What is Aggravated Harassment in Arizona?
In Arizona, per A.R.S. §13-2921.01, “Aggravated Harassment” occurs when the Court has issued an “Order of Protection” or “Injunction Against Harassment” against the Defendant (in favor of the victim) and the Order is still valid and the Defendant committed the crime of Harassment as defined in §13-2921. The standard crime of Harassment includes: a person, with the intent to harass the victim, causes a communication with the victim (either verbal, electronic, telephonic, or otherwise) which would cause a reasonable person to be seriously alarmed, annoyed, or harassed, and the conduct does in fact seriously alarm, annoy, or harass the victim. This can occur if a person continues to follow the victim in a public place for no legitimate purpose after being asked to desist; the person repeatedly commits act or acts that harass the victim; they surveil a person for no legitimate purpose; and on more than one (1) occasion they make a false report to law enforcement, credit or social services agency regarding the victim.
Harassment can also occur against a public officer or employee if the person files a non-consensual lien against any public officer or employee (without an official court judgement) or any other document that would restrict real property. In other words, it occurs when a person who wants to “get even” with a public official so they just file a lien with no legitimate cause.
In addition, “Aggravated” Harassment can occur if a person has already been convicted of Domestic Violence offense under §13-3601 and they now commit a new act of misdemeanor Harassment under §13-2921. A crime under §13-3601 includes any number of crimes which would be a Violent Crime Against Persons in which the parties are related in one of several ways (i.e., “Domestic Violence”). For example, this will be categorized as “Domestic Violence” if the parties are married; formerly married and reside in the same household; have a child in common; the victim is currently pregnant by the other party; the victim is related to the Defendant by blood or court order (i.e., parent, grandparent, child, grandchild, brother or sister, parent-in-law, grandparent-in-law, step-parent, step-grandparent, step-child, step-grandchild, brother or sister-in-law). Many times the Courts will also designate “boyfriend / girlfriend” as a crime of Domestic Violence. Although it is not clear under the statute whether this truly qualifies, it is almost always charged as such.
Possible Punishment for Aggravated Harassment
If the person was previously convicted of a crime of Domestic Violence and has now committed a new crime of Harassment under §13-2921, then they can be charged with a class five (5) felony. In addition, a person who is convicted of a second or subsequent violation of Aggravated Harassment in which the Aggravated Harassment includes violating an Order of Protection against the victim for a second time, then they can also be charged with a class five (5) felony.
For a first offense class five (5) felony, punishment can be probation with zero (0) days in jail up to one (1) year in jail; or prison of six (6) months to two and one half (2.5) years of incarceration. If the person has one (1) allegeable historical prior felony conviction, then the “prison only” range is one (1) year to three and three quarters (3.75) years of incarceration. If the person has two (2) allegeable historical prior felony convictions, then the “prison only” range is three (3) years to seven and one half (7.5) years of incarceration.
If this is a first offense of Aggravated Harassment which involves the first violation of an Order of Protection or Injunction Against Harassment being issued in the victim’s favor, then the person can be charged with a class six (6) felony. For a first offense a class six (6) felony, punishment can be probation with zero (0) days in jail up to one (1) year in jail; or prison of four (4) months to two (2) years of incarceration. If the person has one (1) allegeable historical prior felony conviction, then the “prison only” range is nine (9) months to two and three quarters (2.75) years of incarceration. If the person has two (2) allegeable historical prior felony convictions, then the “prison only” range is two and one quarter (2.25) years to five and three quarters (5.75) years of incarceration.
Possible Defenses for Aggravated Harassment
It is a statutory defense to Harassment if the Defendant has assembled for an otherwise lawful demonstration, picketing, or other assembly (i.e., “Constitutionally Protected Activity”). In other words, you cannot be convicted of Harassment for exercising free speech rights in the political arena. Most often, Harassment charges are brought up when a Divorce or Custody situation is beginning to develop. Often times, one spouse will learn that they can use a criminal conviction as leverage in a custody battle, so they will simply call the police and state that their soon-to-be ex-spouse is “harassing” them. It is important to interview all of the possible witnesses in order to demonstrate to the Prosecutor that this is merely a retaliatory charge. It is also important to bring forward witnesses who would describe the reporting party’s conduct (i.e., are they untruthful, are they known to be vindictive, would they be the type to file a false report in order to gain leverage in a custody battle, etc.).
The “Common Defenses” for Aggravated Harassment, which an experienced defense attorney may apply in any criminal case are numerous and diverse. One of most common defenses we encounter is a “Miranda rights Violation”. In Arizona, the standard of whether any inculpatory statement (i.e., a statement which tends to admit guilt) is admissible into evidence is based upon a “Voluntariness” standard. If we can demonstrate that the police coerced you (i.e., intimidated or tricked you) into making a confession or inculpatory statement, or that they did not properly read you your Miranda Rights, then we can suppress those statements and any evidence gathered as a direct result of those statements.
In addition, “Denial of right to Counsel” is another common defense which is often raised. This occurs when a suspect is in custody and requests to speak to their Attorney, but is denied and questioning continues. Other defenses may include challenging the validity of any search warrant, or whether there were any “forensic flaws” during the investigation of your case. Depending on what you have been charged with, this could include exposing flawed procedures regarding blood, breath, and urine testing; fingerprints analysis; DNA testing; ballistics; gunshot residue testing; computer analysis/”cloning hard drive” procedures; forensic financial accounting reviews; etc. Lastly, one of the most common defenses is exposing sloppy or misleading police reports which include everything from misstatements, false statements, flawed photo line-ups and inaccurate crime scene reconstruction. It is important to hire a skilled Aggravated Harassment Lawyer to defend you who has knowledge of both the specific defenses and the common defenses involved in an Aggravated Harassment case.
It is important to hire an AV® rated law firm (the highest possible rating by Martindale Hubbell®). Also David Michael Cantor is a Certified Criminal Law Specialist, per the Arizona Board of Legal Specialization and his firm has numerous awards and accolades. In addition, the Firm and all of its lawyers are listed in the Bar Register of Preeminent Lawyers®.
The 17 Best Aggravated Harassment Defenses
The effects of a Aggravated Harassment conviction can be devastating. Even if a person is to receive Probation with no Jail, or a small Jail or Prison sentence, after they are released there will be lifelong effects on the Defendant. This can involve Lifetime Probation; job restrictions; apartment/dormitory restrictions or prohibitions; Professional Licenses being Revoked; loss or severe restriction of internet privileges; etc. Check the link below for information regarding what Collateral Consequences you or a loved one might be facing.
Mitigation
When it comes to “Mitigation” regarding a charge of Aggravated Harassment, it is important to start that process right away. Not only can this help us with potentially convincing a Prosecutor to not file charges in the first place, but it may reduce the level of charges that they ultimately file. In addition, if there is a conviction later, this can be used to help reduce any type of Sentence if there is a “Range.” The Mitigating Factors which are considered by both the Prosecutor and the Courts includes Statutory and Non-Statutory elements.
Many items that we routinely include in our Mitigation Packages include Psychosexual Risk Evaluations; Polygraphs; Neuro-Psychological Evaluations; Counseling records; substance abuse Treatment and/or Rehabilitation; and a complete history of a person’s background. This can include Individualized Education Plans (IEPs), medical records, Counseling records, etc. Lastly. we often include what’s known as a “Proportionality Review/Sentencing Disparity” analysis in which we can show the Prosecutor and Court that similarly-situated Defendants received low Sentences. Click the link below to see a more detailed list of both Statutory and Non-Statutory Mitigating Factors.
