The AZ Criminal Lawyer

“Not the “F” word. . .”

2010-04-05T09:00:00.000-07:00

Is It A Misdemeanor or a FELONY!!!!!!

Heather[1] had a traumatizing night and was glad that it was all over. She dropped her two children off at elementary school and spent the morning shopping. She met her good friend for lunch and they shared a bottle of wine. Straight after lunch Heather went to get her children from school. With the kids in the car she was pulled over for “speeding in a school zone”. Upon further investigation the officer found out that she had been drinking and ultimately arrested her for a DUI – not just a regular DUI but a Felony (Aggravated) DUI .[2]

Zack failed to appear at court in response to traffic citation that was issued to him personally by a police officer. He got a notice from the Motor Vehicle Division that his license was suspended. He blew it off and drove anyway – after he had been drinking at a friend’s party. He was pulled over for taking a “wide right turn” and the officer could smell an “odor of intoxicating beverage”. The officer subsequently arrested him for a DUI – not just a regular DUI but a Felony (Aggravated) DUI .[3]

John had DUI convictions from 2003 and 2005. He just got a promotion at work and his coworkers threw him a surprise party. He drank. Then he drove. He was pulled over and was subsequently arrested for a DUI – once again, not just a DUI but a Felony (Aggravated ) DUI .[4]

Naturally, the common theme to all of the above stories is that a DUI can be a misdemeanor[5] or as set out above can be a Felony Aggravated DUI . What makes Heather’s DUI a felony is that there were children in the car at the time. What makes Zack’s a felony is that his license was suspended at the time of his arrest. What makes John’s a felony is the fact that he had two prior DUIs that took place less than seven (7) years before. It goes without saying that the consequences, direct and collateral, are more serious for a felony and they can be life altering.

DUI (misdemeanor and felony DUI’s ) laws are complex and nuanced depending on numerous factors, including but not limited to: which court you are in; whether you were sick at the time of the “stop”; whether you were taking any medication; the exact level of your blood alcohol concentration[6]; what method was used to determine your blood alcohol concentration (different methods have different variables and margins of error); whether there are any maintenance issues with regards to the machine used to test your blood alcohol concentration; whether there was “probable cause” to stop your vehicle in the first place; whether there was “probable cause”, after a stop, to conduct an investigation for a DUI ; the way your blood may have been drawn; whether field sobriety tests were involved, if so which ones; your age; whether you had a fever at the time of the stop; whether any statements were taken from you; whether the statements were taken in a way that violates the Constitution. . .and the list goes on.

The bottom line is if you or a loved one is facing a DUI (be it a misdemeanor or a felony aggravated DUI ) it is not worth going it alone – be sure to get the best possible legal representation you can to help.

Kevin Breger is the principal attorney at The Law Offices of . Mr. Breger focuses exclusively on criminal law and DUI representation and can be reached at 602-682-5582 or at kbreger@bregerlaw.com. Remember if you do email Mr. Breger please provide a phone number where he can call you back at to discuss your situation. Mr. Breger’s principal office is located at 2025 N. 3^rd Street, Suite 157, Phoenix, AZ 85004 and he also has an address in Scottsdale. He represents clients throughout Maricopa County, Pinal County and Yavapai County.

The information in this article is current as of January 2009. Remember that all cases need to be assessed on their individual merits and you should consult your attorney to discuss the specific issues in your case.

[1] All names have been changed to protect the innocent.

[2] See Arizona Revised Statue § 28-1383(A)(3).

[3] See Arizona Revised Statue § 28-1383(A)(1).

[4] See Arizona Revised Statue § 28-1383(A)(2).

[5] “Regular” pursuant to Arizona Revised Statue § 28-1381, or an “extreme/super extreme” pursuant to Arizona Revised Statue § 28-1382.

[6] Commonly referred to as “BAC”.

WHAT IS A CRIME IN ARIZONA - DID YOU KNOW?

2010-03-24T16:20:00.000-07:00

Common crimes and criminal activity you may not know about:

It is widely accepted within U.S. jurisprudence that “ignorance of the law is no excuse”.[1] To that end knowledge is always power and seeking out knowledge is always a wise course of action in protecting your interests, those of your families as well as those of the community.

To the extent that ignorance of the law is no excuse did YOU know that:

Arizona secular law makes adultery a crime? See A.R.S. § 13-1408.
It is a crime to litter? See A.R.S. § 13-1603.
It is a crime to walk your dog in public with him/her off of his leash in certain cities? See for example Revised Code, City of Scottsdale Sec. 4-39(n)(3)
It is a crime in Arizona to knowingly leave your spouse destitute, if you are in a position to provide for his/her means? See A.R.S. § 13-3610.
The person who does your nails has to have a license to do so? If they do not they are committing a crime. See A.R.S. § 32-574.
It is a crime in Arizona to knowingly open someone else’s mail without their permission? See A.R.S. § 13-3003.
If you work as a “handyman” and undertake projects for clients that exceed $1,000 in value you are committing a crime? See A.R.S. § 31-1101 et seq.
It is a crime in Arizona to offer or expose for sale mislabeled goods or services? See A.R.S. § 13-2202.
It is a crime in Arizona “if, in connection with the promotion of the sale of property or services, such person recklessly causes to be made or makes a false or misleading statement in any advertisement”? See A.R.S. § 13-2203.
It is a crime in Arizona for a doctor to fail to disclose to the police details regarding anyone he/she may have treated for “gunshot wounds, knife wounds or other material injury which may have resulted from a fight, brawl, robbery or other illegal or unlawful act”? See A.R.S. § 13-3806 (emphasis added).
It is a crime in Arizona to work as a barber without being duly licensed? See A.R.S. § 32-355.
If you don’t get your vehicle emissions’ tested when required, you are committing a crime? See. A.R.S. § 49-550.

If you have any questions about Arizona Criminal Law feel free to call Kevin Breger at 602-682-5582 or email him at kbreger@bregerlaw.com.

The information in this article is current as of February 2009. Remember that all cases need to be assessed on their individual merits and you should consult your attorney to discuss the specific issues in your case.

[1] As recognized in Lambert v. California, 355 U.S. 225, 226-27 (1957). The Lambert case does recognize a limited exception to this general rule to the extent that a person’s conduct that has been criminalized is “wholly passive”. Id at 228. See also A.R.S. § 13-204.

“Show me the money. . .”

2010-03-16T14:46:00.000-07:00

Is violent crime the only way?

Francis B. Palmer created a Last Will and Testament in which he set out that he would leave a small legacy to his daughters and the rest of his estate, which was quite substantial, to his grandson Elmer. Francis remarried and Elmer became worried. Elmer, who was only sixteen (16) years old at the time, knew that he was due a large inheritance from his grandfather. Elmer was concerned that since his grandfather had remarried he would change his “Will” and leave everything to his new wife instead of to Elmer. So Elmer murdered his grandfather.

Elmer was subsequently convicted of the murder and the Last Will and Testament was contested by Francis’ daughters. Francis daughters were of the view that since Elmer killed their father and he did so with the specific intent of benefiting he should not get anything from the Last Will and Testament. Elmer was of the view that the letter of the law is clear: the law specifically states how a Last Will and Testament is to be created. The Will in question provides that he should get his money irrespective and there is nothing in the law to contradict this.

The above fact pattern and issues were real and emanate from the New York case of Riggs v. Palmer in 1889.[1] One of the judges agreed with Elmer and pointed out that “…the matter does not lie within the domain of conscience. We are bound by the rigid rules of law, which have been established by the legislature, and within the limits of which the determination of this question is confined. The question we are dealing with is weather a testamentary disposition can be altered, or a will revoked, after the testator’s death, through an appeal to the courts, when the legislature has by its enactments prescribed exactly when and how wills may be made, altered, and revoked, and apparently, as it seems to me, when they have been fully complied with, has left no room for the exercise of an equitable jurisdiction by courts over such matters.”[2]

Ultimately the court disagreed with Elmer and Justice Gray and ruled that Elmer could not inherit. Justice Earl noted that “It was the intention of the law-makers that the donees in a will should have the property given to them. But it never could have been their intention that a donee who murdered the testator to make the will operative should have any benefit under it.”

Fortunately Arizona law agrees and states that “[a] person who feloniously and intentionally kills the decedent forfeits all benefits under this chapter. . .”[3]

Kevin Breger is the principal attorney at The Law Offices of Kevin Breger, PLLC. Mr. Breger focuses exclusively on criminal law and DUI representation and can be reached at 602-682-5582 or at kbreger@bregerlaw.com. Remember if you do email Mr. Breger please provide a phone number where he can call you back at to discuss your situation. Mr. Breger’s principal office is located at 2025 N. 3^rd Street, Suite 157, Phoenix, AZ 85004 and he also has an address in Scottsdale. He represents clients throughout Maricopa County, Pinal County and Yavapai County.

[1] 22 N.E. 188 (1889).

[2] See the dissent of Justice Gray in Riggs v. Palmer, 22 N.E. 188 (1889).

[3] See Arizona Revised Statute § 14-2803.

DUI ≠ Alcohol Alone. . .

2010-03-09T20:24:00.000-08:00

You Could be Hit Twice - Drug Offense and DUI....

There are a number of ways a person could be illegally “driving under the influence” (DUI) and subject themselves to prosecution. For example: A.R.S. § 28-1381(A)(1) deals with a DUI for being “impaired to the slightest degree”; A.R.S. § 28-1381(A)(2) deals with a DUI when your blood alcohol concentration is 0.08 or higher; A.R.S. § 28-1381(A)(3) deals with a DUI when there “is any drug defined in section 13-3401 or its metabolite in the person’s body.” There are various other sections that deal with when a DUI can be a felony as well (as opposed to a misdemeanor).

The bottom line is you can get a DUI as a result of drinking and driving and as a result of taking drugs (legal and illegal) and driving.

The problem with the (A)(3) charge referenced above is that some of the drugs that are listed in the statutes can be legally used with a valid prescription. What that means is even if you are validly using the drugs you could be exposing yourself to a DUI . . . this is true for the (A)(1) charge as well: If the drug that you are taking is legal and as a result of taking it your driving is “impaired to the slightest degree” you are once again exposed to a DUI citation.

The moral of the story is if you are taking illegal drugs-don’t. If you do take illegal drugs and drive you could find yourself the subject of a DUI investigation and/or citation.[1] If you are taking prescription drugs and drive you probably should consult with your health care provider and/or pharmacist about whether what you are taking could “impair you to the slightest degree”. If they need help with what “impair to the slightest degree” means as far as the law is concerned have them contact your attorney to discuss it. If you have been cited for a DUI you should likewise contact your lawyer immediately for help and guidance. It can be a minefield out there. . .

Kevin Breger is the principal attorney at The Law Offices of Kevin Breger, PLLC. Mr. Breger focuses exclusively on criminal law and DUI representation and can be reached at 602-682-5582 or at kbreger@bregerlaw.com. Remember if you do email Mr. Breger please provide a phone number where he can call you back at to discuss your situation. Mr. Breger’s principal office is located at 2025 N. 3^rd Street, Suite 157, Phoenix, AZ 85004 and he also has an address in Scottsdale. He represents clients throughout Maricopa County, Pinal County and Yavapai County.

The information in this article is current as of January 2008. Remember that all cases need to be assessed on their individual merits and you should consult your attorney to discuss the specific issues in your case.

[1] And possibly other criminal charges depending on the circumstances.

“Beware of the Dog!”

2010-03-08T00:10:00.000-08:00

Is it really a crime?

Adam[1], a forty something year old man, was walking his family dog in one of the local preserves in Scottsdale. His dog, Chauncy, a golden retriever mix was walking at his side keeping to himself and happily smelling the neighboring rocks. Adam and Chauncy were both relaxed and enjoying the beautiful scenery that we are blessed with here in Arizona. All of that changed very quickly and unexpectedly.

Officer X approached Adam and sternly informed him that he was in violation of the local city leash laws because Chauncy was not on a leash. Adam did have a leash but had momentarily taken Chauncy off since no one was around. (Or so he thought.) Officer X then proceeded to issue Adam with a citation for his infraction.[2]

Adam, who had never been in trouble with the law, was now facing criminal charges[3] and all of the potential direct and collateral consequences that are associated with being a criminal-yes the law views him as a criminal. If convicted of the charge he would be guilty of a class 3 misdemeanor. The potential consequences for such a conviction are up to 30 days in jail and a fine of up to $500 - not to mention the impact a criminal conviction would have on his career, job opportunities and being able to provide for his family. Depending on what line of work he is in a conviction could impact his ability to continue in his line of work. If he is an immigrant (LEGAL) it could have implications with respect to his ability to continue to reside and work in the United States.

All this just because he did not have his dog on a leash? Unfortunately, yes. It does not matter that Adam did not know that by law he was not allowed to have his dog off of the leash because in accordance with Arizona Revised Statute § 13-204(B) “Ignorance or mistake as to a matter of law does not relieve a person of criminal responsibility.”

The moral of the story is if you own an animal be sure to know what laws pertain to you keeping that animal and beware of any failure to follow them. . .

Kevin Breger is the principal attorney at The Law Offices of Kevin Breger, PLLC . Mr. Breger focuses exclusively on criminal law and DUI representation and can be reached at 602-682-5582 or at kbreger@bregerlaw.com. Remember if you do email Mr. Breger please provide a phone number where he can call you back at to discuss your situation. Mr. Breger’s principal office is located at 2025 N. 3^rd Street, Suite 157, Phoenix, AZ 85004 and he also has an address in Scottsdale. He represents clients throughout Maricopa County, Pinal County and Yavapai County.

[1] All names in this article have been changed to protect the innocent.

[2] See for example Revised Code, City of Scottsdale Sec. 4-39(k) which reads “The owner or persons acting for the owner of a dog must restrain and control the dog at all times when in a public park by securing the dog with a leash of not more than six(6) feet, except when the dog is in an enclosed area within the park, which has been designated by a municipality as a dog exercise area.” Bear in mind though that each city or county may have their own specific laws dealing with this issue each of which may have their own consequences or level of seriousness.

[3] Revised Code, City of Scottsdale Sec. 4-39(n)(3).

DUI? Don’t Get The Max!

2010-03-08T00:05:00.000-08:00

Depending on the time of day and the circumstances you can be pretty sure that anytime a police officer conducts a traffic stop on your car, he or she will also be conducting a DUI investigation. The officer will look for “signs and symptoms of impairment” which include but are not limited to: bloodshot and watery eyes, whether the odor of alcohol is emanating from the car or person, the person’s speech and the person’s movements. Based on the officer’s observations and the answers provided to the questions things could go downhill from there. . .

That is where knowing your rights is all important. If you are stopped for a DUI you should provide a copy of your license, registration and insurance-if asked-and you may inform the officer:

-I hereby invoke my right to remain silent and I refuse to answer any questions (bear in mind you are obligated to provide your name and other identification specifics.)

I refuse to perform any physical or eye tests.

I hereby demand an immediate private phone call to my attorney.

I will submit to your blood or breath alcohol test after a confidential call to my attorney, unless it will unduly delay your investigation (if you ask and the officer does not let you make the call do not then refuse to further cooperate with regard to the breath or blood test-the fact that you asked the question and the officer refused to allow you to call will have an impact with regard to the admissibility of the results in your case.)

I hereby request to preserve a sample of my breath or blood for independent testing.

I demand that I be released for independent tests or other evidence, immediately following the completion of your paperwork.

If you are driving and you are DUI don’t make the mistake of thinking that “fessing up” to the officer will result in you getting any breaks. It doesn’t work that way!

Also remember that you should always be polite and courteous to the officer (even when exercising your rights) – do so even if the officer is being rude. This will stand you in good stead down the road and will help your attorney in working towards a better result in your case.

Finally do not drink and drive. If you do and you get caught do not forget your rights and remember there are two things you should never stint on - medical and legal help...

Kevin Breger is the principal attorney at The Law Offices of Kevin Breger, PLLC. Mr. Breger focuses exclusively on criminal law and DUI representation and can be reached at 602-682-5582 or at kbreger@bregerlaw.com. Remember if you do email Mr. Breger please provide a phone number where he can call you back to discuss your situation. Mr. Breger’s principal office is located at 2025 N. 3rd Street, Suite 157, Phoenix, AZ 85004 and he also has an address in Scottsdale. He represents clients throughout Maricopa County, Pinal County and Yavapai County.

The information in this article is current as of December 2008. Remember that all cases need to be assessed on their individual merits and you should consult your attorney to discuss the specific issues in your case.

MyFox Phoenix

2010-02-28T12:07:00.000-08:00

MyFox Phoenix