Category Archives: Criminal

Planet Defendant: Due Process

Being charged with a crime can feel like being transported to another world called Planet Defendant. Like all worlds, Planet Defendant has its own customs and procedures that one should learn. A very important custom and procedure on Planet Defendant is called due process of law. Due process of law comes from the Fifth Amendment to the U.S. Constitution which states that no person shall be deprived of life, liberty, or property without due process of law. The Fifth Amendment applies to Arizona criminal court proceedings because the Fourteenth Amendment states that no state shall deprive a person of life, liberty, or property without due process of law. Moreover, the Arizona State Constitution has a due process clause found in Article 2, Sec. 4. Therefore, due process of law is a federal and state right. Due process of law basically means that a person accused of a crime is treated fairly throughout the criminal proceedings against him. It includes procedural due process such as procedures concerning notice, presenting evidence on his own behalf, and challenging evidence against him. It also includes substantive due process such as fundamental fairness and a meaningful hearing. “Fundamental fairness” and “meaningful hearing” are incapable of precise definition; they are intended to be fuzzy and flexible since it is impossible to accurately define and know the myriad ways that a prosecutor or court could appear to give a person accused of a crime procedural due process yet act in such a way that is fundamentally unfair and renders the hearing or trial meaningless. A court not allowing a person accused of a crime enough time to present his defense would violate the fundamental fairness substantive due process of law. Moreover, a court deliberately ignoring exculpatory evidence presented at trial would violate the meaningful hearing substantive due process of law. Due process of law is generally the right to notice and a meaningful hearing or trial before a fair and impartial judge wherein the accused may present evidence and witnesses in his defense, cross-examine witnesses and challenge evidence against him, and present arguments and law in his defense. The specific procedures used to notify the accused and conduct the hearing or trial are based on the type of hearing or trial. Some examples are: Felony indictment or complaint in superior court gives rise to right to a jury trial; Misdemeanor complaint in city or justice court gives rise to right to a jury or nonjury trial depending on the nature of the charge; Motion for Release on Bail gives rise to a bail release hearing; Petition to revoke probation gives rise to a right to a probation revocation hearing. Designation of an offense as a Class 6 felony instead of a misdemeanor gives rise to the right to receive actual notice and an opportunity to be heard; Motion for an Examination of a Defendant’s Competence to Stand Trial gives rise to a hearing. Interestingly, due process of law does not apply to every type of criminal procedure. … Continue reading

Posted in Criminal | Comments Off on Planet Defendant: Due Process

Planet Defendant: Right to an Attorney

Being charged with a crime can feel like being transported to another world called Planet Defendant. Like all worlds, Planet Defendant has its own customs and procedures that one should learn. A very important custom and procedure on Planet Defendant is called right to an attorney. The Sixth Amendment of the United States Constitution provides that the accused in all criminal prosecutions shall enjoy the right to have the assistance of counsel for his defense. Article 2, Section 24 of the Arizona State Constitution provides that the accused shall have the right to appear and defend by counsel. Federal courts debated for decades whether the Sixth Amendment right to an attorney applied to state court proceedings via the Fourteenth Amendment. In 1963, the United States Supreme Court held that the Sixth Amendment right to an attorney applied to the states in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). https://supreme.justia.com/cases/federal/us/372/335/case.html The Court quoted Mr. Justice Sutherland in Powell v. Alabama on the importance of a lawyer representing an accused: “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.’287 U.S., at 68—69, 53 S.Ct., at 64, 77 L.Ed. 158.” Id. at 344-345. One year later, Arizona beefed up its public defender offices to comply with Gideon v. Wainwright. Indigent defendants charged with felonies are appointed public defenders as are indigent defendants charged with misdemeanors facing jail time. All this is good as long as a person qualifies as “indigent” and the appointed public defender is not overworked or incompetent. The Arizona Court of Appeals found that a nonindigent defendant did not validly waive his right to counsel in State v. Jones, 146 Ariz. 278, 280 (App. 1985): “All that the present record reflects is that the defendant’s appointed attorney was discharged four weeks before trial, that the defendant attempted to raise money to hire an attorney, and that he was told that if he did not hire an attorney he would be required to represent himself. A valid waiver of counsel cannot be established by these facts. Defendant was not warned of the dangers of self-representation. He was not asked if he wished to … Continue reading

Posted in Criminal | Comments Off on Planet Defendant: Right to an Attorney

Planet Defendant – Being Charged With a Crime

You’ve never been charged with a crime before. Maybe you can’t afford to pay a civil traffic ticket so your license gets suspended and you get pulled over and cited for driving on a suspended license. Or maybe you have too much to drink and are stopped and cited for DUI. Suddenly, you have to rearrange your world to accommodate court dates and the Arizona criminal justice system. You have to learn a new vocabulary, deal with new people like court staff, prosecutors, and judges, and travel to new places like a city or justice court. You feel like you’ve arrived on a new planet. You have.  Welcome to Planet Defendant! Planet Defendant in the galaxy of the Arizona criminal justice system may seem deceptively simple. Unfortunately, neither driving on a suspended license nor driving under the influence is simple. Take driving on a suspended license. The prosecutor tells you the plea offer. He or she does not give you a copy of your driving records showing that your license was suspended. He or she does not inform you that your driver’s license will probably be suspended again if you plead guilty. Is the plea offered the best under the circumstances? How do you get a copy of your driving records? Who do you talk to at the Arizona Department of Transportation to find out if taking the plea will result in another suspension? Should you go to trial? These are questions only an experienced attorney can help you answer. Driving under the influence is even more complicated. The prosecutor acts like all the evidence against you is damning. Did the police legally obtain your blood sample? Was your blood sample analyzed correctly? Did the officer have probable cause to stop you? Were you really impaired to the slightest degree in your ability to operate a motor vehicle? Will the Arizona Department of Transportation issue you a discretionary suspension in addition to the DUI suspension? Should you take the plea? Should you go to trial? Once again, an experienced attorney can help you answer these questions. Get in touch with the Law Offices of Gary L Rohlwing for any DUI related case. You need an experienced guide to help you navigate Planet Defendant if you are charged with driving on a suspended license or driving under the influence. Attorney Gary Rohlwing is a criminal lawyer and DUI attorney with over three decades of experience. Please call him today for a free consultation.

Posted in Criminal | Comments Off on Planet Defendant – Being Charged With a Crime

What to Do When Charged with a Dangerous Offense

A dangerous offense may be applicable in cases where a specific dangerous instrument or tool is utilized as a weapon in inflicting bodily harm to another person. The dangerous tool may be a loaded gun, baseball bat, knife, or stick. The most common dangerous instruments used are guns and knives. In the state of Arizona, if you are charged with a dangerous offense, it means that you are faced with an accusation that is on top of the actual crime you are initially accused of. Thus, you need to have proper legal representation to make sure that your rights are protected at all times.   An Extremely Serious Offense If you are charged with a dangerous offense, you must not take it lightly because it is quite a serious crime. Among the most prevalent dangerous offenses is the charge of aggravated assault. This is considered a Class 3 felony. When a prosecutor files a dangerous offense allegation, it means that the felony was committed with the use of a dangerous instrument. There are several reasons that make a dangerous offense a serious charge. For one, a conviction for this felony comes with mandatory jail time. Thus, even if you do not have a criminal record of any type, you can expect to face some prison time once convicted. You need to have a competent and experienced criminal defense lawyer by your side to walk you through the entire process. The Law Offices of Gary L. Rohwling can help make sure that you get the best legal defense and results possible.   Types of Dangerous Offense Charges Two of the most prevalent types of dangerous offense charges are aggravated assault and disorderly conduct. Aggravated Assault – This type of dangerous offense may be charged if you assault another person – even if you do not actually shoot or stab anyone. You can be charged with the felony by merely threatening someone with a gun or a knife. Being a Class 3 felony, you can go to jail for a presumptive or average term of 7 ½ years if it is your first offense. Here is an example of what merits an aggravated assault dangerous offense. If you are actually holding a weapon or a certain type of dangerous instrument, and you threaten another person that you will inflict bodily harm, you will most likely be accused of an aggravated assault. The weapon doesn’t even have to be a gun or a knife. It may be a stick, a rock, or anything that you can use as a dangerous instrument. Disorderly Conduct – A disorderly conduct charge involves the act of recklessly displaying a dangerous instrument or tool. You don’t even have to point a gun or knife, or fire a gun at another person to be charged and get convicted for a disorderly conduct dangerous offense. Mere possession and open display of the instrument is enough. The conviction for this can be charged as a Class 6 felony.   Final Word … Continue reading

Posted in Criminal | Comments Off on What to Do When Charged with a Dangerous Offense

Restoring Gun Rights in Arizona

A person with a felony conviction cannot legally possess or use guns in Arizona. Restoration of gun rights is not automatic in Arizona. Whether or not a person can have gun rights restored after a felony conviction depends on the nature of the felony and how much time has passed since the date of conviction. A person who has been convicted of a dangerous crime can never have their gun rights restored according to A.R.S. §§ 13-905(C) https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/13/00905.htm and 13-906(C).  https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/13/00906. A.R.S. § 13-105(13) defines a “dangerous offense” as an offense involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury to another person. An individual with a misdemeanor conviction for an offense that is considered “domestic violence” faces serious obstacles in restoring gun rights. In 1997, Congress passed the Domestic Violence Offender Act found at 18 U.S.C. § 921(A)(33)(B)(ii) https://www.law.cornell.edu/uscode/text/18/921. This federal act prohibits a person convicted of a domestic violence offense from possessing a gun unless the conviction was expunged, set aside, or had civil rights restored in states where domestic violence misdemeanors cause a loss of civil rights. In Arizona, a misdemeanor conviction does not result in a loss of civil rights. This means that the only process available to possibly restore gun rights is to apply to set aside the conviction pursuant to A.R.S. § 13-907 https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/13/00907.htm Unfortunately, a judge could decide to set aside the conviction and not restore gun rights. A person who has been convicted of a felony offense that is not a serious offense as defined by A.R.S. § 13-706 must wait for two years from his or her discharge from probation or absolute discharge from prison before filing for restoration of gun rights. A person who has been convicted of a serious offense as defined by A.R.S. § 13-706 must wait for ten years from his or her discharge from probation or absolute discharge from prison before filing for restoration of gun rights. A.R.S. § 13-706(F)(1) defines “serious offense” as: (a) First degree murder. (b) Second degree murder. (c) Manslaughter. (d) Aggravated assault resulting in serious physical injury or involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument. (e) Sexual assault. (f) Any dangerous crime against children. (g) Arson of an occupied structure. (h) Armed robbery. (i) Burglary in the first degree. (j) Kidnapping. (k) Sexual conduct with a minor under fifteen years of age. (l) Child sex trafficking. Restoration of gun rights is discretionary with the judge or his/her successor who sentenced the individual. If you want to restore your gun rights, you need an experienced attorney who will fight for you. Get in touch with Attorney Gary Rohlwing to help with restoring your rights to carry a firearm. He has over three decades of experience. Please call him today for a free 30 minute consultation.  

Posted in Criminal | Comments Off on Restoring Gun Rights in Arizona