RISKS OF ACCEPTING A PLEA OFFER WITHOUT SPEAKING TO A DEFENSE LAWYER

Here is a common scenario: A person has been charged with a crime, they go to court for their arraignment and they meet with a prosecutor who offers them a plea deal to resolve the case. The person may want to take the deal because they want the case resolved as soon as possible. I generally caution people against accepting a plea without first speaking to an experienced defense lawyer. Here are a couple of reasons I recommend people always speak with a defense attorney before accepting a plea offer:

 

A defense attorney can tell you if the offer you are being offered is the best plea possible.

 

A good defense lawyer will know what the best plea offer will be in your case. This is because a good, experienced defense lawyer will know the court where you are charged, know the prosecutors, know what types of offers they make and will be able to tell you if you are getting the best deal possible. For example, one court may have a mandatory minimum for one type of offense, while a different court may not, a good defense lawyer will know the difference between the two courts and will be able to advise you accordingly. After you speak to an experienced defense attorney you will have a much better idea of what likely plea will be in your matter. You will also know what is not possible as far as possible sentences go.

 

A defense attorney can tell you if there are any problems with the state’s case against you and if there are any good defenses.

 

A good experienced defense attorney will look at the police report in your case and see if there are any issues to be raised. These issues may be raised to the prosecutor to get a better plea or could be raised at trial to fight the case. There are many examples but maybe the officer in the case didn’t get a warrant when they were supposed to, or maybe a part of your DUI investigation was not done according to protocol. If you just look at your own police report you will likely not see any potential issues since most people are not experienced defense lawyers.

If you think you may not be able to hire a quality defense lawyer it is still good idea to speak to one to see if they can work with you on cost and if a financial agreement can be worked out. A good defense lawyer will not be cheap but that doesn’t mean they can’t work with you on price.

CHOOSING THE RIGHT LAWYER FOR YOUR ARIZONA DOMESTIC VIOLENCE CASE

 

If you or a loved one has been charged with a domestic violence designated crime in Arizona choosing the right lawyer is a very important decision. Your freedom, ability to work, own weapons, and other rights may be at stake. Here are some things to consider when choosing a lawyer for a domestic violence offense:

 

Are you and the lawyer a good fit for each other?

 

When choosing a lawyer, you want to make sure it is someone that you get along with. Just because someone is a good defense lawyer doesn’t mean they are a good defense lawyer for you. A good lawyer client relationship is exactly that, a relationship. If you don’t like the lawyer as a person or don’t like their personality are you going to be able to work with them. This is why it is a good idea to speak to the lawyer before hiring them to make sure you are a good fit for each other.

 

Is the lawyer experienced with domestic violence crimes?

 

A lawyer can be experienced with various crimes but not be very experienced with domestic violence cases. In Arizona, domestic violence is not a crime itself but a designation. The crimes may be assault, criminal damage, disorderly conduct and others. When speaking with potential lawyers ask them if they have a lot of experience with domestic violence cases. A lawyer who is not very experienced with domestic violence cases may not be as capable of doing a great job for you as they may lack these special types of cases require.

 

Is the lawyer familiar with the court where you are charged?

 

In Arizona most of the domestic crimes are codified by statute in the Arizona Revised Statutes which means every city and county court will follow the same law. Just because two courts follow the same laws doesn’t mean that they do everything the same. Different courts have different prosecutors and different prosecutors have different policies when it comes to domestic violence offenses. Same thing goes for judges when it comes to domestic violence offenses. One judge may give little jail after trial, while a different judge may give a large amount of jail for the similar offense. A lawyer who is familiar with the court practices and policies will be better positioned to help you with your domestic violence charge. When speaking with lawyer before hiring them ask them if they are familiar with the court where you are charged. If you have been charged, for example, in Mesa, and the lawyer has never handled a domestic violence offense in that court that is a problem.

 

Will the lawyer that you spoke or met with initially be the one that actually handles your case?

 

There are some law firms in Arizona that have one lawyer that you meet with but when you go to court a different lawyer from that firm shows up to handle your case. In essence, your case was handed off to a different lawyer who you may have never met. When speaking with potential lawyers ask them if that lawyer will actually be handling your case or if your case will be handed off to another lawyer in that firm. You hire one person to represent you and it makes sense that you would want that lawyer, and not someone else representing you.

 

Does the lawyer listen to you and your concerns?

 

When you speak to a potential lawyer do they listen to you and your concerns, or do they just want your money? An experienced domestic violence lawyer knows how to listen. Every domestic violence case is different and every person charged with a domestic violence crime is different.

GOING TO ARIZONA COURTS DURING COVID-19 HEALTH CRISIS

Many people are wondering what they should do if they have a court date coming up while we are in the middle of the COVID-19 health crisis. People are wondering if they should still go because they are worried about getting a warrant for not going. The worst idea is just blowing off the court  date, this is never a good idea and it doesn’t matter if there is a health crisis or not.

 

Are you being represented by a lawyer in the matter?

 

If you are being represented by a lawyer contact them and they should be able to help you. They may tell you that the court has changed your court date so you don’t have to worry about going. They may also tell you that the court still wants the lawyer present but you, the client, does not need to appear. Other courts are allowing lawyers to appear telephonically, or by video conference. I have had several matters in the last couple of weeks where I was allowed to appear by telephone.

 

What if you are not sure if you have a lawyer representing you?

 

In some cases, you may have had a court appointed attorney represented in your matter. If you know that you have a court appointed defense lawyer contact that person to see what you should do about your upcoming court date. If you are not sure you can check with the court and they should be able to tell you. You can also try calling the public defender’s office and they can tell you if a lawyer has been appointed in your matter. If you are not sure which public defender office to contact try finding the one that deals with your court, for example if you have been charged with a crime in felony court, contact the public defender’s office that is responsible for that court.

 

What should you do if you are not being represented in the matter?

 

First thing you should do is contact the court. The court may tell you that your court date has been changed and you do not need to appear. It shouldn’t be difficult to find the court phone number on the internet. Many courts will also list an email or a fax number. If you do send an email or fax make sure you follow up and don’t just assume the message was received. I have seen on one more occasion where an email or fax gets lost and the court doesn’t receive it.

 

Some court are allowing people to appear by telephone or video conference if they are representing themselves without an attorney. Again, make sure you get a hold of court and find out if your court date has been changed and if you need to appear.

 

What to do if you can’t reach someone at the court by phone?

 

Many courts right now are short staffed because staff may have been furloughed or may be working from home. Most of the courts I have been dealing with lately are very short staffed so it may be difficult to reach someone by telephone. If you are having a hard time reaching someone at the court by telephone try the court website. Many courts have very useful websites where you can look up your next court date. Simply by going to the court website you may be able to see when your next court date is and if it has been changed.

 

This should be obvious but if you are not feeling well you should do everything possible to avoid going to court where you could expose other people to your illness.

 

UNDERSTANDING ACTUAL PHYSICAL CONTROL FACTORS IN ARIZONA DUI CASES

In Arizona it is possible to be charged with a DUI even if you are not actually driving. The Arizona Supreme Court has said that every case must be looked at a case by case basis to determine if someone was in actual physical control of a car. The following factors go to the trier of fact, which can be a jury or a judge. I wanted to give a little more insight into each of the factors. The following list is not an exhaustive list but some factors the Supreme Court pointed out.

 

  1. Whether the vehicle was running or whether the ignition was on.
    1. If the engine of the car is turned on it is more likely that the person had either driven or was about to drive. If the engine is turned off it is more likely that the person has been parked for a while meaning they were not planning on driving yet or had not driven for some time.
  2. Where the driver was found, and in what position.
    1. If a person is found in the backseat of the car it would be reasonable to assume they had not been driving recently and were not about to drive. The same logic can be applied to a person who is sitting in the passenger side of the car. If a person is in the driver position but their seat is reclined all the way back it may indicate that they reclined the seat to take a nap and were not planning to drive for some time as they would have to adjust the seat back to the normal position before driving.
  3. Where the keys were located.
    1. Were the keys in the ignition or were they out of the ignition? Keys in the ignition would indicate that the person may have recently drove or were about to drive. It is obvious that a car can’t be driven without the keys being in the ignition. An interesting wrinkle in this factor is that many new cars don’t require the keys to actually be in the ignition.
  4. The weather conditions and time of day.
    1. If someone is asleep in their car in the middle of the night can be a different situation if someone is asleep in their car in the middle of the day.
  5. Whether the driver voluntarily pulled over.
    1. If a person pulls over because they are starting to feel the alcohol in their system is a very different scenario then a person stopping their car on the shoulder and blacking out.
  6. Whether the driver was awake or asleep.
    1. If a person is sleeping in their car they are less likely to about drive as they obviously have to wake up first.
  7. Whether the windows were up or down.
  8. If the heater or air conditioner was on.
    1. An interesting issue that comes up with this factor in Arizona is that often times people will leave their engine running in their car if they are asleep if it is hot out. Arizona summer temperatures are very extreme so it would make sense that an engine is running so that the air conditioning will be cold.
  9. Where the vehicle was stopped.
    1. This is often one of the most important factors in determining if a person is likely to be found guilty in APC DUI case. If a person is sitting in their car in the middle of an intersection they are very likely to be found guilty. If a person is parked in a parking spot this is a very different situation.
  10. Whether the headlights were on.

 

If you or a loved one has been charged with a DUI in Arizona it is important you find a defense attorney that not only understands Arizona’s very complex DUI laws but also has a lot of experience in defending DUI cases in Arizona. APC cases can be very complex and you want a lawyer that has dealt with a high number of APC cases. Your freedom may depend on the lawyer that you hire.

 

ARIZONA SET ASIDE STATUTE

While Arizona does not have an expungement statute like some states Arizona does have a set aside statute. The text of the statute is below.

A set aside in Arizona is different than an expungement as a set aside does not erase a conviction off your record.

Setting aside judgment of convicted person on discharge; application; release from disabilities; firearm possession; exceptions

  1. Except as provided in subsection K of this section, every person convicted of a criminal offense, on fulfillment of the conditions of probation or sentence and discharge by the court, may apply to the court to have the judgment of guilt set aside. The convicted person shall be informed of this right at the time of sentencing.
  2. The person or the person’s attorney or probation officer may apply to set aside the judgment.  The clerk of the court may not charge a filing fee for an application to have a judgment of guilt set aside.
  3. The court shall consider the following factors when determining whether to set aside the conviction:
  4. The nature and circumstances of the offense that the conviction is based on.
  5. The applicant’s compliance with the conditions of probation, the sentence imposed and any state department of corrections’ rules or regulations, if applicable.
  6. Any prior or subsequent convictions.
  7. The victim’s input and the status of victim restitution, if any.
  8. The length of time that has elapsed since the completion of the applicant’s sentence.
  9. The applicant’s age at the time of the conviction.
  10. Any other factor that is relevant to the application.
  11. If the application is granted, the court shall set aside the judgment of guilt, dismiss the complaint, information or indictment and order that the person be released from all penalties and disabilities resulting from the conviction except those imposed by:
  12. The department of transportation pursuant to section 28-3304, 28-3305, 28-3306, 28-3307, 28-3308, 28-3312 or 28-3319.
  13. The game and fish commission pursuant to section 17-314 or 17-340.
  14. A conviction that is set aside may be:
  15. Used as a conviction if the conviction would be admissible had it not been set aside.
  16. Alleged as an element of an offense.
  17. Used as a prior conviction.
  18. Pleaded and proved in any subsequent prosecution of the person by this state or any political subdivision of this state for any offense.
  19. Used by the department of transportation in enforcing section 28-3304, 28-3305, 28-3306, 28-3307, 28-3308, 28-3312 or 28-3319 as if the judgment of guilt had not been set aside.
  20. The clerk of the court must notify the department of public safety if a conviction is set aside.  The department of public safety must update the person’s criminal history with an annotation that the conviction has been set aside but may not redact or remove any part of the person’s record.
  21. This section does not:
  22. Require a law enforcement agency to redact or remove a record or information from the record of a person whose conviction is set aside.
  23. Preclude the department of public safety or the board of fingerprinting from considering a conviction that has been set aside when evaluating an application for a fingerprint clearance card pursuant to section 41-1758.03 or 41-1758.07.
  24. If the court denies an application to have a judgment of guilt set aside, the court shall state its reasons for the denial in writing and on the record.
  25. A victim has the right to be present and be heard at any proceeding in which the defendant has filed an application to have a judgment of guilt set aside pursuant to this section.  If the victim has made a request for postconviction notice, the attorney for the state shall provide the victim with notice of the defendant’s application and of the rights provided to the victim in this section.
  26. Notwithstanding section 13-910, if a conviction is set aside, the person’s right to possess a firearm is restored. This subsection does not apply to a person who was convicted of a serious offense as defined in section 13-706.
  27. This section does not apply to a person who was convicted of any of the following:
  28. A dangerous offense.
  29. An offense for which the person is required or ordered by the court to register pursuant to section 13-3821.
  30. An offense for which there has been a finding of sexual motivation pursuant to section 13-118.
  31. A felony offense in which the victim is a minor under fifteen years of age.
  32. An offense in violation of section 28-3473, any local ordinance relating to stopping, standing or operation of a vehicle or title 28, chapter 3, except a violation of section 28-693 or any local ordinance relating to the same subject matter as section 28-693.

 

 

ARIZONA DOMESTIC VIOLENCE LAWS

If you or a loved one has been charged with a domestic violence offense you are likely scared and have a lot of questions. This is some information about Arizona Domestic Violence laws:

Make sure you find a defense lawyer who has extensive experience with these types of cases. Many lawyers may tell you they have experience but ask them how many actual cases they have handled. Also make sure to ask if that lawyer will personally be handling your case or if your case will be handed off to someone else in the firm. Some firms in Arizona have you meet with one attorney but when you show up to a court a different attorney from the firm is now handling your case.

In Arizona domestic violence is not a crime in of itself but a designation of a type of crime. Domestic violence is a term that refers to acts, or threatened acts, or violence between people involved in domestic relationships. Although situations may vary, domestic violence charges can be filed for actual acts of violence or threatened acts to harm, abuse, or inflict violence. Until recently, many people associated domestic violence as a crime that occurs only between a husband and wife or boyfriend and girlfriend, or people in a romantic relationship.

The reality is that in Arizona the definition of domestic violence is much broader, and includes:

Siblings (brothers and sisters),

Parents and Children ( a child committing an offense against a parent or vise versa)

Grandparents or great grandparents,

Roommates / People living together,

What Qualifies as Domestic Violence?

Domestic violence refers to a wide range of abusive behaviors, including:

  • Stalking
  • Sexual Assault
  • Criminal damage
  • Harassment
  • Emotional abuse
  • Violation of an order of protection
  • Physical assault
  • Disorderly conduct
  • Violation of a court order
  • Intimidation
  • Verbal threats
  • Psychological abuse

 

What to do if Charged with Domestic Violence:

Whether the charges against you are true or false, you will still be required to prove to fight the case to avoid having the conviction on your record. Even if you want to plead guilty you will want an experienced defense lawyer on your side to work out the best deal possible to minimize the jail or prison time you may be looking at. Your freedom may be at stake when facing a domestic violence charge in Arizona, hire a defense lawyer that will do everything they can for you to protect your freedom.

 

Do You Have to be Violence to Have a Domestic Violence Charge:

No. In Arizona you can have a charge like Disorderly Conduct that is not violent in nature but the charge can still have a Domestic Violence designation depending on who the alleged victim in the case is.

WHAT TO EXPECT AT YOUR CRIMINAL ARRAIGNMENT IN ARIZONA

Once you have been charged with a criminal offense, your case will likely be set to what is called an arraignment. In most cases, your arraignment will be the first time you go to court to face your criminal charge. An arraignment court date is designed so you know what the charges are that you are facing and to explain what your choices are going forward. Each court is a little different, but most arraignments consist of you appearing in front of a judge and the judge telling you what the charges are that you are facing.

 

In many courts, you will have an opportunity to speak with a prosecutor about your charges. Sometimes the prosecutor will have a plea offer for you that you can choose to accept. If you accept the plea offer you will go back in front of the judge, plead guilty and the case is over.

 

If you are eligible for a court appointed a defense attorney, either the judge or the prosecutor will advise you of this. To be eligible for a court appointed defense attorney, generally there are two requirements. First, the prosecutor must be seeking jail in your matter. If the prosecutor is seeking a fine, most courts will not give you a court appointed defense attorney. The second factor is that you must meet certain income restrictions to qualify for a court appointed defense attorney. In many courts you will have to fill out a financial worksheet that the judge or court will use to determine if you meet the requirements to have a court appointed defense attorney appointed in your matter.

 

Should you plead guilty at your arraignment? For most people, my answer is no. The only time it may be a good idea to plead guilty at your arraignment is if you know for sure that what the prosecutor is offering is a good deal and you are ok with accepting it. For example, if you have a criminal speeding charge and the prosecutor is offering to let you plead to a civil offense instead of the criminal one and give you a fine. If you are ok with this, you might want to plead guilty. Even in the above example do you know the impact a civil speeding plea will have on your driver license? Will there be points against your license? Will your license get suspended? Are there mandatory classes? Hopefully you are seeing my point that there are a lot of things to consider when accepting a plea.

 

The main reason I generally tell people not to plead guilty at their arraignment is because most times they are there without a defense lawyer. Most of the time the case is new and many people have not had time to hire a defense lawyer. It is almost always a better idea to plead not guilty and have time to discuss the matter with an experienced defense lawyer. A good defense lawyer can see possible issues with your case that you will not. Is the plea offer you are getting from the prosecutor the best plea possible? What collateral consequences are you facing if you plead guilty? These are all questions a good defense lawyer can answer for you.

 

In some cases, you may not be able to plead guilty at your arraignment even if you want to. There are many reasons this could happen, but the most common reason is that the prosecutor doesn’t have all of the discovery in your case yet. They may not have the full police report in your case. Another reason is if there is an alleged victim in your case and the prosecutor needs to give that victim time in order to comply with victim’s rights rules.

 

Generally, when you plead not guilty at your arraignment, your case will be set to something commonly known as a pretrial conference. The pretrial conference can be scheduled from several weeks to several months in the future, depending on when the court is scheduling matters. Every court is a little different in how it schedules matters, but expecting that your pretrial will be set two to four weeks out from your arraignment is reasonable.