Category Archives: Law Offices Gary Rohlwing

Planet Defendant: Double Jeopardy Clause

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. An important custom and procedure on Planet Defendant is called double jeopardy. The concept of double jeopardy is found in the 5th Amendment of the U.S. Constitution which states “. . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”  This is commonly called the “Double Jeopardy Clause.” The Arizona Constitution also has a double jeopardy clause found in Article 2, Section 10 which states that no person shall “be twice put in jeopardy for the same offense.”  At its core, the Double Jeopardy Clause means that no one should ever be punished twice for his or her criminal conduct. The Double Jeopardy Clause tends to come up in three situations:  retrial after a not guilty verdict, multiple criminal charges or counts based on a defendant’s single course of conduct, and defendant’s conduct constitutes a violation of two different criminal statutes. The Double Jeopardy Clause prohibits the State or government from either appealing a not guilty verdict or bringing the same criminal charge against an acquitted defendant in order to obtain a guilty verdict.  For example, California and Florida could not bring new murder charges against O.J. Simpson and Casey Anthony who were found not guilty of murder. The State or government could also charge a defendant with multiple criminal charges or counts based on his or her single, uninterrupted course of conduct.  This situation can occur when multiple sex crimes are charged based on one sexual encounter or when there are multiple victims in a single encounter. The Supreme Court of Arizona recently held that Arizona’s resisting arrest statute, A.R.S. § 13-508, permits only one conviction regardless of the number of officers involved when a defendant resists an arrest in the course of a single, continuous event in State v. Jurden, 239 Ariz. 526 (2016). A violation of the Double Jeopardy Clause can occur when a person’s conduct constitutes a violation of two different criminal statutes.  See State v. Jurden, 239 Ariz. 526 ¶ 10 (2016).  This frequently comes up in the context of lesser-included offenses which are often charged along with greater-included offenses.  For example, the Arizona Court of Appeals found that child molestation pursuant to A.R.S. § 13-1410 was a lesser-included offense to the greater offense of sexual conduct with a minor pursuant to A.R.S. § 13-1405 in State v. Ortega, 220 Ariz. 320 (App. 2008). Double Jeopardy Clause analysis is very complex.  If you are charged with several crimes based on a single course of conduct, you need an experienced defense attorney to make sure that the State has not violated the Double Jeopardy Clause.  Attorney Gary Rohlwing has over thirty years experience. Call him today for a free consultation.

Posted in Law Offices Gary Rohlwing | Comments Off on Planet Defendant: Double Jeopardy Clause

Maricopa County Diversion Programs

On April 9, 2018, the Maricopa County Attorney’s Office announced the creation of a Diversion Programs Bureau that will administer and monitor diversion programs.  The following information is from a Maricopa County Attorney’s Office News Release dated April 9, 2018 https://www.maricopacountyattorney.org/CivicAlerts.aspx?AID=490 “Diversion programs offer our prosecutors another option to help seek justice and reduce crime, said Maricopa County Attorney Bill Montgomery. “Our success is not achieved through simply tracking wins or losses, which we do not do, but rather we measure success by seeking justice for the victims, the offender and our community. Programs like diversion allow eligible offenders a chance to stay in their communities while learning the skills to stop the cycle that may cause them to reoffend in the future” Each case is reviewed by a prosecutor and part of the review includes identifying offenders who would benefit from a diversion program instead of traditional prosecution through the courts.  Offenders who choose to go through diversion can have their charges dismissed or not filed at all upon successful completion of the program. The Maricopa County Attorney’s Office offers the following diversion programs:  TASC (drug diversion), child abuse/excessive punishment, Felony Pretrial Intervention, Non-drug diversion, bad check writing, and juvenile.  You can read about TASC in previous blog posts. The following information about the other diversion programs comes from the Maricopa County Attorney’s Office Deferred Prosecution Program Annual Report, 2016-17, issued on August 8, 2017.  https://www.maricopacountyattorney.org/DocumentCenter/View/513/MCAO-Deferred-Prosecution-Program-Annual-Report-2016-2017-PDF Child abuse/excessive punishment diversion is available to parents and guardians who are first-time offenders with no DCS history who use excessive force in disciplining a child that causes only minor injury and are facing a charge of child abuse or a similar offense.  If they successfully complete the program, they can avoid having charges filed against them. The Felony Pretrial Intervention Program began in July 2015.  It is offered to felony offenders with minimal criminal history who are at low risk to reoffend.  The offender is referred to a community treatment provider who develops an individualized treatment program targeting the offender’s specific needs.  Program length will vary because this is not a “one size fits all” approach. An offender who successfully completes the program will avoid a felony conviction.  The program goals are to reduce recidivism and direct limited resources to offenders who need significant intervention by the criminal justice system. Non-drug diversion is done through Sage Counseling and TASC.  It usually provides programs for offenders who require general “life skills” training, anger management counseling, and drug and alcohol awareness assistance. Bad check writing diversion allows an offender to pay the balance of the bad check in full before criminal charges are filed.  The money order or cashier’s check for the full amount is paid to the MCAO Check Enforcement Program, not the merchant or person(s) who received the bad check. Juvenile Probation Diversion is available for juvenile offenders who have first and second misdemeanors and first time drug-related offenses.  The first or second referral for diversion is handled by the Maricopa County … Continue reading

Posted in Law Offices Gary Rohlwing | Comments Off on Maricopa County Diversion Programs

TASC Diversion Program

If you are charged with a first or second felony drug possession crime in Maricopa County, you are probably eligible for the Treatment Assessment Screening Center (TASC) diversion program.  TASC diversion gives you an opportunity to avoid having a felony conviction for drug possession. Below is more information taken directly from their website at www.tascsolutions.org:ty “With an average success rate of 75 percent, a long-term study by Arizona State University indicates that participants successfully completing the TASC adult diversion program have a significantly lower rate of recidivism than non-participants. To date, more than 34,000 successful cases have been treated through TASC Diversion, saving county resources and allowing participants to avoid a felony conviction. The Maricopa County Attorney’s Office (MCAO) offers TASC Diversion to individuals who: Face felony drug possession charge(s) Do NOT contest their guilt Would likely benefit from a community treatment program Through close communication with the MCAO, TASC’s deferred prosecution program provides programming to meet each individual’s needs. Those who voluntarily participate and successfully complete TASC Diversion will either have the case dropped with no charges filed or have the charges dismissed with prejudice.” The website then discusses their possession of marijuana and possession of a narcotic or dangerous drug programs: “POSSESSION OF MARIJUANA PROGRAM Those dealing with marijuana charges will take part in the Possession of Marijuana program for up to six months. This includes drug screening, education and counseling. 3-Hour Drug Education Seminar Clients are required to attend the drug education seminar one time. Substance Abuse Counseling If a client shows a new usage for marijuana or tests positive for any other illegal substance (including prescription drugs that are not verified with a valid prescription), the client will be referred for substance abuse counseling assessment and services (group or individual sessions). POSSESSION OF NARCOTIC OR DANGEROUS DRUGS PROGRAM Individuals enrolled in the Possession of Narcotic or Dangerous Drugs program participate for at least one year and have monthly contact with case managers. This program includes screening, education, counseling and self-help meetings. 3-Hour Drug Education Seminar Clients are required to attend the drug education seminar one time. Substance Abuse Counseling Individuals will be referred for substance abuse counseling assessment and services (group or individual sessions) while in the program. All clients must successfully complete substance abuse counseling. Self-Help/Support Group Meetings Clients must attend 12-step meetings with AA, NA, CMA or a similar organization. Meetings are held seven days a week and are free to attend. Clients are not restricted to a certain meeting (e.g., if they have a cocaine charge, the client doesn’t have to attend NA) and are encouraged to try different options until they feel comfortable with one. TASC recommends clients obtain a sponsor for additional support when needed. Monthly Contact Each person who enters the program is assigned a case manager. Throughout the duration of the program, clients are required to maintain monthly contact with case managers to discuss meeting program requirements. Depending on the client’s progress and his or her proximity to the … Continue reading

Posted in Law Offices Gary Rohlwing | Comments Off on TASC Diversion Program

New 2018 Arizona Criminal Laws

The Arizona Legislature adjourned on May 3, 2018. Most of the new laws they passed take effect on August 3, 2018.  The legislature created a new civil traffic violation and two new vehicular crimes. They also amended a key definition and fixed a problem for prisoners. A.R.S. §28-694 was added to make it a civil traffic violation to drive the wrong way on a controlled access highway. A person found responsible is subject to a civil penalty of five hundred dollars and must attend and successfully complete approved traffic survival school educational sessions that are designed to improve the safety and habits of drivers. The legislature also amended the aggravated driving under the influence statute, A.R.S. §28-1383, to make driving the wrong way on a highway while driving under the influence a felony.   A.R.S. §28-675 was amended to make it a Class 3 felony for a person who caused a death by use of a vehicle if his or her privilege to drive was suspended due to driving under the influence or  failure to provide proof of financial responsibility. The sentence shall be consecutive to any other sentence imposed and restitution may be ordered. The term of imprisonment for this new felony is 2 to 8.75 years.   A.R.S. §13-1401 definition of “sexual contact” was amended by adding that it “does not include direct or indirect touching or manipulating during caretaking responsibilities, or interactions with a minor or vulnerable adult that an objective, reasonable person would recognize as normal and reasonable under the circumstances.”   A.R.S. §13-717 was added to fix the problem of illusory parole. The law reads: “A.  Notwithstanding any other law, a person who was convicted of first degree murder and who was sentenced to life with the possibility of parole after serving a minimum number of calendar years pursuant to a plea agreement that contained a stipulation to parole eligibility is eligible for parole after serving the minimum number of calendar years that is specified in the sentence.  If granted parole, the person shall remain on parole for the remainder of the person’s life except that the person’s parole may be revoked pursuant to section 31-415. B. This section applies to a defendant who entered into a plea agreement that stipulated to parole eligibility and who was sentenced at any time from and after January 1, 1994 and on or before the effective date of this section.” If you are charged with one of the new crimes, you need an experienced defense attorney to fight for you.  Attorney Gary Rohlwing has been representing people for over 30 years. Please call him today for a free consultation.

Posted in Law Offices Gary Rohlwing | Comments Off on New 2018 Arizona Criminal Laws

FOUR GUIDING PRINCIPLES OF THE EIGHTH AMENDMENT

The Eighth Amendment to the U.S. Constitution prohibits the infliction of cruel and unusual punishments.  Prisoners on death row argue that the death penalty violates the Eighth Amendment.  The United States Supreme Court has held that it violates the Eighth Amendment to execute prisoners who have intellectual disabilities or who committed their crimes when they were juveniles.  Prisoners also often argue that various prison punishments or conditions violate the Eighth Amendment.  Solitary confinement is a prison punishment that may one day be found to violate the Eighth Amendment. The Eighth Amendment does not give examples of cruel and unusual punishment nor does it discuss how to determine if a particular punishment is cruel and unusual.  In his concurring opinion, U.S. Supreme Court Justice Brennan discussed four guiding principles used to determine whether a punishment violates the 8th Amendment in Furman v. Georgia, 408 U.S. 238 (1972) https://supreme.justia.com/cases/federal/us/408/238/case.html: “The primary principle is that a punishment must not be so severe as to be degrading to the dignity of human beings. Pain, certainly, may be a factor in the judgment. . . “  408 U.S. 238, 271. . . . More than the presence of pain, however, is comprehended in the judgment that the extreme severity of a punishment makes it degrading to the dignity of human beings. The barbaric punishments condemned by history, ‘punishments which inflict torture, such as the rack, the thumb-screw, the iron boot, the stretching of limbs, and the like,’ are, of course, ‘attended with acute pain and suffering.’ O’Neil v. Vermont, 144 U.S. 323, 339, 12 S.Ct. 693, 699, 36 L.Ed. 450 (1892) (Field, J., dissenting). When we consider why they have been condemned, however, we realize that the pain involved is not the only reason. The true significance of these punishments is that they treat members of the human race as nonhumans, as objects to be toyed with and discarded. They are thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity.  408 U.S. 238, 272-273. . . . In determining whether a punishment comports with human dignity, we are aided also by a second principle inherent in the Clause—that the State must not arbitrarily inflict a severe punishment. This principle derives from the notion that the State does not respect human dignity when, without reason, it inflicts upon some people a severe punishment that it does not inflict upon others. Indeed, the very words ‘cruel and unusual punishments’ imply condemnation of the arbitrary infliction of severe punishments. . . 408 U.S. 238, 274. . . .   A third principle inherent in the Clause is that a severe punishment must not be unacceptable to contemporary society. Rejection by society, of course, is a strong indication that a severe punishment does not comport with human dignity. In applying this principle, however, we must make certain that the judicial determination is as objective as possible.  408 U.S. 238, 277. . . . The final principle inherent in the … Continue reading

Posted in Law Offices Gary Rohlwing | Comments Off on FOUR GUIDING PRINCIPLES OF THE EIGHTH AMENDMENT