ACLU Challenges Constitutionality of Arizona Victims’ Rights Law

On May 8, 2017, ACLU of Arizona filed a complaint in federal district court challenging the constitutionality of A.R.S. § 13-4433(B) and (C) known as the Arizona Victims’ Rights Law. The information below comes from the complaint.

 

A.R.S. § 13-4401(19) defines “victim”:

“Victim” means a person against whom the criminal offense has been committed, including a minor, or if the person is killed or incapacitated, the person’s spouse, parent, child, grandparent, or sibling, any other person related to the person by consanguinity or affinity to the second degree or any other lawful representative of the person, except if the person or the person’s spouse, parent, child, grandparent, sibling, or other person related to the person by consanguinity or affinity to the second degree or other lawful representative is in custody for an offense or is the accused.” Originally found on http://www.azleg.gov/ars/13/04401.htm

 

A.R.S. § 13-4433(B) states:

“The defendant, the defendant’s attorney or an agent of the defendant shall only initiate contact with the victim through the prosecutor’s office. The prosecutor’s office shall promptly inform the victim of the defendant’s request for an interview and shall advise the victim of the victim’s right to refuse the interview.”

 

A.R.S. § 13-4433(C) states:

“The prosecutor shall not be required to forward any correspondence from the defendant, the defendant’s attorney or an agent of the defendant to the victim or the victim’s representative.” Read all victim’s rights at http://www.azleg.gov/ars/13/04433.htm

These laws are unique to Arizona. While the goal of protecting victims from potential defense harassment and intimidation is admirable, the laws actually prevent defense attorneys from interviewing victims since few victims consent to defense interviews once the prosecutor informs them that they have the right to refuse them. Many crimes pit the defendant’s credibility against the victim’s; sex offenses are serious crimes where it’s often the defendant’s word against the victim’s. The laws force defense attorneys to literally interview the victims when they cross-examine them at trial.

The United States Supreme Court has deemed it imperative that a defense attorney in a capital case at the very least reach out and attempt to make contact with all witnesses in the case in Wiggins v. Smith, 539 U.S. 510 (2003). As the ACLU argued in the complaint:

“40. In a capital case, the defense team’s duty to investigate often includes making overtures to the family of the deceased in an effort to understand whether they desire the death penalty for the perpetrator or would be satisfied with a lesser sentence, such as life imprisonment without parole. Victim impact testimony is often critical to the jury’s determination of the appropriate sentence in a capital case and if defense counsel can persuade the victim’s family not to desire the death penalty, it can literally save the life of a defendant. In addition, prosecutors will sometimes acquiesce to the wishes of the victim’s family and drop their demand for death. A.R.S. § 13-4433(B) prevents the defense team from engaging in these efforts. Read more at http://tucson.com/news/local/crime/criminal-defense-attorneys-seek-changes-to-arizona-s-victims-bill/article_fe1e4a59-51b8-5d4f-800a-391fc00abc30.html

41. In capital cases where a relative of the defendant is the victim, often the best sources of evidence regarding mitigation critical to saving a defendant’s life is found with the defendant’s family, which is also the victim’s family. A.R.S. § 13-4433(B) precludes the Plaintiffs from speaking to those crucial witnesses except by using the prosecutor as an intermediary”

The Plaintiffs, Arizona Attorneys for Criminal Justice and individuals adversely affected by the laws, argued that A.R.S. § 13-4433(B) violates their First Amendment right to attempt to speak to witnesses who are defined as “victims” without the compulsion to use a government go-between and that A.R.S. § 13-4433(B) is unconstitutionally overbroad since it eliminates all speech of any kind between them and victims.

If you are charged with a crime, you need an experienced defense attorney (Like Gary Rohlwing) who knows how to effectively represent you in spite of the Arizona Victims’ Rights Law. Attorney Gary Rohlwing has over three decades of experience. Call him today for a free consultation.

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Should You Represent Yourself? Pros and Cons

Should You Represent Yourself or Hire an Attorney?

You don’t qualify for a public defender. Should you represent yourself? Here are some questions you should ask to help you decide:

Do I have the time to learn the law that applies to my criminal charges? The learning curve is steep even for a misdemeanor offense. You would have to sacrifice limited personal time to do so.

Can I control my emotions enough to communicate effectively with the prosecutor? It’s difficult to control your emotions when you’re the defendant. You would have to remain polite and calm in communicating with the prosecutor.

Can I come up with a valid legal defense? Knowing the law is one thing; coming up with a valid legal defense is another. You would likely experience a lot of uncertainty and frustration trying to come up with a valid legal defense.

Can I handle the stress of representing myself? Drinking too much, using drugs, spending too much, or withdrawing are all bad ways of dealing with stress. Representing yourself on your criminal charges is stressful because of the many negative emotions you may experience such as anxiety, depression, anger, fear, and frustration.

Representing yourself is difficult. Hiring an experienced defense attorney is easy. Attorney Gary Rohlwing has over three decades of experience. Call him today for a free consultation.

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Collateral Consequences of Drug Convictions

According to the American Friends Service Committee-Arizona, “Collateral consequences” are legal punishments and other restrictions imposed on people because of their criminal convictions that are in addition to any term of incarceration, fines, fees or supervision imposed by the courts as punishment for the crimes. As Gabriel Chin wrote in “The New Civil Death: Rethinking Punishment in the Era of Mass Conviction”:

“As a practical matter, every criminal sentence contains the following unwritten term: The law regards you as having a “shattered character.” Therefore, in addition to any incarceration or fine, you are subject to legal restrictions and limitations on your civil rights, conduct, employment, residence, and relationships. For the rest of your life, the United States and any State or locality where you travel or reside may impose, at any time, additional restrictions and limitations they deem warranted. Their power to do so is limited only by their reasonable discretion. They may also require you to pay the expense of these restrictions and limitations.”

On their website, The National Inventory of Collateral Consequences of Conviction lists 170 collateral consequences in the State of Arizona arising from a drug conviction. Some of the well-known ones are:

  • Prohibited possessor of firearms;
  • Loss of employment and employment opportunities;
  • Loss of public benefits such as student aid;
  • Loss of housing and difficulty finding housing; and
  • Loss of child custody

The collateral consequences of drug convictions in Arizona are wide ranging and serious. Criminal Defense attorney Gary Rohlwing has decades of experience in helping clients mitigate the collateral consequences of their drug convictions. Call or e-mail him today.

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Misdemeanor Attorney Services – http://www.criminal-duiattorney.com/misdemeanors.html

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Arizona Enacts Provisional Licensing for Former Felons

A Fact Sheet published by the National Employment Law Project on August 1, 2016, conservatively estimated that roughly 70 million people in the United States have some sort of criminal record. Having a criminal record can make it difficult to obtain an occupational license required by the State of Arizona.

On May 1, 2017, Governor Ducey signed a bill adding A.R.S. § 41-1093 which gave state licensing boards the authority to issue either a regular license or a provisional license to an otherwise qualified applicant who has been convicted of an offense. A provisional license is valid for one year and the ability of the applicant to subsequently obtain another such license in the future is within the discretion of the licensing authority. The law does not preclude a licensing authority from exercising its existing discretion to issue a license to individuals who are not covered under this law.

If an applicant is employed in a licensed assisted living or skilled nursing facility, the provisional license must include a condition that the provisional licensee may only work under the direct supervision of another licensee who is not a provisional licensee, and the supervising licensee must sign a verifying affidavit.

If a provisional licensee was convicted of an offense that involves a violation of Title 13, Chapter 15 (criminal trespass or burglary) or 19 (theft) within the last ten years and if the occupation is one in which a licensee regularly enters private residences, the provisional license must include a condition that the provisional licensee only work under the direct supervision of another licensee who has no criminal record during all home visits and the supervising licensee must sign a verifying affidavit. If the offense occurred more than ten years ago, the condition is discretionary with the licensing authority. The regular license may include this condition if the licensing authority determines that the condition is warranted. The licensing authority may conduct reasonable enforcement activities to ensure this supervision condition is complied with over the course of the license term.

The licensing authority may revoke a provisional license if the provisional licensee is charged with a new felony; commits an act or omission that causes the provisional licensee’s community supervision, probation or parole to be revoked; or violates the law or rules governing the practice of the occupation for which the provisional license is issued.

The new law does not apply to the following applicants:

  • Convicted of a crime that results in the death or physical injury or any criminal use of a deadly weapon or dangerous instrument according to A.R.S. § 13-901.03;
  • Convicted of public sexual indecency to a minor according to A.R.S. § 13-1403(B);
  • Convicted of sexual abuse, sexual conduct with a minor, sexual assault, sexual assault of a spouse, molestation of a child, continuous sexual abuse of a child, sexual misconduct by a behavioural health professional, commercial sexual exploitation of a minor, or sexual exploitation of a minor according to A.R.S. § 13-1420;
  • Convicted of kidnapping according to A.R.S. § 13-1304;
  • Convicted of a crime involving forgery and related offenses, credit card fraud, business and commercial frauds, fraudulent schemes and artifices, or fraudulent schemes and practices where the licensee owes a fiduciary duty to a client according to A.R.S. Criminal Code Title 13 chapters 20-22, A.R.S. § 13-2310-11. Some examples of occupations where a licensee owes a fiduciary duty to a client include real estate agent, certified public accountant, certified financial planner, lawyer, doctor, architect, and professional engineer;
  • Any occupation where the licensee would be supervising vulnerable adults or children;
  • Convicted of committing a crime in the course of performing the duties of the occupation or a substantially similar occupation; or
  • Repetitive offenders according to A.R.S. § 13-703.

If you are currently facing criminal charges that may keep you from obtaining a provisional license, you need an experienced defense attorney. Attorney Gary Rohlwing has over three decades of experience. Call him today for a free consultation.

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Collateral Consequences of Domestic Violence Convictions

According to the American Friends Service Committee-Arizona, “Collateral consequences” are legal punishments and other restrictions imposed on people because of their criminal convictions that are in addition to any term of incarceration, fines, fees or supervision imposed by the courts as punishment for the crimes. As Gabriel Chin wrote in “The New Civil Death: Rethinking Punishment in the Era of Mass Conviction”:

“As a practical matter, every criminal sentence contains the following unwritten term: The law regards you as having a “shattered character.” Therefore, in addition to any incarceration or fine, you are subject to legal restrictions and limitations on your civil rights, conduct, employment, residence, and relationships. For the rest of your life, the United States and any State or locality where you travel or reside may impose, at any time, additional restrictions and limitations they deem warranted. Their power to do so is limited only by their reasonable discretion. They may also require you to pay the expense of these restrictions and limitations.”

Even a misdemeanor conviction for domestic violence can have the following collateral consequences:

  • Federal prohibited possessor of a firearm;
  • Loss of employment and career opportunities;
  • loss of child custody;
  • loss of immigration status;
  • future felony prosecution; and
  • Potential civil liability to victim’s landlord if victim breaks lease according to A.R.S. § 33-1318(A).

The collateral consequences of domestic violence convictions in Arizona are wide ranging and serious. Defense attorney Gary Rohlwing has decades of experience in helping clients mitigate the collateral consequences of their domestic violence convictions. Call or e-mail him today.

Cities We Provide Domestic Violence Case Assistance:

Glendale Case Assistance

Peoria DV Cases

Avondale Cases

Goodyear DV Defense

Surprise Services

 

Law Offices of Gary L Rohlwing
7112 N 55th Ave
Glendale, AZ 85301
(623) 937-1692
http://www.criminal-duiattorney.com/

 

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