Phoenix Criminal Defense FAQ’s

Based upon his years of experience, these are questions that Mr. Barber has found are the most common when people come in for criminal defense consolations. They cover all different areas of criminal law and our continuously adds more. For more in depth information, visit our Arizona criminal law blog.

What is an “undesignated felony?”

Under the law in Arizona, an undesignated felony allows for a person to plead guilty to a felony with the possibility of it becoming a misdemeanor. This is very beneficial because once you are convicted of a felony it is a serious mark on your record. In addition to losing many rights (like the right to vote, to serve on a jury and the right to own a firearm), convicted felons can face many challenges after completing their sentence when trying to find employment and housing. This is not the case for people convicted of a misdemeanor.

After pleading guilty to an undesignated felony, you are placed on supervised probation for a period of time, usually for about three years. If you successfully complete all of the terms and conditions of your probation, you can have the felony designated a misdemeanor. This usually happens upon being discharged from probation.

What is the difference between city courts, justice courts, and superior courts?

In Arizona there are three different types of trial level courts: city (or municipal) courts, justice courts, and superior courts. Phoenix is an excellent example: there is the Phoenix Municipal Court, the Downtown Phoenix Justice Court, and the Maricopa County Superior Court. I discuss the difference between these Courts in this video and the following text:

City Courts and justice courts can only hear misdemeanor cases. They are known as “limited jurisdiction courts.” Therefore, if you are going to trial in a city or justice court, you are only facing the prospect of a misdemeanor conviction. Occasionally a felony charge will start in a justice court (perhaps for an arraignment) but it will always be transferred to the superior court. Therefore, the superior courts are where felony matters are heard. Only the superior courts — there is one in each county — can hear felony cases. That is why they are known as “general jurisdiction courts.”

Do I have to let the police draw my blood for a DUI?

The short answer is yes. If you are pulled over in Phoenix on suspicion of DUI, under Arizona law you have to submit to a blood (or breath or urine) test. The law says that if you are driving on an Arizona road, and the police have reasonable suspicion that you are under the influence, you must submit to these tests. This is known as the implied consent law.

Of course, you can refuse such a test, but the penalties are harsh. If you refuse, your license is automatically suspended for one year. This is much harsher than the 30 day suspension that most people receive for a DUI. Also, the one year suspension occurs even if you are not charged with a DUI or if you DUI is dismissed. Finally, if you refuse, the police almost always get a search warrant for your blood and obtain a sample.

What should I do if I am arrested for DUI?

1) Be courteous and respectful. No matter how upset you are and no matter how the police are treating you, being rude will only hurt you.

2) Refuse to perform any field sobriety tests. You do not have to perform field sobriety tests (i.e. walk in a straight line, etc.) under Arizona law. These tests are not meant to help you. Note that you do have to submit to blood/breath tests.

3) Once it is clear that the police are investigating DUI, immediately invoke your right to remain silent by telling the police that you are invoking that right and that you refuse to answer questions. (Of course you must still comply with requests for your name, license, registration, insurance, etc.).

4) Demand a phone call with an attorney prior to submitting to blood/breath tests. Explain that you will comply but only after speaking with an attorney unless doing so would impede the investigation.

5) Ask to be released as soon as possible so that you can obtain independent testing.

6) Finally, remember to remain silent. No matter how harmless the questions they are asking may seem to be, they are trying to collect evidence and your answers will only help them and not you.

Can I have my out of state or federal conviction set aside?

No. Arizona only allows you to set aside convictions that occurred in Arizona state courts. This is because Arizona has no legal authority (called jurisdiction) over convictions that occurred in other states or in federal courts.

If you are looking to expunge a conviction from another state, try calling a criminal defense attorney in the county that you were convicted in. They should know the state’s laws, and they should know if they can help you.

Unfortunately, federal convictions cannot be set aside under federal law. Right now, the only thing you can do for a federal conviction is attempt to have it pardoned by the president. You can, however, have your civil rights restored for a federal conviction.

Can I restore my civil rights for an out of state or federal conviction?

Arizona law allows you to restore your civil rights for federal convictions. Unfortunately, there is not yet a law that allows you to restore your civil rights for convictions that occurred in other states.

If you were convicted of a felony in a federal court anywhere in the country, you can have your civil rights restored. This includes the right to vote, the right to serve on a jury and the right to bear arms. You must petition the superior court in the county in which you live to have this done. It is a civil matter and therefore does not happen before a criminal judge. I have done this for many clients successfully.

What are the requirements to set aside my Arizona conviction?

You must have fulfilled all of the conditions and requirements of your sentence. This simply means that all of your fines, fees, etc. have been paid in full and that you are completely discharged from probation (or prison/parole). If all of this has been done, then you are eligible to have your conviction set aside.

There are, however, certain convictions that by law can never be set aside. This includes:

  • If you offense was alleged as a dangerous offense, meaning you were sentenced as a dangerous offender.
  • If your offense was a sexual offense that required you to register as a sex offender.
  • If there was a victim in your case that was under the age of 15.
  • If it was a non-criminal traffic offense (like speeding).

Can My Spouse Refuse To Testify Against Me?

In Arizona there is no “spousal privilege” when it comes to criminal offenses. This means that if the prosecutor wants to call your spouse to testify against you at trial, your spouse cannot refuse. While there is a spousal privilege in other types of cases in Arizona, it does not apply to criminal cases.

This most often becomes an issues in domestic violence cases. Perhaps there was a fight and one spouse calls the police and someone gets charge with disorderly conduct, alleged as a domestic violence offense. The spouse never wanted charges to be brought, but now it is out of their hands. Unfortunately they can be forced to testify.

That being said these types of domestic violence cases are often the best cases to fight and take to trial because they are very hard to prove, even if a spouse does testify.

What is an Ignition Interlock Device?

In Arizona any DUI conviction will come with mandatory penalties related to your license. In addition to a license suspension, every DUI conviction requires the installation of an ignition interlock device (IID) on any car you drive for a period of time after your license is reinstated.

After a DUI conviction (or arrest if you do not request an executive hearing with the MVD) your license is automatically suspended. The length of the suspension (and IID requirement) will depend on the type of DUI (first or second, regular or extreme, misdemeanor or felony). An IID is a device that is installed on your car that detects whether you have alcohol in your breath.

With an IID you have to blow into the device in order for the car to start. If the device detects alcohol in your breath the car will not start. Additionally the device will go off randomly while you are driving, requiring you to blow into the device. These devices are monitored by private companies that are certified by ADOT. If the device detects alcohol, it will be reported to the interlock installer and they will report it to MVD. If you are reported to MVD, they will extend the amount of time that you have to have the device.

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