Criminal Defense

Anyone found to have a Blood or Breath Alcohol Content (“BAC”) above 0.08% may be convicted for impaired driving in the State of Arizona under A.R.S. § 28-1381(A)(2).

A “Regular” DUI is a class 1 misdemeanor and if convicted, your court-ordered penalties may include:

• A minimum of 10 consecutive days in jail;
• Probation;
• Minimum fine of $250 plus 78% surcharge and additional assessments totaling $1,000; 
• Community restitution; 
• Installation of Ignition Interlock Device;
• Completion of a traffic survival school course;
• Drug/Alcohol Screening and Treatment;
• 8 points against your Arizona Driving privilege; and
• A 90-day suspension of your Arizona Driving privilege.

Anyone found to have either marijuana or any prescription drug defined in A.R.S. § 13-3401 or its metabolite in their system while driving or in actual physical control of a vehicle may be convicted for drug DUI under A.R.S. § 28-1381(A)(3).

It is important to note that, in Arizona, an individual can be charged with a drug DUI even with a valid prescription if the drug taken has impaired their ability to drive at the time they were found to be driving (or in actual physical control of a vehicle). While presenting the prescription is a defense to the “(A)(3)” charge, the State can still attempt to proceed with an “Impaired to the Slightest Degree” DUI.

In Arizona, you do not have to have a BAC above the “legal limit” (0.08%) to be charged with a DUI. A law enforcement officer can also charge an individual with an “Impaired to the Slightest Degree” DUI without any blood or breath evidence under A.R.S. § 28-1381(A)(1). In an “impairment” or “(A)(1)” case, the State will attempt to prove impairment through driving behavior, interaction with the law enforcement officer, and your performance on any administered Standardized Field Sobriety Tests or “SFSTs.”

A DUI for being “Impaired to the Slightest Degree” is a Class 1 misdemeanor. If you are found guilty, your court-ordered penalties will include:

• A minimum of 10 consecutive days in jail;
• Probation;
• Minimum fine of $250 and additional assessments totaling $1,000; 
• Community restitution; 
• Installation of Ignition Interlock Device;
• Completion of a traffic survival school course;
• Drug/Alcohol Screening and Treatment;
• 8 points against your Arizona Driving privilege; and
• A 90-day suspension of your Arizona Driving privilege.

Anyone charged and convicted of DUI with a DUI conviction within the last 7 years (84 months) faces significantly harsher penalties. Furthermore, the BAC in the second case controls the amount of punishment that the State will attempt to exact. The BAC in the first case does not have any bearing on the second offense.

The punishment for a second offense DUI conviction includes:

• A minimum of 90 days in jail, 30 of which must be served consecutively;
• Minimum fine of $500 and additional assessments totaling $2,500; 
• A minimum of 30 hours of community restitution; 
• Suspension/Revocation of license for 1 year;
• Installation of Ignition Interlock Device;
• Completion of a traffic survival school course; and
• Drug/Alcohol Screening and Treatment.

Anyone found to have a BAC over 0.15% can trigger an extreme DUI charge in Arizona. An extreme DUI is a class 1 misdemeanor. If you are found guilty, your penalties may include:

• A minimum of 30 consecutive days in jail;
• Probation;
• Minimum fine of $250 and additional assessments totaling $2,250; 
• Community restitution; 
• Installation of Ignition Interlock Device;
• Completion of a traffic survival school course;
• Drug/Alcohol Screening and Treatment;
• 8 points against your Arizona Driving privilege; and
• A 90-day suspension of your Arizona Driving privilege.

Anyone found to have a BAC over 0.20% can trigger a super extreme DUI. A super extreme DUI is a class 1 misdemeanor. If you are convicted of super extreme DUI, penalties may include:

• A minimum of 45 consecutive days in jail;
• Probation;
• Minimum fine of $500 and additional assessments totaling $2,250; 
• Community restitution; 
• Installation of Ignition Interlock Device for not less than eighteen months;
• Completion of a traffic survival school course;
• Drug/Alcohol Screening and Treatment;
• 8 points against your Arizona Driving privilege; and
• A 90-day suspension of your Arizona Driving privilege.

A felony DUI in Arizona is almost always referred to as aggravated DUI. Not to be confused with an “Extreme” or “Super Extreme” DUI, the BAC does not change a misdemeanor into a felony. Felony or aggravated DUI charges can vary widely and depend on the specific circumstances of the situation, but all are a result of one of (or a combination of) the following:

• Charged with a DUI while your privilege to drive was suspended, canceled, revoked, or refused or while a restriction is placed on the person’s driver license or privilege to drive;
• Charged with a third or subsequent DUI within a period of 7 years (84 months);
• Charged with a DUI while you had a child under the age of 15 in the car;
• Charged with a DUI with two (or more) allegeable prior DUI convictions; 
• Charged with a DUI while operating a vehicle without a court-ordered Ignition Interlock Device; and/or
• Charged with a DUI while driving the wrong way on the highway.

Anyone arrested for DUI on federal land can be charged with a federal DUI and charged in federal court. Land held by the federal government where a driver may be charged with a DUI includes National Parks (including waterways); National Monuments; Military Bases; Federal Courthouse Property; Airport Property; and many other governmental parking lots and driveways.

A Federal DUI is classified as a class “B” misdemeanor and punishable by:

• Up to 6 months of imprisonment in a federal penitentiary;
• Up to $5,000 in fines; and
• Up to 5 years of supervised probation.

Many Americans choose the military as a career to gain practical experience, obtain an education, and serve their country. The competitive application process includes physical and psychological exams, as well as background checks. Although policies regarding DUI charges vary by branch, branches with more exclusive enrollment policies such as the Air Force and Marine Corps are less likely to consider candidates with a DUI conviction. 

A DUI charge can also prevent a candidate from gaining security clearances and promotions, or result in a loss in rank, reduction in pay, and their duties changed. For some, a DUI conviction can even trigger an “early kick out,” a formal discharge from the military. 

We represent active and former military personnel facing DUI charges in Superior Court, the City of Phoenix Veterans’ Court, and all of the Veterans’ Courts in Maricopa County. Our experience includes navigating the process with the prosecutors’ office, the court itself, and the Veterans’ Administration (VA).

Our hands-on experience in this area of criminal law includes attorney Joshua Fisher, who served in the United States Army Reserve Judge Advocate General’s Corps for 10 years and represented service members accused of misconduct, and advocated for them during upgrading discharge procedures. Since then, Josh has tried over 200 criminal cases before juries, including as a City of Phoenix government prosecutor, as a Special Assistant United States Attorney, and in Yavapai County where he led the drug interdiction unit (narcotics trafficking) and worked in the general trial unit handling complex felony offenses.

In Arizona, a person can be prosecuted for operating a watercraft while under the influence of drugs or alcohol (“OUI”). These relatively recent changes to Arizona’s OUI laws align them with Arizona’s DUI laws, with harsh punishments to match.

While an individual’s driver license should not be impacted by the OUI charges, those convicted will face mandatory minimum penalties, including jail.

Your privilege to drive in Arizona is affected in various ways, the two most common being that you:

• accumulated a certain number of “points” over a specified time period or
• are charged with a major traffic violation – like a DUI.

All civil and criminal traffic violations in Arizona are assigned “points.” In theory, the more serious the violation, the more “points” are assigned to the violation. For example, a DUI in Arizona is assigned eight (8) points while Failing to Drive in a Single Lane is assigned two (2) points. If you accumulate too many points over a certain period of time, the MVD can suspend your license and therefore your privilege to drive.

If you are accused of a DUI in Arizona, the law enforcement officer will likely serve you with an Admin Per Se / Implied Consent Affidavit (“APS”). This document becomes evidence of your privilege to drive for the next fifteen (15) days and will serve as your temporary driver’s license. 

It is imperative that you retain an experienced DUI attorney who can request a License Suspension Hearing in a timely manner to postpone your suspension until the MVD Executive Hearing Office sets a hearing and that hearing is conducted by an Administrative Law Judge (“ALJ”).

If you do not request a hearing with the Arizona MVD Executive Hearing Office, your privilege to drive will be suspended for 90 days. You may obtain a restricted permit for travel to and from work, on the job, to and from school, and to and from a treatment center within Arizona. A minimum of thirty (30) days of the suspension period must be served before the restricted driving privilege begins.

When it comes to driving under the influence, commercial drivers are held to a much higher standard than the average person. Commercial vehicle operators must drive several hours a day, often many days in a row, and are responsible for safely transporting people and cargo from one place to another. 

A commercial driver suspected of drunk driving can be arrested and charged with a DUI for having a BAC of 0.04% or greater. Because commercial drivers face constant stress and fatigue from long hours on the road, testing positive for even a small amount of alcohol could lead to a DUI conviction and result in a suspended commercial license.

Criminal speeding is a class 3 misdemeanor and can cause short and long-term damage to your driving record. Under A.R.S. § 28-701.02, you can receive a criminal speeding ticket if you are accused of:

• Driving over 35 mph approaching a school crossing.
• Driving over 20 mph above the posted speed limit in a business or residential district, and over 20 mph in other locations.
• Driving over 45 mph where no speed limit is posted.

Reckless driving is a class 2 misdemeanor. Under A.R.S. § 28-693, a consequence of a conviction may include a loss of driving privileges for 90 days.

While many Arizona speeding laws carry harsh consequences, drag racing is one of the most serious criminal traffic violations. A.R.S. § 28-708 states that a person shall not drive a vehicle or participate in a race, speed competition or contest, drag race or acceleration contest, test of physical endurance, or exhibition of speed or acceleration for the purpose of making a speed record on a street or highway. 

Drag racing is a class 1 misdemeanor. If convicted for a first offense, punishments may include:

• A minimum fine of $250;
• Community restitution; and
• A loss of driving privileges for up to 90 days.

Photo radar systems are used by law enforcement agencies to catch speeding drivers. Photo radar units are posted throughout Arizona to monitor roads and intersections and capture images of automobiles and drivers breaking the law. Photo radar tickets are subject to specific notification and service of process requirements. Tickets can also be challenged based on the photo radar’s accuracy or by demonstrating you were not the driver of the vehicle at the time of the alleged violation. 

Our experienced lawyers understand the complexities of the photo radar laws and can help protect your rights and your license to drive.

Assault or domestic violence assault occurs when someone knowingly or recklessly causes physical injury to another person; or knowingly touches another person with the intent to injure, insult or provoke; or intentionally places another person in reasonable apprehension of imminent physical injury. Generally, if an assault occurs between family members or people who have (or had) a romantic or dating relationship, it is considered Domestic Violence.

The range of punishment a defendant faces varies widely and can include:

• Prison or jail time; 
• Fines;
• Treatment program; and/or
• Revocation of right to own or possess a firearm.

In Arizona, aggravated assault can be a class 2-5 felony and is typically categorized as a “dangerous” violation. Penalties can include mandatory prison – even for a first offense. Under A.R.S. § 13-1204, aggravated assault can include:

• Serious physical injury or temporary but substantial disfigurement to another.
• Using a deadly weapon or dangerous instrument to intentionally place someone in imminent fear of serious physical injury.
• The victim is bound or otherwise physically restrained or while the victim's capacity to resist is substantially impaired.
• After entering the private home of another with the intent to commit the assault.
• A person is in violation of an order of protection issued against the person.
• Ordinary assault knowing or having reason to know the victim is a public servant, such as police officers, teachers, prosecutors, health care providers, or prison guards.
• A person 18 years of age or older committing misdemeanor assault on a child who is 15 years old (or younger).
• Uses a simulated deadly weapon.

In Arizona, Criminal Damage is committed when a person recklessly defaces or damages the property of another person. This crime carries significant legal penalties that could affect your record, and in extreme cases, your freedom. Ranging from a class 2 misdemeanor to a class 4 felony, the severity of the penalties greatly depends on the type of property that is damaged, and how much damage has been done. 

In Arizona, the crimes of criminal trespass and burglary are two different offenses, and each is broken down into degrees depending largely on the location and situation. Under A.R.S. § 13-1501 et seq.:

• Criminal Trespass in the Third Degree: Occurs when a person knowingly enters or remains after a reasonable request to leave by the owner or law enforcement officer, or knowingly entering or remaining unlawfully on the right-of-way for tracks, or the storage or switching yards or rolling stock of a railroad company.
• Criminal Trespass in the Second Degree: Occurs when a person knowingly enters or remains in a non-residential structure or fenced commercial yard.
• Criminal Trespass in the First Degree: Occurs when a person knowingly enters or remains unlawfully in a residential structure or yard or entering or remaining on the property of another and burning, defacing, mutilating, or otherwise desecrating a religious symbol or other religious property of another without the express permission of the owner of the property.
• Burglary in the Third Degree: Occurs when a person enters or remains in (or on) a non-residential structure or in a fenced yard with the intent to commit theft or any felony, or making entry into any part of a motor vehicle by means of a manipulation key or master key, with the intent to commit any theft or felony in the motor vehicle. 
• Burglary in the Second Degree: Occurs when a person enters or remains in (or on) a residential structure with the intent to commit theft or any felony.
• Burglary in the First Degree: Occurs when a person enters or remains in (or on) a non-residential structure or in a fenced yard or residential structure with the intent to commit theft or any felony while in possession of explosives, a deadly weapon, or dangerous instrument.

Burglary and criminal trespass both involve unlawful entry into another property. However, unlike trespass, burglary requires entering with the intent to commit a crime. The penalties for burglary and criminal trespass range from a class 3 misdemeanor to a class 2 felony. 

The penalties for theft range from a class 1 misdemeanor to a class 2 felony. Under A.R.S. § 13-1801 et seq., a person commits theft if they:

• Control the property of another with the intent to deprive the other person of such property.
• Convert property entrusted to the defendant.
• Obtain services or property by material misrepresentation with intent to deprive the other person of such property or services.
• Come into control of lost, mislaid, or misdelivered property without reasonable efforts to notify the true owner.
• Control property they know or have reason to know was stolen.
• Obtain services they know are available only for compensation without paying or an agreement to pay or diverts another’s services to the person’s own or another's benefit without authority to do so.
• Control the ferrous metal or nonferrous metal of another with the intent to deprive the other person of the metal.
• Control or purchase within the ordinary course of business the ferrous metal or nonferrous metal of another knowing or having reason to know that the metal was stolen.
• Knowingly takes control, title, use, or management of a vulnerable adult’s property while acting in a position of trust and confidence and with the intent to deprive the vulnerable adult of the property.  

Robbery is a type of theft distinguished by the use of force, and penalties can vary depending on the circumstances of the alleged crime. Under A.R.S. § 13-1901 et seq., robbery is committed when, in the course of taking any property of another from his person or immediate presence and against his will, such person threatens or uses force against any person with intent either to coerce surrender of the property or to prevent resistance to taking the property.

There are significant penalties for robbery – ranging from a class 4 felony to a class 2 felony. 

In Arizona, forgery offenses occur when an individual falsely makes, completes, or alters a written document. Forgery charges also include the related offenses of:

• Criminal possession of a forgery device
• Criminal simulation
• Obtaining a signature by deception
• Criminal impersonation
• Unlawful use of slugs
• Taking the identity of another
• Trafficking in the identity of another person

Depending on the severity of the act, forgery can carry serious consequences. Forgery is a class 4 felony. If the forged instrument is used in connection with the purchase, lease, or renting of a dwelling that is used to facilitate smuggling, it is a class 3 felony. Navigating the maze of legal terms and deciphering types of forgery is a grueling task and requires a highly-skilled legal advocate to obtain the best outcome for your individual case. 

Arizona often ranks in the top 10 states for overall vehicle thefts, oftentimes with the vehicles ending up in chop shops, where they are dismantled so that the parts can be sold or used to repair other stolen vehicles. Chop shop investigations are extremely serious and have been linked to human and drug trafficking. Penalties for involvement in chop shops range from class 2 to class 4 felony.

Under A.R.S. §13-4702, chop shop involvement includes:

• Owning or operating a chop shop.
• Transporting a motor vehicle or motor vehicle part to or from a chop shop.
• Selling, transferring to, purchasing, or receiving from a chop shop a motor vehicle or motor vehicle part.
• Removing, destroying, defacing, or otherwise altering a vehicle identification number with the intent to misrepresent or prevent the identification of the motor vehicle or motor vehicle part.
• Buying, selling, transferring, or possessing a motor vehicle or motor vehicle part knowing that the motor vehicle identification number, which was placed on the motor vehicle or motor vehicle part by the manufacturer, has been removed, destroyed, defaced, or otherwise altered.

Arizona’s penalties for sex offenses are among some of the harshest and most severe in the nation. Prison is mandatory for almost all sex offenses, with sentences ranging from 13 to 27 years in prison. Penalties can include consecutive sentences for multiple victims and/or images, making life sentences a very real possibility. In addition, most sex offenses require an individual to register as a sex offender after prison release, which often includes community notification.

Under A.R.S. § 13-1400 et. seq., the following are listed as distinct and independent sexual offenses:

• Indecent Exposure
• Public Sexual Indecency
• Sexual Abuse
• Sexual Conduct with a Minor
• Sexual Assault
• Adultery
• Molestation of a Child
• Bestiality
• Unlawful Sexual Conduct

Charges arising from sex-related crimes are extremely difficult and complicated. Because of their discreet nature, individuals facing charges or a conviction must immediately seek knowledgeable, reliable, and dedicated legal representation.  

Led by veteran sex crimes attorney Woody Thompson, our team has extensive experience in all facets of defending these challenging and sometimes high-profile cases. In addition to Woody’s 22 years of felony and misdemeanor criminal defense experience, Josh Fisher brings invaluable insight to your case as a former sex crimes prosecutor.

If you’re facing charges in a sex-related case, contact our discreet and professional criminal defense attorneys for an aggressive defense strategy tailored to your individual needs.

Racketeer Influenced and Corrupt Organizations (RICO) cases are a special category of offenses in which the government pursues the property and assets of criminal syndicates. Gallagher & Kennedy’s criminal defense attorneys have represented those accused of federal RICO offenses and other types of racketeering offenses pursued by the State of Arizona.

Our criminal defense team handles a wide range of regulatory and licensing issues for businesses, individuals, and licensed professionals, including lawyers, doctors, nurses, physical therapists, commercial drivers, law enforcement officers, and students facing college and university actions. 

We have appeared before all state and federal regulatory agencies and boards, including the Arizona Medical Board, Arizona Physicians’ Board, Arizona Nursing Board, Arizona Real Estate Board, Arizona Child Protective Services, Arizona Department of Transportation and Motor Vehicle Division,  Arizona Physical Therapy Board, Arizona Department of Motor Vehicles Executive Hearing Offices, Vector Control, the Maricopa County and Arizona State University system, the Office of Inspector General, Military Adjudications of Civilian Criminal Charges, and the Internal Revenue Service.

If you have been contacted by any regulatory agency that threatens your status as a student or your ability to work in your chosen profession, it is imperative that you consult with experienced legal counsel to protect your licensing and accreditation. 

Gallagher & Kennedy’s criminal defense attorneys conduct internal investigations with businesses and governmental agencies, and often serve as outside consultants when an entity elects to direct its own internal investigation. We also advise clients on proactive risk mitigation of consent decrees by the U.S. Department of Justice and other governing bodies.

We work effectively with individuals and all types and sizes of business entities in investigations, prosecutions, allegations of violations of laws concerning money laundering, fraud, and embezzlement and false claims.