Attorney Scott Campbell

Criminal Defense Attorney

Month: April, 2017

Be Scared. Be Very Scared

Be Scared. Be Very Scared. To non-lawyers, this blog post may be a little “inside baseball,” but it exemplifies an attempt to punish clearly criminal behavior by casting too wide a net.

Be Scared. Be Very Scared

Be Scared. Be Very Scared

The issue is Arizona Statute 13-1410 that states: “A person commits molestation of a child by intentionally or knowingly engaging in or causing a person to engage in sexual contact, except sexual contact with the female breast, with a child who is under fifteen years of age.”  Sexual contact is defined as “any direct or indirect touching, fondling or manipulating of any part of the genitals, anus or female breast by any part of the body or by any object or causing a person to engage in such contact.”

This seems clear enough, but statutes are supposed to specifically say what is illegal while not criminalizing completely innocent behavior.  This one does not do that.

If you can envision completely innocent behavior that a statute prohibits, there is a problem.  Read the law, it would criminalize a parent who changes a baby’s diaper and wipes them clean.  The parent would be “intentionally…directly touching or manipulating…genitals or anus…of a child under fifteen years of age.”  But, you say, that is silly.  The law doesn’t intend to make every parent a sex criminal.  No, it doesn’t, but the way it doesn’t is the problem.

The law includes an out.  13-1407 says “It is a defense to a prosecution…that the defendant was not motivated by a sexual interest.”  Easy enough, you say, all I have to do is explain that “I was just changing a diaper; I was certainly not motivated by a sexual interest.”

This, however, turns our law on its head.  The law allows a prosecutor to charge you and bring you to trial, then makes you prove you are innocent.  That is wrong.  It should be the prosecutor’s burden, in every case, to prove you are guilty.  This law does not make the prosecutor prove you had a sexual interest, it makes you prove that you did not.  It is often impossible to prove a negative, as this law requires a person to do.

What do the Courts say, you ask.  Well, the Arizona Supreme Court says this is perfectly fine.  The said “We…will not assume that the state will improperly prosecute persons who, though perhaps technically violating the terms of the broad statutes…clearly engaged in reasonable, acceptable, and commonly permitted activities.”[1]  But, what if you believe you were clearly reasonable, acceptable, and doing something commonly permitted, but a rogue prosecutor (maybe someone who dislikes you or a group you are in, or a religious zealot) disagrees?  This scares me.  Now, instead of the prosecutor having to prove you did something prohibited by the law, you have to prove you didn’t.

Let me be clear.  Child molestation is abhorrent.  But our laws have to clearly say what is prohibited, not allow a prosecutor to decide on his own then make us go through the time, effort, and considerable expense to prove what we did was ok.

Be Scared. Be Very Scared

[1] Arizona v. Holle, CR-15-0348-PR (2016)

Advertisements

A Whiff, But Not a Breath of Fresh Air

A Whiff, But Not a Breath of Fresh Air. For years, the government has been touting their success in taking drug dealer’s assets, thus advancing their war on drugs.  What they have consistently denied is what is, in war, euphemistically called “collateral damage.”  The government shows many millions of dollars alongside great quantities of drugs and proudly proclaims that they got the drugs and the profits.  What they don’t tell is the rest of the story.

A Whiff, But Not a Breath of Fresh Air

A Whiff, But Not a Breath of Fresh Air

What they don’t show is innocent people who accumulate cash in savings or a cash-intensive business who are stopped by police and have to prove their money was legally acquired.  The government will seize the money, then call an “expert” police witness to say the way the money was packaged or carried was indicative of drug proceeds.  However, I have seen these “experts” say money carried in a roll, folded in half, carried in bundles of round amounts, put in plastic, put in paper bags, or just not carried the way most people carry pocket money (a few dollars in a wallet) in indicative of drug money.  In other words, any way you carry money is indicative of drug money.

A Judge, who has presided over countless drug trials, then finds “by a preponderance of the evidence” (51%), that the money was drug money and the government seizes it.  Often, maybe more often, the amount is just a few thousand dollars and the victim of the seizure doesn’t want to pay an attorney more that is at stake to try to recover it.

A Whiff, But Not a Breath of Fresh Air

Put another way, imagine you have a nice watch…one that cost a couple thousand dollars.  A police officer says drug dealers have nice watches and takes it from you.  An attorney would cost more than the value of the watch, so you don’t hire one.  An “expert” police officer then testifies that drug dealers wear nice watches, so the Judge says the government can have your watch…even though you were never charged with a crime.

The Arizona legislature, in an uncommon change in the law of forfeiture, has given us a whiff of fresh air.  Now, the Judge has to find by “clear and convincing evidence” that the money was illegally obtained.  In addition, if the person whose money was taken “substantially prevails” at the hearing, the State has to pay his attorney fees.  Finally, the Attorney General has to approve a city or county spending any forfeited funds, meaning they have to be spent only on what they are legally allowed to be spent on…with oversight.

Hear the police howling?  I can.  But, it is just a whiff of fresh air.  A true breath would be to release any money taken where no criminal conviction ensued, without the need for lawyers, hearings, and “expert” police testimony.  That would be a true breath of fresh air.

A Whiff, But Not a Breath of Fresh Air

Arizona Drug Crimes

Arizona Drug Crimes – What are the punishments? Today’s guest blog is by Powers Law, P.C in West Islip, NY.

Punishments for drug crimes in Arizona can vary, depending on a number of factors, namely the illegal substance in possession, the amount of said substance, the person’s previous criminal record, more specifically their record of drug-related crimes.

Arizona Drug Crimes

Arizona Drug Crimes

Those convicted of drug crimes in Arizona can be penalized heavily with jail time, probation and fines which can reach up to $150,000 for drug charges for individuals and $1,000,000 for drug charges for enterprises.

Illegal substances and their classifications

Possession charges carry different punishments depending on the drug that the person is being charged with possessing.

Possession of marijuana can be charged as a misdemeanor, but it is most often charged as a class 6 Felony offense. A class 6 Felony offense is punishable by up to 2 years in prison.

Possession of narcotic drugs is considered a class 4 Felony offense in Phoenix. There are many different drugs that may be classified as a narcotic drug in Arizona, including cocaine, crack, heroin and prescription drugs. A class 4 Felony offense is punishable by up to 3.75 years in prison.

Possession of dangerous drugs is also classified as a class 4 Felony offense. Dangerous Drugs include a variety of different drugs such as Methamphetamine, PCP, Ecstasy, Mushrooms, and LSD. A class 4 felony is punishable by up to 3.75 years in prison.

Arizona Drug Crimes

Charges for single offenses

For a possession for personal use charge, the court generally gives probation to first-time offenders. Completing a drug treatment or education program is one of the probation conditions, and the court requires defendants to bear the cost of the program to the extent that they are financially capable of doing so. Probation is also common for second-time offenders, but the court may make incarceration a condition of probation. Various other circumstances affect whether the court imposes incarceration for these offenses or not.

The more serious offenses of distribution, transportation, etc., are class 2 felonies with maximum sentences of several years in prison if they involve narcotics, a listed “dangerous drug,” or more than 2 pounds of marijuana. Methamphetamine is singled out for an even higher maximum penalty.

Charges for multiple offenses

Most drug charges in Arizona involve multiple offenses. This means that the defendant is accused of several illegal acts based on the same event. For example, possession of a drug combined with possession of drug paraphernalia, or both transportation for sale and the actual sale. For multiple offense cases, Arizona provides a comprehensive scheme based on whether it is the first, second, or third and higher offense, and whether the quantity of drugs exceeds the statutory threshold amount.

The penalties cover a broad range even for the same offense. For example, a class 2 felony that is a second offense involves a quantity below the threshold amount, and the presence of other mitigating factors draws a 3-year sentence. If the class 2 felony is a third-time or higher offense, involves drug quantities above the threshold amount, and other aggravating factors, then it draws a 15-year sentence.

Arizona Drug Crimes

Author Bio:

Competent attorneys at Powers Law, P.C provide strong representation for family law, commercial litigation, and real estate cases.