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The Legal 411 on 420

The Legal 411 on 420

The day of the stoner is over as more and more Arizonans use medicinal marijuana to treat illnesses, reduce pain, and improve the quality of their lives. Responsible people have questions about cannabis to make sure they buy, store, and consume cannabis safely and legally. There are also questions about how existing marijuana laws are affected by Proposition 205 and how these laws impact individuals as parents, employers, employees, and citizens.

Submit a question in the comment section below to start a conversation and get a response from one of our experienced attorneys.

Guns Laws v. Gun Crimes in Arizona: When Does a Hero Become a Criminal?

An Experienced Criminal Defense Attorney’s Perspective on
Guns Laws v. Gun Crimes in Arizona: When Does a Hero Become a Criminal?

Arizona laws are extremely favorable to those who choose to legally own and carry firearms. But criminal defense attorneys have seen that while our state has some of the most lenient gun laws in the United States – laws that support gun ownership and possession it has also some of the harshest sentences for gun crimes. It is said that one of the worst things for any gun owner is to be in a situation where they have to use their gun. The one thing worse, however, is to be in that situation, but not have a gun.

In virtually every situation where a gun is displayed, pointed, or used, police will be called and there will be two questions asked that will have significant impact on the gun owner:  1) was gun owner justified; and 2) should he or she be charged with a crime? Unfortunately, the differences that determine the answer to these questions can be hard for even the most experienced and trained gun owner to understand. What is even more frightening, they are even difficult for police officers and prosecutors to understand.

The answer to the question, hero or criminal, hinges on concepts such as recklessness, reasonableness, self-defense, and justification. These are dense and complicated legal concepts that have a lot of interplay and are often open to interpretation and debate. In almost all cases it is prosecutors, often young and inexperienced, who determine whether a gun owner is viewed as a hero on one hand or a criminal facing up to 15 years in prison on the other.

To protect yourself and avoid being viewed as a criminal by police and prosecutors, it is critical to understand the gun laws in Arizona, the common gun crimes that are charged, and the slight differences that police and prosecutors look for when answering the question: hero or criminal.

Arizona Gun Laws that Support Ownership and Self-Protection:

  1. Any person over the age of 18 who is not prohibited from possessing a firearm may purchase a firearm. [Prohibited possessors – hyperlink: http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/13/03101.htm&Title=13&DocType=ARS ]include undocumented aliens and those with felony convictions in this state or another state that haven’t had their rights restored. A person with a felony conviction does not automatically get their gun rights restored when other of their civil rights were automatically restored because it was a first time offense under Arizona Revised Statutes Section 13-912 (http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/13/00912.htm&Title=13&DocType=ARS ), but must specifically petition a court to have their right to possess a weapon restored.
  2. Any person 18 years old or older who can legally own or purchase a firearm may open carry a firearm in public. That means a person may carry a gun out in the open. This includes handguns in a holster and even hunting rifles and assault rifles. Open carry includes firearms out in the open in a vehicle.
  3. A firearm will not be considered “concealed” if it is carried in any of the following:
    1. A manner where any portion of the firearm or holster in which the firearm carried is visible.
    2. A holster that is wholly or partially visible.
    3. Luggage.
    4. A case, holster, 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.

This means it is legal for a person 18 years or older who can legally possess a firearm to keep a handgun in a glove compartment, or other compartment, if the handgun is in a holster or case.

  1. A person who is 18 years old or older who may legally possess a firearm may carry a concealed weapon if they are in their own residence or a business premises or property owned or leased by that person or that person’s parent, grandparent or legal guardian.

 

  1. Arizona is a permit-less carry state which means anyone 21 year old or older who can legally own or purchase a fire arm can carry it concealed without any type of concealed carry permit. This law took effect in July of 2010. This includes carrying a firearm in a vehicle.

Restrictions to the Gun Laws Listed Above:

  1. A person under the age of 21 cannot carry a firearm concealed on their person or in a motor vehicle.
  2. You must inform a law enforcement officer when asked if you are carrying a firearm. Failure to do so may result in an arrest and criminal charge of misconduct involving weapons.
  3. A law enforcement officer who makes contact with a person in possession of a firearm may take temporary custody of the firearm during that contact.
  4. Schools – A person may NOT possess a firearm on school grounds. A firearm that is not loaded but carried within a vehicle under the control of an adult provided that, if the adult leaves the vehicle the firearm cannot be visible from the outside of the vehicle and the vehicle must be locked.
  5. Public or private businesses or events may restrict an individual from carrying a gun, either open or concealed, on their property if the business owner posts a sign that clearly prohibits the possession of firearms or if the operator of the business or event, or their employee, requests the gun owner remove the gun.

Common Gun Crimes in Arizona

  1. Misconduct involving weapons: The most common misconduct involving weapons charge arises when a person with a felony conviction who has not had their gun rights restored is in possession of a gun. Having a gun near the person, such has in a car or in a house may be considered “constructive possession” and may result in a charge for misconduct involving weapons. Failure to follow the law and restrictions listed above will also result in a misconduct involving weapons charge. Misconduct involving weapons charges range from misdemeanors to felonies and can carry a sentence from fines to probation and mandatory prison.
  2. Unlawful Discharge “Shannon’s Law”: Firing a weapon within city limits with criminal negligence is a crime and charged as a felony that can be punished by probation or a prison sentence.
  3. Disorderly-Conduct and Aggravated Assault: These crimes are discussed together because often the difference between disorderly conduct with a weapon and aggravated assault with a weapon is difficult to understand. Disorderly conduct is disturbing the peace of a person by recklessly handling, displaying, or discharging a firearm. When no injury occurs, aggravated assault is when a person uses a firearm to put another person in fear or apprehension of being shot. Traditionally, it is believed that if a person pulls out or otherwise displays a gun without being justified, they have committed disorderly conduct and if a person points a gun at another person without being justified, they have committed aggravated assault. Unfortunately, a person can be charged with aggravated assault even a person was never injured and even when a gun was never pointed. Both disorderly conduct and aggravated assault charges involving a weapon can carry a mandatory prison sentence of up to 3 years for disorderly conduct and up to 15 years for aggravated assault.

Innocent and law abiding gun owners typically find themselves facing either a disorderly conduct or aggravated assault charge when they act in self-defense. It is in these situations where a hero is viewed as a criminal by law enforcement and prosecuting agencies. Some of the factors they consider in coming to this conclusion are:

  1. Who called the police? Unfortunately, the person who first speaks to police is the person that is able to create the 1st impression with police.
  2. Did the person with a gun retreat? In Arizona, a person who is justified in using a firearm for defense has no duty to retreat when they are somewhere they are legally allowed to be. This includes public roadways. Yet, police officers and prosecutors may still consider that as a factor when deciding if a gun owner was acting in self-defense, or otherwise justified in using a gun.
  3. Was the gun owner justified? Was their conduct reasonable? What is justified hinges on the word reasonable. Reasonable is a legal term and often difficult to understand. It is something that is frequently debated among lawyers and judges.

These are some of the questions and factors that prosecution agencies consider in deciding whether a person is a hero or a criminal. A prosecutor’s opinion, however, is never the end. The opinion that ultimately matters belongs to a jury. These juries are routinely rejecting the opinions and conclusions of law enforcement and prosecutors and finding that individuals who are forced to use their gun in self defense are reasonable and are justified.

Consider these two examples of gun owners using their gun in self-defense:

Scenario 1 – A gun owner is returning home. He has his 2 year-old daughter in the back seat. He notices a car that appears to have been following him for over 2 miles. The gun owner comes to his home and the car that has been following him pulls up next to the gun owner’s house. The gun owner is concerned that the car following him all the way to his house and is fearful that this person may intend to harm him or his family. The gun owner removes his gun from his holster and is prepared to defend himself and his loved ones if necessary. The gun owner never points the gun and anyone and safely handles his firearm.

Scenario 2- A driver carries his gun in his vehicle for protection. While driving on a major street late at night, this gun owner comes across another car that begins yelling and cursing at the gun owner. The gun owner sees that the aggressive car is followed by a second car and that both cars have at least 2 other occupants. When the gun owner stops at a stop light, the two of the occupants in the aggressive car get out and threaten to beat up the gun owner. One of the aggressive occupants has a something in their hand. The gun owner, fearful of his safety, pulls out his gun and shoots one of the aggressive individuals in the leg.

Both of these scenarios are based on real cases where prosecutors made the decision to charge the gun owners with either disorderly conduct or aggravated assault – two crimes that carry mandatory prison sentences. In both of these scenarios reasonable people understand why the gun owners would be concerned for their safety and why they would display or use their weapon.

These scenarios and others like them are not unique [ http://viral.buzz/video-homeowner-shoots-and-kills-trespasser-inside-his-garage-gets-70-years/ ] .  Gun owners throughout our state are being arrested and charged with serious crimes and facing serious penalties. Gun owners who are charged with a gun crime need an attorney that can clearly explain the facts and the law to prosecutors and ultimately to a jury. An experienced attorney can help communicate the reasons the gun owners were justified in protecting themselves or others and why their actions were reasonable. If you or a loved one is charged with a gun crime, it is critical to hire an attorney who is familiar with prosecutors’ opinions, policies, and arguments when they charge and attempt to convict law abiding gun owners that act in self-defense. The attorneys at Rowley, Long & Simmons have significant experience with these types of crimes and the laws surrounding them. Our attorneys can help prevent gun owners who were acting as heroes from being treated like criminals.

 

An Introduction to Victim’s Rights in Arizona

The United States and Arizona Constitutions provides critical and fundamental rights to everyone. These constitutional protections are the foundation of our criminal justice system. In addition to the important and necessary rights given to those accused of a crime, the Arizona Constitution also provides rights and protections to all those who are victims of crime. Unfortunately, too often victims are often the ones most overlooked in the criminal justice system. Being overlooked will often cause a victim to feel that they do not have a voice or are otherwise unimportant and even mistreated by police officers, attorneys, judges, and other people who make their living in the criminal justice system. The reason they are overlooked is not intentional or malicious, but often due to well meaning people being too busy to give victims the personal attention they not only want, but to which they are entitled.

No one expects to be the victim of a crime. Whether one is a victim or the family member of a victim of a theft, a burglary, an assault, a sexual offense, or a murder, there can be significant emotional, psychological, financial, and physical trauma. Victims and their family members often deal with so many unwanted, unexpected, and unfamiliar things as a result of the crime. One of those unwanted, unexpected, and unfamiliar things is often the criminal justice system. They are thrust into a world with which they have little or no experience; a world with its own culture, rules, and procedures. In most cases, they enter that world the first moment they call or have contact with a police officer, and they continue in the unfamiliar and confusing world of criminal justice for months and even many years.

It can be particularly difficult for child victims to understand and navigate the criminal justice system.

Understanding the criminal justice world and what to expect as the victim or the loved one of a victim can reduce some of the emotional and psychological trauma that is part of being the victim of a crime. Here are a few important things to know to help navigate the criminal justice world:

  1. Victims of crimes have (insert hyperlink constitutional rights – http://www.azleg.gov/FormatDocument.asp?inDoc=/const/2/2_1.htm)– While important, these rights are unfortunately limited to the following:
    1. To be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process. Unfortunately, this right seems more of a hollow platitude and is so vaguely worded to make the enforcement of this right difficult – especially when the victim doesn’t have their own attorney to represent them.
    1. To be informed, upon request, when the accused or convicted person is released from custody or has escaped.
    1. To be present at and, upon request, to be informed of all criminal proceedings where the defendant has the right to be present.
    1. To be heard at any proceeding involving a post-arrest release decision, a negotiated plea, and sentencing.
    1. To refuse an interview, deposition, or other discovery request by the defendant, the defendant’s attorney, or other person acting on behalf of the defendant.
    1. To confer with the prosecution, after the crime against the victim has been charged, before trial or before any disposition of the case and to be informed of the disposition.
    1. To read pre-sentence reports relating to the crime against the victim when they are available to the defendant.
    1. To receive prompt restitution from the person or persons convicted of the criminal conduct that caused the victim’s loss or injury.
    1. To be heard at any proceeding when any post-conviction release from confinement is being considered.
    1. To a speedy trial or disposition and prompt and final conclusion of the case after the conviction and sentence.
  1. A victim is not a party to the case – This seems odd, but it is true. You will notice the name of the case is The State of Arizona v. (insert defendant’s name). The only two parties are the State and the defendant. The defendant gets an attorney, and the state will be represented by a prosecutor. This fact can contribute to a victim feeling overlooked and marginalized.
  2. A victim does not press charges – Related to #1 above, a victim does not make the decision whether to press charges. Often this creates difficulty, especially when the person who is accused or charged was a loved one.
  3. The prosecutor is not the victim’s attorney – Hopefully a prosecutor will have the same goals and objectives as the victim in a crime, but unfortunately, this is not always the case. The victim may want the defendant to receive a more severe plea offer or sentence than the prosecutor is offering. In other cases, the victim may want mercy for the defendant and feel he should be given a more lenient plea offer or sentence. Often the victim has more information than the police or prosecutor and might be in a better position than police or prosecutors to know what might be best for the victim, the defendant, and even the community.
  4. Victims are not appointed an attorney – Although the defendant will be given an attorney to make sure his/her important and constitutional rights are protected, the victim will not be given an attorney to make sure his or her important and constitutional rights are protected. Prosecution and law enforcement agencies have great victim services offices with many resources. Each victim will be appointed a hard working and competent victim advocate to provide information and assistance. These advocates are employees of the law enforcement and prosecution agencies and are not attorneys. As such, sometimes these advocates are limited with the assistance they can provide victims.

Victims are free to hire attorneys to represent them and ensure that their rights are protected. A victim’s rights attorney can also interact with law enforcement and prosecutors to make advocate the victim’s position and advocate on behalf of the victim. A victim’s rights attorney can also help the victim seek and obtain restitution and recover damages for the financial, emotion, and physical harm suffered by the crime.

The attorneys at Rowley Long & Simmons have significant experience with the criminal justice system. Their prior law enforcement and prosecution experience makes them uniquely qualified to represent victims of crimes. This past experience includes dozens of crimes involving significant financial loss, child crimes and sexual offense, and serious injuries and death. These attorneys also have significant experience and training talking to and assisting child victim and witnesses, and can help guide children and their family members as they navigate the unexpected, unwanted, and unfamiliar world of the criminal justice system.

Other resources for victims can be found below:

http://www.azdps.gov/Services/Crime_Victims/

https://www.azag.gov/victim-services/victim-services-0

http://www.voiceforvictims.org/

Police won’t take a time-out during Super Bowl: Soliciting Prostitution and Prostitution Arrests likely to Skyrocket in Arizona this Month

Police won’t take a time-out during Super Bowl: Soliciting Prostitution and Prostitution Arrests likely to Skyrocket in Arizona this Month

As proud Arizonans and football fans, the attorneys at Rowley Long & Simmons are excited that Super Bowl XLIX will be coming to the University of Phoenix Stadium on February 1, 2015. As the Super Bowl comes to Arizona, many legal risks come with it.

One of those risks comes in the form of sex workers.  Innocent people can unwittingly be associated with or accused of paying for or attempting to pay for sex. Arizona has some of the toughest penalties when it comes to sex crimes and prostitution. Just being accused of a sex crime can bring devastating to careers, reputations, and relationships. Law enforcement agencies, the Attorney General’s Office and county attorney’s offices throughout the state have announced they will be aggressively investigating and charging sexually related crimes occurring around the Super Bowl. This position by law enforcement agencies and prosecutors’ offices could result in numerous innocent people being wrongly accused and charged with a crime.

There are a number of ways you can prevent being unfairly accused of a crime that could impact your job, reputation, or relationship with a loved one.  Here are a few important things to know to keep you safe:

  1. Know that prostitution is illegal – Regardless of what happens in Vegas or other parts of the country, prostitution is illegal in Arizona.  Arizona’s law enforcement agencies aggressively investigate these crimes and prosecutors routinely prosecute these crimes.  Don’t mistakenly believe that police will look the other way or will simply let you go with a warning.  They won’t!  If police believe you are trying to enter an agreement for sex, you will be arrested.
  1. Know that prostitution laws are broad – The laws in Arizona related to prostitution are broadly worded and open to the interpretation of the police officer or prosecutor. Even if money isn’t agreed to or exchanged, you can be charged with solicitation of prostitution or prostitution. Buying a meal for a person can be interpreted by police and prosecutors as an item of value that is part of a prostitution agreement resulting in a solicitation for prostitution or prostitution arrest.
  1. Know and understand the risks – Sex workers appear much older than they really are.  They are taught to say they are older than they are. A girl who says she is 19 or 20 could actually be as young as 13 or 14 years old.

In Arizona, it doesn’t matter if you thought the person was an adult.  If you have any sexual contact with a person that turns out to be less than 15 years-old, you will be charged with a crime that can carry a life sentence and lifetime as a registered sex offender.

Even if a person showed you a driver’s license that showed they were 21 and that person turned out to be under 15, you will be charged with child molestation, child rape, and may be charged with soliciting a minor for sex.

In Arizona, a person under the age of 15 cannot consent to sexual contact.

  1. Know police techniques – Police will use undercover officers and informants to catch people who try to pay for sex. If you think you can spot a cop, you’re wrong.  Cops can misrepresent who they are and are permitted to mislead a person to try to get an admission. They don’t have to answer your question truthfully even if you ask if they are police – especially if you ask if they are police. Police may use techniques which amount to entrapment. Police may misinterpret an innocent and harmless exchange as having criminal intent. These techniques may result in innocent people being accused of or charged with a crime.
  1. Know you will not be able to talk your way out of it – If a police officer believes you have committed a crime or intended to commit a crime, it is unlikely your explanations will change his or her mind, even if that explanation is reasonable and makes sense.
  1. Know where to get help – If you are afraid you might be accused, arrested, or charged with a sexual offense such as prostitution, or any crime, call an attorney who understands these cases, understands the techniques police use, and who is expert in representing and defending those accused of these types of crimes.

Rowley Long & Simmons has experienced criminal defense attorneys who can answer your questions and represent you or a loved one who has been accused of this, or any other, crime. Our attorneys are available 24 hours a day 7 days a week to assist you. We hope you enjoy all the activities that are available during the weeks leading up to the Super Bowl. We want all of the people who live in and visit Arizona to stay safe and protected.