The basics of filing an appeal

If you’ve been convicted of a crime, you have the right to challenge the decision through an appeal process. The basis for the appeal can be filed based on the claim that key legal mistakes were made that affected the outcome of the trial and the sentence that was imposed. In an appeals process, a criminal appeals attorney is hoping to have the case dismissed or at the very least, re-tried or re-sentenced. Appeals are heard in what is known as an appellate court.

The attorney will present their reasons that an appeal should be validated by filing a brief with the court. No new evidence may be introduced and the court may only review the proceedings of the lower court. In response, the government will also file its own brief stating why the conviction should be upheld. In some cases, the presiding court will also ask both sides to present oral arguments before reaching a decision.

There are four main grounds for an appeal:

The lower court made a serious error of law that materially affected the outcome of the trial. Judges make mistakes and when one impacts the outcome of a trial or a sentence imposed, a challenge can be brought to correct the deficiency.

The evidence does not support the verdict that the judge or the jury reached. Because an appellate court is limited in what they can have access to, the “weight of evidence” claim may put appellate judges at a disadvantage when it comes to determining the validity of an appeal.

The lower court did not use appropriate discretion and made an errant ruling. A judge may be overturned if an appellate judge determines that he or she was clearly unreasonable or arbitrary in a way that did not support the facts of the case.

The defendant can claim that they had an ineffective assistance of counsel, a right protected under the Sixth Amendment. It is not enough to claim that an attorney was ineffective, it must also be shown that the ineffectiveness had a material outcome on the trial itself. Sometimes, the level of incompetence is not enough to impact the outcome.

Dwane Cates Law Group proudly serves clients in Phoenix, Tempe, Glendale, Scottsdale, Mesa and surrounding Arizona communities.

Arizona drug laws are some of the toughest in the nation

Despite a trend toward relaxing penalties related to certain drugs throughout much of the United States, Arizona is still known as one of the states with some of the toughest drug laws on the books.  Part of this is a general conservative attitude toward drugs in the state, and part of it comes from being a border state that is a prime target for drugs moving across the border with too much regularity.

All of these forces combine to create a severe punishment for anyone who is caught violating Arizona’s drug laws.  That means it is imperative to retain the services of an experienced drug crime attorney for even the smallest and most simple of drug related charges.

In Arizona, drugs are divided into six categories, and the type of punishment a person may receive will depend partly on which category of drug is involved.  Those categories are:

  • Marijuana
  • Prescription drugs
  • Narcotics
  • Peyote
  • Substances that release toxic vapors
  • Dangerous drugs such as metheamphetamines

In addition, you can also be charged with a drug crime if you possess the compounds used to make any of the aforementioned drugs as well.

The main dividing line in drug charges has to do with marijuana versus all other types of dangerous drugs.  Since the legalization of medical marijuana in Arizona, possession laws have become a bit fuzzy, but there are still harsh penalties for possessing larger quantities of the drug, as well as transporting, distributing and manufacturing it as well.

For many other drugs that are classified as dangerous drugs, you can be charged with a Class 4 felony, and depending on the quantity and circumstances, you can be looking at almost four years in prison and a fine of up to $150,000 upon conviction.

There is some leeway in these statutes and sometimes, through a plea bargain, charges and penalties can be negotiated down to lesser charges, but only with the help of a skilled drug crimes attorney.

Dwane Cates Law Group proudly serves clients in Phoenix, Tempe, Glendale, Scottsdale, Mesa and surrounding Arizona communities

Understanding the different types of robbery you can be charged with

Robbery is defined as a form of theft that involves violence or some type of threatened violence, making any kind of robbery conviction one in which a defendant could face serious jail time.

In Arizona, robbery is broken into three distinct crimes:

Robbery, which is defined as the taking of another person’s property by using force of the threat of force, and against the victim’s will.  In most cases, a defendant will be charged with a Class 4 felony and could face up to three years in prison.

Aggravated robbery carries the same burden of proof as a regular robbery, except that a defendant will commit the crime with one or more accomplices.  Aggravated robbery is considered a Class 3 felony and can carry a penalty of up to seven years in prison.

Armed robbery involved the use of a deadly weapon or a simulated deadly weapon.  This means if a defendant uses a toy gun that appears to be a real gun, they can still be charged with armed robbery.  This offense is charged as a Class 2 felony and can result in up to 10 years in prison.

In each of these types of crimes, mitigating or aggravating circumstances can result in a penalty that is less than the maximum or confirm that a convicted defendant should receive the maximum sentence.  Much of the length of the sentence will be determined by how the judge perceives the facts of the case.

That’s why it is imperative to hire a skilled robbery attorney to represent you if you are charged with any form of robbery.  An attorney can not only mount a defense that may result in an acquittal, they may also be able to negotiate a lesser sentence when an acquittal is not possible.

Dwane Cates Law Group proudly serves clients in Phoenix, Tempe, Glendale, Scottsdale, Mesa and surrounding Arizona communities.

Arizona’s harsh DUI penalties

It’s been a tough week at work and you stop off with friends at your local watering hole for a couple of drinks.

Or, you’re watching the big game and you need to restock your frig at half-time.

Maybe it’s Saturday night, you’re at a party, and you’re feeling invincible when you’re selected to make the next beer run.

Whatever the case may be, when you get behind the wheel after too many drinks, you not only put your life other people’s lives in danger, you run the risk of messing up your life in a pretty big way, even if you don’t get into any kind of an accident.

Arizona limits the legal blood alcohol content limit for drivers to .08. While the punishments vary widely from state to state if you’re popped for driving while over this limit, in Arizona, you’ll be facing mandatory jail time, a suspended license, and you’ll have an ignition interlock device installed on your car. You will need to hire a lawyer who specializes in DUI to keep a bad situation from getting even worse.

It should be noted that the .08 limit applies to drivers who are of legal age to drink and drive. For anyone under 21 years old, there is a zero tolerance law in place, meaning that if you are busted for having any blood alcohol content whatsoever and you are under age, you can be charged with DUI. The law was put in place because nearly one-third of all fatalities for people under 21 years old are due to motor vehicle accidents. Of these, about one-third are caused by drinking and driving.

In addition, for those drivers who have a blood alcohol content of .15 or above, they will face aggravated DUI charges resulting in enhanced penalties upon conviction.

Those penalties start with a minimum 90 day suspension of a driver’s license and can rise to up to 3 years based on subsequent DUI convictions. While vehicle confiscation will not take place, a person will be required to go through mandatory alcohol education, assessment and treatment.

Dwane Cates Law Group proudly serves clients in Phoenix, Tempe, Glendale, Scottsdale, Mesa and surrounding Arizona communities

Defending yourself against manslaughter charges

A person charged in the accidental killing of another can either be charged with voluntary or involuntary manslaughter, depending on the circumstances of the situation and usually revolving around the degree of reckless and negligent behavior on the part of the defendant.  Defenses against manslaughter charges can be similar to other homicide charges, but there are a few other options as well.

An experienced manslaughter defense attorney may choose to use one or more of the following strategies in defending their client:

Self-Defense.  This is perhaps the most common of all manslaughter defenses.  An attorney must be able to prove that a defendant reasonably suspected that they were in imminent danger of being killed or seriously harmed.  They must also be able to prove that there was not an over-reaction on the amount of force used to protect ones self.  Sometimes, in a murder case, when this defense is used, a charge may be reduced from murder down to a plea of manslaughter, resulting in a lesser penalty.

Accidental.  A defendant may be able to show that the death was the result of an accident.  In cases where a dismissal may not be the outcome, it may be possible to have a charge reduced from one of voluntary manslaughter, which has an element of intent attached to it, to one of involuntary manslaughter, which only has some form of recklessness or neglect.

Innocence.  A prosecutor must prove beyond a reasonable doubt that a person did actually commit manslaughter.  In some cases, it is possible to attach an alibi to a case or to introduce evidence that would create a reasonable doubt, leading to a dismissal of charges.

Dwane Cates Law Group proudly serves clients in Phoenix, Tempe, Glendale, Scottsdale, Mesa and surrounding Arizona communities

White collar crimes are complex and can take a long time to resolve

White collar crimes are those that are not violent committed by businesses and individuals who are motivated by financial gain. Typically, this will include crimes such as bribery, fraud, insider trading, embezzlement, forgery, money laundering, identity theft and other related infractions.

In most cases, these offenses are highly complex and can generate substantial evidence gathering and forensic investigation. This means that a charge and the subsequent case can drag on for months or even years before going to trial. Retaining an experienced white collar crimes lawyer is a necessity. That attorney will often need to work with related financial professionals on your behalf, because white collar cases are often laced with complex financial information and scores upon scores of documents and data.

Many white collar crimes fall under the jurisdiction of federal laws, so a person charged with this type of crime may be going up against the resources of a variety of federal agencies such as the FBI, the Department of Labor, the Food and Drug Administration, and the Internal Revenue Service, among many others. That means an attorney defending a white collar crimes defendant must have experience not only at the state level, but at the federal level as well.

It also makes sense to retain a lawyer even if you have not yet been charged with a white collar crime. Because white collar crimes are complex, you will need someone familiar with the mechanisms of how an investigation will play out. An attorney will be able to guide you and shield you from saying or doing things that could self incriminate you or lead to additional charges over and above what you may already be facing. Preserving your rights as early as possible can set the stage for a solid defense and one that may ultimately lead to the charges being dropped or resulting in an acquittal.

Dwane Cates Law Group proudly serves clients in Phoenix, Tempe, Glendale, Scottsdale, Mesa and surrounding Arizona communities.

Financial crimes involve deceit and subterfuge

Financials crimes, often times referred to as white collar crimes, are a form of theft that involves taking money or property and using them illegally for the purpose of trying to gain some kind of benefit.  It is a very broad category of crime and can take on many forms, including:

  • Identity Theft
  • Fraud
  • Tax Evasion
  • Mortgage Fraud
  • Bribery
  • Bank Fraud
  • Embezzlement
  • Money Laundering
  • Racketeering
  • Securities Fraud
  • Forgery
  • Insurance Fraud
  • Telemarketing Fraud
  • Ponzi Schemes

While each of these has its own unique traits, all of them involve some form of deceit or subterfuge, relying on another person or another business’s trust.  What is also common to all of these types of crimes is that they are generally complex in nature and will require a high degree of financial forensic work, meaning that a case may take a long time to come to trial or be resolved.

A financial crimes attorney may mount one or more possible defense strategies on behalf of a client, depending on the circumstances of a case.

One of the more common defense is claiming there is insufficient evidence to prove a financial crime has been committed.  A prosecutor has the burden of proof and as long as a degree of reasonable doubt can be used in a case, it could lead to a decision in the defendant’s favor.

Another defense is the absence of intent to commit a crime.  For a financial crime to take place, there generally must be an intent to deceive as part of the burden of proof required by the prosecutor.  For example, if you accidentally use a friend’s credit card, unless it can be shown that the act was intentional, in which case you could face charges.

A lesser used defense is entrapment which takes place when the government or law enforcement compels someone to commit a crime they would have not done so otherwise.  Prosecutors will generally argue that a defendant was likely to commit the crime anyway, leading to a murky overall defense strategy.

Dwane Cates Law Group proudly serves clients in Phoenix, Tempe, Glendale, Scottsdale, Mesa and surrounding Arizona communities.

Using the truth as a self defense strategy

If you’ve been charged with a crime such as assault, battery or even murder, how you create an effective defense strategy could mean the difference between a long stretch in prison or walking out of a courtroom as a free person.

While there are many possible ways that an attorney can frame your case, one of the best strategies and one of the most common is to claim self defense.  A skilled self defense lawyer has many possible ways they can spin your story to show that you were not at fault for a crime that took place.  A skilled attorney will also be able to show how there can be several possible versions of “the truth” and be able to introduce enough reasonable doubt that could lead to an acquittal.

A skilled self defense lawyer must be a great storyteller because often times, he or she will be using the same basic set of facts as the prosecutor in a case.  How well an attorney can take those basic facts and create a narrative will be a key component.  The attorney should be able to tap into the truth, but also be able to create a story that will generate sympathy among the judge and the jury.

In those cases where the evidence overwhelming proves that a person did commit the crime, the attorney’s job is a bit more difficult, but not impossible.  It’s quite possible to admit guilt, but then explain why and how the crime was committed.  For example, a person may admit to killing another person, but if it is revealed that the person who was killed had repeatedly committed sexual assaults on the victim or that there were other extenuating circumstances, then a plausible explanation may be enough to sway the courts, gaining either a reduced sentence or an outright acquittal.

Dwane Cates Law Group proudly serves clients in Phoenix, Tempe, Glendale, Scottsdale, Mesa and surrounding Arizona communities

Give yourself the best chance to stay out of jail if you violate the terms of your probation

You’ve had a run-in with the law and as part of the terms of your punishment, you were placed on probation.  Chances are you were given several different things to complete in a timely manner to satisfy the court’s requirements.  But in a life filled with job, family and school commitments, you may find that you’ve backed yourself into a corner and have either let some of those terms lapse, or you know that it will be next to impossible to complete everything you’re required to do by the deadline imposed on you.

You probably also know that when you violate the terms of your probation, you run the risk of greatly upsetting the courts.  And that can me going to jail, facing additional terms or a number of other options, none of which are sure to be pleasant.

If you find yourself in this kind of a situation, your best bet is to work with an experienced probation violation attorney.  While there’s no guarantees when it comes to stepping over the line, an attorney gives you a solid chance of being able to keep your freedom and negotiating a new set of terms on your behalf.   Those terms may include fine payments, community service, counseling, rehabilitation, restitution payments, progress reviews as well as continuing to maintain lawful conduct at all times.

Regardless of your situation, when a probation violation is reported to the court, you do have certain legal rights.  Those include the right to receive a written notice of the violations claimed against you, the opportunity to be heard by a neutral judge, and the right to present evidence and witnesses to support your case that you were not in violation.  Your attorney will be able to use the legal process to your best advantage and help you understand all of your rights in any probation violation situation.

Dwane Cates Law Group proudly serves clients in Phoenix, Tempe, Glendale, Scottsdale, Mesa and surrounding Arizona communities

Chasing the American Dream at any cost can have serious implications

It’s virtually every American’s dream to own a home at some point in their lives.  It represents the fact that you’ve made it, that you’ve accomplished something noteworthy and significant.  But the pursuit of that goal can also cause some people to cut corners and tell lies to make their dream become a reality.

As real estate continues to be a big ticket item that seems to keep getting even more challenging, sometimes people resort to mortgage fraud as a means to an end.  Mortgage fraud includes various types of misrepresentation or lying on various mortgage documents.  This might mean submitting a fake W-2 form, lying on the amount of income and assets you have available or creating an inflated property appraisal, among many other types of fraudulent activities.

In 2009, the federal government enacted the Fraud Enforcement and Recovery Act (FERA) that significantly expanded the enforcement of mortgage fraud laws.  Without the assistance of a skilled mortgage fraud lawyer, defendants can be subject to prison sentences ranging to 30 years and fines of up to $1 million.

Because so many people are involved in the sale and purchase of a property, the opportunity to commit mortgage fraud can take many types of forms.  Mortgage brokers, real estate attorneys, appraisers, real estate agents, bankers, and even home buyers can be tempted to commit mortgage fraud at any one of the numerous steps involved in a real estate transaction.

Common types of mortgage fraud can include property flipping at an inflated value, fraudulent loan documentation, identity theft, equity skimming, inflated appraisals, the execution of a silent second mortgage, and the use of straw buyers, to name a few.

In addition to criminal penalties, defendants may also be held accountable for civil penalties as well.  For example, if a bank sustains a loss due to mortgage fraud, the defendant may be required to pay restitution to the bank for their illicit activities.

Dwane Cates Law Group proudly serves clients in Phoenix, Tempe, Glendale, Scottsdale, Mesa and surrounding Arizona communities