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May 11, 2010

Phoenix Probation Violation Attorney

A probation violation is a serious offense in Arizona. Those placed on Arizona probation that fail to follow the terms of the probation as ordered by the court may face time in jail, or even prison depending if the original or new criminal charge was a misdemeanor or a felony. Your future freedom is at stake. You don't want to go to jail. Your probation violation may be easily explained. However, it is crucial that you consult a Phoenix Criminal Defense Attorney as soon as possible if you are charged with a probation violation.

It is important to understand that when you are facing a Phoenix probation violation charge you understand the seriousness of the potential of a new possibly harsher sentence. It does not matter that the original Arizona criminal conviction was weak or you did not commit the crime. If you originally were convicted, sentenced you were placed on probation with certain things to complete. If you failed to complete those items then there was a violation of the terms of probation.

Additionally, the burden of proof on the prosecutor is not beyond a reasonable doubt as it was with the original criminal charge, but simply a preponderance of evidence, which is a much lower standard. Basically, the new question of law and sentencing becomes "did you complete the terms of probation or not?"

Arizona Probation Violation
A probation violation can occur anytime a person violates the terms of probation as ordered by the judge. These terms set rules of things to do or not to do and must be followed throughout the length of the probation sentence. Depending on the type of probation you were placed on, there are various types of probation violations, such as:

  • Committing a new crime
  • Missing a drug test, testing positive or diluted
  • Drinking if your probation specified no alcohol
  • Speaking with a person you were ordered not to contact
  • Failing to complete counseling for any reason
  • Getting behind on court fines, fees, restitution or community service
  • Removing any security monitoring device
  • Failing to check in with the judge or probation officer
  • Failing to appear in court at a schedule date and time
  • Failing to pay court fees or fines
  • Failing to comply with a court order
If you are faced with a probation violation, it's important to contact an experienced Phoenix probation violation attorney or criminal defense lawyer as soon as possible. If you do not correct the probation violation you could be sent to jail, or be sentenced to pay larger fines, a harsher probation sentence, more hours of community service, and other penalties. Arizona probation violation attorney James Novak can help you take the necessary legal action to defend you and any attempts made by the Arizona prosecution to pursue convictions, and more sentencing harm.

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April 11, 2010

For a AZ DUI conviction of a an Arizona DUI offense pursuant to A.R.S. § 28-1381 or extreme DUI offense pursuant to A.R.S. § 28-1382 the term of probation is up to five years and for a conviction of an aggravated DUI offense pursuant to A.R.S. § 28-1383, up to 10 years. A.R.S. §13-902(B).

If you are placed on Arizona probation for your AZ DUI as part of your sentence, you are expected to complete all your terms of probation. Doing any of the following may cause you to be in breach of your probation: committing a new crime, failing a drug/alcohol urine test, failing to keep appointments with probation officer, and possessing a firearm. If you are convicted of a felony DUI and violate probation you could be held non-bondable pending your probation violation hearing.

Under Arizona General Crimes
: Unless terminated sooner, the term of probation for a class 2 felony is up to seven years; class 3 felony, up to five years; class 4 felony, up to four years; class 5 or 6 felony, up to three years; class 1 misdemeanor, up to three years; class 2 misdemeanor, up to two years; and class 3 misdemeanor, up to one year.

13-902. Periods of probation; monitoring; fees
A. Unless terminated sooner, probation may continue for the following periods:
1. For a class 2 felony, seven years.
2. For a class 3 felony, five years.
3. For a class 4 felony, four years.
4. For a class 5 or 6 felony, three years.
5. For a class 1 misdemeanor, three years.
6. For a class 2 misdemeanor, two years.
7. For a class 3 misdemeanor, one year.

B. Notwithstanding subsection A of this section, unless terminated sooner, probation may continue for the following periods:
1. For a violation of section 28-1381 or 28-1382, five years.
2. For a violation of section 28-1383, ten years.

28-1381. Driving or actual physical control while under the influence; trial by jury; presumptions; admissible evidence; sentencing; classification
A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:
1. 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.
2. If the person has an alcohol concentration of 0.08 or more within two hours of driving or being in actual physical control of the vehicle and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle.
3. While there is any drug defined in section 13-3401 or its metabolite in the person's body.
4. If the vehicle is a commercial motor vehicle that requires a person to obtain a commercial driver license as defined in section 28-3001 and the person has an alcohol concentration of 0.04 or more.

28-1382. Driving or actual physical control while under the extreme influence of intoxicating liquor; trial by jury; sentencing; classification
A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state if the person has an alcohol concentration as follows within two hours of driving or being in actual physical control of the vehicle and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle:
1. 0.15 or more but less than 0.20.
2. 0.20 or more.

28-1383. Aggravated driving or actual physical control while under the influence; violation; classification; definition
A. A person is guilty of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs if the person does any of the following:
1. Commits a violation of section 28-1381, section 28-1382 or this section while the person's driver license or privilege to drive is suspended, canceled, revoked or refused or while a restriction is placed on the person's driver license or privilege to drive as a result of violating section 28-1381 or 28-1382 or under section 28-1385.
2. Within a period of eighty-four months commits a third or subsequent violation of section 28-1381, section 28-1382 or this section or is convicted of a violation of section 28-1381, section 28-1382 or this section and has previously been convicted of any combination of convictions of section 28-1381, section 28-1382 or this section or acts in another jurisdiction that if committed in this state would be a violation of section 28-1381, section 28-1382 or this section.
3. While a person under fifteen years of age is in the vehicle, commits a violation of either:
(a) Section 28-1381.
(b) Section 28-1382.
4. While the person is ordered by the court or required pursuant to section 28-3319 by the department to equip any motor vehicle the person operates with a certified ignition interlock device, does either of the following:
(a) While under arrest refuses to submit to any test chosen by a law enforcement officer pursuant to section 28-1321, subsection A.
(b) Commits a violation of section 28-1381, section 28-1382 or this section.

Continue reading "Arizona Probation - Arizona Aggravated DUI Convictions" »

April 7, 2010

In Arizona, upon a DUI conviction you are sentenced to certain mandated AZ DUI sentencing penalties. One of these includes jail time and alcohol or drug counseling. Most AZ DUI sentences include a two-step jail sentence.

For example the mandatory minimum jail sentence for a first time 28-1381, A, 1, conviction for Impaired to the Slightest Degree is ten (10) days jail. This may be broken into a one (1) day jail sentence with the remaining nine (9) days suspended to complete the mandatory alcohol screening and counseling.

If you fail to complete the screening or counseling then you will face the remaining suspended sentence. However, in actually, the maximum sentence allowed by law for a class 1 misdemeanor is six (6) months jail. Therefore, if you totally ignore what you have been ordered by the court you may find yourself facing the full 180 days jail.

28-1381. Driving or actual physical control while under the influence; trial by jury; presumptions; admissible evidence; sentencing; classification
A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:

J. Notwithstanding subsection I, paragraph 1 of this section, at the time of sentencing the judge may suspend all but twenty-four consecutive hours of the sentence if the person completes a court ordered alcohol or other drug screening, education or treatment program. If the person fails to complete the court ordered alcohol or other drug screening, education or treatment program and has not been placed on probation, the court shall issue an order to show cause to the defendant as to why the remaining jail sentence should not be served.
(Cited in part & emphasis added)

Continue reading "Arizona DUI Laws - Order to Show Cause" »