Institute for Justice filed a lawsuit in Navajo County Superior Court on behalf of an elderly couple, Terry and Ria Platt. The police pulled over their son, who was driving their car, for a window tint violation. They seized the son’s cash and a small amount of marijuana. Even though Arizona law does not permit forfeiture of a car under these facts, prosecutors are ignoring the law and trying to forfeit the car. The Platts’ story is just one of many where innocent people are ensnared by the Arizona Civil Asset Forfeiture Laws. In April 2017, Governor Ducey signed a bill amending the Arizona Civil Asset Forfeiture Laws. These laws allow the State to seize real and personal property from people who haven’t been charged with committing a crime. A civil asset forfeiture proceeding may be in rem or in personam. A judicial in rem proceeding involves a judgment against the property at issue while a judicial in personam proceeding involves a judgment against a person who is asserting ownership of the property at issue. In both types of proceedings, the State must now prove that the property is subject to forfeiture (in rem) or the person’s interest in the property (in personam) is subject to forfeiture by clear and convincing evidence. “Clear and convincing evidence” is a higher burden of proof than the previous standard “preponderance of evidence.” The Arizona Supreme Court has defined “clear and convincing evidence” as evidence that the truth of the contention is highly probable in State v. Roque, 213 Ariz. 193 ¶ 75 (2006). Other important amendments help claimants. According to A.R.S. § 13-4314(F), a court may now award reasonable attorney fees, expenses and damages for loss of the use of the property to any claimant who substantially prevails at the hearing.  Moreover, a court must award treble costs or damages to any claimant where the court finds that reasonable cause did not exist for the seizure or the filing of the notice of pending forfeiture, complaint, information, or indictment and that the seizing agency or attorney for the state intended to cause injury or was grossly negligent. Whether or not your charges involve civil asset forfeiture, you need an experienced defense attorney to represent you. Attorney Gary Rohlwing has over three decades of experience. Call him today for a free consultation.  

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Arizona Creates New Crimes: Terrorist Threats and False Reporting of Terrorism

Arizona Creates New Crimes:  Terrorist Threats and False Reporting of Terrorism In April 2012, Governor Ducey signed a bill creating the new crimes of making a terroristic threat and false reporting of terrorism.  The new statute is found at A.R.S. § 13-2308.02. Under A.R.S. § 13-2308.02(A),  a person commits the crime of making a terroristic threat  when he or she threatens to commit an act of terrorism and communicates the threat to any other person.  The fact that a person did not have the intent or capability of committing the act of terrorism is not a defense according to A.R.S. § 13-2308.02(C).  A person who is convicted is personally liable for any reasonable expenses incurred by a public agency, for-profit entity, or not-for-profit  entity  that makes an appropriate response to the terroristic threat pursuant to A.R.S. § 13-2308.02(D). Under A.R.S. § 13-2308.02(B), a person commits the crime of false reporting of terrorism when he or she knowingly makes a false report of an act of terrorism and communicates the false report to any other person.  A person convicted of false reporting of terrorism also does not have the defense that he or she did not intend to or have the capability of committing the act of terrorism and is personally liable for any reasonable expenses incurred by a public agency, for-profit entity, or not-for-profit entity that makes an appropriate response to the terroristic threat. Making a terroristic threat and making a false report of terrorism are class 3 felonies.  The range of prison time for a first time felony offender convicted of a class 3 felony is 2 to 8.75 years in prison under A.R.S. § 13-702(D). A.R.S. § 13-2308.02 does not define the crucial terms “terroristic threat”, “threatens”, “terrorism”, and “communicates”.  These terms are also not defined in the Arizona Revised Statutes Criminal Code Title 13.  How these terms will be defined by the courts is unknown. It’s easy to come up with scenarios where a person violates A.R.S. § 13-2308.02 without any intent or capability to carry out the terroristic threat.  A college student taking a creative writing class writes about a character who makes a terroristic threat for a class assignment.  A  teenager  tells his therapist that he wants to falsely report a bomb threat at his school to get out of taking finals.  A friend confides in another friend that he wishes he could kill his wife and blame it on ISIS.  An angry parent blurts out a death threat against the judge during a custody hearing.  Do they deserve to serve time in prison simply for saying something offensive?  These new crimes seem very Orwellian. If you are charged with one or both of these new crimes, you need an experienced attorney to represent you.  Attorney Gary Rohlwing has over three decades of experience.  Call him today for a free consultation. Gary L. Rohlwing Law Offices handles many different criminal cases. Check out my practice areas at www.criminal-duiattorney.com/practice-areas.html

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The Problems with Prior Legal Offenses

Problems You May Face Having a Previous or Prior Offense

A.R.S. § 13-105(22) broadly defines a “historical prior felony conviction” as any prior felony conviction that involved one of the following:

• A mandated term of imprisonment
• A dangerous offense
• Illegal control of a criminal enterprise
• Aggravated driving under the influence of intoxicating liquor or drugs
• Dangerous crime against children
• Any class 2 or 3 felony listed above that was committed within 10 years of the present offense
• Any class 4, 5 or 6 felony not listed above that was committed within 5 years of the present offense
• Any felony conviction that is a third or more prior felony conviction
• Any offense committed in another state that was punishable as a felony within that state and was committed within 5 years of the present offense
• Any offense committed in another state that was punishable as a felony within that state and that involved the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of death or serious physical injury

Clearly, virtually all prior felony convictions are “historical prior felony convictions” in Arizona. The American Friends Service Committee identified another problem with priors in their report entitled A New Public Safety Framework for Arizona:  Charting a Path Forward published in December 2016: “However, Arizona currently uses a category of “priors” that is virtually unheard of in American jurisprudence. The current statute allows the sentencing court to count up the number of distinct “occasions” on which the defendant committed felony offenses that led to convictions rather than to confirm that the defendant had at least been convicted for an earlier offense before committing the offense for which a sentence was now being pronounced. As a result, offenses committed on the same day (for which the person has not yet been convicted) can be treated as “priors” at sentencing, allowing to call for harsher penalties. For example, a person can break into a car, walk down the street and break into another car. Rather than simply being charged with two counts of burglary or theft, the prosecutor can label the first break-in a “prior,” triggering a sentence enhancement.” In other words, a person who has no historical prior convictions under A.R.S. § 13-105(22) can find himself facing harsher sentencing under A.R.S. § 13-703 as a repetitive offender! Almost anyone can have a problem with priors under Arizona law.  You need an experienced criminal defense attorney who knows how to handle problems with priors.   Learn more about our criminal legal defense services Learn more about our DUI legal defense services Learn more about our domestic violence legal defense services    

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