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Will My Child Be Charged As An Adult?

The Arizona Criminal Justice system, as in every state, distinguishes between the consequences offered for juvenile offenders and those imposed on adults.  In general, the consequences for those who face charges in adult court are dramatically more severe.

For instance, in juvenile court, the judge always retains discretion to customize the consequences for each juvenile in their court, regardless of the circumstances.  Judges may impose a wide array of consequences, ranging from apology letters and essays to intensive treatment programs and incarceration.

Judges presiding over adult cases, on the other hand, are significantly constrained in what consequences are available.  For most first-time felony offenses, a judge may offer probation, including community service and treatment.  For any felony offense beyond the first and those involving drug sales and dangerous acts, a judge’s MUST send the offender to prison after a trial loss.  Their only discretion lies in picking the length of the prison sentence sometime between the minimum and maximum prescribed by the legislature.

Beyond the results imposed by the Court, adult felons are also marked with a conviction that can have permanent and catastrophic effects on their ability to pursue certain careers, get housing, or exercise certain constitutional rights (but see options for clearing a criminal record in Arizona).  These consequences are not true of those found delinquent in juvenile court, whose records can be sealed when the child turns 18 and exits the juvenile court system (there are some caveats when the offense is of a sexual nature).

There is more than age, however, that goes into the decision whether to charge someone as a juvenile or adult.  Many times a juvenile may be charged as an adult if the offense they are accused of is particularly serious.  The same is true if the juvenile has been in the court system a long time and continues to re-offend.  Where the juvenile system has been ineffective at curbing delinquent behavior, the prosecution may opt to file in adult court, where the child then becomes subject to the sobering and harsh consequences of adult criminal court.

A particularly troubling, but the all-too-common reason for filing in adult court, however, is that the time at which charges are pursued simply happens to be too close to the child’s 18th birthday.  In these common situations, it may be perfectly appropriate that the matter is handled in juvenile court, but there isn’t enough time to apply resources of the juvenile system to rehabilitate the child.

Regardless of how serious the crime, or whether it’s first or fifth offense when a minor is charged as an adult, they face the same mandatory penalties their adult counterparts do.

For this reason, a recent law proposed by the Arizona legislature has huge ramifications for minors who commit delinquent acts.  Both the Arizona House of Representatives and State Senate have passed HB2356 in April 2018.  If signed by the Governor, this bill would allow Juvenile Courts to retain jurisdictions over a juvenile case until the juvenile’s 19th birthday.

Should this law pass, the juvenile court would be able to extend efforts to help those whose minds are not fully developed prove their ability to learn from their mistakes without a permanent mark on their record that usually does more harm than good.  As of the time of this writing, the bill is sitting on the Governor’s desk.  It’s about time.

If you have questions about your child in the court system, don’t hesitate to call Tait & Hall for a free consultation at (480) 405-6767.

Sealing and Destroying a Criminal Record

For those who were charged, but never convicted, Arizona law allows the possibility that all records of the allegations be sealed and destroyed. This means that any public record of the charges is destroyed. Courts are no longer allowed to maintain a public record of the case charges or history and the police department may no longer disseminate any information regarding the investigation.

Having records sealed and destroyed is only available to those people who are wrongfully accused of a crime and who are not convicted of any crime. That also means that they cannot have accepted a plea to a lower charge.

Until an innocent person succeeds in having their record sealed and destroyed, police are free to disseminate the report to anyone who makes a request for it through the proper process. Courts may still have the record on public websites, which makes it easy for a potential employer or anyone else to find.

To find out about how to have your record sealed and destroyed call Tait & Hall for a free consultation at: (480) 405-6767.  

Options For Clearing A Criminal Record In Arizona

Arizona has two common options for minimizing the mark of past run-ins with the law.  The first referred to as “setting aside” a criminal conviction is available for most convictions in Arizona.  The second referred to as “sealing and destroying” a criminal record, is available in very limited circumstances.  

SET-ASIDES

For those who have been convicted of a crime and exhausted all forms of appeal and post-conviction claims, a set-aside is likely the only option left.  Arizona does not offer the possibility of an “expungement” of criminal convictions, as is available in many other states. When a conviction is expunged, it is effectively wiped off the record as if the crime was never committed.

A set-aside, on the other hand, allows the crime to remain on one’s record but will be marked with a notation that the judge has set aside the judgment of guilt.  Unlike expungement, the full benefits of a criminal set-aside require someone previously convicted to remain crime free. If one commits a new offense, the state may still use the set-aside conviction against them.

There are still several potential benefits to pursuing a set-aside.  A person whose conviction has been set aside is no longer a “convict” and no longer stands convicted of a criminal offense.  While an employer may still ask if a person has “ever been” convicted of a crime, Arizona leaders are considering changes in the law that would prevent employers from finding out in the initial application process whether set-aside convictions exist in the applicant’s record.

Apart from potential employment benefits, a set-aside can often come with other benefits, such as restoring one’s right to vote and possess a firearm or improving an immigrant’s possibilities in immigration court.

Set-asides are available to most convicted persons who have completed their sentence, any probation term and paid all fines, fees, and restitution.

SEAL AND DESTROY

For those who were charged, but never convicted, Arizona law allows the possibility that all records of the allegations be sealed and destroyed.  This means that any public record of the charges is destroyed. Courts are no longer allowed to maintain a public record of the case charges or history and the police department may no longer disseminate any information regarding the investigation.  

Having records sealed and destroyed is only available to those people who are wrongfully accused of a crime and who are not convicted of any crime.  That also means that they cannot have accepted a plea to a lower charge.

Until an innocent person succeeds in having their record sealed and destroyed, police are free to disseminate the report to anyone who makes a request for it through the proper process.  Courts may still have the record on public websites, which makes it easy for a potential employer or anyone else to find.

If you have questions about whether you qualify for a set-aside or to have your record sealed and destroyed, call Tait & Hall at (480) 405-6767.  

Arizona Court Deals a Blow to Government Abuse

Few people have ever heard the term “civil forfeiture,” but if you’ve ever been affected by it, it’s something you never forget. This law, which has its roots in pre-colonial England essentially allows the government to seize and keep any property that was used in or received from the commission of a crime.  The law is designed to be a deterrent for crime by removing one strong incentive to commit a crime.  Under these laws, federal and state governments have seized billions of dollars from drug cartels.

While the law’s origins may make sense, scrutiny to the way it has evolved over the years has led to shocking findings of government abuse. A Michigan man was traveling through Nevada on his way to begin a new life in California.  He was carrying $2400 he had borrowed from his dad for rent.  A patrolman pulled him over for a minor traffic violation, then seized the cash because the officer suspected he was going to California to buy drugs.

His evidence?  Based on his “training and experience” it is common for people to travel through Nevada to buy drugs with cash.  Apparently, the absurdity of traveling across the country to buy $2400 worth of drugs that could be found in virtually every city in America never occurred to the officer.

Or consider the case of Gerardo Serrano, who was traveling across the border to visit family members in Mexico.  When Customs agents saw him taking pictures near the border, they demanded the passcode to his phone.  When Serrano requested that they provide a warrant, they pulled him from the truck, searched it and found a .380 pistol and five bullets.  Accusing him of “smuggling arms or munitions of war,” the feds then seized his truck.

Unfortunately, the deeper one looks into civil forfeiture laws, the more examples of abuse they find.  To make matters even worse, there is virtually no oversight into where money obtained from civil forfeiture is spent.

Surely it goes to bolster the needs of the police force and increase public safety, right?  Wishful thinking.  The Milwaukee sheriff’s Department used seized funds to fly 50 Deputies to Disneyland.  The Montgomery County District Attorney in Texas bought a margarita machine.  In Worcester County, MA, the District Attorney thought a good use of the funds was a Zamboni machine: yes, the boxy vehicle that refreshes the ice in hockey rinks before games and between periods.

How did civil forfeiture take such an ugly turn, and how could so many abuses occur?  Surely there must be some sort of judicial oversight of this process, right?  Sort of.

The law does allow for someone to challenge the taking of their property in court.  However, the process for doing so is so confusing and difficult that most people lose their chance to challenge the seizure on legal technicalities.  In Maricopa County, judges routinely reject requests for a hearing, merely because the claimant didn’t sign the hearing request document or if it is submitted a day late.

Judges’ rigid adherence to technical rules means that if someone wants to make sure the process is done correctly, they usually have to hire an attorney, which is oftentimes more expensive than the seized property is even worth.

Even worse, many people never even find out that the property is going to be kept by the government and are never told they have a right to challenge the seizure.  Historically in Arizona, the law merely required that a notice is sent to the last known address.  Even if the mail is returned “undelivered,” the government could keep the property without any scrutiny whatsoever from a judge.

Fortunately, that changed in February of 2018, when an Arizona Appeals Court ruled that when the State has good reason to know that the person whose property was seized didn’t get notice, they cannot move forward in permanently depriving the person of their property.  There’s still a long way to go to make these laws just, but this case was certainly a step in the right direction.

Do you have questions about property that was recently seized?  Contact us to discuss the facts of your case and see if we can help.

Do I have a Slip and Fall claim?

What You Need to Know if You’re Injured on Someone Else’s Property

One minute you’re testing the firmness of an avocado in the produce section of your neighborhood grocery store, the next moment you’re laying on your back on the ground with a searing pain in your shoulder, wondering what just happened.  You look down at your feet and see the culprit, a puddle of water turned the tile floor into a secret slip-n-slide.

Injuries from this kind of accident, a special type of Arizona personal injury case known as “slip and fall” often entitle the injured person to recover compensation from the grocery store or its insurance company where it occurred, but it’s not quite automatic.

Once you’ve established that a condition on someone’s property caused your injury, the next step to determine if you have a slip and fall claim is finding out if the property owner or one of its employees acted negligently.  This is how a personal injury case in Arizona would generally start.

Negligence means that the grocery store or one of its employees didn’t take the steps to protect the customer from an injury that a reasonable person in their position would have. The most obvious example would be if a store manager spilled her drink on the floor, saw the liquid puddle up in front of the avocados and did nothing to clean it up for an extended period of time.

Not all examples are so obvious though.  What if the manager spilled her drink, notified an employee so they could clean it up, and then the customer was injured as the employee was bringing a mop and a caution sign?  It may depend on how long the employee took to do that. What if the spill was caused by another customer, rather than a store employee? The answer may lie in whether and when a store employee was made aware of the spill, or whether they should have discovered it sooner.

Determining negligence in slip and fall cases is not always an easy thing to do. If you find yourself wondering what you and the avocado you accidentally flung across the aisle as you fell ever did to deserve this, it’s best to consult an experienced Arizona personal injury attorney as soon as possible to find out if you have a slip and fall claim.

Don’t be deterred if you didn’t actually “slip” or “fall.” Any accident case that arises from an accident on land, in someone’s house or in a retail establishment falls under the Arizona personal injury umbrella of “slip and fall.”  So whether you cut yourself on the sharp edge of poorly maintained bar stool, you were beamed by a can of paint falling off a high shelf of home improvement store, or you fell into the hole your neighbor forgot to tell you about during a barbeque, it’s always a good idea to talk to an attorney to find out if they or their insurers are required to pay for your “slip and fall” injuries.

Who Can Reform the Criminal Justice System?

Consider the following people:

  • The President of the United States
  • The Pope
  • The Attorney General of the United States
  • The Head of the FBI or CIA
  • The Speaker of the House
  • The Senate Majority Leader
  • Any of the 50 State Governors
  • Any of the 50 State Attorney Generals
  • The Head of the NAACP or the ACLU
  • The Dean of any Law School
  • The State or Federal Head of Prisons
  • The Head of the Democratic or Republican Party
  • Your Local Mayor
  • Your Local City Council President
  • The Editor in Chief of Your Local Paper
  • A Major Tech CEO
  • Chief of Police.

So what do all of these people have in common?

Answer: Not a single one of them is the most important person to reform the criminal justice system.

Sure, these people are influential. They can all DABBLE in the justice system and/or influence it in one way or another. However, there is one person who has a much larger impact on the criminal justice system than you may realize. This person has so much power that’s it’s almost unbelievable.

Who is it?

Your local prosecutor.

In most areas, they’re referred to as District Attorneys or DAs for short. Some states even call them the Commonwealth’s Attorney. Other states call them the State’s Attorney. Essentially, it’s all the same position; this person is the elected prosecutor for your city or county, depending on where you live.

No single position has more power to drastically alter the criminal justice system than your locally elected prosecutor.

In understanding that, here are a few things that are being done with respect to this space:

National DA Database

 Assembling a national DAs database will not only help you identify your local District Attorney, but it will also allow people to assess their positions on a myriad of issues, as well as provide you with important dates and voting information.

New Candidates

 In addition to creating an accessible database, there will be help in recruiting exciting new candidates for local DA races. There will be a nationwide awareness campaign to help encourage attorneys focused on reform to enter the race to modify the justice system.

Direct Campaign Work

Finally, there will be a significant amount of work done on these candidates’ campaigns to ensure that they are elected. Unsurprisingly, this is where most of the real work is. Since DA races are often an afterthought in the U.S., people will be working hard to bring the prosecutorial races into the light.

As it stands, the United States has more than 2,400 elected prosecutors. These people are truly the gatekeepers of the justice system, and there will be an impactful and positive change happening with respect to our prosecutors very soon.

Police ‘Testilying’ Continues to be a Problem

It’s a sad truth, but it’s also reality.

The phenomenon is known as ‘testilying’ behind closed doors. It refers to when police officers take the truth and stretch it out a bit.

Consider the case of Kimberly Thomas, a Bronx native who was accused of placing a Ruger 9-millimeter handgun in a laundry bag directly in front of an officer during a shooting investigation. While this ultimately proved to be false (as a result of video surveillance), Officer Nector Martinez had no issue lying in court. Had it not been for the video footage, Thomas would have unjustly ended up in prison.

Or take the case of Samuel Lee, a Los Angeles Police Officer whose body cam footage shows him picking a baggie of drugs off the ground, putting it inside suspect Ronald Shield’s wallet, then handing the wallet to another officer while indicating the drugs were found inside the wallet.

These are not isolated incidents.

According to The New York Times, “on more than 25 occasions since January 2015, judges or prosecutors determined that a key aspect of a New York City police officer’s testimony was probably untrue. The Times identified these cases — many of which are sealed — through interviews with lawyers, police officers and current and former judges.”

These cases, for example, included false testimony regarding gun whereabouts, breaking/entering into apartments, searches, and witnessing various crimes, drug deals, and arrests.

For those who haven’t had run-ins with the law, the claim that officers would lie on the stand seems counterintuitive. What could possibly be their motive? For many officers, the motivation behind lying is very evident: “to skirt constitutional restrictions against unreasonable searches and stops” (NYT).

For many officers, these constitutional protections just seem like overly-technical barriers to them “getting the bad guys.” Underestimating their own proneness to human error, officers then often feel justified in bending the truth to get the outcome they think is right.

This mindset may be particularly problematic for someone if they ever get caught on the radar of a particular officer, who may have a “gut” instinct that the person is engaging in criminal behavior, but is unable to prove it through lawful investigation techniques.  This could explain the apparent planting of drugs by Officer Lee.

Shameful, right?

It’s no question that with more police officers ‘testilying’, innocent people are unjustly thrown into jail. On the flip side, as judges view officers as less credible, guilty people will be acquitted when they shouldn’t be.

Yes, you bet we are in a predicament.

Sure, we’ve caught a handful of police officers providing false testimony in a court of law, but it seems naïve to think we’ve even come close to uncovering the amount of times officers have ‘testilied’ without being discovered.

Still “the cases identified by The Times reveal an entrenched perjury problem several decades in the making that shows little sign of fading.”

Luckily, we are in an age of technology where the heavy presence of things like cameras and cell phones will greatly reduce the amount of times officers lie in court. Ultimately, it’s harder for cop to lie nowadays. It seems increasingly rare that there are enforcement encounters (in today’s day and age) where there isn’t instant video footage of the action. Nonetheless, even if a camera exposes a lie, it doesn’t always undo the wreckage that ensued prior to the lie coming to light.  There are still plenty of agencies that don’t use body cameras and there’s plenty of lies without any strong evidence to challenge them.

Let’s hope that this changes in the near future.

Cannabis in Arizona Legal for Tourists with Medical Marijuana Cards

The Arizona Court of Appeals has recently ruled it legal for people visiting from other states or countries to possess and use medical marijuana.

A recent panel voted that an issued card under Arizona’s Medical Marijuana Act is equivalent to a physician recommendation for cannabis under California’s Compassionate Use Act.

The Reason

This all stems from a 2016 case in which Standley Kemmish Jr., a California native who had been issued a medical marijuana card, was pulled over and charged with possession of marijuana and drug paraphernalia.

Unsurprisingly, Kemmish maintained that he was allowed to possess the drug under Arizona’s medical marijuana law due to the fact that he has a physician’s recommendation for the cannabis.

Prosecutors largely disagreed, asserting that the doctor’s note was in no way equivalent to possessing a medical marijuana patient card (issued by the Arizona Department of Health Services).

The appellate court’s panel relied on Arizona’s Medical Marijuana Act (voter-approved). This allows “visiting qualifying patients” to have the same immunity as people with medical marijuana cards issue by the state of Arizona.

The court noted:”[w]hether another state’s medical marijuana law requires an identification card, a physician’s letter, or some other documentation is immaterial, so long as the documentation is sufficient under the law of the issuing state.”

Nonetheless, medical marijuana users who are visiting from other states are still not allowed to purchase cannabis from dispensaries located in Arizona.

The Why

As a result of conditions like cancer and chronic pain, voters in Arizona approved the medical marijuana program in 2010. The effects of the program didn’t gain notable momentum until 2012 when dispensaries began to pop up around the state.

Not only that, consider the following fact, courtesy of herb.co:

“Studies have shown that the time-period following the legalization of medical cannabis has shown an almost five percent decrease in the total suicide rate. Even better, males aged 20-29 displayed an eleven percent decrease in suicide, meaning that cannabis can help youth recover from suicidal tendencies and mindsets.”

With the presence of dispensaries, the drug has become much more accessible for people who are issued medical marijuana cards. This is for good reason, as the discovered benefits seem to be increasing as more research is done. Research into the impact of marijuana are clearly trending toward the conclusion that it is a welcome remedy for many people suffering a variety of medical conditions.

Just over 150,000 people actively participate in the program. Last year, for example, over one million ounces of marijuana were purchased (equivalent to roughly 87,000 pounds).

The program is bound to grow even more over the coming years as medical marijuana rules continue to change.

Scam Stemming from Gila County Sheriff’s Office

It’s unfortunate, but it happened.

Charlie Beier, a dentist in Payson, fell for the scam. After all, the male scammer had most of Beier’s contact and personal information.

 

“You may say that this will never happen to you, but I was shocked at how real this all seemed,” said Beier.

Beier couldn’t believe how easily he was scammed. However, he soon realized that this type of scam has been rampant, especially because the scam appears to be very realistic.

It all started with a voicemail on March 9th when Beier received a message from a Gila County Sheriff’s Deputy.

Beier came home and listened to a very official sounding Chief Deputy Carl Saunders. It noted that he had an outstanding warrant because he failed to appear in court for jury duty. He soon learned more about what his crime entailed.

Beier was fined twice: once for failure to appear for jury summons and the other for contempt of court. Both fines totaled $5,100.

Ultimately, Beier had two options. He could either stay on the line with him while he drove to the Sheriff’s Office for fingerprinting, or he could pay 10% of the fines at a kiosk at the Globe office of the Gila County Sheriff’s Department.

Beier felt pressure, noting that the deputy informed Beier that he had to stay on the phone in order to avoid facing further consequences. Ultimately, keeping Beier on the line was essential to keeping the scam from falling apart.

Beier was instructed to purchase a Green DOT MoneyPak card at either Walgreens or Giant. Since 10% of $5,100 is $510, the deputy informed Beier that the additional $10 will be waived. This, of course, was another indication of the whole thing being a scam.

That’s when Beier finally figured out he was being conned and decided to drive to the police station to see if there were any warrants out for his arrest.

It turns out, of course, that he was clean.

Soon after, the scammer was off the phone. Beier was told that the police department doesn’t just call people to tell them they have a warrant out for their arrest. Furthermore, funds are never exchanged over the phone.

Although Beier may face some ridicule, he felt it necessary to inform others about his situation. This is a very realistic scam on which people need to be educated.

Sure, he may have lost $5.95 and a bit of dignity, but he saved a lot more than that.

In order to avoid this scam, Gila County’s Sheriff suggests that you say you’re personal friends with the sheriff and that you will get back to him (the scammer) right away. That will surely drive the scammer away immediately. If you want to find out whether you actually do have a warrant, it’s always safest to have an attorney look into it so that you can respond to the situation in the best possible way.

Armed Robbery Case Dismissed!

After a constant and protracted battle with the Prosecutor’s office and private corporations who resisted our efforts to obtain evidence that proved our client’s innocence, we finally prevailed on receiving the necessary evidence and convinced the Prosecutor to dismiss the case in its entirety.

We are among the very few Criminal Defense law firms in our area to have the maximum Avvo rating.

A Superb rating from Avvo implies that we are fully focused on providing the best services to all of our clients.

We won recognition for achieving the perfect combination of experience and passion. Tait & Hall is honored to be nominated for the prestigious Top 40 Under 40 award.

Since we have a number of satisfied clients all over the state, this accolade has been a well-earned one.

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