Category Archives: Criminal Defense

According to the Fifth Amendment to the U.S. Constitution, “no person shall be compelled to be a witness against himself in any criminal case.” In other words, the Fifth Amendment protects U.S. citizens from self-incrimination. But there are two exceptions to this rule. Although you do not need to answer any further questions asked in either scenario, in some states you will have to provide your name to law enforcement if they request that you identify yourself. The other time you will need to respond is if you are pulled over for a traffic violation and the police ask to see your license, registration, etc.

On the other hand, if a person does decide to answer a police officer’s questions, then any of the statements that they make in response can be used against them in a court of law. Also, the person may stop answering questions at any time, which means that all questioning by police must cease as well.

In addition, an individual has a right to have their attorney present if they do decide to answer any questions. If they decide to exercise this right, then their request for an attorney must be made in a clear and direct manner.

When Do I Have to Provide Some Information to the Police?

As previously mentioned, there are certain situations where an individual may be required to provide particular information or answer specific questions.

For example, in many states it is often the case that if the police see a person wandering aimless with no apparent direction and in way that poses a threat to the public (i.e., loitering), then they are allowed to ask the supposed loiterer for their identification as well as an explanation of what they are doing.

Do the Police Have to “Read Me My Rights” in Order to Question Me?

If a person has not been arrested or is not placed in a custodial type of environment, then the police are not required to read them their rights. In contrast, if a person has been arrested or is in police custody, then the police are required to read them their rights.

When a person is absolutely certain that they either are not or were not involved in any criminal activities and if they decide they want to help the police, then they are free to answer any questions that the police ask.

On the other hand, if the person thinks they are a suspect or they believe that the police suspect that they have committed a crime, then it would be in their best interest to remain silent or to tell the police that they refuse to say anything without consulting an attorney first.

Can the Police Stop Me and Question Me?

The police can stop and question anyone who they have a good faith belief are connected to criminal activity. Moreover, they also can detain them and pat them down for weapons if the officer feels they are in danger.

This entire process is called a “stop and frisk” or a “Terry stop.” Running from the police will provide them a sufficient enough reason to “stop and frisk” someone. Also, while the pat down part of the stop may be limited, if the police find any contraband, then it can lead to a full blown search and arrest.

Do I Need to Hire a Lawyer for Help with Police Issues?

Depending on the circumstances of your situation, it may be necessary to hire a lawyer. If you were merely a witness to a crime and it is more than clear that you were not involved in any way, then you may not need an attorney.

However, if you are a suspect or believe the police think you are a suspect, an experienced criminal defense attorney in your area can advise you of your rights and help you understand the complexities of the criminal justice system as well as your case.

Read on to learn some Arizona Laws regarding misconduct involving weapons.

1. A person commits misconduct involving weapons by knowingly:

1. Carrying a deadly weapon except a pocket knife concealed on his person or within his immediate control in or on a means of transportation:

(a) In the furtherance of a serious offense as defined in section 13-706, a violent crime as defined in section 13-901.03 or any other felony offense; or

(b) When contacted by a law enforcement officer and failing to accurately answer the officer if the officer asks whether the person is carrying a concealed deadly weapon; or

2. Carrying a deadly weapon except a pocket knife concealed on his person or concealed within his immediate control in or on a means of transportation if the person is under twenty-one years of age; or

3. Manufacturing, possessing, transporting, selling or transferring a prohibited weapon, except that if the violation involves dry ice, a person commits misconduct involving weapons by knowingly possessing the dry ice with the intent to cause injury to or death of another person or to cause damage to the property of another person; or

4. Possessing a deadly weapon or prohibited weapon if such person is a prohibited possessor; or

5. Selling or transferring a deadly weapon to a prohibited possessor; or

6. Defacing a deadly weapon; or

7. Possessing a defaced deadly weapon knowing the deadly weapon was defaced; or

8. Using or possessing a deadly weapon during the commission of any felony offense included in chapter 34 of this title; or

9. Discharging a firearm at an occupied structure in order to assist, promote or further the interests of a criminal street gang, a criminal syndicate or a racketeering enterprise; or

10. Unless specifically authorized by law, entering any public establishment or attending any public event and carrying a deadly weapon on his person after a reasonable request by the operator of the establishment or the sponsor of the event or the sponsor’s agent to remove his weapon and place it in the custody of the operator of the establishment or the sponsor of the event for temporary and secure storage of the weapon pursuant to section 13-3102.01; or

11. Unless specifically authorized by law, entering an election polling place on the day of any election carrying a deadly weapon; or

12. Possessing a deadly weapon on school grounds; or

13. Unless specifically authorized by law, entering a nuclear or hydroelectric generating station carrying a deadly weapon on his person or within the immediate control of any person; or

14. Supplying, selling or giving possession or control of a firearm to another person if the person knows or has reason to know that the other person would use the firearm in the commission of any felony; or

15. Using, possessing or exercising control over a deadly weapon in furtherance of any act of terrorism as defined in section 13-2301 or possessing or exercising control over a deadly weapon knowing or having reason to know that it will be used to facilitate any act of terrorism as defined in section 13-2301; or

16. Trafficking in weapons or explosives for financial gain in order to assist, promote or further the interests of a criminal street gang, a criminal syndicate or a racketeering enterprise.

1. Subsection A, paragraph 2 of this section shall not apply to:

1. A person in his dwelling, on his business premises or on real property owned or leased by that person or that person’s parent, grandparent or legal guardian.

2. A member of the sheriff’s volunteer posse or reserve organization who has received and passed firearms training that is approved by the Arizona peace officer standards and training board and who is authorized by the sheriff to carry a concealed weapon pursuant to section 11-441.

3. A firearm that is carried in:

(a) A manner where any portion of the firearm or holster in which the firearm is carried is visible.

(b) A holster that is wholly or partially visible.

(c) A scabbard or case designed for carrying weapons that is wholly or partially visible.

(d) Luggage.

(e) A case, holster, scabbard, pack or luggage that is carried within a means of transportation or within a storage compartment, map pocket, trunk or glove compartment of a means of transportation.

1. Subsection A, paragraphs 2, 3, 7, 10, 11, 12 and 13 of this section shall not apply to:

1. A peace officer or any person summoned by any peace officer to assist and while actually assisting in the performance of official duties; or

2. A member of the military forces of the United States or of any state of the United States in the performance of official duties; or

3. A warden, deputy warden, community correctional officer, detention officer, special investigator or correctional officer of the state department of corrections or the department of juvenile corrections; or

4. A person specifically licensed, authorized or permitted pursuant to a statute of this state or of the United States.

1. Subsection A, paragraph 10 of this section does not apply to an elected or appointed judicial officer in the court facility where the judicial officer works if the judicial officer has demonstrated competence with a firearm as prescribed in section 13-3112, subsection N, except that the judicial officer shall comply with any rule or policy adopted by the presiding judge of the superior court while in the court facility. For the purposes of this subsection, appointed judicial officer does not include a hearing officer or a judicial officer pro tempore who is not a full-time officer.

1. Subsection A, paragraphs 3 and 7 of this section shall not apply to:

1. The possessing, transporting, selling or transferring of weapons by a museum as a part of its collection or an educational institution for educational purposes or by an authorized employee of such museum or institution, if:

(a) Such museum or institution is operated by the United States or this state or a political subdivision of this state, or by an organization described in 26 United States Code section 170(c) as a recipient of a charitable contribution; and

(b) Reasonable precautions are taken with respect to theft or misuse of such material.

2. The regular and lawful transporting as merchandise; or

3. Acquisition by a person by operation of law such as by gift, devise or descent or in a fiduciary capacity as a recipient of the property or former property of an insolvent, incapacitated or deceased person.

1. Subsection A, paragraph 3 of this section shall not apply to the merchandise of an authorized manufacturer of or dealer in prohibited weapons, when such material is intended to be manufactured, possessed, transported, sold or transferred solely for or to a dealer, a regularly constituted or appointed state, county or municipal police department or police officer, a detention facility, the military service of this or another state or the United States, a museum or educational institution or a person specifically licensed or permitted pursuant to federal or state law.

1. Subsection A, paragraph 10 of this section shall not apply to shooting ranges or shooting events, hunting areas or similar locations or activities.

1. Subsection A, paragraph 12 of this section shall not apply to a weapon if such weapon is possessed for the purposes of preparing for, conducting or participating in hunter or firearm safety courses.

1. Subsection A, paragraph 12 of this section shall not apply to the possession of a:

1. Firearm that is not loaded and that is carried within a means of transportation under the control of an adult provided that if the adult leaves the means of transportation the firearm shall not be visible from the outside of the means of transportation and the means of transportation shall be locked.

2. Firearm for use on the school grounds in a program approved by a school.

3. Firearm by a person who possesses a certificate of firearms proficiency pursuant to section 13-3112, subsection T and who is authorized to carry a concealed firearm pursuant to the law enforcement officers safety act of 2004 (P.L. 108-277; 118 Stat. 865; 18 United States Code sections 926B and 926C).

1. Subsection A, paragraphs 2, 3, 7 and 13 of this section shall not apply to commercial nuclear generating station armed nuclear security guards during the performance of official duties or during any security training exercises sponsored by the commercial nuclear generating station or local, state or federal authorities.

1. The operator of the establishment or the sponsor of the event or the employee of the operator or sponsor or the agent of the sponsor, including a public entity or public employee, is not liable for acts or omissions pursuant to subsection A, paragraph 10 of this section unless the operator, sponsor, employee or agent intended to cause injury or was grossly negligent.

1. If a law enforcement officer contacts a person who is in possession of a firearm, the law enforcement officer may take temporary custody of the firearm for the duration of that contact.

1. Misconduct involving weapons under subsection A, paragraph 15 of this section is a class 2 felony. Misconduct involving weapons under subsection A, paragraph 9, 14 or 16 of this section is a class 3 felony. Misconduct involving weapons under subsection A, paragraph 3, 4, 8 or 13 of this section is a class 4 felony.  Misconduct involving weapons under subsection A, paragraph 12 of this section is a class 1 misdemeanor unless the violation occurs in connection with conduct that violates section 13-2308, subsection A, paragraph 5, section 13-2312, subsection C, section 13-3409 or section 13-3411, in which case the offense is a class 6 felony. Misconduct involving weapons under subsection A, paragraph 1, subdivision (a) of this section or subsection A, paragraph 5, 6 or 7 of this section is a class 6 felony.  Misconduct involving weapons under subsection A, paragraph 1, subdivision (b) of this section or subsection A, paragraph 10 or 11 of this section is a class 1 misdemeanor.  Misconduct involving weapons under subsection A, paragraph 2 of this section is a class 3 misdemeanor/

For This Section:

1. “Contacted by a law enforcement officer” means a lawful traffic or criminal investigation, arrest or detention or an investigatory stop by a law enforcement officer that is based on reasonable suspicion that an offense has been or is about to be committed.
2. “Public establishment” means a structure, vehicle or craft that is owned, leased or operated by this state or a political subdivision of this state.
3. “Public event” means a specifically named or sponsored event of limited duration that is either conducted by a public entity or conducted by a private entity with a permit or license granted by a public entity.  Public event does not include an unsponsored gathering of people in a public place.
4. “School” means a public or nonpublic kindergarten program, common school or high school.
5. “School grounds” means in, or on the grounds of, a school.

Misconduct With Weapon And Assault With Weapon Penalties

In Arizona most cases involving Misconduct Involving a Weapon involves a victim or have a criminal record. Both of these factors are aggressively pursued by the Maricopa County Prosecutor’s Office. Typically, the prosecutor will seek a prison term upon conviction. Therefore it is imperative that you provide yourself with a strong defense. Upon conviction you can find yourself going to prison, serving jail, lengthy probation, fines, and counseling.

Source: https://www.azleg.gov/ars/13/03102.htm

Possession of images of a graphic nature with someone under the age of consent usually means a lawyer is required to help develop and implement a strong defense strategy. Read on to learn more. 

Initial Investigation

When a person faces an accusation of possession of child pornography, this can lead to an investigation into the matter with an expert witness that can analyze the devices and determine if the files are validly searched for or not.

Evidence of Child Pornography

The prosecution will use evidence of the existence of child porn images on the computer or in the house as proof of intention behind the crimes. However, the accused can also use this same evidence as an accident or lacking the intention of searching for or downloading.

Valid Argument 

The defending party will need to provide a legitimate argument against the accusations. A lawyer uses evidence and testimony presented in the courts could sway the judge or jury panel. Often, when the accused was not aware of the files or folders containing child pornography, the case will come out of nowhere.

When there is no legitimate evidence to refute the prosecution’s case, then it is time to consider negotiations for a plea bargain. The lawyer then must enter into these attempting the best possible conclusion to the case.

Increase In Cases

The large influx of possession of child pornography may lead to a set precedence in how to handle simple possession or those with additional crimes such as intent to distribute or creation of these illicit images through photos or video files. The intent is a significant factor in many different crimes. Without the intention to download or access child graphic images, the individual may have a valid defense through a criminal defense lawyer. 

Source: https://www.hg.org/legal-articles/possession-of-child-pornography-charges-how-a-lawyer-can-help-49523

Aggravated assault penalties depend on the degree and any injuries that may have occurred. Aggravated assault charges can be treated as misdemeanors in some states, while other states will treat this charge as a felony. Because penalties for this type of crime depend on both the degree of assault and the state in which the assault was committed, an individual should always talk to a lawyer to determine accurate penalties for his or her case.

What happens after an aggravated assault conviction?

A conviction of an aggravated assault charge can have serious consequences on your life, especially if it is treated as a felony conviction. Many places of employment will not hire convicted felons, and if you already hold a professional license, Also, a felon can also lose basic rights for a number of years, such as the right to vote, serve on a jury, or own a firearm.

In states that have “three-strikes” laws, a felony aggravated assault conviction can also count as a “strike.” This means that if you already have two other felony convictions, or are convicted with other felonies in the same trial, the third strike for aggravated assault can put you in prison for life.

What is the difference between aggravated vs. simple assault?

As opposed to aggravated assault, a simple assault is any willful attempt or threat to inflict injury upon the person of another.. An intentional display of force that would give the other person reason to fear or expect bodily harm constitutes assault. Deadly weapons are weapons that may be used to cause a serious or fatal injury. Deadly weapons include guns and knives, but can also include other instruments that, under normal circumstances, wouldn’t be considered deadly weapons. A simple assault can also rise to the level of an aggravated assault charge depending on the identity of the victim. Generally, the assailant must have known or should have reasonably known, of the victim’s status. Whether the assailant knew or not can be shown by either the uniform, appearance, or the conduct of the victim.

Aggravated Assault Defenses

There are several common defenses that may apply to all levels of assault. Consent, prevention of crime, and official acts are some examples of common aggravated assault defenses. Consent essentially means that the victim consented to the risk of harm. When there is consent, the victim can be prohibited from bringing an action when an assault occurs. Defense of property occurs when the assailant commits an assault to protect their property from an individual. In these cases, courts will generally allow the use of reasonable force to protect one’s own property from theft or damage.

Federal law states possession of a controlled substance with the intent to sell or distribute is broken into two parts:

1. The possession of drugs.
2. The intent to distribute them.

Both aspects have to be shown to have happened at the same time. read on to learn more.

Possession

Possession means drugs are in your control not just on your person. for example, they may be discovered in your car or home. You generally need to know the drugs are there to prove possession. If you did not know the drug was there, you will have a strong defense. Many areas will charge individuals with possession if “they should have known” or should have been aware the substance was a controlled substance. With standards this open, it is more simple for the prosecution.

Intent To Distribute

It has to be proven by the Government what the intention was of the person who had possession of the drugs. Surrounding circumstances become key to proving the intention. The intention to distribute is assumed if the person has more than would be acceptable for personal use. Other signs of the intent to distribute may be, large amounts of cash, customer communications and packing materials.

The Timing

A crime can’t occur unless possession of the drugs occurs at the same time as the intent to distribute them. When someone wants to sell 10 kilograms of heroin but hasn’t received the shipment yet, prosecutors can’t charge him or her with the offense of possession as they never had possession of the drugs. But, related crimes of conspiracy to possess with intent to distribute and attempt to possess with intent to distribute may have been committed and those charges may be stick.

Penalties For The Offense

Federal law says the penalty for possession with the intent to distribute is dependent on the Federal Sentencing Guidelines.  The length of imprisonment and the amount of monetary fines depends on the nature of the controlled substance and whether the defendant has a criminal background. States laws vary a great deal so need to be checked on a state by state basis.

Source: www.findlaw.com/criminal/criminal-charges/possession-with-the-intent-to-distribute.html

A primary role of a police officer is to make arrests. Many even have arrest goals! Often if you are approached by an officer it is likely the officer will have information in assisting them to obtain an arrest. Read on to learn more.

Rules When Speaking With Police Officers

• Issues of consent. You are not obliged to answer questions or agree to a search if you are not suspected of a crime. But if you do consent, the data provided may be used against others (or yourself.) When you agree to a search or to be questioned, remember you may always withdraw your consent and there is no concept of speaking to the police in an unofficial or ‘off the record” manner.
• Failure to produce ID when requested by the Police is illegal in most states and is mandatory when you are pulled over for a traffic stop.
• An officer may question you without reading you your Miranda rights. Therefore, this info may be used against you. Miranda rights only have to be read to a person when they are in custody and are under interrogation.
• You may always delay answering questions when to are not in custody – by asking the officer to return later.
• If you think you may be implicated in a crime, silence may be a very good idea until you have spoken to an attorney. Silence cannot be used against you in court.

Rights At Traffic Stops And Checkpoints

• When a police officer thinks you are guilty of a traffic offense. They may arrest you and even frisk your passengers, especially if the officer suspects they may have a weapon.
• The officer may not perform a search unless they have a “reasonable belief” there is criminal evidence or weapons in the vehicle. The officer cannot use a traffic stop as a reason for a search that is extensive. The officer will need probable cause.
• A police officer may be allowed to search a vehicle without a warrant in the event of an accident.
• At legal checkpoints as long as police follow all the legal procedures they may stop and question drivers for specific purposes.

Your Rights At Home

• When a police officer wants to visit your home to ask questions – you are not obliged to admit the officer or answer questions. You do not have to agree to any searches unless the officer has a search warrant.
• Sometimes you will want to speak with a police officer. When a police officer enters your home and they see any evidence of criminal activity. The material may be seized.
• In an emergency the officer can enter residences. for example, if they are following a suspect who may enter the residence or when an officer hears screams and shouts for assistance.

Source: https://www.criminaldefenselawyer.com/resources/defendants-rights/dealing-with-police.htm

First degree murder is considered by the majority of states as unlawful killing that is willful and premeditated (planned.) Most states also apply what is known as the “felony murder rule,” whereby a person commits murder in the first degree, should  a death (even an accidental death) results from certain felonies like arson, burglary, kidnapping, robbery and rape. Read on to learn more.

Elements Of First Degree Murder

These elements are willfulness, deliberation and premeditation. However federal law and some states also include malice afterthought as an element. The amount of malice differs from state to state. Most states decide based on certain kinds of killings. However, not all states divide murders into degrees. For example, in some states the top level of murder is known as “capital murder.”

Intent

There must be a specified intent to kill with a first degree murder. Even if the eventual victim was not the original intention. Many state laws sat killing with a depraved indifference to human life qualifies as first degree murder.

Deliberation And Premeditation

This can only be decided on an individual case basis. Having time enough to make the decision to kill and then act on it following enough time for a reasonable person to think of the consequences usually is enough. Deliberation and preparation must always happen prior to the killing.

Malice Aforethought

Certain killings are categorized as first degree murder, for example:

• The killing of a child by means of unreasonable force
• Certain killings when in a pattern of domestic abuse
• The murder of a member of law enforcement
• Homicides as part of another crime such as robbery, arson or rape
• Intentional Poisonings
• Murders as a result of being imprisoned
• Murders where the killer waited for and/or ambushed the victim

Source:  https://criminal.findlaw.com/criminal-charges/first-degree-murder-overview.html

Assault charges are common in many urban areas and are often associated with disputes regarding relationships, though assault of a minor, sexual assault and other related assaults also tend to be higher in heavily populated areas. Read on to learn more about getting assault charges dropped.

Assault Versus Battery

Assault is the intentional act causing a person to fear they are about to suffer physical harm. It also recognizes placing another person in fear of imminent bodily harm is itself an act deserving of punishment. This definition also allows police officers to intervene and make an arrest without waiting for the assaulter to physically strike the victim. Battery is when the person who has been physically hurt by another person. Assault is only when there is a fear of harm and it means the person doing the assault has to intentionally make the other person fearful for their safety with the threat of potential harm. 

Filing Charges

These crimes are filed through the governmental criminal case method, ensuring there is not a way to drop the charges. There is no recourse for victims once charges have been filed and a trial has been instituted unless they choose to be of assistance to the opposing counsel. Often victims want the charges to be dropped. This decision is entirely up to the lawyer responsible for the prosecution. They may consider additional evidence and in certain states there is an office with special responsibilities for the examination of such evidence.

Difficulties In Dropping Cases

When victims have additional thoughts regarding going-forward with the prosecution may be concerned for their safety. When the victim decides they do not want to continue, they may decide to reach out to the defending lawyer as quickly as they can so the case of the defense can be bolstered. The testimony of witnesses may be essential for the case and needs to be submitted as a written statement as soon as possible as it may clarify disputed issues. The legal defense party represents the charged individual – so anything the victim may share with this individual may later be used at trial.

Don’t Do This

During an assault, emotions run high. Those who are accused need to be very quiet and controlled so additional complications do not arise with law enforcement. Victims (or those claiming to be) also need to be calm and can help to ensure no violent action occurs. If there is, the case may be further complicated. Also, the prosecution should not be harassed at any time. Everyone needs to be treated with respect.

Source: https://www.hg.org/legal-articles/dropping-assault-charges-39223