Drive-By Shooting in Arizona (A.R.S. §13-1209)
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In Arizona, per A.R.S. §13-1209 “Drive-By Shooting” occurs when a person intentionally discharges a firearm from a motor vehicle at a person, other occupied motor vehicle, or an occupied structure.
This is similar to Misconduct Involving a Weapon, per A.R.S. §13-3102, and per A.R.S. §13-3107 “Unlawful Discharge of a Firearm,” except that an automobile is involved. As your lawyers, we would attempt to use these alternate statutes as bargaining tools in order to convince the prosecutor to charge you with a lesser offense that carries a less severe punishment.
Possible Punishment for Drive-By Shooting
Drive-by Shooting is charged as a class two (2) felony with an “Allegation of Dangerousness.” The reason it is a “dangerous” offense is because there is dangerous instrument or deadly weapon (i.e., a gun) involved in the commission of the offense. Punishments can range from the following:
- A first-offense dangerous class two (2) felony involves mandatory “prison only” sentence of 7 years minimum, 10.5 years presumptive, and 21 years maximum of incarceration.
- If a person has one (1) allegeable historical prior dangerous felony conviction, then the range of “prison only” is 14 years minimum, 15.75 years presumptive, and 28 years maximum of incarceration.
- If the person has two (2) allegeable historical prior dangerous felony convictions, then the “prison only” mandatory minimum punishment is 21 years, the presumptive is 28 years, and the maximum is 35 years of incarceration.
Possible Defenses for Drive-By Shooting
The strongest defense to a charge of Drive-By Shooting is misidentification of the defendant; the crime might have been committed, but the defendant was not the one who committed the crime. Many times the police will pull over a vehicle suspected of involvement in a Drive-By Shooting, and there will be multiple occupants in that vehicle. The police usually do not know which of the people in the car actually fired the weapon; any weapon in the car, if found, is usually not on the person of any of the suspects. Thus, the police will try to find out which of the persons fired the gun by asking witnesses who were present at the scene of the drive-by to identify who shot the gun. This poses many problems and many innocent defendants are convicted because of flawed identification procedures. Usually, any witnesses who were at the shooting scene were so panicked by the gunfire that they would not be able to positively make an identification of the alleged shooters.
Additionally, the police will conduct what is known as a “show-up” identification instead of a proper “line-up” identification. A “show-up” is when the police drive an individual suspect (usually in handcuffs), back to the scene of the crime and then have witnesses at the scene indicate whether that was the person who fired the gun or not. The problem is that this form of identification procedure is unduly suggestive and extremely unreliable. From the witnesses perspective, they are already pre-disposed to think this is the person who they saw commit the crime because why else would somebody be there, in handcuffs, with police officers standing next to them, unless the police had reason to believe that this was the person who committed the crime? It is very important to suppress the identification procedures and to veraciously cross-examine any eye-witnesses in court on their ability to see the defendant, their memory, and any alleged statements they made to the police following the incident.
It is also imperative to challenge any claim of “gunshot residue” being left behind on the alleged “shooter’s” hands. Many times a gun will be fired by one individual, but then handed to another individual. The three (3) elements of gunshot residue (barium, antimony, and lead) will also be left behind on that person’s hands. It then becomes virtually impossible to distinguish who actually fired the weapon. It is important to utilize the proper forensic experts to attack the State’s evidence.
Additionally, because our law firm fights conviction from all angles, we would assert a wide range of defenses and challenges to constitutional violations that apply in all criminal cases. The possibilities are numerous and diverse. One of those we frequently assert is a “Miranda rights violation.” In Arizona, the standard of whether any incriminating 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, the “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 else 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 defense tactics 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 Drive-By Shooting lawyer to defend you who has knowledge of all the possible defenses to assert in your case.
David Michael Cantor is a Criminal Defense Attorney in Arizona and a Board Certified Criminal Law Specialist, per the Arizona Board of Legal Specialization. In addition, the Firm is AV® (the highest possible rating by Martindale Hubbell®) and all of its lawyers are listed in the Bar Register of Preeminent Lawyers®. For a Free Initial Consultation, call us at 602-307-0808.