In 2010, 3TV interviewed criminal defense attorney Michael Kielsky regarding a client, Elvis Saloom, who was arrested for receiving 55 photo radar violations for speeding, 12 of which were for criminal speeding. Mr. Saloom hired Mr. Kielsky to defend against the tickets and in the end, some of the tickets were never prosecuted and the rest were all dismissed. Regarding the evidence provided by the State, Mr. Kielsky says “They had nothing.” For all practical and legal purposes, “He [Elvis] didn’t do it,” said Mr. Kielsky.
Posts in category Criminal Defense
A victimless crime is an activity that the government has decreed criminal even though there is no identifiable victim. A victimless crime is an activity that is performed by one or more consenting people, that causes no harm, injury or violation to anyone outside of the people performing the activity.
One example of a victimless crime is smoking marijuana at home by yourself. You are acting as an individual and no one else is harmed by your activity. Another example is prostitution. When two consenting adults engage in a sexual act in exchange for money, no one is harmed and no one’s rights are violated. Nevertheless, the government has labeled these activities as crimes.
A real crime has an identifiable victim and is an activity performed by one or more people that causes harm, injury or violation to someone not voluntarily participating in the activity.
In contrast to the victimless crime examples above, if I jab a syringe of heroin into the back of my neighbor without asking him first, I have caused him harm without his consent; he was not a voluntary participant in the heroin injection. I have therefore committed a crime in every sense because I violated his right to be free from unwanted contact. Similarly, while prostitution involves the voluntary trade of sex for money, rape involves one person forcing involuntary sex upon another and therefore rape is a real crime.
A good universal rule to use when distinguishing between a victimless crime and real crime is “Was the activity completely voluntary?” For example, let’s say I go to Home Depot, pick up a box of screws and walk out the door without paying. That activity was not completely voluntary. My side was voluntary – I voluntarily took the box of screws. Home Depot’s side was not voluntary-Home Depot expects people to pay for items before removing them from the store, and did not consent to me removing the box of screws from the store without paying. I therefore committed a real crime.
Now let’s say the government just passed a “Nails Not Screws” law that outlawed the use of screws because the hammer lobby was concerned about a decline in business. I then go to Home Depot, provide the obligatory secret handshake, and hand over $10 for my box of black-market screws and leave. Under the “Was the activity completely voluntary” standard, I have committed no real crime. I voluntarily gave Home Depot $10, and Home Depot voluntarily gave me a box of screws. No one was harmed or violated. In fact, Home Depot and I both have a net increase in happiness because I got the screws I wanted and Home Depot got the $10 it wanted. Unfortunately, due to the government’s arbitrary law, both Home Depot and I have committed a “crime,” albeit a victimless crime.
Now that we have covered what a victimless crime is, I will discuss why victimless crimes are bad for society in the next post.
John Morales, an actor who once played McGruff the Crime Dog, was recently sentenced to 16 years in federal prison. In 2011, Morales was pulled over while driving in Texas and a drug sniffing dog alerted on the trunk of Morales’ car. Police then searched his car and found blueprints for an indoor marijuana growing facility as well as marijuana seeds. Police subsequently searched Morales’ home where they found over 1,000 marijuana plants and a rocket launcher, as well as other weapons and thousands of rounds of ammunition.
There is a long history of considerate drivers warning other drivers of police speed traps by flashing their headlights to oncoming traffic. What you probably don’t know is some police will try to issue you a traffic citation if you flash your headlights to warn of a speed trap. That’s exactly what happened to Missouri driver Michael Elli. A policeman who saw Elli flash his lights pulled Elli over and cited him for “flashing lights on certain vehicles… warning of RADAR ahead,” the Wall Street Journal reported. This citation carried the potential for a $1,000.00 fine if Elli was convicted.
Although the charge was eventually dropped, the American Civil Liberties Union got wind of Elli’s arrest and sued the city of Ellisville, Missouri, on Elli’s behalf. The basis of the suit is that when Elli was arrested for flashing his headlights to communicate to oncoming drivers that there was a police speed trap ahead, the arrest infringed on Elli’s First Amendment right to free speech. On February 3rd, 2014, U.S. District Court Judge Henry E. Autrey found that the flashing of headlights is indeed speech protected under the First Amendment and issued an order that prevents police from enforcing the state law against flashing headlights.
If you own a modern front wheel drive car, odds are you have accidentally chirped your tires at some point. It doesn’t take much: a damp roadway, some grease, or maybe some dirt or sand can be enough to cause your wheels to momentarily lose traction when starting from a stop, then make a sound when the spinning tire suddenly gains traction. Maybe you are turning and accelerating at the same time as you try to pull out into traffic on a busy road and your tires slip a little. You aren’t racing or driving recklessly, but that won’t stop you from getting an undeserved ticket for “Exhibition of Speed.”
Exhibition of Speed is prohibited by Arizona Revised Statute 28-708(A) which states “A person shall not drive a vehicle or participate in any manner in a[n] … exhibition of speed or acceleration … on a street or highway.” Pretty vague, right? If an officer is so inclined, they could ticket you for any variety of innocuous actions under this statute, such as chirping your tires, accelerating, braking, or changing lanes; it all depends on what the officer thinks is excessive. You don’t even have to be exceeding the speed limit.
What makes this much worse is that an “Exhibition of Speed” citation is not a civil traffic violation; it is a class 1 misdemeanor which means it is a criminal violation. If convicted, a driver faces a fine of not less than $250, possibly some community service and driving privileges could be suspended for up to 90 days. If a driver is convicted of Exhibition of Speed a second time, the driver faces a fine of not less than $500 along with the community service and license suspension. If the second conviction is within 24 months of the first, the driver “is guilty of a class 6 felony and is not eligible for probation, pardon, suspension of sentence or release on any other basis until the person has served not less than ten days in jail or prison” and the driver’s driving privileges shall be revoked. (A.R.S. 28-708(B), (F)).
If you do get cited for a violation like this, we encourage you to consider the possible reasons why you got it, consider whether it was really deserved, and then call us if you’d like to fight it — because we know we would like to fight it on your behalf.
Yes, you can. In simple words, you commit the crime of shoplifting if you intentionally remove an item from a store without paying the marked price for it. You will notice that this description of shoplifting contains an “intent” component, meaning that, in theory, you cannot commit the act of shoplifting if you “unintentionally” remove something from a store without paying for it. Unfortunately, this intent element is a little fuzzy in practice.
For example, you might be in a store and have a cart full of items. You proceed through checkout and pay, only to get to your car and realize that an item had inadvertently been concealed under your purse or jacket. You intended to pay for the item, but you just did not see it as you checked out; it was an accident. Often you will not even make it to your car. Many stores now have sophisticated surveillance systems to catch shoplifters. What often happens is as soon as you exit the store with your unintentionally concealed item, you are confronted by store management who then calls the police. The problem is that regardless of your actual mental state, the police will assume that you intended to shoplift the concealed item and arrest you.
The unfortunate situation above can happen to any well-meaning person who experiences a brief spell of forgetfulness. If you are arrested for shoplifting, you would do well to call a criminal defense attorney immediately. A knowledgeable attorney can help you through what can be a stressful situation, help present you in the most favorable light, and hopefully help you negotiate a positive outcome with the prosecutor.
In case you are wondering, the actual statute for shoplifting in Arizona reads as follows:
Arizona defines shoplifting as follows:
A person commits shoplifting if, while in an establishment in which merchandise is displayed for sale, the person knowingly obtains such goods of another with the intent to deprive that person of such goods by:
1. Removing any of the goods from the immediate display or from any other place within the establishment without paying the purchase price; or
2. Charging the purchase price of the goods to a fictitious person or any person without that person’s authority; or
3. Paying less than the purchase price of the goods by some trick or artifice such as altering, removing, substituting or otherwise disfiguring any label, price tag or marking; or
4. Transferring the goods from one container to another; or
5. Concealment. (A.R.S. 13-1805(A))
You may not have gotten that last speeding ticket for the reason you believe you did. Yes, you may have been speeding, but were you being unsafe? Probably not. The reality is speeding tickets are a revenue generation tool for police departments and local governments.
Speeding tickets constitute low-hanging fruit for policemen and are generally what we describe as victim-less crimes; driving 5 mph over the speed limit almost never harms anyone. In other words, issuing speeding tickets is a lot easier than solving real crimes involving a victim. Issuing speeding tickets also carries the extra benefit of generating income whereas catching criminals results in a net financial drain on the police department and government.
If catching dangerous drivers to protect the public was really the goal of issuing speeding tickets, the police would not use so many tricks to catch speeders; if you have to “trick” a person into breaking the law, that person probably is not doing anything wrong in the first place. One popular trick most drivers have experienced is the posting of several speed limit signs over a short distance, all with different speeds. This trick can be very effective because it is easy to miss a sudden speed limit drop when the road is the same and nothing has changed. The policeman simply sits past the speed limit sign with the reduced speed and picks off unwitting drivers. You probably have also noticed that policeman do not lie in wait in areas where drivers are naturally alert, such as a stretch of the highway where a lot of traffic is entering or exiting. Instead, the policeman will will on a deserted stretch of highway where the driver may not be as focused because there are few hazards or changes to the road.
Downhill speed traps are also popular with traffic police. Often, a driver can exceed the speed limit by simply coasting down the hill. You will notice that photo radar devices are often placed just after a drop in the speed limit, despite no change to road conditions, or that they are placed on roads where the speed limits seem artificially low for the road conditions. It has been documented that the timing of the traffic lights where red light cameras are placed has been changed to slightly shorten the yellow light in order to maximize red light violations.
If you do get a traffic citation, I encourage you to consider why you got it, consider if you feel you deserved it, and then call us if you want to fight it, because I know we would like to fight it.
1. Exceeding the posted speed limit by more than 20 mph
2. Exceeding 85 mph
3. Exceeding 35 mph approaching a school crossing
4. Exceeding 45 mph if there is no posted speed limit
Any of the violations above are charged as class 3 misdemeanors (the lowest level of misdemeanor). If the driver is found guilty, this is considered a criminal conviction. A driver accused of this crime should take great care in handling this matter to best protect their rights and their clean criminal history.
A class 3 misdemeanor can result in up to 30 days in jail, and fines up to $500 plus surcharges (just about doubling the fines). Additionally, a judge may order the driver to complete defensive driving school in addition to the fine and jail.
That said, jail is not a typical sentence for any but the serious repeat criminal traffic offenders.
A convicted driver will receive 3 points on their driving record, which could lead to corrective action by MVD (including remedial education, license suspension, or license revocation) if the driver receives 8 or more points in any 12-month period, or 12 or more points in any 24-month period. A driver convicted of criminal speed will likely face increased insurance premiums and the prospect of having to disclose a criminal conviction on future job applications.
For a driver who is not a U.S. citizen, a conviction for even as minor of a criminal offense such as criminal speed could have a significant impact on their ability to remain in the U.S., to renew their visa, or should they wish to adjust their status. For non-U.S. citizen drivers, we recommend that they consult with their own immigration lawyers, as to whether they may be at an increased risk for administrative processing due to the arrest or cite and release, and any potential criminal record. In rare cases, if the criminal charge is not dismissed, we understand that this could lead to any pending or potential request for status adjustment being rejected, but consulting with an experienced immigration attorney on this issue is highly recommended.
For a driver who is from outside of Arizona, hiring a local attorney will also benefit them in that it would mean that they will almost certainly be able to avoid having to return to Arizona to attend court.
At Kielsky Rike pllc, we take on these kinds of cases regularly. Our task is to hold the State to their burdens and duties, as to whether the State can prove all the elements of a criminal traffic offense beyond a reasonable doubt, and whether the State has complied with the constitution, the law, the rules, and the procedures, in every detail. It is the State who must prove certain facts, their compliance with all the rules, laws, and procedures, when properly challenged. Additionally, the State will be required to provide certain disclosures, upon proper request, which could allow us to challenge the case, the officer’s allegations, the officer’s training and experience, or their ability or opportunity to observe the alleged violation.
Moreover, we take every opportunity to obtain a non-criminal resolution (diversion), and make ample use of any elements or examples of a client’s history that are noteworthy and exemplary, any history of achievements and certificates, volunteer activities, extra-curricular activities, scholarships, awards, letters of reference and recommendation, and more, when discussing options with the prosecutor.
Usually, we are hired to try to avoid the criminal conviction as the primary goal, and we have frequently been successful with that, but not in every case.
As of 12/27/2013, out of approximately 51 criminal speed charges we have handled to conclusion, we were able to obtain defensive driving diversion for about 14 charges, a plea to a civil for about 20 charges, obtained an outright dismissal of about 13 criminal speed charges, pleaded guilty but got a reduced sentence in 2 cases, and lost after trial in 2 cases. In summary, out of the 51 criminal speed charges concluded, 47 avoided a criminal conviction entirely.
Please understand that each case is unique, these results may not be typical, and past results are no guarantee of future outcomes.
While it may not be an easy task to obtain a non-criminal resolution for any given criminal speed allegation, whatever the chances, they will significantly improve with the assistance of an experienced attorney.
Driving under the influence, or DUI, means more than just driving your car while being fall-down drunk. In Arizona, it is unlawful to drive while “under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree.” A.R.S. 28-1381. As you can read, the law is broadly written to capture most any drug use as well as alcohol use, and the level of impairment (“to the slightest degree”) is also broadly defined. Many people are under the impression that if they test below a 0.08 blood alcohol level they are in the clear, but this is certainly not the case; the state just has to show that you were “impaired to the slightest” and you are in trouble. For example, you could be driving “slightly impaired” if you are staying within your lane driving, but are weaving slightly back and forth. You might also be slightly impaired if you changed lanes without signalling, or you failed to come to a complete stop at a stop sign.
You can be charged with DUI without actually being impaired too. It is unlawful if you are driving completely in control, but have “an alcohol concentration of 0.08 or more within two hours of driving” and you consumed the alcohol “either before or while driving.” It is also unlawful to drive at any time “while there is an drug defined in section 13-3401 or its metabolite” in your body. And yes, A.R.S. 13-3401 includes marijuana and many, many prescription drugs. Marijuana metabolites can remain in the blood of regular marijuana users for up to 30 days so in theory, if you used marijuana weeks before being pulled over for some minor traffic violation, you could end up being charged with a DUI.
Sixteen year old Texan Ethan Couch was recently given probation for mowing down and killing four pedestrians with his Ford F-350 while drunk. Couch and his friends began the evening by stealing two cases of beer from a store. Then Couch, with a blood alcohol level of .24 and combined with Valium, proceeded to speed around in his truck with his friends until he slammed into four pedestrians, killing them all. Couch subsequently confessed to intoxication manslaughter.
At trial, Couch’s expert witness explained that Couch suffered from “Affluenza,” described as an inability to make good decisions due to a lifetime of spoiling and permissiveness by Couch’s wealthy parents. The end result? The judge sentenced Couch to ten years probation (not even a single hour of public service!) and some time at a $450,000 a year rehab center in California paid for by his parents.
Contrast this with the many people currently incarcerated for years, their lives completely ruined, for smoking marijuana by themselves in their home harming no one and ask yourself, does this make sense?