STALKING

STALKING

  • Repeated, unwanted, intrusive, and frightening communications from the perpetrator by phone, mail, and/or email.

  • Repeatedly leaving or sending victim unwanted items, presents, or flowers.

  • Following or laying in wait for the victim at places such as home, school, work, or recreation place.

  • Making direct or indirect threats to harm the victim, the victim's children, relatives, friends, or pets.

  • Damaging or threatening to damage the victim's property.

  • Harassing victim through the internet.

  • Posting information or spreading rumors about the victim on the internet, in a public place, social media or by word of mouth.

  • Obtaining personal information about the victim by accessing public records.

  • Using GPS devices and or Computer spyware ARIZONA’S ANTI-STALKING STATUTES

    13-2923. Stalking; classification; definitions

    A. A person commits stalking if the person intentionally or knowingly engages in a course of conduct that is directed toward another person and if that conduct either:

    1. Would cause a reasonable person to fear for the person's safety or the safety of that person's immediate family member and that person in fact fears for the person's safety or the safety of that person's immediate family member.

2. Would cause a reasonable person to fear death of that person or that person's immediate family member and that person in fact fears death of that person or that person's immediate family member.

B. Stalking under subsection A, paragraph 1 of this section is a class 5 felony. Stalking under subsection A, paragraph 2 of this section

C.

is a class 3 felony.
For the purposes of this section:

1. "Course of conduct":
(a) Means any of the following:

2.

(i) Maintaining visual or physical proximity to a specific person or directing verbal, written or other threats, whether express or implied, to a specific person on two or more occasions over a period of time, however short.

(ii) Using any electronic, digital or global positioning system device to surveil a specific person or a specific person's internet or wireless activity continuously for twelve hours or more or on two or more occasions over a period of time, however short, without authorization.

(b) Does not include constitutionally protected activity or other activity authorized by law, the other person, the other person's authorized representative or if the other person is a minor, the minor's parent or guardian.

"Immediate family member" means a spouse, parent, child or sibling or any other person who regularly resides in a person's household or resided in a person's household within the past six months.

13-2916. Use of an electronic communication to terrify, intimidate, threaten or harass; applicability; classification; definition
A. It is unlawful for any person, with intent to terrify, intimidate,

threaten or harass a specific person or persons, to do any of the following:

1. Direct any obscene, lewd or profane language or suggest any lewd or lascivious act to the person in an electronic communication.

2. Threaten to inflict physical harm to any person or property in any electronic communication.

3. Otherwise disturb by repeated anonymous, unwanted or unsolicited electronic communications the peace, quiet or right

of privacy of the person at the place where the communications

were received.

  1. Any offense committed by use of an electronic communication as set

    forth in this section is deemed to have been committed at either the place where the communications originated or at the place where the communications were received.

  2. This section does not apply to constitutionally protected speech or activity or to any other activity authorized by law.

  3. Any person who violates this section is guilty of a class 1 misdemeanor.

  4. For the purposes of this section, "electronic communication" means a wire line, cable, wireless or cellular telephone call, a text message, an instant message or electronic mail.

    FEDERAL STATUTES

1. VIOLENCE AGAINST WOMEN ACT

Whoever—

(1) travels in interstate or foreign commerce or within the special maritime and territorial jurisdiction of the United States, or enters or leaves Indian country, with the intent to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate another person, and in the course of, or as a result of, such travel places that person in reasonable fear of the death of, or serious bodily injury to, or causes substantial emotional distress to that person, a member of the immediate family (as defined in section 115) of that person, or the spouse or intimate partner of that person; or

(2) with the intent—

a. to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate, or cause substantial emotional distress to a person in another State or tribal jurisdiction or within the special maritime and territorial jurisdiction of the United States; or

b. to place a person in another State or tribal jurisdiction, or within the special maritime and territorial jurisdiction of the United States, in reasonable fear of the death of, or serious bodily injury to—

  1. (i)  that person;

  2. (ii)  a member of the immediate family (as defined in

    section 115 [1] of that person; or

  3. (iii)  a spouse or intimate partner of that person;

uses the mail, any interactive computer service, or any facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress to that person or places that person in reasonable fear of the death of, or serious bodily injury to, any of the persons described in clauses (i) through (iii) of subparagraph (B); [2] shall be punished as provided in section 2261 (b) of this title.

Section 2261 (B):

(b) Penalties. -- A person who violates this section or section 2261A shall be fined under this title, imprisoned--

(1) for life or any term of years, if death of the victim results;

(2) for not more than 20 years if permanent disfigurement or life threatening bodily injury to the victim results;

(3) for not more than 10 years, if serious bodily injury to the victim results or if the offender uses a dangerous weapon during the offense;

  1. (4)  as provided for the applicable conduct under chapter 109A if the offense would constitute an offense under chapter 109A (without regard to whether the offense was committed in the special maritime and territorial jurisdiction of the United States or in a Federal prison); and

  2. (5)  for not more than 5 years, in any other case, or both fined and imprisoned.

(6) Whoever commits the crime of stalking in violation of a temporary or permanent civil or criminal injunction, restraining order, no-contact order, or other order described in section 2266 of title 18, United States

Code, shall be punished by imprisonment for not less than 1 year.

OTHER FEDERAL ANTI-STALKING/HARRASSMENT STATUTES

18 U.S.C. section 2425 - Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, knowingly initiates the transmission of the name, address, telephone number, social security number, or electronic mail address of another individual, knowing that such other individual has not attained the age of 16 years, with the intent to entice, encourage, offer, or solicit any person to engage in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title, imprisoned not more than 5 years, or both.

18 U.S.C. 875(c) – Making a federal crime, punishable by up to five years in prison and a fine of up to $250,000, to transmit any communication in interstate or foreign commerce containing a threat to injure the person of another. Section 875(c) applies to any communication actually transmitted in interstate or foreign commerce - thus it includes threats transmitted in interstate or foreign commerce via the telephone, e-mail, beepers, or the Internet.

47 U.S.C. 223 - Making a federal crime, punishable by up to two years in prison, to use a telephone or telecommunications device to annoy, abuse, harass, or threaten any person at the called number. The statute also requires that the perpetrator not reveal his or her name.

Interstate Stalking Act - Makes it a crime for any person to travel across state lines with the intent to injure or harass another person and, in the course thereof, places that person or a member of that person's family in a reasonable fear of death or serious bodily injury. See: 18 U.S.C. 2261A

For further information, or questions about Stalking, please contact Adams & Associates, PLC at 480 219 1366, or E-mail Ashley at aadams@azwhitecollarcrime.com.

REVENGE PORN LAWS

ARIZONA’S REVENGE PORN LAW

PUNISHMENT FOR REVENGE PORN

Revenge Porn is a Class Five Felony, however, the Statute provides that it is a Class 4 Felony if the image is sent via electronic means, which is the most common method of sending images. Class 4 Felonies are normally punishable up to 3.75 years in prison. It is a Class 1 Misdemeanor to simply threaten to send or disclose Revenge Porn, even if no images were ever sent to anyone.

DISCLOSURE BY ELECTRONIC MEANS

“Disclose By Electronic Means” includes sending or posting images via e- mail, mobile device, tablet, electronic device or website.

ARIZONA’S REVENGE PORN STATUTE

The crime of “Revenge Porn” is to send images of another person in the state of nudity or other sexual act with the intent to harm, harass, intimidate, threaten or coerce. The person in the image must have had a reasonable expectation of privacy that the images were private.

13-1425. Unlawful distribution of images depicting states of nudity or specific sexual activities; classification; definitions

A. It is unlawful FOR A PERSON to intentionally disclose AN IMAGE of another person WHO IS IDENTIFIABLE FROM THE IMAGE ITSELF OR

FROM INFORMATION DISPLAYED IN CONNECTION WITH THE IMAGE IF ALL OF THE FOLLOWING APPLY:

1. THE PERSON IN THE IMAGE IS DEPICTED IN A STATE OF NUDITY OR IS ENGAGED IN SPECIFIC SEXUAL ACTIVITIES.

2. THE DEPICTED PERSON HAS A REASONABLE EXPECTATION OF PRIVACY. EVIDENCE THAT A PERSON HAS SENT AN IMAGE TO ANOTHER PERSON USING AN ELECTRONIC DEVICE DOES NOT, ON ITS OWN, REMOVE THE PERSON'S REASONABLE EXPECTATION OF PRIVACY FOR THAT IMAGE.

3. THE IMAGE IS DISCLOSED WITH THE INTENT TO HARM, HARASS, INTIMIDATE, THREATEN OR COERCE THE DEPICTED PERSON.

B. This section does not apply to any of the following: 1. THE REPORTING OF UNLAWFUL CONDUCT.

2. Lawful and common practices of law enforcement, CRIMINAL reporting, legal proceedings OR MEDICAL TREATMENT.

3. Images involving voluntary exposure in a public or commercial setting.

4. An interactive computer service, as defined in 47 United States Code section 230(f)(2), or an information service, as defined in 47 United States Code section 153, with regard to content WHOLLY provided by another PARTY.

5. ANY DISCLOSURE THAT IS MADE WITH THE CONSENT OF THE PERSON WHO IS DEPICTED IN THE IMAGE.

C. A violation of this section is a class 5 felony, except that a violation of this section is a:

1. Class 4 felony if the IMAGE IS DISCLOSED BY ELECTRONIC MEANS.

2. CLASS 1 MISDEMEANOR IF A PERSON THREATENS TO DISCLOSE BUT DOES NOT DISCLOSE AN IMAGE THAT IF DISCLOSED WOULD BE A VIOLATION OF THIS SECTION.

D. For the purposes of this section

1. “DISCLOSE” MEANS DISPLAY, DISTRIBUTE, PUBLISH, ADVERTISE OR OFFER.

2. “DISCLOSED BY ELECTRONIC MEANS” MEANS DELIVERY TO AN E-MAIL ADDRESS, MOBILE DEVICE, TABLET OR OTHER ELECTRONIC DEVICE AND INCLUDES DISCLOSURE ON A WEBSITE.

3. “HARM” MEANS PHYSICAL INJURY, FINANCIAL INJURY OR SERIOUS EMOTIONAL DISTRESS.

4. “IMAGE” MEANS A PHOTOGRAPH, VIDEOTAPE, FILM OR DIGITAL RECORDING.

5. “REASONABLE EXPECTATION OF PRIVACY” MEANS THE PERSON EXHIBITS AN ACTUAL EXPECTATION OF PRIVACY AND THE EXPECTATION IS REASONABLE.

For further information, or questions about Revenge Porn Laws, please contact Adams & Associates, PLC at 480 219 1366, or E-mail Ashley at aadams@azwhitecollarcrime.com.

INJUNCTION AGAINST HARASSMENT

INJUNCTIONS AGAINST HARRASSMENT

  • Injunction issued by the Court to prevent the defendant from harassing the plaintiff

  • In contrast to an Order of Protection, Injunctions Against Harassment are issued if parties are not in a familial relationship

WHAT CONSTITUTES HARASSMENT?

A.R.S. § 12-1809(S) defines "harassment" as “a series of acts over any period of time that is directed at a specific person and that would cause a reasonable person to be seriously alarmed, annoyed or harassed, and the conduct in fact seriously alarms, annoys or harasses the person and serves no legitimate purpose. Harassment includes unlawful picketing, trespassory assembly, unlawful mass assembly, concerted interference with lawful exercise of business activity and engaging in a secondary boycott as defined in section 23-1321 and defamation in violation of section 23-1325.

ARIZONA’S INJUNCTION AGAINST HARASSMENT STATUTE

12-1809. Injunction against harassment

A. A person may file a verified petition with a magistrate, justice of the peace or superior court judge for an injunction prohibiting harassment. If the person is a minor, the parent, legal guardian or person who has legal custody of the minor shall file the petition unless the court determines otherwise. The petition shall name the parent, guardian or custodian as the plaintiff, and the minor is a specifically designated person for the purposes of subsection F of this section. If a person is either temporarily or permanently unable to request an injunction, a third party may request an injunction on behalf of the plaintiff. After the request, the judicial officer shall determine if the third party is an appropriate requesting party for the

plaintiff. Notwithstanding the location of the plaintiff or defendant, any court in this state may issue or enforce an injunction against harassment.

B. An injunction against harassment shall not be granted:

1. Unless the party who requests the injunction files a written verified petition for injunction.

2. Against a person who is less than twelve years of age unless the injunction is granted by the juvenile division of the superior court.

3. Against more than one defendant.

C. The petition shall state all of the following:

1. The name of the plaintiff. The plaintiff's address shall be disclosed to the court for purposes of service. If the address of the plaintiff is unknown to the defendant, the plaintiff may request that the address be protected. On the plaintiff's request, the address shall not be listed on the petition. Whether the court issues an injunction against harassment, the protected address shall be maintained in a separate document or automated database and is not subject to release or disclosure by the court or any form of public access except as ordered by the court.

2. The name and address, if known, of the defendant.

3. A specific statement showing events and dates of the acts constituting the alleged harassment.

4. The name of the court in which there was or is any prior or pending proceeding or order concerning the conduct that is sought to be restrained.

5. The relief requested.

OBTAINING AN INJUNCTION AGAINST HARASSMENT

In order to obtain an Injunction Against Harassment, the plaintiff must present the following to the court:

  • The defendant’s personal information such as an address, phone number, employers contact information, the defendant’s name, address, phone number, and the like;

  • Evidence sufficient to support the contention that a reasonable person would feel as if they were being harassed. Evidence can come in the form of medical records, police reports, phone records, e- mails, or any other evidence which shows a pattern of harassment.

  • Once the petition has been heard, a judicial officer reviews the petition and the plaintiff provides sworn testimony. The defendant does not need to be present during this initial process if the judge believes that the evidence is sufficient. If the evidence is sufficient, the permanent Injunction Against Harassment will be granted for the period of a year. If the judge does not believe that the plaintiff has provided sufficient evidence, a hearing may be scheduled within ten days and the defendant is able to attend.

HOW DO I OBTAIN AN INJUNCTION AGAINST HARASSMENT ON MY OWN?

STEP 1-Consult an attorney if possible.

Consulting a lawyer can make an already very stressful process much easier. Attorneys can help you fill out forms and advise you on which protective order is appropriate to your situation. If you cannot afford an attorney, visiting a free legal clinic like the Arizona Legal Center is a great place to start. Volunteers are available be able to walk you through the process and explain your rights under the law. Your county court may also have suggestions for free legal advice. Another option is to call the National Domestic Violence Hotline for legal support and recommendations if your situation

involves domestic violence.

STEP 2: Fill out the appropriate forms. Injunction Against Harassment forms are available in five languages and can be filed in any superior, municipal or justice court regardless of where you live in Arizona. The Courts are opened generally from 8 a.m. to 5 p.m. When you enter the court, go to the Clerk of the Court’s counter, Self Service Center, or protection order window and tell the clerk you are requesting an Injunction Against Harassment .

In Maricopa County, the courts have made obtaining an Injunction Against Harassment very simple. You will fill out the required paperwork using a computerized Domestic Violence prompt system. This paperwork will include a

petition. The petition names all protected parties. They system will prompt you to list the reasons why you are seeking a restraining order. As long as you bring with you the above listed information, filling out the requisite form should be relatively simple, and generally takes less than 30 minutes.

It is very important to note, however, that Courts only have limited jurisdiction. For example, if you obtain an Injunction Against Harassment in Scottsdale, such Order is only valid in the Scottsdale City Limits. It is best to obtain an Order in the Superior Court, or in Maricopa County, or the county in which you reside, so that the Order is Valid throughout the

County, and not just in the City of Scottsdale. At this time, there are no interstate Orders of Protection, although there are a number of federal

statutes that provide protection across state lines.

STEP 3: Appear before a judge. After you file the paperwork, you will appear before a judge to answer questions regarding your petition. They may ask you questions about specific incidents in the petition. This part of the process can be emotionally difficult. If possible, bringing someone to support you in court can be crucial.

STEP 4: Serve the Injunction Against Harassment . If the judge grants the restraining order, legally you must notify the defendant. You will serve them with the Petition for the Injunction Against Harassment and a copy of the signed Injunction Against Harassment through a process server or a member of law enforcement. The Injunction is not valid until it is served upon the defendant.

You have one year to serve the defendant before the Injunction is invalid. In Phoenix, if you know where the defendant is located, the Protective Orders Coordinator will work with the Phoenix Police Department to serve the Injunction on your behalf at no charge to you. If the defendant cannot be served immediately, it is important to keep a copy of the signed Injunction Against Harassment with you at all times. If the defendant approaches you before the order is served, call 911 and let them know that you have an Injunction Against Harassment against the defendant.

HOW MUCH DOES IT COST TO GET AN INJUNCTION AGAINST HARASSMENT ?

There is no fee to file an Injunction Against Harassment in a court in the state of Arizona. If you choose to hire a private process server, expect to pay between $45 and $100.

HOW DO I DEFEND AGAINST A FRIVIOLOUS INJUNCTION AGAINST HARASSMENT

Injunctions are granted on an ex parte basis (only one of the parties was present when the Order was granted). A Defendant has the opportunity to contest the Injunction Against Harassment, however, by requesting a hearing within ten days of service of the Order.

At the hearing the plaintiff carries the burden of proving that the defendant engaged in a pattern of harassment in the last year or that the Defendant is likely to commit an action of domestic violence in the next year. Acts that occurred more than a year ago may only be considered only if there is good cause.

The plaintiff is only permitted to present evidence to the Court regarding allegations that are specifically stated in the Petition for Injunction Against Harassment . The defendant will have the opportunity to cross-examine the plaintiff and any of plaintiff’s witnesses, and the defendant will have the opportunity to testify on his/her own behalf as well as present his/her own witnesses. Each party is also allowed to present documents as evidence to the judge. The rules regarding the admission of evidence in Injunction Against Harassment Hearings allow all relevant evidence to be presented with only limited exceptions. Examples of evidence that can be used are: police reports, DCS/CPS records, previous Orders of Protection, criminal records, pictures of injuries, text messages, and emails. If you plan to use an audio recording or video, most courts require the audio/video to be on a separate CD or jump drive that can be played on a device in the courtroom but also retained by the judge for future use (and admission into evidence).

Upon the close of evidence and argument, the judge or commissioner will decide whether to: (1) keep the Injunction Against Harassment in place as it is; (2) keep the Injunction Against Harassment in place but modify its terms; or (3) dismiss or quash the Injunction Against Harassment all together. If the Injunction Against Harassment is upheld, it will continue to be in effect for a period of one (1) year after it was served. If the Court dismisses the Injunction Against Harassment, there will be no additional restrictions on contact between the parties, although it is typically advisable for the Defendant to keep a safe distance from the Plaintiff to avoid any future issues.

If an Injunction Against Harassment is upheld after a hearing, the Defendant will be prohibited from possessing firearms for the remainder of the time the order is in effect regardless of whether a prohibition on firearms was contained in the original order.

For further information, or questions about Injunctions Against Harrassment, please contact Adams & Associates, PLC at 480 219 1366, or E-mail Ashley at aadams@azwhitecollarcrime.com.

CHILD PORN

TEEN POSTINGS AND CHILD PORNOGRAPHY LAWS

The term "selfie" quickly became part of the mainstream lexicon in 2013. When its use became so common, “selfie” was named the "Oxford Dictionaries Word of the Year." For the uninitiated, a selfie is a self-portrait photograph that is often taken with a camera phone, webcam, or digital camera. The explosion of social media networks and the rise of the camera phone have created endless opportunities for anyone to share their self-portraits with the world.

This emerging technology is a natural fit for most teens and, generally, the worst offense they might commit is sharing too frequently. There is also a potential, however, for criminal liability under child pornography laws when selfies involve underage nudity or sexual situations.

DEFINITION OF CHILD PORNOGRAPHY

Since technology moves much faster than legislation, crimes committed via social media are often prosecuted by applying existing statutes. Federal law defines child pornography as “any visual depiction of sexually explicit conduct involving a minor,” and the United States Department of Justice may prosecute offenses occurring across state or international borders and almost any offense involving the Internet. Federal charges need not be exclusive; an individual may face criminal liability under both U.S. and state child pornography laws, which are largely similar to and sometimes more comprehensive than the federal statutes

APPLICATION OF CHILD PORNOGRAPHY LAWS TO SELFIES

If an adult takes a sexually explicit picture of a minor and shares it via social media or text message, that adult will likely have run afoul of child pornography laws. But, what about a minor who takes selfies and sends them discreetly to another teen? What if the receiver then forwards the photos to others? Have they violated any laws? In many states, the answer is yes.

Though child pornography laws were created to protect minors from exploitation caused by others, states are prosecuting minors under child pornography statutes for sending nude or otherwise lurid self-portraits, even when the minors

sent the selfies without coercion. The common quirk in the laws is that there is no exception for taking or distributing sexually explicit pictures of oneself. Thus, a high school student sending a racy seflie to a boyfriend or girlfriend could subject both themselves and the receiver to prosecution for child pornography. If the picture makes its way around other social circles through online or direct sharing, anyone who received or distributed the photo could also find themselves open to charges.

DIRECTION OF FUTURE LAWS

The overall trend on both the federal and state levels is toward broader definitions of child pornography with increased prosecutions and harsher penalties for those connected to it. One of the gray areas in the age of social media is what constitutes "possession" of child pornography. Most social media sites can now store large caches of images indefinitely on the Internet, lessening the need for viewers to download files to their computers. Other services, such as Snapchat, can be used to distribute selfies that auto-delete themselves after a few seconds (though the receiver may create a screen capture before the image disappears).

Since merely viewing child pornography is illegal in many states, browsing a website or knowingly receiving illegal images would be criminal activity in those jurisdictions. Other states' child pornography laws, however, have "possession" requirements that are somewhat archaic in the digital age. The shortcomings of these statutes were exemplified by a pair of high court decisions from Oregon and New York:

  • A 2011 decision by the Oregon Supreme Court reversed the conviction of a man charged under the state's Encouraging Child Sexual Abuse statute since the child pornography in question was only accessed on the Internet and he never 'possessed' or 'controlled' the images, as required by the law.

  • Similarly, in 2012, the New York Court of Appeals held that viewing child pornography online does constitute the "knowing procurement or possession of those files" and reversed some charges against the defendant.

States have since taken steps to close such loopholes and expand the reach of their child pornography laws to include developing and future technologies, but this is an area of law that is rapidly evolving to meet the times. For teens sending or exchanging risqué pictures, their concern can no longer be limited to whether it may bring embarrassment or even parental and academic discipline. Instead, they need to also consider whether that sexually explicit selfie can get them prosecuted under child pornography laws.

ARIZONA’S CHILD PORNOGRAPHY LAWS

Arizona is one of the toughest states when it comes to child pornography.

Under A.R.S 13-3553, a person commits sexual exploitation by a minor by, “recording, filming, developing, or duplicating any visual depiction in which a minor is engaged in exploitative exhibition or other sexual conduct.”

Those who distribute, transport, exhibit, receive, sell, purchase, electronically transmit, possess, or exchange such materials may also be charged with sexual exploitation of a minor.

Sexual exploitation of a minor is considered a class 2 felony. A prosecutor can charge a person with a crime for each image of child pornography he/she allegedly possessed. In Arizona, every single image of child pornography comes with a minimum penalty of 10 years. Each additional count (image) carries with it another 10 years. To put this into perspective, 10 images can get you 100 years in prison.

For further information, or questions about Child Texting and Porn Laws, please contact Adams & Associates, PLC at 480 219 1366, or E-mail Ashley at aadams@azwhitecollarcrime.com.

SHOPLIFTING

SHOPLIFTING

Shoplifting laws in Arizona are outlined in A.R.S. 13-1805, which states that a person commits shoplifting if they knowingly take goods from another “with the intent to deprive that person.”

There are five ways in which this can happen:

  • Taking goods without paying for them;

  • Taking goods by charging someone without their permission;

  • Paying less than the purchase price by altering price tags or labels;

  • Transferring goods from “one container to another”;

  • Concealing goods;

This statute also states that if the person knowingly conceals goods on himself/herself or another person, or if he or she uses an instrument for concealment, they are mentally aware enough of their actions to be subject to the statute’s terms. In other words, the statute contains a rebuttable presumption of intent if the person either uses an instrument, or engages in concealment.

Although there are conflicting views regarding what stores can do when approaching suspected shoplifters, A.R.S. 13-1805 states that any employee can detain someone in a reasonable way in order to question them or wait for law enforcement officials to arrive.

The statutes also outline the civil actions stores can take against alleged shoplifters – juveniles and adults – who injure employees during the shoplifting process.

Penalties for Shoplifting in Arizona

The State can charge an alleged shoplifting defendant with a misdemeanor, or a felony. A.R.S. 13-1805 provides that the value of the item dictates what can be charged.

Misdemeanor Shoplifting

Shoplifting any property less than $1,000 is a class 1 misdemeanor. A misdemeanor may be punished up to six months in the county jail, and a fine up to $2500 plus surcharges. A.R.S. 13-707 and 13-802.

Misdemeanor Deferred Judgment or Diversion

For first time offenders, jail is uncommon if the item taken is of low value. For certain misdemeanors, courts have the discretion to offer diversion or deferred judgment programs that afford an opportunity to avoid a criminal conviction. Diversion allows charges to be dismissed upon successful completion of a program; it typically entails probation, classes, community service, and fines. The cost of the diversion program is assessed to the defendant.

Felony Shoplifting

Shoplifting any property valued between $1,000 and $2,000 is a class 6 felony. However, shoplifting firearms, even if they are valued at less than $1,000, is a class 6 felony.

Penalties for a class 6 felony conviction can include probation and up to one year in jail, or between 4 months and 2 years in prison. This prison length range increases to 1 and 3.75 years with one prior felony conviction, and between 3 and 7.5 years for those with two previous felony convictions.

Shoplifting property over $2,000 is class 5 felony.

Penalties for a class 5 felony conviction can include probation and up to one year in jail, or between 6 months and 2.5 years in prison. This prison time extends up to 3.75 years for those with one prior felony conviction, and between 3 and 7.5 years for those with two previous felony convictions.

Additionally, any shoplifting of property done during a “continuing criminal episode,” or any shoplifting done in promotion or assistance of a street gang or crime

syndicate is a class 5 felony. The statute defines “continuing criminal episode” as three or more instances of theft in a 90-day time period where the property taken was valued at $1,500 or more each time.

Finally, shoplifting with the use of an instrument or device is a class 4 felony. Shoplifting with two or more similar convictions (burglary, theft, robbery, shoplifting or retail theft) within the past five years will also result in a class 4 felony.

Penalties for a class 4 felony can include probation, up to one year in jail or between 1 and 3.75 years in prison. With one prior felony conviction, this prison range increases to 2.25 and 7.75 years; with two prior felony convictions, the range increases to 6 and 15 years.

Juvenile Shoplifting in Arizona

While the penalties above refer to adults who are charged with shoplifting, we also handle many juvenile shoplifting cases.

Juvenile shoplifting cases are unique because of the emphasis on rehabilitation over incarceration.

Jury trial

Defendants are always entitled to a jury trial in shoplifting cases.

Arizona’s Shopkeeper’s Privilege

Store owners, and their employees, with reasonable cause, may detain suspected shoplifters in a reasonable manner, and for a reasonable time, in order to question them and summon the police. Constitutional issues do not typically apply to the actions of store employees; however, if they are acting under the direction of law enforcement, constitutional protections do apply.

Trespass on store property

Many stores have trespass forms that advise suspected shoplifters that they have trespassed on the property. Suspected shoplifters should take these serious. If you return to a store after being asked to not come back, the police may be summoned, and you will likely be arrested for criminal

trespass. Regardless of an investigation’s outcome, it is advisable to never return to that store.

Civil Liability to Stores per A.R.S. § 12-691 and A.R.S. § 12-692.

In addition to criminal penalties, shoplifters face potential civil law suits filed by the store. Shoplifting suspects often receive template mail from national law firms threating to file a lawsuit under Arizona’s shoplifting law. In most cases, the store’s attorneys rarely go forward in filing a lawsuit—they are usually empty threats. Before responding to these letters, it is best to consult with an experienced criminal defense attorney; responding to these letters may have negative legal implications—both civilly and criminally. In addition, in cases where merchandise was not fully recovered by the store, convicted shoplifters are responsible in paying back the store as part of their criminal sentence.

THE LAW ON CIVIL LIABILITY FOR SHOPLIFTING

A shoplifter is civilly liable to the store for a penalty in the amount of the retail value of obtained goods, plus an additional penalty of $250, plus the actual damages to the store. The parents or legal guardians of a shoplifting minor are civilly liable to the store for a penalty in the amount of the retail value of the obtained goods, plus an additional penalty of $100, plus the

actual damages to the store.

COMMON DEFENSES IN SHOPLIFTING CASES

Lack of Criminal Intent: Arizona shoplifting law requires that you intend to permanently deprive the owner of merchandise. Without proving that intent, you cannot be convicted. For instance, if you forget to pay for items, but purchased other items, the State would have to prove that you specifically intended to steal the items you forgot about. In other instances, you may have forgotten about an item in your purse or pocket. In some cases, you might simply forget to pay for something.

Lack of Knowledge or Mistake of Fact: You might not pay the full price of merchandise where another person adjusted or switched a price tag, or switched the contents of packaging. A defendant should not be held criminal liable for such a mistake.

Lack of Motive: Financial ability to pay for items, good character, and previous or contemporaneous purchases can all show the absurdity of a shoplifting allegation. In raising this defense, we typically present evidence that a client has no prior history of shoplifting or clearly had the ability to pay. This shows that the suspected activity was an accident and nothing more.

Unknowingly Passing a Point of Purchase. Suspected shoplifters will often be stopped by store employees simply for passing a register. With stores increasingly moving to automated check-outs and streamlined payment options, these types of mistakes are reasonable and increasingly common.

Value Defense: The prosecutor must prove the value of merchandise beyond a reasonable doubt. This defense is especially applicable to felony allegations where there is a threshold value of either $1,000 or $2,000. In can also be applicable in negotiations when a prosecuting agency sets a value in plea agreements. Finally, it may be a defense if the merchandise in question has no apparent value at all.

Constitutional Violations: Miranda, coerced confessions, unlawful detainment or seizure, lack of probable cause or reasonable suspicion, are common constitutional issues that arise in shoplifting cases. If there is any constitutional violation at the behest of law enforcement, motions may be filed in an effort to suppress evidence and dismiss charges.

For further information, or questions about Shoplifting, please contact Adams & Associates, PLC at 480 219 1366, or E-mail Ashley at aadams@azwhitecollarcrime.com.

Orders of Protection

ORDERS OF PROTECTION

  • Order issued by the court in order to prevent someone from committing an act included in domestic violence defined in Arizona Revised Statutes 13-3601(a).

  • The order of protection also can only be issued against specific individuals-“Familial Relationship”

  • Recipient order must be in some form of a familial relationship with the opposing party.

FAMILIAL RELATIONSHIPS

  • A parent of your child (either born or pregnant with)

  • Lives or has lived with you in the same household

  • Related by blood or court order as your parent, grandparent, child, grandchild, brother, or sister

  • Related by marriage as your parent-in-law, grandparent-in-law, stepchild, step-grandchild, brother-in-law, sister-in-law, stepparent or step-grandparent

  • A person who resides or who has resided in the same household with a child. The child must be related by blood to a former spouse of the defendant or to a person who resides or who has resided in the same household as the defendant.

A spouse or former spouse

ACTS OF VIOLENCE

  • Endangerment, threats, intimidation or harassment

  • Interference with the custody of children;

  • Trespass on or damage to property;

  • Restraint, Kidnapping, or holding one prisoner;

  • Assault with his/her body or with a weapon;

  • Displaying a deadly weapon or threat with a deadly weapon;

  • Surreptitiously (without your knowledge) photographing, videotaping, filming, or recording

  • Stalking

ARIZONA’S ORDER OF PROTECTION STATUTE

13-3602. Order of protection; procedure; contents; arrest for violation; penalty; protection order from another jurisdiction

A. A person may file a verified petition, as in civil actions, with a magistrate, justice of the peace or superior court judge for an order of protection for the purpose of restraining a person from committing an act included in domestic violence. If the person is a minor, the parent, legal guardian or person who has legal custody of the minor shall file the petition unless the court determines otherwise. The petition shall name the parent, guardian or custodian as the plaintiff and the minor is a specifically designated person for the purposes of subsection G of this section. If a person is either temporarily or permanently unable to request an order, a third party may request an order of protection on behalf of the plaintiff. After the request, the judicial officer shall determine if the third party is an appropriate requesting party for the plaintiff. For the purposes of this section, notwithstanding the location of the plaintiff or defendant, any court in this state may issue or enforce an order of protection.

B. An order of protection shall not be granted:

1. Unless the party who requests the order files a written verified petition for an order.

2. Against a person who is less than twelve years of age unless the order is granted by the juvenile division of the superior court.

3. Against more than one defendant.

C. The petition shall state the:

1. Name of the plaintiff. The plaintiff's address shall be disclosed to the court for purposes of service. If the address of the plaintiff is unknown to the defendant, the plaintiff may request that the address be protected. On the plaintiff's request, the address shall not be listed on the petition. Whether the court issues an order of protection, the protected address shall be maintained in a separate document or automated database and is not subject to release or disclosure by the court or any form of public access except as ordered by the court.

2. Name and address, if known, of the defendant.
3. Specific statement, including dates, of the domestic violence

alleged.

4. Relationship between the parties pursuant to section 13-3601, subsection A and whether there is pending between the parties an action for maternity or paternity, annulment, legal separation or dissolution of marriage.

5. Name of the court in which any prior or pending proceeding or order was sought or issued concerning the conduct that is sought to be restrained.

6. Desired relief.

OBTAINING AN ORDER OF PROTECTION

In order to obtain an order of protection, the plaintiff must present the following to the court:

  • The defendant’s personal information such as an address, phone number, employers contact information, the defendant’s name, address, phone number, and the like;

  • Evidence sufficient to support the contention that the defendant harassed, assaulted, or performed an act amounting to domestic violence. Evidence can come in the form of medical records, police reports, phone records, e- mails, or any other evidence.

  • Once the petition has been heard, a judicial officer reviews the petition and the plaintiff provides sworn testimony. The defendant does not need to be present during this initial process if the judge believes that the evidence is sufficient. If the evidence is sufficient, the permanent order of protection will be granted for the period of a year. If the judge does not believe that the plaintiff has provided sufficient evidence, a hearing may be scheduled within ten days and the defendant is able to attend.

HOW DO I OBTAIN AN ORDER OF PROTECTION ON MY OWN?

STEP 1-Consult an attorney if possible.

Consulting a lawyer can make an already very stressful process much easier. Attorneys can help you fill out forms and advise you on which protective order is appropriate to your situation. If you cannot afford an attorney, visiting a free legal clinic like the Arizona Legal Center is a great place to start. Volunteers are available be able to walk you through the process and explain your rights under the law. Your county court may also have suggestions for free legal advice. Another option is to call the National Domestic Violence Hotline for legal support and recommendations if your situation

involves domestic violence.

STEP 2: Fill out the appropriate forms. Protective order forms are available in five languages and can be filed in any superior, municipal or justice court regardless of where you live in Arizona. The Courts are opened generally from 8 a.m. to 5 p.m. When you enter the court, go to the Clerk of the Court’s counter, Self Service Center, or protection order window and tell the clerk you are requesting an Order of Protection.

In Maricopa County, the courts have made obtaining an Order of Protection very simple. You will fill out the required paperwork using a computerized Domestic Violence prompt system. This paperwork will include a petition. The petition

names all protected parties. They system will prompt you to list the reasons why you are seeking a restraining order. As long as you bring with you the above listed information, filling out the requisite form should be relatively simple, and generally takes less than 30 minutes.

It is very important to note, however, that Courts only have limited jurisdiction. For example, if you obtain an Order of Protection in Scottsdale, such Order is only valid in the Scottsdale City Limits. It is best to obtain an Order in the Superior Court, or in Maricopa County, or the county in which you reside, so that the Order is Valid throughout the

County, and not just in the City of Scottsdale. At this time, there are no interstate Orders of Protection, although there are a number of federal

statutes that provide protection across state lines.

STEP 3: Appear before a judge. After you file the paperwork, you will appear before a judge to answer questions regarding your petition. They may ask you questions about specific incidents in the petition. This part of the process can be emotionally difficult. If possible, bringing someone to support you in court can be crucial.

STEP 4: Serve the Order of Protection. If the judge grants the restraining order, legally you must notify the defendant. You must serve them with the Petition for the Order of Protection and a copy of the signed Order of Protection through a process server or a member of law enforcement. A restraining order is not valid until it is served upon the defendant.

You have one year to serve the defendant before the restraining order is invalid. In Phoenix, if you know where the defendant is located, the Protective Orders Coordinator will work with the Phoenix Police Department to file the order on your behalf at no charge to you. If the defendant cannot be served immediately, it is important to keep a copy of the signed Order of Protection with you at all times. If the defendant approaches you before the order is served, call 911 and let them know that you have a restraining order against the defendant.

HOW MUCH DOES IT COST TO GET AN ORDER OF PROTECTION?

There is no fee to file a restraining order in a court in the state of Arizona. If you choose to hire a private process server, expect to pay between $45 and $100.

HOW DO I DEFEND AGAINST A FRIVIOLOUS ORDER OF PROTECTION

Orders of Protection are granted on an ex parte basis (only one of the parties was present when the Order was granted). A Defendant has the opportunity to contest the Order of Protection by requesting a hearing within ten (10) days of service of the Order. You must file a Motion with the Court requesting a hearing prior to the expiration of the ten day period.

At the hearing the plaintiff carries the burden of proving that the defendant has committed an act of domestic violence in the last year or that the Defendant is likely to commit an action of domestic violence in the next year. Acts that occurred more than a year ago may only be considered only if there is good cause.

The plaintiff is only permitted to present evidence to the Court regarding allegations that are specifically stated in the Petition for Order of Protection. The defendant will have the opportunity to cross-examine the plaintiff and any of plaintiff’s witnesses, and the defendant will have the opportunity to testify on his/her own behalf as well as present his/her own witnesses. Each party is also allowed to present documents as evidence to the judge. The rules regarding the admission of evidence in Order of Protection Hearings allow all relevant evidence to be presented with only limited exceptions. Examples of evidence that can be used are: police reports, DCS/CPS records, previous Orders of Protection, criminal records, pictures of injuries, text messages, and emails. If you plan to use an audio recording or video, most courts require the audio/video to be on a separate CD or jump drive that can be played on a device in the courtroom but also retained by the judge for future use (and admission into evidence).

Upon the close of evidence and argument, the judge or commissioner will decide whether to: (1) keep the Order of Protection in place as it is; (2) keep the Order of Protection in place but modify its terms; or (3) dismiss or quash the Order of Protection all together. If the Order of Protection is upheld, it will continue to be in effect for a period of one (1) year after it was served. If the Court dismisses the Order of Protection, there will be no additional restrictions on contact between the parties, although it is typically advisable for the Defendant to keep a safe distance from the Plaintiff to avoid any future issues.

If an Order of Protection is upheld after a hearing, the Defendant will be prohibited from possessing firearms for the remainder of the time the order is in effect regardless of whether a prohibition on firearms was contained in the original order.

For further information, or questions about Orders of Protection, please contact Adams & Associates, PLC at 480 219 1366, or E-mail Ashley at aadams@azwhitecollarcrime.com.

Domestic Violence

DOMESTIC VIOLENCE

The state of Arizona defines domestic violence as almost any criminal act of abuse committed by one "family or household member" against another. Several Arizona laws can be considered domestic violence offenses if there is a qualifying victim. These crimes are not all violent in nature. See A.R.S. § 13-3601 et. seq.

“FAMILY HOUSEHOLD” DEFINITION

The following qualify as victims under Arizona’s domestic violence laws:

  • Current or former spouses

  • Persons who reside or resided in the same household

  • Persons who have a child together

  • The defendant or the victim is pregnant by the other party

  • The victim is related to the defendant or defendant’s spouse by blood

    or court order as a parent,

  • Grandparent, child, grandchild, brother or sister, or by marriage as

    a parent-in-law, grandparent-in-law, stepparent, step-grandparent,

    stepchild, step-grandchild, brother-in-law, or sister-in-law

  • The victim is a child who resides or resided in the same household as the defendant and is related by blood to a former spouse of the defendant or to a person who has resided in the same household as

    the defendant

  • The defendant and victim are or were in a romantic or sexual

    relationship

TYPES OF DOMESTIC VIOLENCE CRIMES

Domestic violence abuse can be physical, emotional, sexual, economic control and neglect. Examples of crimes associated with domestic abuse include:

  • Assault and Battery

  • Assault and Battery with a Dangerous Weapon;

  • Criminal Trespass

  • Criminal damage;

  • Disorderly Conduct

  • Threatening Words or Conduct

  • Intimidation

  • Harassment by phone or in person

  • Stalking

  • Photographing, Videotaping, Recording, or Secretly Watching

    without victim’s consent

  • Witness Intimidation

  • Preventing or interfering with the use of a telephone in an

    emergency

  • Endangerment (placing you at risk of immediate death or physical

    injury)

  • Unlawful imprisonment

  • Kidnapping

  • Disobeying a court order

  • Custodial interference

  • Negligent homicide, manslaughter and murder

  • Neglect, abandonment or cruel mistreatment of an animal

  • Abuse to a vulnerable adult or child

  • Certain crimes against children; and/or disorderly conduct

Some of the above listed crimes are misdemeanors and some are felonies. How the case is charged depends on the nature of the underlying crime

and the previous criminal history of the defendant.

The consequences of a Domestic Violence conviction can be severe. A conviction could result in limitations in child visitation rights, loss of gun

privileges, mandatory counseling of up to 52 hours, probation, jail, or prison. First time misdemeanor offenders are generally offered diversion,

but are still required to complete extensive mandatory counseling.

Aggravated Domestic Violence Charges

If a defendant is found guilty of a misdemeanor domestic violence charge for a third time in a seven-year period, he is she can be charged with a felony and sentenced to prison time. Aggravated domestic violence is considered a Class 5 felony and carries up to 2 1⁄2 years in prison for a first conviction.

CAN A VICTIM DROP A CHARGE?

No, domestic abuse crimes are aggressively prosecuted and even if the victim tells the court and prosecutor they do not wish to "press charges", the case will not be dismissed.

If charges are filed, only the county attorney has the authority to drop them. A judge must approve the prosecutor's request to dismiss a case. The victim is a witness for the state and has no authority to drop charges. In many cases, the State will prosecute a case even if the victim refuses to testify. The State may subpoena the victim to testify at trial, and the victim will be in contempt of court if he or she does not appear. The prosecutor may also choose not to file charges. In that event, the victim will be notified of that decision

WHERE VICTIMS CAN FIND HELP IN ARIZONA

  • Arizona Coalition to End Sexual and Domestic Violence: 1-800-782- 6400

  • Arizona Crime Victims Services: 1-877-785-2020

  • National Domestic Violence Hotline, 1-800-799-SAFE (7233)

  • UMOM New Day Center, (602) 275-7852

  • Arizona Sheriff Departments

For a list of additional resources, visit

https://www.azcourts.gov/domesticviolencelaw/DomesticViolenceInform

For further information, or questions about Child Texting and Porn Laws, please contact Adams & Associates, PLC at 480 219 1366, or E-mail Ashley at aadams@azwhitecollarcrime.com.

Child Abuse

Arizona Child Abuse Laws criminalize physical, emotional, or sexual abuse of minors and also require certain third parties with knowledge of the abuse to report it to the authorities. The Arizona Department of Child Safety (DCS) investigates reports of child abuse (and neglect) in the state.

DEFINITION OF ABUSE

  • Infliction or allowing of physical injury

  • Impairment of bodily function or disfigurement

  • Serious emotional damage diagnosed by a doctor or psychologist, and as evidenced by severe anxiety, depression, withdrawal, or aggressive behavior caused by acts or omissions of individual having care and custody of child

TYPES OF CHILD ABUSE

  • Physical abuse -- non-accidental physical injuries such as bruises, broken bones, burns, cuts or other injuries.

  • Sexual abuse -- when sex acts are performed with children. Using children in pornography, prostitution or other types of sexual activity is also sexual abuse.

  • Neglect -- when children are not given necessary care for illness or injury; leaving young children unsupervised or alone, locked in or out of the house, or without adequate clothing, food, or shelter. Allowing children to live in a very dirty house which could be a health hazard may also qualify as neglect.

  • Emotional abuse of a child -- severe anxiety, depression, withdrawal or improper aggressive behavior as diagnosed by a medical doctor or psychologist, and caused by the acts or omissions of the parent or caretaker.

  • Exploitation -- use of a child by a parent, guardian or custodian for material gain.

• Abandonment -- the failure of the parent to provide reasonable support and to maintain regular contact with the child, including providing normal supervision, when such failure is intentional and continues for an indefinite period.

SPANKING

Arizona law, A.R.S. § 13-403, which is found within the criminal code, provides the following:

13-403. Justification; use of physical force

The use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances:

A parent or guardian and a teacher or other person entrusted with the care and supervision of a minor or incompetent person may use reasonable and appropriate physical force upon the minor or incompetent person when and to the extent reasonably necessary and appropriate to maintain discipline.

Corporal punishment is not advised under any circumstances, however.

PUNISHMENT FOR CHILD ABUSE

There are two categories of punishment for child abuse. The first category is if the child is placed in a situation that places their life or health in danger. The second category is when the victim’s life or health was not in danger.

CATEGORY 1 ABUSE CASES

  • Abuse that occurred with intention or full knowledge is a Class 2 felony

  • If the victim was 15 or younger at the time of the occurrence, the crime

    falls under the Dangerous Crimes Against Children Statute

  • Abuse that was caused by recklessness is a Class 3 felony

  • Abuse that occurred due to criminal negligence will be classified as a Class 4 felony

CATEGORY 2 ABUSE CASES

  • An act done with intention or knowledge is a Class 4 felony

  • An act that occurred recklessly is Class 5 felony

  • An act committed with criminal negligence is a Class 6 felony

    Recklessness means if the defendant should have been aware of or chose to disregard a situation in which there was a substantial risk of circumstance that would contribute to an occurrence of abuse. The risk and circumstances involved must also be recognized as a “gross deviation” from the norm of what a reasonable person would consider a normal standard of conduct.

    Criminal Negligence means that the Defendant must have failed to identify a substantial risk that a reasonable person would have recognized during the occurrence.

WHO IS REQUIRED TO REPORT ABUSE

Observation or examination of child discloses reasonable grounds to believe minor is a victim of injury or abuse, the following are required by law to report to a peace officer or Child Protective Serves of the Department of Economic Security

  • Physician

  • Resident

  • Dentist

  • Chiropractor

  • Nurse

  • Psychologist

  • Social worker

  • School personnel

  • Peace officer

  • Parent

  • Counselor

  • Clergyman/priest

  • The penalty for failure to report is a Class One Misdemeanor.

For further information, or questions about Child Abuse Laws please contact Adams & Associates, PLC at 480 219 1366, or E-mail Ashley at aadams@azwhitecollarcrime.com.