With the recent passage of Proposition 203, voters made Arizona the 15th state (along with the District of Columbia) to legalize medical marijuana. The vote was a close one, with just 841,346 in favor and 837,005 opposed, just passing the 50% mark. The count from vote on election day, Nov. 2, was so close that the result wasn’t declared until nearly 2 weeks later.

Of course, Proposition 203 does not give free rein to hopeful or would-be marijuana users in the state. The new measure makes it lawful for patients with certain “chronic or debilitating” diseases or conditions, such as cancer, AIDS, or hepatitis C, to purchase up to two and a half ounces of marijuana every two weeks. In certain situations they may even be allowed to grow their own marijuana plants. A regulatory scheme will now apply to this category of marijuana use, bringing it beyond what had been strictly the realm of criminal law. To meet the medical use criteria, patients will have to receive a recommendation from their doctor and will also need to register with the Arizona Department of Health Services. Distribution will be through medical marijuana dispensaries.  Initially, Arizona will permit up to 124 such dispensaries.

The campaign in favour of Proposition 203 was run by Arizona Medical Marijuana Policy Project. It was opposed by all of Arizona’s sheriffs and county prosecutors, Governor Brewer, Arizona Attorney General Terry Goddard along with other politicians.

If you have a specific question, please contact The Koplow Law Firm Online or by phone at 602.494.3444.

Lawrence Koplow

The Arizona Supreme Court’s holding in State v. Geeslin was a rare event. In most circumstances, when a court makes a mistake, a formal objection to the court’s ruling must be found in the record. Put another way: if you fail to object to a court’s decision, you waive your right to appeal the ruling. However, as shown in Geeslin, there are some exceptions.

In Geeslin, the defendant was arrested for putting shoplifted goods in a stolen vehicle and was charged for Theft of a Means of Transportation (car theft.) The car theft charge may also have what is known as “a lesser included” charge of “Unlawful Use of a Means of Transportation” (joy riding.) Thus, if you take the car and intend to keep it, then it is considered car theft. If you take the car, without permission, but intend to return it is considered an “unlawful use” of the car. “Unlawful use” of the car is a lower level felony than “Theft” of the car. It is a common defense for someone accused of “theft” of a car to claim they intended to return it (i.e. “it was only a joyride”).

Here, the defendant’s attorney asked for a specific jury instruction regarding the charge of “Unlawful Use of Means of Transportation.” The judge denied the request and the attorney objected. However, something unusual occurred: the “record on appeal did not contain Geeslin’s requested instruction.” Thus, The Arizona Court of Appeals presumed that the missing record supported the trial court’s decision and denied the appeal.

The Arizona Supreme Court reversed the decision. The Court stated that fairness and due process required the trial judge to instruct the jurors of all offenses “necessarily included” in the offense charged. The court held that the jury must know exactly what is included in the charge in order to successfully fulfill their roles as finders of fact.

Although seeming insignificant at times, proper objections presented by an attorney may be critical to winning a case – even if it is on appeal. Here, the Defendant was extremely fortunate that the Court “overlooked” the absence of a formal record. While sometimes a court will resort to looking at what’s “fair,” those cases are few and far between.

If you have a specific question, please contact The Koplow Law Firm Online or by phone at 602.494.3444.

Lawrence Koplow

In my experience most prosecutors play by the rules.  They know their ethical duties and abide by them.  However, I, along with many of my colleagues, have observed a growing number of prosecutors that have no problem stepping over the ethics line.  The issue seems more to do with ignorance than intent.

For the most part, the public is unaware of this growing problem.  It is only when the misconduct is so outrageous and the victim has the means to fight it does the misconduct make its way to the public’s attention (e.g. the 2006 Duke University lacrosse case.)   When prosecutorial misconduct truly does occur, only a small percentage of prosecutors are disciplined for their actions.  Apparently, a new report from the Northern California Innocence Project at Santa Clara University School of Law demonstrates this problem is not isolated to Arizona.

The Report examined more than 4,000 cases where prosecutorial misconduct was alleged over a twelve year period.  The Report found that courts only made prosecutorial misconduct a finding in approximately 700 of 4,000 of the cases.  In those 700 cases, only six (6) prosecutors were charged with misconduct.  Obviously, as a former prosecutor, I understand that when someone is convicted of a crime, it may result in a frivolous claim; still these numbers are still extraordinary.

In addition, this report determined that judges often failed to report prosecutorial misconduct to the state bar despite their legal obligation to notify the bar of such behavior.  Although over sixty prosecutors (60) committed misconduct more than once, and some more than five times, the majority of those prosecutors were never publicly disciplined.

In response to the report, the State Bar of California, issued the following written statement:

“Prosecutorial misconduct as indicated in the Innocence Project report does not always equate with attorney misconduct for disciplinary purposes.  The State Bar believes that it is disciplining criminal prosecutors where appropriate and where the misconduct was willful and can be established by clear and convincing evidence.”

If you have a specific legal question regarding prosecutorial misconduct in an Arizona Criminal Case, please contact The Koplow Law Firm at 602-494-3444.

Lawrence Koplow

On July 28, 2010 the federal district court issued an injunction to part of the highly publicized and talked about immigration bill in Arizona, known through-out the country as SB 1070.

Practically speaking, this means that part of the bill is not enforceable until the appellate courts determine its constitutionality. Judge Susan Bolton had to read the bill piece by piece and line by line using the appropriate legal standards, statutes, and case law, to determine which provisions of the bill were constitutional, and which were not.

When the United States brought the lawsuit against the state of Arizona, their main legal argument was that Arizona could not make immigration law, because that is a power given only to the Federal Government. Arizona argued that this bill added to already existing Arizona statutes and that Arizona was not stepping on or over, the current federal laws.  The legal principal at issue is known as Federal Preemption.

For the most part, the decision of the court at this point was to allow Arizona to continue to enforce some parts of the bill. The sections of the law left in place include:

• Making it a crime to knowingly or intentionally employ an illegal alien

• Requiring employers to check for the immigration eligibility of an employee

• Making it a crime to smuggle human being across the border

• Making it a crime to stop a car to pick up day laborers if it interrupts the normal flow of traffic

• Impounding vehicles that were used for transportation or harboring people who are unlawfully in the United States

• Allowing Arizona to create the Gang and Immigration Intelligence Team Enforcement Mission Fund

This order also prevents Arizona law enforcement from enforcing some of the bill.  The sections of the law struck down by the court include:

• Making it a crime for persons not to carry their registration papers

• Having the status of a person’s immigration checked before releasing them from custody

• Allowing a warrantless arrest based on probable cause of a person who is believed to have committed a crime that would subject them to removal from the United States

To read the entire decision, click on here.

The Arizona Supreme Court also addressed the federal court’s decision on SB 1070.  Soon after the federal court’s ruling the Arizona Supreme Court released an Administrative Order regarding the bill.  The Order made changes to procedures and forms used when an illegal alien is arrested, or sentenced. For example, if a criminal defendant is sentenced, including even to pay a fine, and it has been found that the defendant is an alien who is unlawfully present in the United States, the judge must include this fact in the sentencing report. Then the clerk of the court must submit that report to the Immigration and Customs Enforcement Office.

The form used at the time of arrest will be modified to include a place for the law enforcement agent to ask the person in custody for his place of birth, country of citizenship, and amount of time present in the United States. The form also includes a place for the law enforcement agent to spell out what the reasonable suspicion was that prompted the law enforcement agent to make the arrest, and a reminder to the agent to check with Federal Immigration Agencies to verify the immigration status of the defendant.

If you have a question about a specific legal issue, please contact The Koplow Law Firm.

Lawrence Koplow

At the core of the United States Constitution is the principle of Due Process.  In its most basic form, this principle provides that the government must respect all of the legal rights owed to the people. One of those legal rights is the guarantee of a fair trial to a person accused of a crime.A fair trial includes preventing the State from unfair or suggestive identifications which would direct a witness to make a false identification. The most common situation where these protections are needed is a “line-up.”  This is a procedure where a witness tries to identify someone that may have committed a crime.

In State v. Garcia, a man appealed his armed robbery and murder convictions based on a flier containing a photograph. Here, when police arrived on scene, a witness provided a detailed description of the first man to walk into the bar. A few days later, the police showed the same witness a photographic line-up.  Garcia’s picture was included in a group of photos.  The witness failed to identify Garcia in the picture line-up.

Television stations were later given pictures from a security camera to help find the suspects.  It appears the pictures may have been provided by the police.  Subsequently, the police contacted the witness that failed to identify Garcia in the photographic line-up (and other witnesses); and told them not to watch any news broadcasts or any other coverage regarding the shooting.

However, despite the warning, the witness that previously failed to identify Garcia saw a “reward flier” containing the picture released by law enforcement. A key fact (for the court) was the reward fliers were not made, or passed out by the police.  Later, Garcia’s attorneys argued this identification was unfairly suggestive.  A motion to exclude the identification by witness was made.  The trial court denied the motion.

The Arizona Supreme Court held that because the flier was not made or authorized by the police, it did not fall within the protections of the Due Process Clause.  They reasoned there was no state interference of the witness and Due Process protection only forbids the State from causing this type of tainted identification.

It appears the court believed that releasing the photo was not enough state action to violate Garcia’s Due Process rights. Perhaps, if the defense was able to identify the creator of the flier, the result may be different.  What if the person was part of a silent witness program or some other quasi-government program?  Moreover, the opinion plainly states the defense did not admit a copy of the flier into evidence.  Could the contents of the flier have supplied some evidence of state action?

In sum, the behavior that taints the identification needs a closer connection (at least in Arizona) to state action, in order to be rise to the level of a Due Process violation.  Moreover, while the Court permitted the witness to testify about his identification, the defense still has the right to cross-examine the witness as to suggestive circumstances of the identification.

If you have questions regarding a specific legal issue please contact The Koplow Law Firm.

Lawrence Koplow

When being stopped by an officer there are many things that go through a driver’s head. “Was I speeding?” “Is there a taillight out?” “Did I swerve?” On the other hand, most people don’t usually think “did I use my blinker appropriately.” However, the issue of the appropriate use of a blinker, was one of the primary questions decided by the recent Arizona Court of Appeals Case: Arizona v. Douglas Dean Starr.

In the Starr case, a DPS officer was driving along the highway behind Starr. The officer reported that he observed Starr following the car behind him too closely, and also changing lanes multiple times. Also the officer says he observed Starr, without using a turn signal, change lanes and pass a large commercial truck that was merging in the same lane, onto the highway. The officer pulled Starr over. During the stop, the officer found marijuana and other drug paraphernalia, resulting in confiscating the property, and multiple drug possession charges.

Starr challenged the traffic stop as being unconstitutional. That is, his attorneys argued there was not a constitutionally valid reason to pull his car over. If this were the case, then the drug charges would be dismissed. Their specific argument was that the wording of the statute that regulated the use of a turn signal, only mandates a driver use a blinker, when a driver makes a full 90 degree turn. They asserted the law does  not apply to situations when a driver  merely change lanes. This argument required the court to look at the statute and interpret the law’s true meaning.

The interpretation of this particular statute had not yet been analyzed by the Arizona courts until this case.  In its decision, the court looked to similar rulings in other states. Many other jurisdictions held that a turn signal is required when any type of movement of one car would affect the course of another car. For example, if there was no car in sight for miles, a person would not need to use a blinker.  The reason being, there is no chance of another car, having to change their pattern of driving due to the lack of blinker use.  Put another way, there are no safety reason requiring notice of a lane change. The Arizona Court of Appeals ruled that because the wording of the Arizona statute specifies the necessity for safety, and that there were other cars on the road when Starr changed lanes, the use of a blinker was required. Thus, the conviction was upheld.

Consequently, to be successful on this type of motion you need both: (1) a factual scenario with light or no traffic; and (2) you must argue the safety of the lane change (i.e no other cars needed to brake; no other cars took evasive action; traffic was not disrupted) .

If you have question about a specific legal issue please contact the Koplow Law Firm.

Lawrence Koplow

We should all be able to agree if you are charged with a crime, you should get a fair trial. An obvious prerequisite to a fair trial is that the jurors at least understand everything going on in the courtroom. That is, a juror should, at a minimum, be able to comprehend all evidence presented and understand the rules (i.e. the jury instructions) provided by the judge.

What if a juror says to the judge, “I can’t read English” Upon further questioning, you discover the juror can speak (relatively) fluent English, but can’t read or write even one word. When this happened during one of my trials, my first thought was, let’s just get an interpreter. However, this juror spoke an eastern European language for which there was little chance of finding an interpreter on short notice. What should the court do in this situation?

I submit that reasonable minds can disagree on the answer to this question. My stated position, based on his inability to read or write any English, was that he could not be a fair and impartial juror for my client (moreover, I had a feeling this juror, who grew up in a former Soviet bloc country, may not value the presumption of innocence.) I argued that, absent an interpreter, being a juror required the ability to read and write (i.e. jury instructions.) Moreover, how could we ever qualify how much English he really knew? So I motioned to strike him for cause.

The prosecutor took no position. The judge denied the motion. In all fairness, the judge had a reason. He believed we could accommodate the juror by having his judicial assistant read this juror the jury instructions. However, my response was: (1) We can’t tell how much English he really knows without speaking his language; (2) in Arizona, jurors can write down questions to ask a witness. It seemed unlikely that he would get the clerk and have her ask the question; and (3) sometimes there are words that have no translation from English to another language. Not all languages have an adequate vocabulary to translate the concept of “beyond reasonable doubt.” The judge was not persuaded. He denied my motion. My tactic was to now turn towards the prosecutor. I discussed the possible appellate issues, and we agreed he would strike the juror to avoid the issue.

So, after the trial, I did some research, talked with my appellate attorney guru friend and concluded that under Arizona law, the judge may have been in his discretion to keep the juror. It would be a close call. Arizona law would most likely require me to show actual “prejudice” by keeping the juror on the panel. Under Arizona law, this would be almost impossible.

Consequently, if you thought the ability to read was a prerequisite for jury service, then think again. Not only is it a real possibility that your juror may not be able to read, it is also legal.

Criminal convictions can devastate a person’s future.  Even mere contacts (i.e. arrests, investigations or acquittals) with the criminal justice system can impact a person’s professional, social and financial welfare.  Arizona law does provide for some remedies to mitigate the impact of a history with the criminal justice system.  Many people ask the question,  “Can a criminal conviction be expunged?”  Arizona does not use the term expungement, but there are remedies similar to expungement.  Below is a list of answers to frequently asked questions regarding these remedies for someone with a criminal history.

Can an Arizona criminal record be expunged or erased?

No.  Arizona law does not recognize an expungement of a criminal conviction so that it is erased from your record.  However, Arizona law does provide that a person may have the judgment of guilt “set aside.” Under Arizona Revised Statute, section 13-907, an individual who has been convicted of a crime may request a “set aside” of her conviction under certain circumstances.  For someone who is convicted of a felony, a set aside can be very important because it has the effect of releasing the individual “from all penalties and disabilities resulting from the conviction” with a few exceptions.  While setting aside the judgment of guilt does not erase it from occurring, it does allow a person to explain that a judge has determined that judgment of guilt should be vacated.  This may be persuasive when trying to convince someone that you have moved on from the incident.

Can all Arizona criminal convictions be set aside?

Most criminal convictions can be set aside.  For example, most traffic offenses, including Arizona DUI convictions and Arizona reckless driving convictions, can be set aside.  However, Arizona law specifically prohibits setting aside convictions for the following offenses:

A crime involving the use of a dangerous instrument (i.e. car) or exhibition of a deadly weapon (i.e. gun, knife);

A crime involving or causing a serious physical injury;

Crimes where there has been a finding that there was a sexual motivation or a requirement of sex offender registration;

Crimes involving driving on a suspended or canceled drivers license;

A crime where the victim was a minor and also under the age of fifteen;

A violation of any local ordinance relating to standing, stopping, or operation of a vehicle.

What makes a person eligible to have a conviction set aside?

If a person is attempting to set aside a conviction that is eligible for a “set aside” under Arizona law (i.e. DUI, most felonies), she still must meet other requirements.  A person convicted of a crime must have fulfilled the conditions of her probation or sentence and have been discharged by the Court.  Additionally, if a person has been convicted of two (2) or more felonies and/or sentenced to prison, that person must wait two (2) full years before applying for the judgment to be set aside, to restore her civil rights, and to restore her gun rights.  It is then in the judge’s discretion whether a set aside will be granted.

If I have my conviction set aside, will it still show up on a background check?

Yes, assuming it is a comprehensive background check.  However, if it is an accurate background check, it should also reflect the fact that the judgment of guilt was “set aside.”

If I was wrongfully arrested, is there a way to get the record of an arrest sealed?

Yes. Under Arizona Revised Statute § 13-4051, “[a]ny person who is wrongfully arrested, indicted or otherwise charged for any crime may petition the superior court for entry upon all court records, police records and any other records of any other agency relating to such arrest or indictment a notation that the person has been cleared.” After a hearing on the petition, if the judge believes that “justice will be served” by sealing the record, the judge shall “issue the order requiring the entry that the person has been cleared on such records.”  If the request is granted, then all law enforcement agencies and courts “shall not release copies of such records to any person except upon order of the court.”  In addition, if a person who has notice of such order fails to comply with it, they may be liable to the person for damages.  However, you should remember that these requests are by no means automatically granted, and the decision to seal is based on judicial discretion.

If an Arizona DUI conviction is set aside, does that mean I can get rid of my ignition interlock device?

No.  If an Arizona DUI conviction is set aside, there is no effect on the Department of Motor Vehicles issues.  Therefore, any suspension, point totals, traffic school requirements or interlock devices requirement will stay in place if a DUI conviction is set aside.

Does setting aside a conviction restore the rights I lost when convicted of a felony?

When a person is convicted of a felony, they lose certain constitutional rights such as the right to vote and the right to possess a gun. In most cases, the court has the discretion to restore those rights.  Merely “setting aside” the conviction does not, in all cases,  automatically restore all the rights a person had before the conviction.  For example, a person’s right to vote is not restored automatically upon a second felony conviction.  In that instance, a person must apply to have her civil rights restored.  Furthermore, the right to own a firearm is only restored after an application for restoration of that right and specific judicial order.

DISCLAIMER: The information in this blog is NOT legal advice, nor does it establish an attorney-client relationship between you and the Koplow Law Firm.  Legal advice usually varies from case to case.

If you need legal advice for a specific problem, you must consult with an attorney.  For more information about Arizona Criminal Law, please contact the Koplow Law Firm.