FREQUENTLY ASKED QUESTIONS

• Legal Representation
• DUI / DWI
• Criminal Law And Procedure
• Professional Licensing
• Prior Convictions
• Sentencing Alternatives
• Probation
• Conviction and Loss of Civil Rights
• Restoration of Civil Rights
• Out-of-State Defendants

LEGAL REPRESENTATION

Q. Can An Experienced Defense Attorney Make A Difference?

Yes. As in most areas of life, experience and knowledge make the difference. If confronted with a serious medical problem and in need of medical attention, you would consult a medical specialist who has the training to address your particular medical problem. If you or a loved one was diagnosed with cancer, you would not seek treatment with a general practitioner. Likewise, you would not represent yourself against a huge insurance company and its team of lawyers if seriously injured in an automobile accident. The reasons are obvious. There is great danger in not having professional advice from someone with specific knowledge, experience, and expertise to protect you and to ensure the best possible outcome. The same is true with your contact with the criminal justice system.

Only an experienced criminal defense attorney, intimately familiar with criminal law, the justice system, and the Rules of Court can provide you with meaningful advice, answers, and guidance.
The practice of criminal defense before trial consists of thorough legal research and factual investigation, as well as diplomatic and skillful negotiation. Through a seasoned attorney's experience, together you will decide how to attack the prosecution’s case. Do you need to locate and interview important witnesses and collect key evidence? Do you need an expert to review your case, such as a criminalist, toxicologist, accident reconstructionist, or mental health professional? Will you need that expert only for consultation or also to testify at trial? Only an experienced defense attorney can help you navigate the process and build your case into a winner.

You should be wary of attorneys or law firms that promise to be overly “aggressive” or those that promise to "take every case to trial," because in many cases, being aggressive at the wrong time or setting a case to trial may not be in the client’s best interest. In many cases, if an individual accused of a crime goes to trial and loses, the penalties are much more severe than what was previously available had that person earlier accepted the prosecution’s offer.

While there certainly are situations that call for an aggressive examination of a witness, experienced trial attorneys understand it is usually better to appear professional and reasonable. By doing so, the judge or jury is more likely to accept the defendant’s version of the events. If the jury doesn't like the attorney, its often bad news for both the attorney and his client.


Q. What can I do to prepare for the initial consultation?

Once a potential client has scheduled a consultation with an attorney, the client should prepare for the first meeting. The client should bring all information and documents relating to the case. It may be helpful to both the client and the attorney if the client brings to the meeting a chronological outline of the matter to be discussed. A client may also compose a set of questions designed to help determine whether the attorney is right for the job. The following is a list of general questions that a prospective client may consider asking:

At your initial consultation, plan to discuss and reach an agreement about the following:

It is probably a good idea to interview at least three lawyers before making a decision on who to retain. Don't hire a lawyer who will not specifically discuss how he or she plans to handle your case or one who expects to handle your matter in a way that you are uncomfortable with.

Once you have retained a lawyer to work on a legal matter for you, you are entitled to be regularly informed about the status of your case. You have the absolute right to regular communication about the work that is being done and the progress of your matter.


Q. What should I expect from the attorney/client relationship?

The attorney and client should establish an early understanding of the relationship between client and lawyer. Many people incorrectly believe that once they retain a lawyer, the lawyer will solely be responsible for everything necessary to successfully handle their legal matter.

In reality, hiring a lawyer is just the first step the client takes to solve his or her legal problem. In some cases, the attorney will consult an expert or assemble a legal team that will include others such as investigators, expert witness, mental health professionals, sentencing mitigation specialists, and the like. Each member of the team, including the client, has certain responsibilities to fulfill in order to ensure that the legal matter will be handled as smoothly and successfully as possible.

The lawyer will use his legal expertise, knowledge, skill, and experience to advise you on the law, as applied to the facts of your case, and the alternatives available to you. The advice will include a detailed discussion of possible consequences of each available course of action to assist you in making intelligent and informed decisions about how your case or legal matter should proceed.
In some instances the lawyer will use his or her judgment about what to do and will not necessarily ask you for input or advice. Say, for example, that you have decided to take your case to trial. The lawyer will decide how to question the various witnesses, make legal objections, and introduce items of evidence without consulting with you.

Your lawyer will expect you to be truthful and complete about the facts of your situation. Holding back information can prevent the lawyer from giving you sound legal advice. You may also be asked to assist by providing records or documents and by locating witnesses important to your case. On occasion, your lawyer may expect you to make reasonable adjustments to your schedule to meet with the lawyer or attend legal proceedings, such as court appearances, hearings, and trials, as necessary.

Of course, this list is not exhaustive; your job on your legal team will depend on the specific nature of your particular legal matter and the expectations of your attorney.


Q. Will the court hold it against me if I hire an attorney and plead not guilty?

No. You have an absolute right under the state and federal Constitutions to challenge charges and the evidence against you. Frankly, it would be foolish not to have professional representation if charged with a crime. Most judges and prosecutors are far more comfortable dealing with clients who are represented by counsel familiar with local court protocol.


Q. What will happen on my first court date if I haven’t retained counsel?

The first court date is the arraignment. You are simply advised as to the charge(s) and asked if you want to enter a plea of guilty or not guilty to those charges. Usually, the police report and other discovery is available to your attorney. In felony and other serious cases, if you don't have a private attorney with you, the prosecution will give the discovery to the public defender who the judge will appoint to represent you if you qualify as "indigent". If you plead not guilty at the arraignment, the court will set your case for a pretrial conference in approximately 30 days. This allows additional time for those defendant’s who plan to retain private counsel.


Q. If I hire an attorney, does that mean that the case will go to trial?

Not necessarily. The vast majority of cases do not proceed to trial. Whether or not your case will go to trial depends on far too many factors to list here, including those particular to your specific case.


Q. If I was appointed a public defender, can I retain a private attorney to substitute in as counsel of record?

Yes. At anytime during your case, you can hire your own attorney to defend you. However, don’t wait too long because all attorneys need sufficient time to meaningfully investigate and evaluate any given case.


Q. Can I retain a private attorney to assist the public defender?

Yes. In Arizona, the authority set forth in State v. Knapp, authorizes dual representation by both a privately retained attorney and a court appointed attorney or public defender. Under Knapp, a criminal defense attorney is retained to work with the assigned public defender on your case. In certain cases, The Gillespie Law Firm, P.C. has agreed to associate with the public defender to ensure that the client is zealously represented.

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DUI / DWI

Q. The officer confiscated my license. Is my license still valid?

Upon your arrest for DUI and providing a blood or breath sample over .08 BAC or refusing to take the breath test, the State of Arizona Motor Vehicle Division initiates administrative proceedings to suspend and/or revoke your driving privileges. You are issued a temporary license which advises you must request a hearing to contest the action within 15 days or you will lose your right to do so. Upon requesting a hearing, the temporary license remains valid pending further action to be taken at or subsequent to the scheduled hearing.


Q. My breath/blood alcohol reading was below the legal limit. Do I have anything to worry about?

Possibly. In the State of Arizona, even if your reading is below the statutory limit or there are no blood or breath alcohol results, the police and prosecuting attorney can and will proceed if they believe that there is sufficient evidence to prove your ability to drive was affected by your consumption of alcohol. This opinion is usually based upon the officer’s observations of your driving, any field sobriety tests conducted, and any other incriminating evidence, including your own statements. Remember, the officer arrested you because he or she felt that your ability to drive was impaired, so charges may still be a very real possibility. A.R.S. § 28-1381(A)(1).


Q. Shouldn't I just plead guilty if my test results were over the legal limit?

No. High BAC test results are often completely irrelevant in formulating a winning defense. For example, if the officer violates your Constitutional Rights by stopping your vehicle without legally sufficient cause, the court is required to suppress all evidence seized subsequent to the stop, including the blood or breath test results. Furthermore, there may have been one or more errors during the chemical testing process that can only be uncovered after carefully investigating and analyzing the testing protocol and scientific results with a toxicologist or criminalist experienced in handling DUI cases. Alcohol testing is not always accurate. Procedural errors, faulty or improperly maintained equipment, improper testing methods are always a possibility in a DUI case. If you simply plead guilty based on the test results alone, you may be giving up your opportunity for a dismissal or reduction of the charges against you.


Q. If my license gets suspended, can I get a permit to drive to work or school?

While the answer varies depending on your individual driving history and whether you submitted to a test of your breath or blood, if you have no prior offenses, did not cause serious physical injury, and did not refuse the test, you can usually obtain a restricted license to drive to and from work, school, or medical appointments. Once you have completed a portion of the suspension and have otherwise complied with certain requirements set forth by the Motor Vehicle Department, you may be eligible for a restricted permit. However, there are many limits on obtaining a restricted license and it is crucial that an experienced DUI attorney review the particular circumstances of your case.

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CRIMINAL LAW AND PROCEDURE

Q. Can the police search my car without my consent?

Possibly. It depends entirely on the particular facts of your case. Generally, police need probable cause to suspect that your vehicle contains illegal contraband, such as drugs, guns, stolen property, or have some other basis to believe that you are or have been involved in committing a crime. If the police reasonably believe you have something illegal in your car or have just arrested you for something else, then they can search the interior of your car incident to arrest, but not usually the trunk. Police are also permitted to look inside your car through the windows. If they see something illegal, that may provide probable cause to search the car. This area of law is called Fourth Amendment Search and Seizure and is highly complex. You should always consult an experienced defense attorney regarding the legality of any search.


Q. I was arrested, but the officer never cited me or told me when I have to be in court. Does this mean that I wasn’t charged?
No. In some cases police agencies do not issue citations or file the charges directly and do not give the individual that they arrest a court date. Instead, they will complete the investigation and forward the case on to the local prosecuting authority for the filing of formal charges. If you are charged, usually you will receive your court notice in the mail. The time for receiving this notice varies greatly from jurisdiction to jurisdiction.


Q. If a family member or friend has been arrested—how can I get him released from jail? How does bond work? Can he be released on his own recognizance? Why is the bond so high? Can anything be done to lower the bond?

In general, when someone is arrested for a traffic offense or simple misdemeanor, they are usually issued a citation and released based upon their promise to appear. However, things are often different when it comes to charges for felony offenses and serious misdemeanors. In those cases, while it is possible to be released on their own recognizance, posting of bond is often required.
Once the bond is set, it is possible to get that amount lowered, depending upon the type of crime that is charged and the personal history of the defendant. The court will consider such factors as the seriousness of the offense, the defendant’s criminal record, his or her ties to the community, and whether or not the defendant is a flight risk.

Bond may be posted directly with the clerk of the court, at the jail having custody of the defendant, or through a bail bondsman. Bail bondsmen will require a fee of 10% of the amount of the bond and require collateral to secure the bond. Once paid, this fee belongs to the bondsman.

An experienced criminal defense attorney can be extremely helpful in getting bond reduced, or helping a defendant be released to a responsible third party, under the supervision of the probation department, or on his or her own recognizance.

For example, in some of our more serious felony cases, The Gillespie Law Firm, P.C. has been successful in seeking bond reduction in Maricopa County Superior Court as follows:

    State v. S.D. – $2.5 million to $100,000
    State v. J.O. - $500,000 to $10,000
    State v. S.H. - $250,000 to $100,000
    State v. R.L. - $108,000 to $32,000


Q. I have been arrested, what should I do?

The first thing you should do is to contact an experienced criminal defense attorney who can help you understand the law, investigate your case, determine your options, formulate a defense, and help you navigate the criminal justice process.


Q. The police did not read me my rights, will my case be dismissed?

Perhaps. The police are only required to read you your "Miranda Rights" if you are actually “in custody” and are a suspect in the crime that they question you about. Failure to advise you of your rights does not automatically result in a dismissal of the charges or your statements being suppressed. However, you should discuss the facts of your case with an experienced defense attorney because the law concerning Miranda Rights is complex and highly important in any criminal case.


Q. Can I get the charges against me reduced, or dropped?

In many cases, you can. This is where an experienced and knowledgeable defense attorney’s skills come into play. Before you make any decisions about whether or not to accept any type of plea offer by the prosecution, you should have an experienced criminal defense attorney thoroughly investigate the particular facts and circumstances of your case. Your attorney can utilize the fruits of a successful investigation as bargaining chips to negotiate with the prosecutor for either a reduction or dismissal of the charges against you.


Q. In a domestic violence case, can the “victim” drop the charges?

In Arizona, victims have the right to discuss the case with the prosecution and to make their wishes known. However, it is always up to the prosecution whether or not to drop charges. Of course, an experienced defense attorney can often impact how the prosecutor sees the case, and can sometimes convince the prosecutor to reduce or dismiss the charges.


Q. Procedurally, what is the difference between the misdemeanor and felony process?

When someone is arrested, the criminal process will vary, depending upon whether they are charged with a misdemeanor or a felony. A misdemeanor case is one where the maximum punishment is six months in county jail, a fine, or a combination of jail and a fine. In a felony case, the punishment is usually much more severe, and can include confinement in the Arizona State Prison, or in some extremely serious cases, death.

In a misdemeanor case, the first appearance is called the arraignment. The main purpose of the arraignment is for the accused to enter a plea. If the accused pleads not guilty, the case is scheduled for a pretrial conference and at some point trial. A conviction requires six jurors to unanimously agree that the accused is guilty beyond a reasonable doubt.

In felony cases, the first appearance is the initial appearance. Next, the case is set for a preliminary hearing. A preliminary hearing is held in front of a judge (not a jury), where the judge listens to the testimony of witnesses and determines whether there is sufficient evidence to bind the defendant over to stand trial.

If the judge decides that there is enough evidence for the accused to be brought to trial, the defendant has an arraignment, pretrial conference, and then trial. A conviction requires eight or 12 jurors, depending on the seriousness of the charges, to unanimously agree that the accused is guilty beyond a reasonable doubt.

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PROFESSIONAL LICENSING

Q. Will an arrest or criminal conviction affect my professional license?

Yes. Certain types of arrests or subsequent criminal convictions can affect a person’s ability to obtain or keep virtually every professional license that is regulated by the state. Some professions require that the crime be related to the duties of the profession before the license will be affected; others will be affected based solely upon conviction. For example:

There are many factors at work in the case of the professional who is accused of crime; it is critical that the advice of a competent, creative, and insightful defense attorney be considered, since a conviction can have ramifications far beyond the prosecution itself.

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PRIOR CONVICTIONS

Q. Will the state use my prior convictions against me?

That depends on the nature of the prior(s) and when the conviction occurred. Generally, prior convictions can affect many issues in a criminal case, from bond to sentencing. This is often a complicated question, and is definitely a situation where consultation with a knowledgeable criminal defense attorney is imperative. Under Arizona’s sentencing scheme, a person’s prior felony convictions can significantly impact the amount of time a person can be sentenced to serve in state prison. A.R.S. § 13-701 et seq.


SENTENCING ALTERNATIVES

Q. Are there alternatives to jail or prison if convicted of a crime?

There are many. Consultation with an experienced attorney is invaluable to properly determine which are the most viable options in a given case. Alternatives to jail include probation, alcohol and drug rehabilitation and treatment, electronic monitoring, house arrest, work release, work furlough, community service, and many more. There are pros and cons to each, and a creative and knowledgeable criminal defense attorney can help fashion options palatable to the prosecution which are tailored to the client’s specific needs.

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PROBATION

Q. What is probation?

Probation is a sentencing provision available to all courts which has strict regulations and accountability requirements. Probationers must obey the law and be employed or enrolled in school. Most are required to pay restitution, court costs, fine and fees, as well as work a number of hours doing unpaid community service. They may not change jobs or move without the probation officer's permission. Urinalysis is often required to document they are not abusing alcohol or drugs. Treatment is required of those with a history of drug use. Education is required for those who are illiterate or do not have a high school diploma. The probationer may be ordered to pay the cost of treatment. In fact, some offenders choose to serve their sentence in prison in order to avoid probation supervision. A.R.S. § 13-901 et seq.


Q. Is probation the same as parole?

No. Parole is a conditional release of a prisoner before the end of a federal or state prison sentence. Probation is an alternative to incarceration in prison for selected defendants who meet certain criteria.


Q. Can the probation officer search a probationer's home?

Yes. As a condition of probation, probationers agree to give the probation officer access to their residence, car, or area where they work. However, probation officers may only search when they reasonably believe illegal contraband or evidence may be present. Under these circumstances, a search warrant is not required.


Q. Can the probation officer make arrests?

Yes. Arizona probation officers are peace officers and may make arrests without a warrant. Their jurisdiction is limited to persons on probation, however they may request assistance from other law enforcement agencies if they believe a crime has been committed.


Q. What is Intensive Probation?

Intensive probation is usually imposed on higher risk offenders who are primarily diverted from prison. It is a highly structured program designed to provide maximum control while assisting the offender to alter negative behavior patterns. Behavior is monitored through frequent home and work site visits, referrals to counseling agencies, and contacts with family members and counselors.


Q. I was arrested on a new charge and am currently on probation. What do I do now? Will the state revoke my probation because of the new charge?

This is a delicate situation, and the best approach depends on many factors. It is imperative that you immediately discuss this type of situation with an experienced criminal defense attorney who can best represent your interests in both the new case and the probation matter.

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CONVICTION AND LOSS OF CIVIL RIGHTS

A conviction for a felony suspends the right to vote, the right to hold public office, the right to serve as a juror, and during any period of imprisonment, any other civil right, which is necessary for the security and protection of the public. Conviction also suspends the right to possess a gun or firearm. A.R.S. § 13-904


RESTORATION OF CIVIL RIGHTS

Q. Is there anything I can do to clean up my criminal record?

Yes. A criminal record can hold a person back personally and professionally. Convicted felons often have difficulty obtaining good jobs, getting into schools, or just moving on in life, and feeling like they have closed the door on a chapter of the past. Once a person pays their debt to society through fines, jail time, or successfully completing probation, it is time to clean up their criminal record.

The following criminal offenses may not be set aside:

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