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Michael Kielsky’s Answers

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  • In Arizona, a civil traffic ticket is a complaint and an accompanying summons must be served on you. Is this true.

    I received 2 photo summons from alternative Service-the return address was from a company "AAA Photo Safety" What if they are not opened--appeared a junk mail. I don't know who AAA Photo Safety is? Nothing that says its from Scottsdale Police at ...

    Michael’s Answer

    First, there will be no arrest warrant for a civil traffic photo ticket that is ignored. They may enter a default, and suspend your license, and THAT may result in criminal charges for driving on a suspended license, but there is no arrest warrant for ignoring the ticket.

    In Arizona, until you are properly served, the court cannot legally do anything. Personal service is effective if the defendant is personally served (that means, the process server says words to the effect that the documents are important legal documents, and they are offered to the defendant, and then left for the defendant). Personal service (on a substitute) is also effective, if it is at the defendant's residence, and the individual who is served is a co-resident, of suitable age and discretion. Residence, not mail box place.

    It is not necessary that the person being served accept the papers, that the process server offered them and then left them for the person served when they refused to take them is usually enough.

    If the service is at the residence of the defendant, and the person encountered by the process server is of suitable age (14 or older, usually) and discretion (not incompetent), then this would constitute substitute service, and it is valid, as long as the person is also a co-resident at that residence.

    A worker (landscape maintenance, domestic, service and repair, etc.) who is not a co-resident is not a proper substitute for accepting service. A visiting family member who does not live there (even if they are an overnight guest), is not a proper substitute for accepting service.

    Importantly, the rules state that service at THE HOME of the defendant, upon a person who LIVES WITH the defendant, is proper, if that person is OF SUITABLE AGE AND DISCRETION.

    If the ticket was issued by Scottsdale, they may obtain an order from the court permitting alternative service, mailing it and taping it to the mail address door. That counts as proper service, ignoring it is a mistake.

    The real tricky part of this is that, even if you are not properly served, but the court is told you were, then a default could be entered against you, your license could be suspended, and more, if you don't take action.

    When challenging sufficiency of service, one must be very careful to only challenge the service, as raising any other issue could be deemed by the court as waiving service and accepting personal jurisdiction.

    Now that all that has been explained, you retain the ability to use Defensive Driving, even if you are served. If this is a red-light ticket case, and since being found responsible for a red light violation would cause you to also have to complete an 8-hour Traffic Survival School (which is NOT Defensive Driving), we routinely recommend taking Defensive Driving to resolve a red light ticket, if you are at all eligible.

    At this stage, it is your call to make. Sounds like you have been alternatively served, and the court will add a $25 to $40 fee on top of your fine for the service, which would need to be paid, even if you can avoid the fine by using Defensive Driving.

    It may be possible to fight alternative service, but that is the most difficult type of service to successfully challenge.

    You should certainly seek out the services of a competent and experienced attorney to review this matter with you carefully, to perhaps challenge the service based upon the lack of proper service if it is questionable, all while avoiding waiving service or appearing generally, and all that to avoid unnecessarily being held responsible.

    In Liberty,

    -- Michael Kielsky
    Counselor & Attorney at Law
    Kielsky Rike PLLC
    Tempe, AZ 85282
    #lawballs

    Legal Notice & Disclaimer: http://KRazLaw.com/disclaimer

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  • What does the GT 5 UNLAW mean in the statement, AGG TAKING ID-GT 5 UNLAW?

    This is what is stated in a list of someones charges. I understand the first part, Aggravated Taking Identity, but i am unclear on the rest of the statement.

    Michael’s Answer

    These descriptions are never the most accurate, mere abbreviations and acronyms, and the specifics of the charges could change as the case progresses, but it would appear to reference the use with an unlawful purpose of 5 identities, pursuant to A.R.S. 13-2009 (A)(1).

    Good luck.

    In Liberty,

    -- Michael Kielsky
    Counselor & Attorney at Law
    Kielsky Rike PLLC
    Tempe, AZ 85282
    #lawballs

    Legal Notice & Disclaimer: http://KRazLaw.com/disclaimer

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  • Can a Prosecutor tell they will Dismiss a Ticket then Say they Never Said?

    Got a ticket for Driving with License Suspended spoke to prosecutor after i told them i didnt believe ot to be suspended i paid a ticket and since i live pit of state prosecutor gave me her email address told me send proof my Ny license is i...

    Michael’s Answer

    The court can also dismiss that charge. A.R.S. § 28-3473(A), the “driving while suspended” statute, states:

    Except as otherwise provided in this subsection, a person who drives a motor vehicle on a public highway when the person's privilege to drive a motor vehicle is suspended, revoked, canceled or refused or when the person is disqualified from driving is guilty of a class 1 misdemeanor. If the suspension is pursuant to section 28-1601 and the person presents to the court evidence that the person's privilege to drive has been reinstated, the court may dismiss the charge of driving under a suspended driver license.

    You could either file a written motion with the court, documenting (probably using the Motor Vehicle Record which you can get online from servicearizona.com) that the suspension was for an unpaid ticket, that the ticket situation was resolved and that suspension was lifted, and that your license is now current, and ask the court to dismiss the charge. You could do the same at the next pre-trial conference, make an oral motion with supporting documents, asking the court to dismiss. Many courts will routinely do just that.

    Also, once that is clear, the prosecutor may change their mind as well.

    If none of that works, you really should hire an attorney help to try to avoid the misdemeanor.

    Good luck.

    In Liberty,

    -- Michael Kielsky
    Counselor & Attorney at Law
    Kielsky Rike PLLC
    Tempe, AZ 85282
    #lawballs

    Legal Notice & Disclaimer: http://KRazLaw.com/disclaimer

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  • Can I request an extension/continuance for my traffic ticket the day of court date?

    I received a speeding ticket on May 28th and had decided that I would take advantage of the traffic school option due to its obvious benefits ( i.e. no points on license, no extra auto insurance fee). Anyhow I did not realize that the online traff...

    Michael’s Answer

    The law is clear on the defensive driving class option:

    Ariz. Rev. Stat. § 28-3392 (A) states that a court:

    1. Shall allow an individual who is issued a citation for a civil traffic moving violation pursuant to chapter 3, articles 2, 3, 4 and 6 through 15 of this title or a local civil traffic ordinance relating to the same subject matter to attend a defensive driving school for the purposes provided in this article.

    So, you show up at the court date and time listed on the ticket, and explain that you elect to do the defensive driving class option. Since you are showing up at the date and time listed on the ticket, the court will give you a reasonable amount of time to get the class done.

    If, for some reason, they insist that you waited too long, you can sigh heavily, look disappointed, and ask to set the case to a hearing (trial). They will schedule a hearing date, weeks (if not months) into the future. That will almost certainly give you at least 30 days, then go and get the class done more than 7 days before that trial date.

    In Liberty,

    -- Michael Kielsky
    Counselor & Attorney at Law
    Kielsky Rike PLLC
    Tempe, AZ 85282
    #lawballs

    Legal Notice & Disclaimer: http://KRazLaw.com/disclaimer

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  • I don't know what to do in court tomorrow?

    I got a criminal speeding ticket 3 weeks ago for going 89mph in a 65mph zone, officer said he could have impounded my car but didn't instead he told me to show up to court and let the judge deal with me. I don't know what I'm expecting in court an...

    Michael’s Answer

    As you may know, in Arizona, exceeding the posted speed limit by more than 20 mph (or exceeding 85 mph regardless of the posted speed limit) may be charged as a criminal traffic ticket, and a conviction is a misdemeanor -- that is, this is a criminal matter.

    Usually, when we are hired to help defend these cases, we to try to avoid the criminal conviction as the primary goal, and we have frequently been successful with that, but not in every case. A lot depends on factors which will only become clearer as the case progresses, just know that it is possible, and that we (and attorneys like us) have managed to accomplish that in cases in the past. Keep in mind, it may not be an easy task to obtain a non-criminal resolution, but whatever the chances, they will significantly improve with the assistance of an experienced attorney.

    While we certainly can never make any guarantees, we attempt to negotiate a deal where the charge is reduced from criminal to civil (regular traffic ticket), or where the ticket may be resolved by taking a defensive driving class.

    Ariz. Rev. Stat. § 28-3392 (A) states that a court:

    1. Shall allow an individual who is issued a citation for a civil traffic moving violation pursuant to chapter 3, articles 2, 3, 4 and 6 through 15 of this title or a local civil traffic ordinance relating to the same subject matter to attend a defensive driving school for the purposes provided in this article.

    2. Except as prescribed in subsection C of this section, may allow an individual who is issued a citation for a violation of section 28-701.02 to attend a defensive driving school.

    So, pursuant to A.R.S. § 28-3392 (A)(2), if the judge permits it, you can use defensive driving to resolve the ticket.

    Some examples from our experiences: we negotiated a plea down to a regular (non-criminal) speeding ticket in a case where our client was alleged to have been going 113 in a 45, and for two different clients allegedly going 100 in a 65. In other cases, we were able to obtain defensive driving diversion where the allegations were going 100 in a 65, or 95 in a 65, or 80+ in a 45, or 71 in a 45, or 67 in a 40. In many of these cases, while we were prepared to challenge the allegation, we were also able to provide evidence of the good character of our client, which made a huge difference in the outcomes we were able to obtain.

    Overall, we were able to avoid a criminal conviction for over 85% of these charges we have defended. Please understand that each case is unique, these results may not be typical, and past results are no guarantee of future outcomes. Additionally, our results are likely influenced by the background and character of our clients, i.e. a self-selected group which probably had a better chance from the get-go, just by the fact that they were inclined to consult an attorney, had the resources to hire an attorney, and retained legal counsel.

    Bottom line, 89 in a 65 is a case where with a little effort (depending on the judge and prosecutor), it would be reduced to a regular speeding ticket from a criminal traffic case, or you could get defensive driving.

    Talk to an experienced attorney to describe more of the details of the case, including in which court the case is filed, the posted speed limit, the location of the alleged violation, the agency which issued the ticket, and whether the driver has a relatively clean driving history, is eligible for defensive driving, and can provide evidence of good character.

    In Liberty,

    -- Michael Kielsky
    Counselor & Attorney at Law
    Kielsky Rike PLLC
    Tempe, AZ 85282
    #lawballs

    Legal Notice & Disclaimer: http://KRazLaw.com/disclaimer

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  • I have recently received a red light camera "Ticket" in Arizona.

    I know that i had ran the red light and it is very obvious. I have been doing some research for my state (AZ) and i am thinking of ignoring this letter and making them serve me in person. My questions is that if i do happen to get served, will i s...

    Michael’s Answer

    • Selected as best answer

    SINCE THIS IS A PHOTO ENFORCEMENT MATTER IN ARIZONA, YOU SHOULD PROBABLY IGNORE THE NON-ARIZONA ATTORNEY ANSWERS.

    In Arizona, until you are properly served, the court cannot legally do anything. Personal service is effective if the defendant is personally served (that means, the process server says words to the effect that the documents are important legal documents, and they are offered to the defendant, and then left for the defendant). Personal service (on a substitute) is also effective, if it is at the defendant's residence, and the individual who is served is a co-resident, of suitable age and discretion. Residence, not mail box place.

    It is not necessary that the person being served accept the papers, that the process server offered them and then left them for the person served when they refused to take them is usually enough.

    If the service is at the residence of the defendant, and the person encountered by the process server is of suitable age (14 or older, usually) and discretion (not incompetent), then this would constitute substitute service, and it is valid, as long as the person is also a co-resident at that residence.

    A worker (landscape maintenance, domestic, service and repair, etc.) who is not a co-resident is not a proper substitute for accepting service. A visiting family member who does not live there (even if they are an overnight guest), is not a proper substitute for accepting service.

    Importantly, the rules state that service at THE HOME of the defendant, upon a person who LIVES WITH the defendant, is proper, if that person is OF SUITABLE AGE AND DISCRETION.

    The real tricky part of this is that, if you are not properly served, but the court is told you were, then a default could be entered against you, your license could be suspended, and more, if you don't take action.

    If the ticket was issued by Scottsdale, they may obtain an order from the court permitting alternative service, mailing it and taping it to the mail address door.

    When challenging sufficiency of service, one must be very careful to only challenge the service, as raising any other issue could be deemed by the court as waiving service and accepting personal jurisdiction.

    Now that all that has been explained, you retain the ability to use Defensive Driving, even if you are served. Since being found responsible for a red light violation would cause you to also have to complete an 8-hour Traffic Survival School (which is NOT Defensive Driving), we routinely recommend taking Defensive Driving to resolve a red light ticket, if you are at all eligible.

    At this stage, it is your call to make, to wait to see if you get served (95% chance of that), or just go ahead and get Defensive Driving done. It is a small thing, but if you are served, the court will add a $25 to $40 fee on top of your fine for the service, which would need to be paid, even if you can avoid the fine by using Defensive Driving.

    You should certainly seek out the services of a competent and experienced attorney to review this matter with you carefully, to perhaps challenge the service based upon the lack of proper service if it is questionable, all while avoiding waiving service or appearing generally, and all that to avoid unnecessarily being held responsible.

    In Liberty,

    -- Michael Kielsky
    Counselor & Attorney at Law
    Kielsky Rike PLLC
    Tempe, AZ 85282
    #lawballs

    See question 
  • I am currently on unsupervised probation for disorderly conduct. I have court tues foranother disorderly conduct charge. Outcome

    Unsupervised probation was to end Oct 2015. I don't have a bad record and I am trying to avoid jail time. What is the outcome u see more than not for this?

    Michael’s Answer

    If you are on probation, and you are charged with another crime, you now may have two separate "cases" to handle:

    - the new criminal charge, where the State would have to prove your guilt beyond a reasonable doubt; if the State proves that, or you plead guilty, you would be sentenced based on that charge, with perhaps some thought given to your prior conviction for which you are on probation

    - a probation violation charge, where the State has to prove that it is more likely than not that you violated probation; if that is proven, then you would be sentenced within the sentencing ranges of the prior charge, even if the new charge is ultimately dismissed

    You will likely benefit from having an attorney help reduce the potential serious consequences.

    Finally, this is yet another good example if why everyone must remember: You have a right to remain silent. Use it! You should absolutely not engage in any conversations with police, the court, or anyone else about these allegations, without the assistance of an attorney.

    Here is additional information and some detail as to how and why it is important to invoke the right to remain silent, and not to discuss anything with anybody who is not your attorney.

    Should you find yourself being interrogated, interviewed, or otherwise questioned by any government agent, you should decline to provide any answers, invoke your rights, and secure counsel immediately. You might consider saying only:

    I want my attorney. I invoke my right to remain silent. I do not consent to a search of any kind, not of me, my effects, premises, immediate location, or vehicle. I hereby invoke all rights, including but not limited to those in the 4th, 5th, 6th, 9th & 14th Amendments to the US Constitution and the Declaration of Rights in our State Constitution. I want my attorney present before and during any questioning and before discussing any waivers.

    If you can remember nothing else, remember these 4 words: "Talk to my lawyer." Say only that, and nothing more.

    To understand more about why it can ONLY hurt you to speak to any government agent investigating a possible crime, see http://krazlaw.com/interrogation

    So, if you are being questioned, asked to sign things, don't answer anything or sign anything, get an attorney, and, above all else, you have a right to remain silent. Use it!

    In Liberty,

    -- Michael Kielsky
    Counselor & Attorney at Law
    Kielsky Rike PLLC
    Tempe, AZ 85282
    #lawballs

    Legal Notice & Disclaimer: http://KRazLaw.com/disclaimer

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  • Can i have a public defemder and. A pay lawyer or can i hire a lawyer after i already have a public defender

    Due to the age of my court appointed atty and the little experience. Im afraid im npt getti g the est possible defense

    Michael’s Answer

    When charged with a serious crime, but without resources to hire a private attorney, an attorney paid for by the state will be appointed.

    If a defendant is not satisfied with their public defender, they have some options:

    1. Hire a private attorney

    2. Explain to the judge why the public defender is not living up to their duties, and request a new public defender

    3. Add a private attorney to their public defender ("Knapp counsel").

    Knapp counsel: Where a defendant who is eligible for a public defender can add a private attorney (paid for by family, for example), without losing the public defender, and at a fee a lot lower than hiring a private attorney outright.

    I am often asked to step in when a public defender has already been appointed to a defendant in a criminal defense case. Although I typically advise prospective clients that a public defender can provide competent, often excellent, criminal defense services, a defendant can benefit from the assistance of a private attorney. A private attorney usually has more time to devote to a case than a public defender who may be overwhelmed with a high volume of cases. A private attorney may also have more experience as an attorney, or more experience with a particular type of case than a public defender, although the public defender will typically have handled many, many more cases, all things being equal.

    When a private attorney is hired by a defendant or the defendant’s family to work in conjunction with a public defender who is already assigned to the case, that private attorney is referred to as “Knapp counsel.” The term Knapp counsel comes from the Arizona case State v. Knapp, 114 Ariz. 531 (1977). Hiring Knapp counsel is ideal for a defendant with limited resources, but where the defendant or the defendant’s family desires to provide for a more comprehensive defense at a significantly lower cost than if only private counsel was retained.

    A “Knapp counsel”, may rely on the resources of the state in defending a case, including (where appropriate) paying for investigators, expert witnesses, DNA testing, blood or fingerprint analysis, or other experts needed to defend against the criminal charges. In most cases, Knapp counsel will work with the assigned public defender as a team, and help assure the best, aggressive defense.

    In Liberty,

    -- Michael Kielsky
    Counselor & Attorney at Law
    Kielsky Rike PLLC
    Tempe, AZ 85282
    #lawballs

    Legal Notice & Disclaimer: http://KRazLaw.com/disclaimer

    See question 
  • Should i seek didferent counsel id im not happy with my public defender

    I have one peior conviction five tears ago a class 6 leaving rhe seen of an accident just now coming on 5 years .my first lea is 2 yrs

    Michael’s Answer

    When charged with a serious crime, but without resources to hire a private attorney, an attorney paid for by the state will be appointed.

    If a defendant is not satisfied with their public defender, they have some options:

    1. Hire a private attorney

    2. Explain to the judge why the public defender is not living up to their duties, and request a new public defender

    3. Add a private attorney to their public defender ("Knapp counsel").

    Knapp counsel: Where a defendant who is eligible for a public defender can add a private attorney (paid for by family, for example), without losing the public defender, and at a fee a lot lower than hiring a private attorney outright.

    I am often asked to step in when a public defender has already been appointed to a defendant in a criminal defense case. Although I typically advise prospective clients that a public defender can provide competent, often excellent, criminal defense services, a defendant can benefit from the assistance of a private attorney. A private attorney usually has more time to devote to a case than a public defender who may be overwhelmed with a high volume of cases. A private attorney may also have more experience as an attorney, or more experience with a particular type of case than a public defender, although the public defender will typically have handled many, many more cases, all things being equal.

    When a private attorney is hired by a defendant or the defendant’s family to work in conjunction with a public defender who is already assigned to the case, that private attorney is referred to as “Knapp counsel.” The term Knapp counsel comes from the Arizona case State v. Knapp, 114 Ariz. 531 (1977). Hiring Knapp counsel is ideal for a defendant with limited resources, but where the defendant or the defendant’s family desires to provide for a more comprehensive defense at a significantly lower cost than if only private counsel was retained.

    A “Knapp counsel”, may rely on the resources of the state in defending a case, including (where appropriate) paying for investigators, expert witnesses, DNA testing, blood or fingerprint analysis, or other experts needed to defend against the criminal charges. In most cases, Knapp counsel will work with the assigned public defender as a team, and help assure the best, aggressive defense.

    In Liberty,

    -- Michael Kielsky
    Counselor & Attorney at Law
    Kielsky Rike PLLC
    Tempe, AZ 85282
    #lawballs

    Legal Notice & Disclaimer: http://KRazLaw.com/disclaimer

    See question 
  • In 1983, 13 year old girl drinks alcohol & is assaulted by 3 boys ages 15-16. Can there still be charges pressed? and on who?

    In 1983 I was sexually assault by a boy I knew from Jr High (15) & his two brothers (15 & 16). I was 13. Their dad & his girlfriend (whose 2 boys, 15 & 8, were there) bought us beer and vodka for the night & left 7 kids alone to go out. My 13 y...

    Michael’s Answer

    It is likely that the statute of limitations has run, but there are some possibilities.

    Usually, as to any claims that you might have against this person, the limitations time would not start running until you turned 18, and then you would have 2 years to bring a lawsuit, so it may be too late (except see below).

    As to any criminal charges the government might bring against him, those typically would not be allowed after 7 years, except, as may apply here, for sexual conduct with a minor under 15, or child molestation, which the government may charge at any time.

    If the government does bring a criminal action against him, then you would have 1 more year thereafter to try to bring a civil suit against him.

    Do not be surprised if prosecutors decide not to bring charges because the case is weak, or the evidence limited, and therefore they don't believe that there is a reasonable likelihood of conviction. Certainly, nothing will happen until the crimes are reported, and that is never easy in this kind of case.

    ALSO, YOU SHOULD NOT IGNORE THE POTENTIAL LEGAL JEOPARDY TO YOUR MOM AND YOUR TEACHER, AS ARIZONA REQUIRES THAT A TEACHER KNOWING OR SUSPECTING THIS TYPE OF CRIME IS REQUIRED TO REPORT THE SAME TO LAW ENFORCEMENT (SORRY, REPORTING TO THE ADMINISTRATION IS NOT ENOUGH), AND A FAILURE TO DO SO IS A CLASS 1 MISDEMEANOR OR A CLASS 6 FELONY.

    This liability extends to all school personnel, so the administrators could also face criminal charges for their failure to report the incident.

    See: A.R.S. 13-3620: http://www.azleg.gov/ars/13/03620.htm

    I hope you have sought counseling as well, and that you made progress healing.

    In Liberty,

    -- Michael Kielsky
    Counselor & Attorney at Law
    Kielsky Rike PLLC
    Tempe, AZ 85282
    #lawballs

    Legal Notice & Disclaimer: http://KRazLaw.com/disclaimer

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