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. CfUnited States vU.SDistrict 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 decades of experience as a prosecutor and private defense lawyer. Call him today for a free consultation.

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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 involved conduct directly related to the defendant’s duties to the victim as fiduciary. (aggravating circumstance (14)).
  • Lying in wait for the victim or ambushing the victim during the commission of any felony. (aggravating circumstance (17)).

The prosecutor will try to come up with as many aggravating circumstances as possible if you are charged with a felony. Don’t try to fight this battle on your own. You need an experienced defense attorney to fight for you. Attorney Gary Rohlwing has over three decades of experience. Call him today for a free consultation.

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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:

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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 has been charged, you need an experienced attorney to defend you. Attorney Gary Rohlwing has over thirty years experience. Call him today for a free initial consultation.

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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.

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Multiple DUI Offenses – What You Need to Know

Being convicted of a misdemeanor DUI once is tough enough. It becomes much tougher if you are arrested for a second misdemeanor DUI. Another conviction would mean additional prison time, heavier fines, longer license suspension, and more loss of your personal reputation.

When facing multiple DUI charges, it is best to work with a lawyer who is well-versed in handling multiple Arizona DUI charges. Gary Rohlwing can help in protecting your reputation, your record, and your peace of mind.

Arizona law makes it particularly easy to end up with a charge of aggravated DUI, a felony. A.R.S. § 28-1383 states that a person is guilty of aggravated DUI if he or she:

  • commits DUI while his/her license or privilege to drive is suspended, cancelled, revoked or refused or while on restriction due to a DUI;
  • commits DUI when a person under the age of 15 is in the car;
  • commits DUI while ordered by the court to equip his or her car with a certified ignition interlock device; or
  • commits a third or subsequent DUI within a period of 84 months from a first DUI.

For example, your first DUI could be a felony if you were charged with DUI and your license or privilege to drive was suspended for any reason. The same is true if you had your son or daughter under age 15 in the car when you were stopped.

The mandatory minimum sentence for an aggravated DUI ranges from 10 consecutive days in jail for having a person under 15 in the car to 4 months in prison for most other cases. The mandatory fines add up to $3,750. Your reputation, as well as your driving and criminal records, would be ruined by a conviction for aggravated DUI. Worse, imagine the anguish that all this would bring to your loved ones.

 

Defense for Multiple DUI Arrests in Arizona

Arizona DUI court proceedings can be a complex legal maze that can be daunting and confusing if you are not a lawyer. Your best move would be to hire a competent attorney who will guide you through the legal process. The Law Offices of Gary Rohlwing will assist you in finding ways to avoid harsh penalties and dire legal consequences to your reputation and finances.

As a multiple DUI offender, you will be facing a judge and jury who have little to no sympathy for you. This will make going through the court proceedings even more challenging. Your DUI defense attorney will have his job cut out for him. Remember that a 4 month prison term is the minimum sentence in most cases; a judge can impose even more prison time if you are found guilty after a trial.

You need to have an aggressive lawyer with a proven track record by your side to make sure that you get the best possible results for your case. He must have a good grasp of the specific Arizona laws pertaining to your case. This will help him make a thorough analysis of your case and come up with the most feasible strategy for a successful defense. Remember that your future is at stake in a court proceeding. Representing yourself or hiring an inexperienced attorney may compromise the very freedom you are trying to protect.

 

It is certain that you, and possibly your family, will carry a heavy burden for a long time if you have multiple DUI violations on your driving and criminal records. The stigma may last for decades. Therefore, it is important to avoid getting multiple DUI violations on your records at all costs. You can only do this with the help of a reliable and dedicated legal counsel.

Gary Rohlwing is well-versed in the complexities of Arizona DUI laws. He has many years of experience in successfully defending multiple DUI cases throughout the state of Arizona. More importantly, he believes that every defendant has the right to a solid representation and defense.

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