DUI Checkpoints in CA and OH This Weekend
Technical Issues
Arizona’s New Medical Marijuana Law: What Does It Mean?
With the recent passage of Proposition 203, voters made Arizona the 15th state (along with the District of Columbia) to legalize medical marijuana. The vote was a close one, with just 841,346 in favor and 837,005 opposed, just passing the 50% mark. The count from vote on election day, Nov. 2, was so close that the result wasn’t declared until nearly 2 weeks later.
Of course, Proposition 203 does not give free rein to hopeful or would-be marijuana users in the state. The new measure makes it lawful for patients with certain “chronic or debilitating” diseases or conditions, such as cancer, AIDS, or hepatitis C, to purchase up to two and a half ounces of marijuana every two weeks. In certain situations they may even be allowed to grow their own marijuana plants. A regulatory scheme will now apply to this category of marijuana use, bringing it beyond what had been strictly the realm of criminal law. To meet the medical use criteria, patients will have to receive a recommendation from their doctor and will also need to register with the Arizona Department of Health Services. Distribution will be through medical marijuana dispensaries. Initially, Arizona will permit up to 124 such dispensaries.
The campaign in favour of Proposition 203 was run by Arizona Medical Marijuana Policy Project. It was opposed by all of Arizona’s sheriffs and county prosecutors, Governor Brewer, Arizona Attorney General Terry Goddard along with other politicians.
If you have a specific question, please contact The Koplow Law Firm Online or by phone at 602.494.3444.
Lawrence Koplow
Halloween DUI Checkpoints
ARIZONA CRIMINAL LAW: Sometimes It Is Just About Fairness
The Arizona Supreme Court’s holding in State v. Geeslin was a rare event. In most circumstances, when a court makes a mistake, a formal objection to the court’s ruling must be found in the record. Put another way: if you fail to object to a court’s decision, you waive your right to appeal the ruling. However, as shown in Geeslin, there are some exceptions.
In Geeslin, the defendant was arrested for putting shoplifted goods in a stolen vehicle and was charged for Theft of a Means of Transportation (car theft.) The car theft charge may also have what is known as “a lesser included” charge of “Unlawful Use of a Means of Transportation” (joy riding.) Thus, if you take the car and intend to keep it, then it is considered car theft. If you take the car, without permission, but intend to return it is considered an “unlawful use” of the car. “Unlawful use” of the car is a lower level felony than “Theft” of the car. It is a common defense for someone accused of “theft” of a car to claim they intended to return it (i.e. “it was only a joyride”).
Here, the defendant’s attorney asked for a specific jury instruction regarding the charge of “Unlawful Use of Means of Transportation.” The judge denied the request and the attorney objected. However, something unusual occurred: the “record on appeal did not contain Geeslin’s requested instruction.” Thus, The Arizona Court of Appeals presumed that the missing record supported the trial court’s decision and denied the appeal.
The Arizona Supreme Court reversed the decision. The Court stated that fairness and due process required the trial judge to instruct the jurors of all offenses “necessarily included” in the offense charged. The court held that the jury must know exactly what is included in the charge in order to successfully fulfill their roles as finders of fact.
Although seeming insignificant at times, proper objections presented by an attorney may be critical to winning a case – even if it is on appeal. Here, the Defendant was extremely fortunate that the Court “overlooked” the absence of a formal record. While sometimes a court will resort to looking at what’s “fair,” those cases are few and far between.
If you have a specific question, please contact The Koplow Law Firm Online or by phone at 602.494.3444.
Lawrence Koplow
Your First DUI
Do We Really Care About Prosecutorial Misconduct?
In my experience most prosecutors play by the rules. They know their ethical duties and abide by them. However, I, along with many of my colleagues, have observed a growing number of prosecutors that have no problem stepping over the ethics line. The issue seems more to do with ignorance than intent.
For the most part, the public is unaware of this growing problem. It is only when the misconduct is so outrageous and the victim has the means to fight it does the misconduct make its way to the public’s attention (e.g. the 2006 Duke University lacrosse case.) When prosecutorial misconduct truly does occur, only a small percentage of prosecutors are disciplined for their actions. Apparently, a new report from the Northern California Innocence Project at Santa Clara University School of Law demonstrates this problem is not isolated to Arizona.
The Report examined more than 4,000 cases where prosecutorial misconduct was alleged over a twelve year period. The Report found that courts only made prosecutorial misconduct a finding in approximately 700 of 4,000 of the cases. In those 700 cases, only six (6) prosecutors were charged with misconduct. Obviously, as a former prosecutor, I understand that when someone is convicted of a crime, it may result in a frivolous claim; still these numbers are still extraordinary.
In addition, this report determined that judges often failed to report prosecutorial misconduct to the state bar despite their legal obligation to notify the bar of such behavior. Although over sixty prosecutors (60) committed misconduct more than once, and some more than five times, the majority of those prosecutors were never publicly disciplined.
In response to the report, the State Bar of California, issued the following written statement:
“Prosecutorial misconduct as indicated in the Innocence Project report does not always equate with attorney misconduct for disciplinary purposes. The State Bar believes that it is disciplining criminal prosecutors where appropriate and where the misconduct was willful and can be established by clear and convincing evidence.”
If you have a specific legal question regarding prosecutorial misconduct in an Arizona Criminal Case, please contact The Koplow Law Firm at 602-494-3444.
Lawrence Koplow
