Author Archives: Gary Rohlwing

Factors Used To Recommend Intensive Probation

Intensive Probation – A Possible Alternative to Prison? Arizona intensive probation is designed to be an alternative to prison. As such, it includes house arrest and other types of intense monitoring such as maintaining employment or full-time student status, paying restitution and probation fees, residing at a place approved by the intensive probation team, complying with drug and alcohol testing if requested by the intensive probation team, performing between twenty and forty hours of community restitution, and meeting any other conditions imposed by the court. The Arizona Code of Judicial Administration § 6-202 describes what factors a probation officer must use in deciding whether to make a recommendation to the court for intensive probation. The information below comes from the following link to § 6-202: https://govt.westlaw.com/azrules/Document/N8991D3B029F711DE86D8BDEF91DD0749?viewType=FullText&originationContext=documenttoc&transitionType=DocumentItem&contextData=(sc.Default) 4. A.R.S. § 13-914(B) provides: “The adult probation officer shall evaluate the needs of the offender and the offender’s risk to the community, including the nature of the offense and the prior criminal history of the offender …” Adult probation department staff shall administer the standardized assessment. The adult probation officer shall consider these factors in making a recommendation to the court for placement on intensive probation. 5. In determining appropriateness for intensive probation the probation officer shall also consider: The offender’s need for the structure, accountability, and close monitoring; The focus on treatment inherent in the intensive probation program; The benefits of the intensive probation program to the offender; Community safety; The potential harm to the victim including the victim’s attitude toward placing the offender on intensive probation; Payment of restitution; The probability the offender will remain at liberty without violating the law; Performance of community restitution hours; The offender’s legal eligibility to work in the United States; and Any other factors determined appropriate to the ends of justice and the safety of the community. 6. The probation officer shall include the reasons supporting intensive probation in the presentence report.   Only factor i. can be objectively determined. Factor j. is open-ended and could include any number of things. If you are facing a criminal sentence that includes intensive probation, you need an experienced defense attorney. Attorney Gary Rohlwing has over three decades of experience. Call him today for a free initial consultation.

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GPS Tracking Devices and the 4th Amendment

A GPS tracking device can provide great peace of mind if you install one on your teenage son or daughter’s car. However, you have no peace of mind if a police officer installs one on your car without your knowledge and without first obtaining a warrant. The Supreme Court of Arizona dealt with this issue in State v. Jean (Jan. 3, 2018) which is found here http://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2018/State%20v.%20Jean%20Opinion.pdf   David Velez-Colon and defendant Jean shared the driving of a commercial tractor-trailer from Georgia to Arizona. See Id., ¶ 2. Arizona DPS officers in Phoenix became suspicious and learned that the trailer was reported stolen and the truck was registered to Velez-Colon. See Id. Suspecting that the vehicle was being used to transport drugs, DPS officers installed a GPS tracking device on the truck without obtaining a warrant. See Id. The officers monitored the truck’s movements with GPS for about thirty-one hours over three days. See Id., ¶ 3. Assisted by the GPS location data, a DPS officer stopped the vehicle around 4:00 a.m. on February 19 after it reentered Arizona. Id., ¶ 4. Officers searched the trailer and found 2140 pounds of marijuana. See Id. The trial court denied Jean’s motion to suppress, reasoning that Jean, as a passenger, did not have standing to object to the State’s use of the GPS tracking device on the truck owned by Velez-Colon. Id., ¶ 6.  Jean was found guilty and sentenced to ten years in prison. See Id. The Arizona Court of Appeals affirmed. See Id., ¶ 7. The Supreme Court of Arizona granted review to determine whether the warrantless GPS tracking constituted a search and violated Jean’s rights under the Fourth Amendment, and if so, whether the evidence gathered there from should be excluded. See Id., ¶ 8. The Court held that a passenger could challenge the GPS monitoring as a search and that the duration of the government’s GPS monitoring did not determine whether it constituted a search. See Id., ¶¶ 32, 34, 37. In the Court’s words:   “By holding that Jean, like the owner Velez-Colon, can challenge the GPS monitoring as a search, we reaffirm the protections embodied in the Fourth Amendment against warrantless government surveillance. Requiring such searches generally to be supported by a warrant based on probable cause does not unduly burden the government’s interests, particularly because this requirement already applies with respect to the person who owns or lawfully possesses the vehicle. Treating such surveillance as a search as to passengers protects the privacy interests of both those who own or possess the vehicle and those who travel with them. Cf. United States v. U.S. District Court (Keith), 407 U.S. 297, 314-15, 321 (1972) (balancing governmental and privacy interests in concluding, categorically, that surveillance for domestic security purposes should be subject to “the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance”). . . “ Id., ¶ 37. Originally found on http://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2018/State%20v.%20Jean%20Opinion.pdf If you or a loved one is charged with a crime where GPS monitoring is part of the evidence, you need an experienced attorney to help you. Criminal Attorney Gary Rohlwing has over three … Continue reading

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Arizona’s Aggravating Circumstances Law: Part 1

Arizona has 26 aggravating circumstances that a trier of fact shall determine and the court shall consider when sentencing a person convicted of a felony according to A.R.S. § 13-701(D). Every circumstance except circumstance 26 is a fact about the defendant’s criminal history, the defendant’s conduct, the victim, or the felony. Circumstance 26 is a catch-all for the prosecutor to use if the other aggravating circumstances don’t apply. This blog post will discuss aggravating circumstances that are facts about a defendant’s criminal history and conduct. Aggravating circumstances that are facts about a defendant’s criminal history are: The court determines that the defendant was previously convicted of a felony within the ten years immediately preceding the date of the offense. (aggravating circumstance (11). The defendant was convicted of negligent homicide, manslaughter, second degree murder or aggravated assault arising from an act that was committed while driving a motor vehicle and the defendant’s alcohol concentration at the time of committing the offense was 0.15 or more. (aggravating circumstance (16)). The defendant was convicted of one or more of the following federal crimes: unlawfully bringing aliens into the U.S., bringing in and harboring certain aliens, improperly entering the U.S. as an alien, reentering the U.S. as an alien, or importing an alien for an illegal purpose at the time of the commission of the offense. (aggravating circumstance (21)) During or immediately following the commission of the offense, the defendant left the scene of a car accident involving death, physical injuries or vehicle damage, or did not give information and assistance following a car accident during or immediately following the commission of the offense. (aggravating circumstance (23)) ‘ The defendant was convicted of sex trafficking or trafficking of persons for forced labor or services or child sex trafficking and the defendant recruited, enticed or obtained the victim from a shelter that is designed to serve runaway youth, foster children, homeless persons or victims of human trafficking, domestic violence or sexual assault. (aggravating circumstance (24)). The defendant was convicted of aggravated assault and there is evidence that the defendant committed the crime out of malice toward a victim because of the victim’s employment as a peace officer. (aggravating circumstance (25)). Aggravating circumstances that are facts about a person’s conduct are: Infliction or threatened infliction of serious physical injury, except if this circumstance is an essential element of the offense of conviction or has been utilized to enhance the range of punishment. (aggravating circumstance (1)). Use, threatened use or possession of a deadly weapon or dangerous instrument during the commission of the crime, except if this circumstance is an essential element of the offense of conviction or has been utilized to enhance the range of punishment. (aggravating circumstance (2)). At the time of the commission of the offense, the defendant was a public servant and the offense involved conduct directly related to the defendant’s office or employment. (aggravating circumstance (8)). The defendant was a personal representative, guardian, conservator, or trustee under Title 14 and the offense … Continue reading

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Arizona’s Opioid Crisis – Why You May Need a Criminal Lawyer

On June 1, 2017, the Arizona Department of Public Health issued a News Release that stated: The Arizona Department of Health Services today released its latest data on opioid overdoses in Arizona showing the highest number of deaths in ten years. In 2016, 790 Arizonans died from opioid overdoses. The trend shows a startling increase of 74 percent over the past four years. . . . Key findings from the report include: An average of two Arizonans die each day from an opioid overdose. Opioid overdoses and deaths are steadily increasing each year with 2016 showing the highest number of deaths. In 2016, 790 Arizonans died from an opioid overdose. Heroin deaths have tripled since 2012. In the past decade, there were 5,932 people who died from opioid-induced causes. Arizona opioid death rates start to rise in the late teens and peak at age 45-54. The opioid death rate drops significantly above the age of 65. There is a significant impact on the healthcare system. Opioid-related hospital encounter rates have increased by 300 percent over the past decade. Arizonans are requiring more doses of naloxone to reduce opioid overdose deaths. While the majority of deaths occur in metropolitan areas, rural areas have the greatest challenge in responding to opioid overdoses. Read more on the AzDHS.gov website here.   On June 5, 2017, the Office of the Governor Doug Ducey issued a News Release about his emergency declaration concerning the opioid crisis: Governor Doug Ducey today signed an emergency declaration to address the growing number of opioid deaths in our state. As the number of opioid overdoses and deaths increase at an alarming rate, we must take action. It’s time to call this what it is — an emergency,” said Governor Ducey. “Most of us know someone impacted by substance abuse — our family, our friends, our neighbors. Our hearts ache for them, but that isn’t enough. We must do more. I’m declaring a statewide health emergency because we need to know more about the epidemic, including enhanced data that illustrates when and where these overdoses occur so that we can develop real, targeted solutions. Read the full release on AzGovernor.org. The emergency declaration directed that the State of Arizona Emergency Response and Recovery Plan be used to direct and control State and other assets, and authorize the Director of the Arizona Department of Emergency and Military Affairs to coordinate State assets. It authorized the Director of the Arizona Department of Health Services to coordinate all matters pertaining to the public health emergency response of the State. It required the Director of the Arizona Department of Health Services to consult to the Governor on identifying and recommending the necessary elements for an Enhanced Surveillance Advisory, initiate emergency rule making with the Arizona Attorney General’s Office in order to develop rules for opioid prescribing and treatment within health care institutions, and develop guidelines to educate healthcare providers on responsible prescribing practices. Opioid abuse often leads to criminal charges. If you or a loved one … Continue reading

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Arizona Has a Zero Tolerance DUI Policy – What Does That Mean For You

The Arizona Zero Tolerance DUI Law Arizona passed A.R.S. § 4-244(34) in response to the 1995 National Highway Systems Designation Act stating that federal highway funds would be withheld from any state that failed to set a 0.02 alcohol concentration limit for minor drivers. A.R.S. § 4-244(34) provides: “It is unlawful for a person under twenty-one years of age to drive or be in physical control of a motor vehicle while there is any spirituous liquor in the person’s body.” In Arizona, you are deemed underage for drinking if you are less than 21 years old – even if you will be celebrating your 21st birthday in 6 hours. While other states would allow alcohol concentrations up to 0.02% for underage drivers, Arizona allows zero alcohol concentrations. It is a fact that it is illegal for minors to drink alcohol. However, minors cause approximately 17% of all alcohol-related car crashes resulting to death every year. Around 2000 underage drinkers lose their lives while driving, one third of which involve alcohol.   Why Arizona Has Zero Tolerance DUI Laws in Place Why does Arizona have this zero tolerance DUI law? Everyone knows that many people started drinking alcohol before they were 21, the legal drinking age. Chances are, most have driven a motor vehicle as well. Unfortunately, approximately one third of all fatal accidents that involve 15 – 20 year old minors are car accidents, around 35% of which involve alcohol. The percentage of alcohol-related accidents in young drivers is about twice as much as the rate for drivers above the age of 21.   The Impact of Zero Tolerance Laws There’s no doubt that zero tolerance is stringent and may seem too harsh for some people. In fact, a lot of people doubt whether the strict policy actually has a positive effect on minors. The NHTSA (National Highway Traffic Safety Administration) compared statistics between 12 states that have a zero tolerance law in place against 12 other states with no zero tolerance laws in place. The results? States with zero tolerance laws showed a 20% drop in single night time crashes that resulted to death of underage drivers. According to the NHTSA, the biggest decrease in deadly crashes happened in states with underage alcohol concentration of no more than 0.02%. States that allow a higher alcohol concentration level for underage drivers registered less impact. Although the NHSD Act of 1995 merely required states to set a 0.02% alcohol concentration limit for minor drivers, Arizona along with other states decided to put a zero tolerance policy in place. The law may be harsh but the figures do not lie. The difference between 0.00% and 0.02% may be miniscule but it keeps more underage drivers alive. Arizona has good reason to take the NHSDA act seriously. When facing a zero tolerance DUI charge in Arizona, contact the Law Offices of Gary L Rohlwing and make sure your rights are protected. Law Offices of Gary Rohlwing – Peoria Law Offices of Gary L. … Continue reading

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