Arizona Criminal Law & Defense Blog » Articles

Bad Service America: Diner for Schmucks

David — Fri, 02 Sep 2011 16:26:54 +0000

Today’s topic starts with an article in the current issue of GQ and food critic Alan Richman’s latest review. The title and opening illustration give you a hint that this review is not going to be a good one. Alan describes going to M. Wells on a few occasions. the first two were unannounced and simply to eat. By the third visit he had spoken with the owners to get an offsite interview and let them know he had already made plans to dine there in a few days. The food part of the review is pretty fair and would probably tempt a number of people to go for dinner. Then Alan’s story takes a turn for the worse. The service takes an already ho-hum reputation and nose dives into what one of his compatriots describes as “the worst restaurant experience I’ve ever had.”
In the review Alan comments about how the waitstaff was innatentive and careless. This has unfortunately become a bit of the norm in the US dining establishments and the workplace in general. At the third dinner they wait 45 minutes and finally wave down another waitress who seemed less than happy to be taking their order. He leaves and gets an email the next day from the co-owner blaming him for having a bad dining experience and then the fireworks go off: he is accused of sexual assaulting the waitress. Needless to say Alan is pretty shocked and replies back asking to meet his accuser.
The article is really well written and we recommend picking up the latest issue and reading it for yourself.
In David’s video his recaps these events but then goes a little further regarding the poor service and some of Alan’s thoughts on the “Too Cool to Care” attitude. The hipster mentality may be going too far or too ironically for many of Americans to appreciate any longer.
What do you think?

Possible Punishment for DUI, DWI, Extreme DUI in Phoenix

admin — Fri, 11 Jun 2010 23:20:13 +0000

A DWI or DUI in Phoenix conviction has lifelong consequences. This article will discuss the possible punishments for DUI, DWI and Extreme DUI in Phoenix. It will discuss the mandatory minimums of jail time as well as fines and other penalties associated with first offense misdemeanor DUI, DWI, Extreme DUI and Super Extreme DUI in Phoenix.

First offense misdemeanor:
Regular DWI or DUI in Phoenix – The penalties for a first conviction of non-extreme DWI or DUI in Phoenix are: a mandatory minimum of 10 days in jail – 9 days can be suspended only upon completion of mandatory attendance at alcohol screening (approximately $200); any recommended classes (approximately $400); and a minimum fine and surcharge of approximately $2100.00. The maximum can be six (6) months’ jail. In addition, the Court now must order one year of a mandatory breath test interlock device being attached to your steering wheel, which requires you to blow into the device every time you start your car. In addition, you must then continue to blow into the device every 15 minutes to keep your car’s ignition on! Lastly, if the court chooses, they can order “more than twelve months” of an interlock device in severe cases.

Extreme DUI in Phoenix – .15% and above BAC; first offense mandatory minimum 30 days jail and no days can be suspended; this means you must serve all 30 days in jail – day for day; a $2500.00 fine and alcohol classes double; one year of a mandatory breath test interlock device being attached to your steering wheel after all suspensions are completed (at a cost of $1500). Once you start your car, you must then continue to blow into the device every 15 minutes to keep your car’s ignition on! Lastly, a judge may order a person convicted of Extreme DUI in Phoenix not to consume alcohol for a period of thirty days or more by requiring them to wear a continuous alcohol monitoring device on their ankle, or blowing twice daily into a telephonic breath testing device. The court, in its discretion, may also extend this period of continuous alcohol monitoring.

Super Extreme DUI in Phoenix – .20% and above BAC; first offense mandatory minimum 45 days in jail and no days can be suspended. This means you must serve all 45 days in jail-day-for-day!; a $2500.00 fine and alcohol classes (presumably at least 36); 18 months of mandatory breath test interlock device being attached to your steering wheel after all suspensions are completed (at a cost of over $2000.00). Once you start the car with the device, you must then continue to blow into the device every 15 minutes in order to keep your car’s ignition on! Lastly, the judge can order you to not consume alcohol for a period of ninety days or more and require you to wear a continuous alcohol monitoring device on your ankle, or blow into a telephonic breath testing device twice a day.

There are harsh penalties associated with DUI, DWI and Extreme DUI in Phoenix charges. However, there are many defenses to DUI, DWI and Extreme DUI in Phoenix charges and depending on the facts surrounding the individual case – Dismissal or Acquittal is possible.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about a DUI in Phoenix, visit our site.

DUI Arizona: The Difference between a DUI, DWI and an Extreme DUI

admin — Fri, 11 Jun 2010 23:20:09 +0000

Both DWI and DUI in Arizona charges are equally serious and carry matching punishments. Extreme DUI In Arizona carries a much more severe penalty. Arizona usually files two or three charges:

DUI (A.R.S. §28-1381 (A)(1)) Driving Under the Influence of intoxicating liquor (or drugs).
DWI (A.R.S. §28-1381 (A)(2)) Driving with a Blood Alcohol Content (BAC) of 0.08% or greater within two hours of driving.
EXTREME DWI (A.R.S. §28-1382) Driving with a Blood Alcohol Content (BAC) of 0.15% or greater within two hours of driving.
SUPER EXTREME DWI (A.R.S. §28-1382(D)(1)) Driving with a Blood Alcohol Concentration of 0.20% or greater within two hours of driving.

The key to defending against the charges of DUI in Arizona is knowing the difference between these three.

The DUI in Arizona charge, by itself, does not require a breath reading. It deals with suspicion of driving while under the influence, according to the manner of driving, physical and mental symptoms of impairment, or verbal admissions.

The DWI charge does not require that the accused have a BAC of .08% or greater “at the time of driving”. Many defendants plead guilty if their breath or blood test is above a .08% (or .15% if Extreme DWI, or .20% if Super Extreme DWI). The ordinary citizen does not realize the test results only show their BAC at the time they were tested and NOT at the time they were actually behind the wheel. As it will be explained in the “Possible Defenses” section, there is a way to mathematically calculate what your true BAC level was “at the time of driving”. This math formula is known as a “retrograde extrapolation”. If your BAC is found to be below a .08% (or .15% if Extreme DWI, or .20% if Super Extreme DWI) “at the time of driving”, this is a possible defense.

The Extreme DWI charge is the same as the DWI charge except it requires the BAC to be .15% or greater. The punishment for Extreme DWI is 10 times more jail time than a regular first offense DUI or DWI.

The Super Extreme DWI charge is the same as the DWI and Extreme DWI charges except it requires the BAC to be .20% or greater. The punishment for Super Extreme DWI is 45 times more jail time than a regular first offense DUI in Arizona or DWI. This is true even if it is your first DUI offense ever!

By citing drivers under two or three laws, DUI in Arizona (A.R.S. §28-1381 (A)(1)), DWI (A.R.S. §28-1381(A)(2)-[BAC of .08% or higher]), and Extreme or Super Extreme DWI (A.R.S. §28-1382, if applicable) the State gets multiple chances to convict. If convicted of one or both DUI or DWI, the punishment is the same. If convicted of Extreme DWI or Super Extreme DWI, the punishment is much more severe (See the Possible Punishments section).

Legal Update on DUI, DWI, Extreme DUI in Arizona
As of 7/17/00 the Legislature passed a law stating that this is only a defense to the DUI in Arizona charge, not the DWI or the Extreme DWI charges. However, DUI Arizona lawyers are currently challenging this change in the law as unconstitutional. This has already been successfully reversed in Delaware and Pennsylvania. Many DUI Arizona attorneys are currently challenging this law in the Appellate Courts.

Criminal Defense Arizona: Canines & The Fourth Amendment

admin — Thu, 10 Jun 2010 23:20:18 +0000

Criminal defense in Arizona is continuously worried about illegal search and seizures and the Fourth Amendment. The law of canine sniffing stands primarily on four U.S. Supreme Court cases: Terry v. Ohio, United States v. Place, City of Indianapolis v. Edmond and Illinois v. Caballes. These cases have put searches, suspicion, seizures and sniffs in the context of the Fourth Amendment and are extremely important to criminal defense in Arizona.

Terry v. Ohio
Two men hover around a street corner, seemingly waiting for no one. They pace up and down the block and stare in a store window. A law enforcement officer suspects that the two men are contemplating a robbery. The officer decides to investigate but lack probable cause. He identifies himself as a police officer and makes reasonable inquiries. The officer then conducts a carefully limited search of the men’s clothing in an attempt to discover weapons.

This case has had a huge effect on criminal defense in Arizona because the Supreme Court validated this conduct. The Court held that the tempered act of an officer who in the course of investigation had to make a quick decision about protecting him and others from danger.

United States v. Place
In the case of United States v. Place, the Supreme Court held that a 90-minute holding of luggage was unreasonable, as was the police officer’s failure to tell the defendant where their luggage was going, how long it would be held and how it would be returned. Impermissibly, the seizing had intruded on both the defendant’s interest with proceeding in his itinerary and his interest in his luggage. This case had a great effect of criminal defense in Arizona. At the same time, the Supreme Court was careful to emphasize that, although the Constitution did not allow such seizure of the luggage, exposure to a highly trained canine would not constitute a search.

The Court pointed out that the canine sniff does not require the opening of luggage, which also had a drastic affect on criminal defense in Arizona. The court added that the manner in which the information is obtained through a canine sniff is less intrusive than a typical search. No other investigative procedure is able to gather information so carefully and reveals a degree of information that is considered so modest. Thus, in spite of the fact that a canine sniff tells the officers something about the content of the luggage, the information that is obtained is limited. Although, seizing the individual’s luggage was not permitted, subsequent exposure to a highly trained canine did not constitute a search under the meaning of the Fourth Amendment.

City of Indianapolis v. Edmond
The case of City of Indianapolis v. Edmond also had a drastic effect on criminal defense in Arizona. In this case the city was operating checkpoints on random roads in an effort to block unlawful drugs. The Supreme Court held that stopping an individual’s vehicle is a seizure with the meaning of the Fourth Amendment and is unlawful without probable cause, which was lacking in this case. The Courts decision that the walk-around was invalid because it had arisen from a roadblock that violated the fourth amendment had a great effect on criminal defense in Arizona

Illinois v. Caballes
The decision in Illinois v. Caballes stemmed from an Illinois state trooper’s stop of a motorist for speeding and greatly affected criminal defense in Arizona. Concededly the stop was based on probably cause and was considered lawful. A second trooper soon arrived with his narcotics-detection dog and walked this dog around the care while the first officer wrote a ticket. When the dog alerted the troopers to the trunk they searched it and found marijuana.

Finally, the moment had arrived to put some bite into the dictum in Place, i.e., that a canine sniff is not a search; a ruling that again had a drastic effect on criminal defense in Arizona. A divided supreme court held that, due to the fact that the dog sniff was performed only on the exterior of the care while the motorist was legally seized for speeding, any intrusion of his privacy expectations did not infringe about his rights. During a concededly lawful stop, a dog sniff reveals that only the location of contraband passes muster under the Fourth Amendment.

This article has discussed the major Supreme Court case that affect canine sniffs and the fourth amendment and how these cases affect criminal defense in Arizona. These four cases all have different rulings on the Fourth Amendment and determine how law enforcement officers are allowed to conduct searches and seizures.

Possible Defenses for DUI, DWI, Extreme DUI in AZ

admin — Thu, 10 Jun 2010 23:20:15 +0000

There are many defenses to DUI in AZ, DWI, & Extreme DUI charges. Don’t believe the prosecutor-there are very few hopeless cases. A DWI or DUI in AZ conviction has lifelong consequences, and-depending on the facts surrounding the individual case-Dismissal or Acquittal is Possible. This article will discuss possible defenses for DUI, DWI and Extreme DUI in AZ.

Below is a partial list of Possible Defenses for DUI, DWI, or Extreme DUI in AZ:
“No Reasonable Suspicion to Stop” Officers are not permitted to stop or detain someone based on pretexts regarding race, religion, gender, age, sexual preference nor on a host of other possible unjustifiable reasons.

“No Actual Physical Control” If a person has had too much to drink, pulls off the roadway, leaves the engine running with the A/C or heater on, and attempts to “sleep it off”, then they are not in “actual physical control” of their vehicle and are not guilty of DWI or DUI in AZ.

“No Probable Cause for Arrest” If an officer did not have probable cause that a person was actually under the influence of alcohol, then the arrest will be invalidated (i.e. if the Field Sobriety Tests (FSTs) were improperly administered). The National Highway Traffic Safety Administration (NHTSA) has set forth guidelines regarding FSTs. The tests should not be given if the suspect:

is 50 pounds or more overweight
is 65 years of age or older
has any back, hip, leg, knee, or ankle injuries
has any disability effecting balance
is wearing shoes with heels two (2) inches or higher

Remember, you always have the right to refuse Field Sobriety Tests (i.e., the “physical” tests). Do not believe the Officer if he tells you otherwise!

If the Horizontal Gaze Nystagmus (HGN) or “eye test” was given by an officer not yet certified to give that test, it will be inadmissible in a DUI in AZ case.

Note: if the only basis for arrest is refusing to perform FSTs, then the arrest will be invalidated.

“Denial of Right to Counsel” When arrested for DUI, DWI, or Extreme DUI in AZ, upon requesting a DUI in AZ Lawyer, the police must get you to a phone as soon as it is reasonably possible. If they ignore your request, or wait too long, this could be grounds for dismissal. (See also THE RIGHT TO REMAIN SILENT-USE IT! Section).

“Inaccuracy of the Breath or Blood Testing Device” The AZ Department of Health Services (DHS) has set forth rules for the proper maintenance of breath testing devices. They must be calibrated to within a 10% accuracy range every thirty-one (31) days. In addition, the machine goes through a seven (7) test Standard Quality Assurance Procedure (SQAP) every ninety (90) days. If any of the maintenance checks are “out of tolerance”, then all breath tests given during the time interval between the two maintenance checks will be inadmissible. The prosecutor will not point this out for you.

“Retrograde Extrapolation below .08% BAC at Time of Driving” (Or below .15% If Extreme DUI in AZ). It can be shown through a math calculation that any alcohol drank in the last hour prior to being stopped would still be in your stomach and not in your blood system “at the time of driving”. For example, a one hundred and fifty (150) pound man who had a breath test of .15% an hour after he was stopped, yet he drank three beers in the last hour before leaving the bar, it can be shown that his BAC “at the time of driving” was as low as .075%. This number can go even lower due to other factors such as a ten percent variance and inaccurate blood to breath conversion ratios (i.e., “2100-1″) which are inherent to all breath testing devices. As of 7/17/00 the Legislature passed a law stating that this is only a defense to the DUI in AZ charge, not the DWI or the Extreme DWI charges. However, we will be challenging this change in the law as unconstitutional. This has already been successfully reversed in Delaware and Pennsylvania. We are currently challenging this law in the Appellate Courts. See us immediately to discuss the ongoing status of the “BAC at the time of driving” defense.

Criminal Lawyers Arizona: Limits on the Sixth Amendment

admin — Wed, 09 Jun 2010 23:04:27 +0000

The U.S. Supreme Court’s decision in Montejo v. Louisiana has been called an assault on the attorney-client relationship by criminal lawyers in Arizona and will greatly affect criminal lawyers in Arizona. Under Montejo officers may now interrogate defendants in the absence of counsel, even after charges have been brought and counsel has been retained or appointed, as long as the defendant waives his or her rights under Miranda.

Montejo, a 5-4 split decision, now overrules the precedent of Michigan v. Jackson, which once held that once a defendant requests the services of criminal lawyers in Arizona at an initial appearance in court, officers may not initiate any interrogation. This Article will examine Montejo and what criminal lawyers in Arizona can do in its aftermath to protect clients’ Sixth Amendment right to counsel. The most important action that criminal lawyers in Arizona can take is to make sure their clients expressly assert their right to counsel by advising them to sign a formal “Assertion of Rights” form. The use of such a form should become a regular part of criminal lawyers in Arizona practice in the federal and state courts.

The Montejo Ruling
Jesse Montejo was arrested on charges of murder, and the court appointed an attorney to represent him at his preliminary hearing. The attorney was not present, however, and before he met with Montejo police visited Montejo at prison. Police asked Montejo to take ride with them and help them find the murder weapon. While the counsel waited for Montejo at the prison, police drove Montejo around and encouraged him to write a letter to the victim’s wife expressing remorse for victim’s murder. Once the letter was completed, police returned Montejo to the prison where he met with his attorney. Montejo was ultimately convicted and sentenced to death.

Montejo’s attorney was incensed that the officers had removed his client for interrogation in his absence. The Supreme Court of Louisiana rejected the attorney’s argument that the letter should be suppressed under Jackson, reasoning that Montejo has not requested counsel but was instead appointed counsel, which will have a drastic of on criminal lawyers in Arizona. Thus the Louisiana Supreme Court concluded that Jackson prophylactic rule barring any police officer-initiated interrogation once a defense counsel has appeared in court and requested counsel did not apply.

The Supreme Court agreed with Montejo that Louisiana’s approach was not workable and would create an arbitrary distinction between a defendant who requests appointment of counsel and a defendant for whom counsel is appointed without any request. However, the Court, after ordering a supplemental briefing on whether the case of Jackson should be overruled, concluded that the protection the case of Jackson provides is unnecessary in light of other existing protections. This ruling is sure to affect the way that criminal lawyers in Arizona will defend their clients.

The crux of Montejo’s reasoning in overruling the case of Jackson is that the antibadgering rule can be triggered only by an express statement made by the defendant requesting the presence of counsel during an interrogation. Merely accepting the appointment of defense counsel or even requesting the appointment of defense counsel is insufficient to show a desire to not speak with police officers without counsel present. This means that defendants must clearly request the services of criminal lawyers in Arizona.

Criminal Defense Attorney Phoenix: Immigration Consequences

admin — Wed, 09 Jun 2010 23:04:25 +0000

In the case of Padilla v. Kentucky, the U.S. Supreme Court held in a 7-2 decision that “[i[t is quintessentially the duty of counsel to provide his/her client with the available advice about an issue like deportation” and the failure to do so satisfies the first prong of the Strickland analysis regarding ineffective assistance of counsel. In other words a criminal defense attorney Phoenix must notify their client regarding issues of whether or not a plea carries immigration consequences. The court held that “counsel must inform their client whether his or her plea carries a risk of deportation.”

Justice Stevens even provides a practice tip and encourages criminal defense attorneys in Phoenix and other lawyers to consider immigration consequences when engaging in plea-bargaining and to do so creatively.

The Padilla decision simply reinforces existing law in states like New Mexico where counsel already has the responsibility to determine if a client is a citizen, determine the immigration consequences of the crime with which the client is charged and inform the client. But in those states that only found ineffective assistance of counsel where there was clearly incorrect advice regarding immigration consequences or though immigration consequences were collateral to the criminal defense attorney Phoenix case and therefore are not worthy of ineffective assistance analysis, this landmark decision in the Padilla case does expand the duties of criminal defense attorneys in Phoenix and nationwide.

The concurrence of Justice Alito even recognizes that “any competent criminal defense attorney should appreciate the extraordinary importance that the risk of removal might have in the clients determination whether to enter a guilty plea.”

The Supreme Court rejected the argument that immigration consequences are considered “collateral” to the criminal case and therefore not subject to the requirement of effective assistance of counsel and also rejected the notion that only “wrong” advice is ineffective.

Although the Supreme Court holds that where the immigration consequences are mandatory and clear a criminal defense attorney Phoenix or other counsel must so inform the client. The only disappointment of the opinion is the language starting that where the immigration law is unclear, a criminal defense attorney Phoenix can merely advise their client that there is a risk of adverse immigration consequences and tell their client to consult an expert. The issue with this — the client may not have the resources to hire either an immigration lawyer or a criminal defense attorney Phoenix who understands the consequences.

What is clear with the majority opinion’s extensive discussion of professional standards, is that in all cases where the defendant is not an American citizen, counsel has a duty to investigate a clients immigration status as well as the immigration consequences of the particular charges the client may be facing. Only after investigation will the criminal defense attorney Phoenix’s advice differ – it may unclear or clear, depending upon the law.

Throughout the country some public defender offices have hired an expert in the field of immigration and criminal law or banded together with offices to have such backup capability. While Justice Alito’s concurrence goes to great lengths to point out the complexity of immigration law, in fact immigration law is similar to any new area criminal defense attorneys Phoenix face, such as DNA evidence – they either learn the field or hire an individual who knows it in order to represent the client.

The challenge to criminal defense attorneys in Phoenix is to look at each client holistically and see what impact there may be from the criminal charges including immigration as well as other consequences.

DUI Attorney and Dealing with the DMV in DUI Cases

admin — Tue, 08 Jun 2010 23:10:35 +0000

A DUI attorney can guide you through the complex process of dealing with the Department of Motor Vehicles in cases involving DUI, DWI and Extreme DUI charges. This article will discuss the process of dealing with the DMV in regards to DUI cases and how a DUI attorney can help you understand this difficult process and assist in guiding you through this process.

Blood and Urine Cases:
If your case involved the taking of blood or urine during your DUI arrest, you will need to wait and see if your results come back above or below a .08%. It usually takes anywhere between one (1) and six (6) months to get your results back. If your blood results are above a .08% the officer will forward a request for suspension to the DMV office.

The DMV office will then notify you with a “Corrective Action Notice” (i.e., notice of suspension). The moment you receive this from the DMV, contact a DUI attorney immediately so they can request a hearing on your behalf. This request needs to be done within fifteen (15) days of the date of that suspension notice. What can be confusing is that the Corrective Action Notice will state that the suspension will not go into effect until twenty (20) days after mailing of the notice. Do not let them fool you with this extra five (5) days; you must request a hearing within the fifteen (15) day period.

If you are stopped by an officer after a DUI attorney has requested a hearing, you will not have a yellow copy of a temporary driver’s license in your possession. His computer should reveal that they have requested a hearing on your behalf. If he still writes you a ticket for driving on a suspended license, do not panic. Simply bring it to they DUI attorney and they will take care of it. If he arrests you for driving on a suspended license, you can sue the DMV for not imputing the hearing request into the computer (assuming you were not already suspended prior to your DUI, DWI, or Extreme DUI arrest).

Prior to the actual DMV hearing, if you have retained a DUI attorney, they will have you in for a “Pre-DMV consultation”. At this consultation, a DUI attorney will go over the police report with you in detail and discuss whether it will be necessary for you to appear at the hearing or not. The DUI attorney will also discuss various options regarding whether to “Void” the suspension, or whether to actually “Stipulate” to the suspension in order to receive a “Work Permit”. This will also have ramifications nullifying any potential future suspension with regards to the first offense situations which could result from the criminal case. All of this will have to be discussed one-on-one with a DUI attorney.

Insurance – Additional Punishment for DUI, DWI, Extreme DUI
Until DUI, DWI, or Extreme DUI guilt is established, an insurance company should not–although some do–cancel your insurance coverage. If convicted of a DUI, DWI, or Extreme DUI, you will either be unable to get insurance coverage or you will pay roughly $3000 or more a year, for the next three (3) years, above your current rate.

Some Final Realities on DUI, DWI, Extreme DUI
DUI also includes driving under the influence of drugs. DUI, DWI, & Extreme DUI charges are filed thousands of times every year against people from all walks of life. These charges are serious, but defensible, with assistance from a DUI attorney experienced in DUI, DWI, & Extreme DUI law.

DUI Phoenix: HIPAA in a DUI Case

admin — Tue, 08 Jun 2010 23:07:44 +0000

The goal of this article is to aid in determining whether a DUI Phoenix case contains HIPAA issues as well as address the difficulties of utilizing a HIPAA violation. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is the primary federal law providing privacy protection for a person’s medical information. While there are a couple of cases addressing the application of HIPAA regulations to issues arising in DUI Phoenix and criminal cases, interest has increased since the regulatory compliance date of April 14, 2003.

Hypothetical Case Scenario
Imagine that you have a client that has been charged with a DUI Phoenix with injury after causing a collision that resulted in injuries to both drivers. While being cared for by an EMS your client made incriminating statements regarding the DUI Phoenix and tested positively for alcohol and high levels of benzodiazepines and this information was documented. You explain to your client that their case will be difficult to defend if the prosecutor obtains the report of the EMS or the results of the blood analysis.

Your client would most likely respond that their medical records are private and they would not have signed the release of information form to get treatment if they knew others could access that information freely. You may now decide that it is time to delve into the complex regulations constituting the HIPAA Privacy Rule. You have your client sign a HIPAA compliant release of information form for your information as well as letters revoking any prior authorized releases. You notify both the hospital and the EMS provider that your client explicitly forbids the release of any information.

Does HIPAA Apply?
The first thing that must be determined regarding this DUI Phoenix case is whether the person or institution in possession of the medical information is covered by HIPAA. The HIPAA only governs the activities of “covered entities.” The second threshold question regarding this DUI Phoenix case that must be covered is whether the information at issue constitutes protected health information (PHI) under the regulations of the HIPAA. Covered enteritis are only allowed to release PHI under certain exceptions provided in the HIPAA. PHI includes all individually identifiable health information transmitted or maintained in any form of media, electronic or otherwise including paper records that have never been transmitted electronically.

At this point in the DUI Phoenix scenario it appears as if the statements of the client as well as the diagnostic tests constitute PHI in the possession of covered entities. However, it is not clear whether the vial of sealed blood handed to the arresting officer securing evidence under the state’s implied consent law falls under the Act’s protections. Two recent state court decisions have held that samples of blood obtained solely for law enforcement purposes do not fall under the HIPAA because the samples were not taken for the purpose of obtaining diagnosis, health care or medical advice instead they were used to prosecute a DUI Phoenix.

The blood draws in these cases were not obtained for medical purposes, however, it should be argued that there is no limitation within the definition of “health information” relating to a health care provider’s purpose in obtaining information. Information is PHI as long as the information relates to the mental or physical health condition of the person and was created or received by the health care provider. The chances of establishing that a blood draw constitutes PHI is certainly greater when such samples are taking for medical purposes.

If you are successful in establishing and HIPAA violation in this case the standard response to such violations of the law would be a motion to quash the subpoena and to suppress the improperly obtained evidence in this DUI Phoenix case.

DUI Attorney in Arizona: The Importance of Strict Scientific Testing

admin — Wed, 26 May 2010 22:21:13 +0000

Any DUI attorney in Arizona can tell you about how much the standards for determining drunk driving have changed over the years. Back during the Carter administration, it was common for Georgia state troopers to have motorists blow into their Smokey the Bear hats to guesstimate the drunken intoxication of a driver. While this may sound like an episode of Yogi the Bear, it hardly qualifies as scientifically provable evidence. With such flimsy standards, a DUI attorney in Arizona would have many potential angles to introduce challenge and doubt into the evidence of the prosecution.

There were a wide variety of sobriety tests that existed in the 1970s, and not all of them involved a wide brim hat. Some involved drawing on a sheet of paper. Others involved doing a song and dance and grading for grammar and poise. Around 1975, however, the National Highway Traffic Safety Administration began scientifically measuring the accuracy of various tests in order to prove which were the most sound at providing reliable evidence. Rather than create more accurate tests, they merely had to determine the accuracy of the tests that were already being used that a DUI attorney in Arizona might regularly run into.

The National Highway Safety Administration (NHSA) awarded a contract to the Southern California Research Institute (SCRI) to determine which field tests were most accurate. The studies were conducted by SCRI director Marcelline Burns, a research psychologist who participated in ride-alongs with police officers all over the United States. Burns compiled a list of 16 tests thought to be feasible as potentially reliable sobriety tests. SCRI selected pilot tests and then began testing their validity with control groups in 1977. Six tests were chosen for the study that would decide the rules for which a DUI attorney in Arizona must operate.

After concluding its study, the SCRI recommended the use of 3 of its 6 tests. These included the walk and turn , the one leg stand, and the horizontal gaze nystagmus test. Other tests that had been studied included the finger to nose test, the finger count and the tracing test. The Romberg test, the alphabet test and subtraction tests were used interchangeably. These tests could be used to establish evidence at the scene to compile the freshest data related to the crime of the client of a DUI attorney in Arizona.

The testing was done in a laboratory setting over the course of a year. It involved 238 drinking subjects and 10 police officers. Individuals selected for the tests were all licensed drivers familiar with the effects of alcohol. They were instructed not to eat for 4 hours and then given measured doses of alcohol, but were never told how much alcohol they had been given. Their BAC levels were measured and then subjected to the 6 tests listed above. These are the same tests that might be given today to a client of a DUI attorney in Arizona.

Interestingly enough, the testing revealed that the error rate of the officers involved could have an impending significance. It was found that the officers had an error rate of over 47%. The officers made the decision to arrest 101 people, 47 of which had a BAC under .10 %. This leads to the suggestion that a DUI attorney in Arizona can insert a great amount of doubt into evidence based solely on an officer’s testimony. Without a definitive scientific test that measures the individual’s alcohol level, it is nearly impossible to say that the driver was in fact drunk.

DUI Attorney in Phoenix: Strategies for Disputing the Results of Alcohol Tests

admin — Tue, 25 May 2010 22:21:11 +0000

Ask any DUI attorney in Phoenix. All too often, the methods at which they base alcohol tests simply are not scientific. Considering that a breathalyzer is the biggest thing to determine guilt or innocence in a DUI case, it is critical that the information they reveal be 100% correct and dependable in the eyes of a jury. Not only must the science be reliable, but so should the standards of those who conduct it. Many of these lab technicians have a “convict at all costs” mentality, often falsifying results in an effort to sway the jury against the client of a DUI attorney in Phoenix.

The Dangers of Inaccurate Alcohol Testing
Evidence presented as scientifically accurate is most often taken by a jury to be irrefutable. In many cases, scientific evidence outweighs witness credibility, police statements, and other forms of evidence. Once a jury accepts something as a fact, it is hard for the defense to sway them otherwise. When scientific testing loses its accuracy, it loses its courtroom validation. Alcohol tests need to be 100% reliable because of the importance a jury will place on deciding the case. The very fate of suspect may come down to the accuracy of the lab testing.

Simulator and Breath Testing Solutions
Breath testing machines utilize infrared spectroscopy- an infrared beam of known intensity that passes through a sample of the individual’s breath. Any possible alcohol is then absorbed at specific wave lengths. A detector analyzes the beam after the breath sample and compares its final intensity with the level it started out with. If done correctly, the decrease in intensity at “ethanol wavelengths” makes it possible to quantify BAC, though the results still have a small degree of uncertainty that might be contended by a DUI attorney in Phoenix.

The result of any measurement is only an approximation of the quantity actually being measured. When the true value is needed, bias becomes problematic and can give a DUI attorney in Phoenix something to work with in planning a defense. A result is only complete when the bias of an instrument has been determined and the results thereby corrected for that bias. If the prosecution fails to correct for bias, a the defense can more readily challenge the evidence as 100% reliable.

Forensic scientists must know the relevant information as they affect the computations before the trial and must disclose this to both the prosecution and the DUI attorney in Phoenix prior to the trial.

A reference material that includes a substance whose properties are sufficiently well known is calibrated through the machine and tested for accuracy. These known traceable standards are called stimulator solutions. Simulators provide crucial safeguards for accurate breath test results. Challenging the accuracy of a simulator may be another strategy a DUI attorney in Phoenix might use to insert doubt against the prosecution’s arguments.

A DUI attorney in Phoenix does his or her client a great service by seriously examining how samples were collected and how the test was performed. If contaminants, incorrect sample sizes, or inaccurate bias are not taken into account, the prosecution has serious holes it its evidence that can be exploited. By inserting doubt in the core evidence, your client can most likely avoid a guilty conviction.

Clients of a DUI Lawyer in Phoenix May Be Eligible for Home Detention Programs

admin — Mon, 24 May 2010 22:21:10 +0000

Ask any DUI lawyer in Phoenix. House arrest and ankle monitors may soon become an alternative option for convicted drunk driving offenders. While home detention programs are certainly nothing new, as Arizona law has enabled their creation for a number of years and most Valley City courts already have similar programs. It makes sense from more than just the point of view of the client of a DUI lawyer in Phoenix. Faced with already strapped budgets, city officials realize it’s an easy way to cut costs. Like many things, it all comes down to economics.

The Scottsdale City Council is considering the measure, and most think they’ll pass it. If the program is approved, any DUI lawyer in Phoenix will be able to request the program for clients facing jail time. City officials hope to have the program in place by summer. If it doesn’t take effect, the city can expect to pay about $3.5 million over the next year supplying what essentially comes down to “temporary housing” for the clients of some DUI lawyer in Phoenix. In this economy, it seems the city would likely have better ways to spend its money, such as working to fight homelessness, boosting strapped police forces, or fighting off any impending deficits.

Making the clients of a DUI lawyer in Phoenix stay home to do their time simply makes the most economic sense. A home detention program is expected to save $600,000 to $1 million every year. Considering the first day in jail costs a city $192, and every day after that adds $72 on the bill, the city really can’t afford to pass up on this economic opportunity.

Cost savings are essential, but equally important is the strain that it saves law enforcement. There are some serious positive repercussions. One positive advantage is that drunk driving offenders will more likely be able to keep their jobs, and therefore be in a better position to pay back court costs as well as be productive members of society. Jail costs can be considerable. While the inmates are required to pay back a portion, they are in a better position to do so if they are able to keep their job. Typically, courts collect only 50 to 60% of all costs, most likely because the person is no longer employed after spending time in jail.

Most likely, a convicted individual would have to serve their first 15 days in jail. After that, they could serve their time at home.

Home detention, on the other hand, costs about $100 to start up and $10 to $18 per day after that. Part of that cost would be covered by the convicted client of a DUI lawyer in Phoenix.

Certain convicts would be illegible for home detention. People with a history of violence or who pose other potential dangers would most likely have to serve their time in a traditional jail. A client of a DUI Lawyer in Phoenix with a domestic violence conviction would also be barred, as would the unemployed. About half the Scottsdale city’s DUI offenders are likely to participate in the program.

Tricks a DUI Lawyer in Arizona Can Use to Question a Blood Sample

admin — Fri, 21 May 2010 21:59:49 +0000

Upon accepting a new client, a good DUI lawyer in Arizona already anticipates the challenges that can mount of the client subjected him or herself to a breathalyzer. These include mouth alcohol, radio frequency interference, and interfering substances, although the list can go on. If the client took a blood test, however, too many a DUI lawyer in Arizona will just give up hope and accept the test results. It doesn’t have to be that way, as creative approaches can instill doubt into any blood test. Let’s take a look at a few of the strategies.

Collection Materials
A DUI lawyer in Arizona who wishes to dispute such a test should first start by looking at the materials used to collect the blood specimen. In inappropriate materials were used, it can make a big difference that may result in the validation of your client.

Most agencies drawing for blood use some type of partially evacuated blood collection tube, such as the Vacutainer from Becton-Dickenson. These tubes are sold with a variety of additives inside, depending on the type of test for which the sample has been collected. The appropriate tube for such a test contains a mixture of sodium fluoride and potassium oxalate. Usually these tubes are intended for blood glucose approximations and typically have a gray stopper. Stoppers for other tubes have different colors.

If the blood alcohol result of the client of the DUI lawyer in Arizona is derived from a tube designed for a different type of analysis, the result may be inaccurate due to interference with the different chemicals within the tubes, or from the separation of the blood into plasma or serum. Remember, plasma is the blood minus the blood cells. Always check which type of tube is used for collection, as a mistake can be used as leverage by a meticulous DUI lawyer in Arizona.

Also realize that these tubes have a shelf life and an expiration date. After the date is expired, the vacuum depletes, which may result in contaminants from the surrounding air. This results in less than the full amount of blood necessary to conduct a conclusive test, called a “short draw.” This can also happen if the technician pulled the tube off of the needle before it had completely filled, introducing microbe contaminants into the tube. In blood cases, it is critical that a DUI lawyer in Arizona always check the expiration date as well as the appropriate amount of blood for the size of the tube. If it less, the accuracy of the blood ethanol result can be quite readily disputed in a court of law.

Skin Prep and Alcohol Swabs
Prior for drawing blood for alcohol tests, the skin must be wiped with a swab that does not contain alcohol, meaning not only ethanol, but other alcohols such as isopropanol or rubbing alcohol. The swab is important to kill any microbes that might contaminate the sample. It is important that the swab be done in an outward spiral to remove the microbes away from the punctured site. Ask the person who drew the blood sample to demonstrate their technique, as many do so incorrectly in a way that leads to contaminated and incorrect samples. If the swab contained alcohol, it can also contaminate the sample and can give a DUI lawyer in Arizona ample room to insert doubt into the prosecution’s case.

The Arizona Assault Defense Attorney’s Problem with Jury Bias and Hate Crime

admin — Thu, 20 May 2010 21:59:48 +0000

Jury selection can be a complicated component in the defense strategy of an assault defense attorney in Arizona. A recent case brought up a string or jury excuses that were far from run of the mill, many of them relating to racial tension and the issue of illegal immigration. Out of a selection of 130 perspective jurors, only 5 were selected and the rest were excused. Either they didn’t meet the requirements of the prosecution, or they posed legitimate concern to the assault defense attorney of the accused.

The case involved Jeffrey Conroy, 19, who had been accused of killing Marcelo Lucero, a 37 year old Ecuadorian immigrant who had been stabbed to death in a hate crime. Lucero was attacked by 7 teenagers who allegedly made a sport of targeting immigrants. Lucero’s death prompted outrage and exposed the racial tensions of region, and many Latinos came forward to speak out about a string of muggings that had been aimed at Hispanics in the area. It created a scenario that made it hard for his assault defense attorney to find an unbiased jury which to try him.

As Conroy went on trial, jury selection proved difficult, partly because of the views on immigration that were held by some perspective members of the jury, as well as those who might have been motivated out of racial concerns. Certain points of jury selection had the sound of a call in talk radio show as perspective jurors were interviewed by the prosecution and the assault defense attorney.

Most of the jury responses answered questions posed by Justice Doyle. He pointed out that some testimony would be provided by illegal immigrants, and that the potential witnesses that have been named in court include some or all of the other men who participated in the attack and have since pleaded guilty.

Several potential jurors were dismissed because they had strong views on illegal immigration and would be unable to respond in an unbiased way, a dismissal made in the interest of the prosecution. Others were excused because they had Hispanic family members or were Hispanic themselves and might therefore side with the victim and his family in a way that prevented an unbiased viewpoint, a dismissal made in the interest of the assault defense attorney.

Still others stated they had followed the case in the news, and had already formed sound judgments as to Conroy’s guilt or innocence.

For example, one man confided that he grew up in a racist environment and that he doubted his ability to render a fair and impartial decision. Another had been the victim of verbal abuse aimed at his Puerto Rican heritage, which he allowed could affect the decision he made in the jury box.

Plus, as any assault defense attorney realizes, people often answer jury questions in an effort to appear to have a bias, simply to get out of serving on a jury. Jury duty isn’t as exciting as a courtroom drama on television. While serving on a jury may be a citizenship duty, it is no picnic.

These are challenges that are always presented in any case to an assault defense attorney of Arizona and prosecution team in finding an unbiased jury, but they become even greater in the instance of hate crime that involves racial issues.

White Collar Crime Defense in Arizona and Work Products in Regard to IRS Litigation

admin — Wed, 19 May 2010 21:59:47 +0000

The best cases for white collar crime defense in Arizona are when the client utilizes counsel to remedy past business practices before the government conducts an investigation. This may call for an internal investigation or a review of financial records by a forensic expert. In some cases, it may very well be the client who acts as the whistle blower. In many cases, there may not be hint of litigation on the horizon, and in some cases may never be any litigation. One of the best outcomes of preemptive white collar crime defense is a quiet resolution of the client’s issues.

Most attorneys wouldn’t pay a second thought to the right to a protection of work product immunity, but it can be one of the best tools at the disposal of white collar crime defense. At the same time, many of the issues regarding work product immunity have come into question, as courts debate what exactly is and isn’t a work product.

First Circuit Rules Work Papers not a Work Production
The First Circuit addressed the issue of whether or not a document that is prepared for litigation but relates to a subject that might or might not cause litigation could be considered a work product. In its answer, the First Circuit rendered a decision that created a dangerous narrowing of the definition of a work product that can limit the efforts of white collar crime defense in Arizona.

The First Circuit determined that the previous court language “prepared in anticipation for litigation or trial” did not, in reference to anticipation, mean preparation for some purpose other than litigation, but rather the “work meant to be done for litigation but in advance of its institution.” The court clearly did not consider that a white collar crime defense attorney experienced in tax matters might have a different view. The court failed to recognize that an attorney’s role in advising a client is not solely to ready a matter for litigation, but to guide the client to the best possible recourse, whether that is a litigation or resolution.

Giving Undue Deference to IRS Policy of Restraint
The First Circuit did note that the “the IRS does not automatically request tax accrual work papers from taxpayers,” but only does so when the IRS has concluded that a company has engaged in “list transactions” that have been identified by the IRS as abusive tax shelters. The IRS, in fact, has a policy of restraint, only seeking tax accrual work papers in “unusual circumstances.” The IRS defines these papers as work audit papers that have been prepared by the taxpayer, an accountant or independent auditor, that relate to current tax liabilities. These papers have usually been reviewed by the client’s white collar crime defense team.

IRS examiners seek paperwork “only when factual data cannot be obtained from the taxpayer’s records or available 3^rd parties, and then only as a collateral source for collected data.” The IRS has provided an exception to its policy of restraint with regard to abusive tax shelters. When a list transaction is not disclosed on a return, the IRS will ask for proof of the matter.

Consulting white collar crime defense in Arizona does not necessarily constitute a crime, but merely suggests the urgency to find a resolution. Whether or not tax documents under issue are considered a work product is currently under debate in the courts, but it is an area that provides the defense argumentative leverage.

An Arizona Assault Lawyer Can Gain Advantage Questioning GSR Evidence

admin — Tue, 18 May 2010 21:59:46 +0000

Ask any assault lawyer in Arizona who knows the law. Just because a suspect tests positive for GSR doesn’t mean he shot his victim. In fact, the tenets of GSR are so shaky that an assault lawyer has many opportunities to insert doubt over such evidence, making it practically useless in a court of law.

What is GSR?
The Trace Evidence Procedures Manual defines GSR (short for “Gun Shot Residue”) as “a particle with a spherical or molten appearance containing the elements Pb, Ba, and Sb.” The reality is that 99% of the time, neither the police nor the assault lawyer in Arizona actually tests for gunshot residue. Instead, they test for primer residue.

To understand GSR, let’s first take a look at gunpowder. Essentially, it’s combination of chemicals that, once ignited, burn at a predictable rate, expanding gases that create pressure and force the bullet down the barrel of a gun. In the early days, gunpowder was a black powder that 75 % potassium nitrate, 15% charcoal, and 15% sulfur. Nitrate is the base fuel of all gun powders, though they may take several different chemical forms. Gun powder has advanced over the years to include other ingredients, but at its base it is essentially the same.

Crime scene investigators take a swab sample from a person or article and test for a combination of chemicals from gunpowder residues, primer residues and lead residues. It is important to note that increasingly, companies are making gun powder with less or no lead residue in its ingredients. This is done in order to make shooting safer in an indoor arena, as lead free ammunition keeps the shooter from inhaling the toxic metal and risking cancer.

Problems with nitrates
Nitrates are the fuels that make the gunpowder burn. The problem that is of interest to an assault lawyer is that it is quite possible to test positive for nitrates by coming into contact with an endless stream of everyday ingredients, with fertilizers and fuels topping the list. In fact, obtaining a false positive test is so easy that most police departments these days don’t even bother to test for nitrates. They just aren’t reliable.

When the powder remains, soot is what remains. You can get soot from car exhaust, fireplaces, even a cigarette. Testing positive for soot should hardly require the need to hire an assault lawyer.

Problems with primers
Primers are the small cups or circles on the base of the cartridges that ignite the gunpowder with a small explosion – just like a child’s cap gun. This is where the job of police work gets interesting and where an assault lawyer should take notice. Most primers contain the chemicals barium nitrate, lead styphnate, and antimony sulfide. There are a number of chemicals the forensic expert must identify. The fact that they do not identify all chemicals does not mean it is not GSR, and even if they do, it does not mean that the person fired the gun. GSR is based upon shaky, questionable grounds that an assault lawyer can bring to the court’s attention in the best interest of his client.

GSR is a very inconclusive piece of evidence that is being questioned more and more by the courts. An assault lawyer in Arizona should always insert doubt into any presented testimony of GSR. The evidence is simply not valid or sound enough to base a judicial decision upon.

Advantages of an Arizona White Collar Crime Lawyer in a Mail Fraud Case

admin — Mon, 17 May 2010 21:59:45 +0000

While the need for a white collar crime lawyer in the case of mail fraud was once mostly limited to the mail, today the law has been used to prosecute bank fraud, wire fraud and health care fraud. The crime of mail fraud requires prosecutors to prove 4 essential elements, including a scheme devised to defraud or obtain money by fraudulent purposes, intent, materiality, and using the mails in the implementation of a fraudulent scheme. As the scope of what mail fraud covers has been expanded by lawmakers and the courts, a white collar crime lawyer in Arizona may encounter with it in a variety of legal scenarios. It’s the open interpretation of the law that can offer legal leverage to the defendant.

Prosecutors face 2 possible approaches in bringing about a mail fraud charge on the client of a white collar crime lawyer. One is based on a “money or property approach,” while the second is premised upon a deprivation of “honest services.” The latter approach takes its case from the Anti-Drug Abuse Act of 1988, which provided the phrase, “scheme or artifice to defraud,” including a scheme or artifice to deprive another of the intangible right to honest services.

While actual mailing was a prerequisite for the client of a white collar crime lawyer to be charged with mail fraud, a 1994 amendment to the statute inserted language to include anything that was transported with a commercial carrier, expanding the definition and scope of the law. This new provision was intended for Federal Express and other private package deliver services, allowing for a mail fraud charge even in the absence of the US Postal Service.

Throughout the history of the mail fraud statute, the courts have struggled with a broad interpretation of the statute and a more precise viewpoint. The courts appear receptive to any claims that will place constraints on a charge being categorized as mail fraud. As the statute has significantly strayed from its mail fraud roots, a white collar crime lawyer in Arizona can gain considerable leverage by arguing whether his or her client’s case applies to the statute.

Examining the history of mail fraud, one can see the struggle to define its nature played out in the legislative body and the courts. Courts are pulling in congressional reins, providing prosecutors with what may at first glance appear to be a limitless statute. A white collar crime lawyer would be good to get into the particulars of the statute and how it applies to his or her client’s case. If an argument could be made that the client’s scenario wasn’t meant to apply to the law, the lawyer has more leverage.

If facing mail charge allegations, a white collar crime lawyer will be know the right arguments for your best interest. He or she will be quite familiar with mail fraud law and the recent reinterpretations of the law. He or she will know what a legitimate case of mail fraud is, and when an argument can be made that the prosecutor is stretching the truth. Mail fraud has its own issues and concerns that are best addressed with a lawyer familiar with the field.

How an Arizona Criminal Defense Lawyer Can Use the Booker Decision to Minimize Sentencing

admin — Fri, 14 May 2010 21:59:44 +0000

The US Supreme Court’s decision in US v. Booker was supposed to be a dream come true for your average criminal defense lawyer in Arizona. The case was expected to transform federal sentencing guidelines from what had been a mandatory system into what was effectively an advisory one. Many judges hailed it as a sort of Emancipation Proclamation to free the courts from the tyranny of mandatory guidelines. Contrary to the side taken by your average criminal defense lawyer, most prosecutors feared that a system of inconsistent sentences would result, plunging the court into its own chaos.

In reality, US v. Booker proved to be far less revolutionary in practice. So far it at best resembles a midfield scrum as prosecution and criminal defense lawyer alike try to figure out where the ball is bouncing. The legal system has come more to resemble a drunken game of foosball than a legitimate system based on the Constitution.

Disparities have indeed resulted from the case. It’s human nature that different judges will issue widely different sentences per similar circumstances.

The catch is that the discrepancies didn’t work to the advantage of the clients of a criminal defense lawyer in Arizona. In fact, contrary to most expectations, in the first 3 years after the decision was rendered, the average prison sentence for all federal crimes actually rose slightly each year. While the rate of downward departures has dropped slightly recently, the amount was hardly earth shattering. The average criminal defense lawyer saw his client’s prison rates rise as a result of the judicial decision despite the concerns of the prosecution.

While the guidelines have become advisory, they continue to have significant influence upon sentencing. Judges often have become so habituated following the guidelines that they find it difficult to break the habit. Plus, your average criminal defense lawyer fails to take full advantage of the opportunities that Booker presents to plead for a lower sentence.

The Supreme Court did its best to keep the jumble going, issuing 2 later opinions that added to the Booker interpretation. First, it rejected the 100 to 1 ratio in the guidelines between crack and powder cocaine offenses. The court also decided that a substantial downward departure from the guidelines did not need to be justified by extraordinary circumstances.

These decisions breathed a new breath of life into Booker. In fiscal year 2008, the average sentence issued for federal crimes dropped to its lowest in more than a decade.

Many federal prosecutors acknowledge that Booker has reintroduced disparities that led to the set up of the sentencing guidelines in the first place. Many make sure to maintain that it’s not that the guideline sentences that are unreasonable, but the disparity that exists creates seriously questionable legal issues. Why should one person receive a greater penalty purely on the human whim of a different judge?

Since Booker, federal sentencing has been forever altered. While at first, the court decision resulted in heftier sentences, reinterpretations by the court have caused some of those numbers to go down. Nevertheless, Booker offers a criminal defense lawyer in Arizona considerable opportunity to get a lesser sentence for his or her client, an element that should not go overlooked by any legal defense team.

Arizona Criminal Defense Attorney Procedure in Detention and Preliminary Hearings

admin — Thu, 13 May 2010 21:59:41 +0000

The client of a criminal defense attorney in Arizona is usually brought to federal criminal prosecution by indictment, although occasionally, law enforcement officers will initiate the process through a criminal complaint. For his initial appearance, the client and his criminal defense attorney must be brought before the US Magistrate Judge in the district where the offense is alleged to have occurred, or in the district where the defendant was found and arrested. This must be done without “unnecessary delay,” which is generally within 5 days or less. The magistrate informs the client of his rights and sets the case for bail hearing and preliminary hearing.

The preliminary hearing
When a complaint is filed, the client of a criminal defense attorney is granted the right to a preliminary hearing, which must be within 10 days if the defendant is under government custody. The detention hearing is often consolidated with the preliminary hearing, allowing the judge the judicial economy of hearing testimony regarding the weight of the evidence in a single hearing, rather than stretching it out between 2 hearings.

Frequently, a federal indictment will arise out of a case that originally started at the state level. In these cases, a preliminary hearing was already likely held at a state court. The testimonies of these hearings are of critical importance to the criminal defense attorney in defense of the federal indictment. Whenever a criminal complaint is filed at the federal level, defense counsel has a similarly excellent opportunity to gather information that may prove useful to the case.

Detention hearings
The prosecution may request pretrial detention and a hearing for that purpose in the event of an alleged crime of violence, an alleged drug offense carrying a potential of 10 or more years in prison, an alleged felony if the defendant has prior violent or drug felonies carrying 10 or more years, an alleged crime with a punishment of life imprisonment or death, cause to consider the defendant a flight risk or may obstruct justice.

If the government requests the defendant to remain in custody, it may seek up to a 3 day continuance of the detention hearing. A criminal defense attorney may also request continuance to obtain witnesses or to prepare for the detention hearing. If the prosecution seeks pretrial detention, the defendant is usually held in detention pending the bail hearing. A removal hearing may even precede the detention hearing if the defendant is an illegal alien.

A criminal defense attorney in Arizona appointed according to the Criminal Justice Act is frequently arranged immediately following the defendant’s appearance before the magistrate judge, with the detention hearing being only a few days away. This time will be spent with the criminal defense attorney speaking to the client and his or her family and discussing options in the steps of the legal process ahead of them.

The steps of the legal process are scheduled according to a time line designed to be expedient while allowing the defense plenty of time to consider its case. Both prosecution and defense need to prepare to make their case. Time is of the essence, as an extensive trial can be considered cruel and unusual punishment.

Arizona Sex Crimes Lawyer and the Interstate Commerce Element of Child Pornography

admin — Wed, 12 May 2010 21:59:39 +0000

A sex crimes lawyer in Arizona defending clients charged with receipt or possession of child pornography faces unique challenges. Aside from the mental health issues their clients may be facing, as well as the visceral reaction judges and juries have to these types of cases, many pornography charges are fraught with damaging admissions, forensic reports from government computer experts, as well as garner draconian penalties. However, a sex crimes lawyer can gain leverage by focusing on the frequently overlooked interstate commerce element of the receipt and possession statutes.

It is important to understand that the interstate commerce defense a sex crimes lawyer can make has nothing to do with the power of Congress under the Constitution interstate commerce clause to criminalize receipt or possession of pornography, as that authority cannot be easily disputed. Rather, the defense can make an argument based on the interstate jurisdictional elements in the statutes themselves.

For example, the prosecution must prove that the pornography crossed state lines. In the case of Internet pornography, proving that is open to debate. It is in this blurred area of distinction that a sex crimes lawyer can use to his advantage.

Congress’s narrow jurisdictional element
It is important to recognize that by requiring that elicit images were moved or transported across state lines, Congress enacted a relatively narrow jurisdictional element that is of interest to the sex crimes lawyer. If Congress was chiefly interested in extending federal authority to prosecute as far as possible, it would have adopted wording that merely required proof that the defendant used “an instrument of interstate commerce” while committing a receipt or possession offense. If this had been the wording, merely downloading the images on the Internet would have been enough to prove the interstate element.

Congress probably realized that most states already had child pornography statutes in place, and only sought to create legislation that covered pornography cases across a large region that involved a multitude of states and jurisdictions where interstate activity is clearly involved.

Nevertheless, regardless of Congress’s intentions, the court is required to interpret and construe judicial elements in a narrow light. When it comes to proving interstate activity, prosecutors often offer no proof that the visual depictions were transmitted onto the defendant’s computer from a different state or other location in the country.

For this very reason, a sex crimes lawyer should focus on the sufficiency of proof related to the interstate elements. Most interstate evidence, or lack of, that is offered by the government is typical. In more cases than not, the shaky evidence won’t stand up under scrutiny in court.

The challenges of a sex crime lawyer in Arizona are great. Often, there is little to work with as the evidence presented can be quite conclusive. In addition to the stigmatized nature of sex crimes, the client faces increased prejudice from the jury as well as the bench. It is only in the interstate commerce clause that an attorney gets much leverage to give his client any favor. By hiring a lawyer specialized in sex crimes and the unique issues involved, a client can get a better judgment from the court that results in a more desired outcome.

How an Arizona Sex Crimes Attorney Client Can Be Affected by the Adam Wash Act

admin — Tue, 11 May 2010 21:59:38 +0000

Ask any sex crimes attorney in Arizona. The Adam Walsh Act, enacted in 2006, is the most complex, progressive and punitive sex offender law ever enacted. It was done in response to the public outcry as well as political outcry over sexual offenders and the threat they present to society. The law was grounded in conception by several noteworthy child sexual homicides, and in fact, names a handful of these children. In essence, the statute enhances penalties for already existing sexual federal offenses as well as creates new federal sexual offenses that the client of a sex crimes attorney may be charged with.

Most importantly, the act establishes the Sexual Offender Registration and Notification Act, creating a national registry of sexual offenders that law enforcement officers may use to access information about sexual offenders in order to efficiently track them throughout the country. The law delineates risk levels for community registration and notification on a 3 tiered system that is offense based rather than risk based.

Essentially, the AWA requires stricter juvenile sexual offender notification elements that can conflict with the rehabilitative process of the client of a sex crimes attorney. The law also restricts the ability of a sex crimes attorney to access evidence regarding computer pornography crimes, which can affect their ability to prepare for trial.

AWA Sexual Offender Civil Commitment Statute
The AWA also created the Jimmy Ryce Civil Commitment Program that established civil commitment procedures for federal sexual offenders. This may be in fact the most castigating feature of the law, considering the reality of life commitment for some sexual offenders. The commitment clause had 2 primary objectives: assist funding for states that don’t have such legislation, and mandate the civil commitment of sexually dangerous federal offenders.

About 20 states entertain civil commitment statutes to confine sexually violent predators. Many states reject such legislation, primarily for funding reasons. The AWA provides grants for states to meet these financial needs.

AWA Limitations
The AWA managed to leave many areas unresolved, much to the frustration of many a sex crimes attorney in Arizona. It failed to establish a standard or burden of proof for risk to reoffend and does not permit a jury trial. The law does not conclude whether the respondent has the right to remain silent, nor does it compel him to participate in a court ordered examination. It also does not provide for a provision that compromises the possibility that disclosures about sex offending behaviors during treatment will not be used against the offender by the government to procure more commitment.

The AWA also fails to resolve discovery procedures related to the client of a sex crimes lawyer.

Most civil statutes include a “likely to reoffend” component. The AWA fails to have such a distinction. Instead, the law incorporates a volitional mandate. The definition only calls for a “serious difficulty restraining from sexually violent conduct or sexual molestation if released.”

The AWA is a harsh law that can impose significant confinements on the client of a sex crimes lawyer in Arizona. Most importantly, it presents roadblocks in the road to rehabilitation. Punishment becomes the solution while rehabilitation becomes an impossibility.