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Michael Kielsky
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Michael Kielsky’s Answers

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  • Is it legal in Arizona to issue a red light failure to stop/remain stopped "ticket" by mail?

    I received a Courtesy Notice that does not even include a date of this event with a fein/fee of $272.45. Doesn't a police officer have to issue this ticket? Do I have to attend traffic school?

    Michael’s Answer

    There will be two types of notices you could have received. The first is a notice of violation, which is basically a mailed ticket, and it would name you as the driver.

    The second is a notice that states that a violation is alleged, but they are uncertain of the identity of the driver, and a request to identify the driver.

    You have no legal obligation to respond to either type of notice, and certainly no duty to identify the driver.

    If you got the second type of notice, basically asking who was driving, that can be easily ignored, because until they file a ticket against a driver, nothing will happen, and without a response, they probably won't know who to charge.

    If you got the first kind of notice, then sending in the "Not Me" response WILL NOT help, as it usually results in a letter stating that "you cannot be excluded as the driver, and you are expected in court". Not only that, you have waived service -- that is, you are agreeing that they don't have to serve you and you will be in court to answer the charges (or pay the fine, or take defensive driving).

    This is a case you may be able to win, as long as you avoid any serious missteps. They may not serve you, and if they do, you may have the best defense -- you didn't do it. Don't make it easier for them by signing away your rights at this point.

    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 (certified and regular mail) and taping it to the mail address door and to the garage, if there is one.

    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.

    You should certainly seek out the services of a competent and experienced attorney to review this matter with you carefully, to challenge the service based upon the lack of proper service, 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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  • Are you a traffic attorney serving Quartzite?

    i need a quote from a lawyer in Quartsite or a recommendation. It's a simple matter of having it dismissed and the traffic cop is no longer working there so it should be easy. We have to pay the court the bond amount and then have you make a few p...

    Michael’s Answer

    While it does sound like it might be easy, the devil is in the details. Perhaps it is as easy as you believe, but perhaps there will be complications.

    We have handled traffic ticket cases in that jurisdiction before, as I'm sure several other firms have as well, including these lawyers who I know and like:

    http://www.avvo.com/attorneys/85250-az-robert-gruler-4456286.html
    http://www.avvo.com/attorneys/85016-az-tyler-allen-4180760.html
    http://www.avvo.com/attorneys/85016-az-anjali-patel-4177818.html

    So, you have multiple options, and hundreds more on this site. Good luck.

    In Liberty,

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

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

    See question 
  • I got a criminal speeding ticket. This is my first offense. I don't have a criminal record and have a clean driving record

    What should I say to the prosecutor?

    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 around 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, depending on the specifics of the allegation, this may be a case where with a little effort (depending on the judge and prosecutor), it could 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 got flashed by a red light camera. I was driving my dad's car. How does it work if my dad says it wasn't him driving?

    The light turned yellow and I couldn't stop that fast so I kept going. It turned red when I was almost thru the intersection and flashed. It was night and there were no other cars around. How does it work if my dad says it wasn't him? How would he...

    Michael’s 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.

    In this case, if the ticket or the notice of violation are issued to Dad, almost the worst thing he can do is send in a response saying that it is not him. Even worse, if he identifies you. The best thing to do is ignore the notice of violation and any mailed ticket issued in Dad's name, that's an easy win when it gets to court, ultimately, after it is too late to reissue the ticket to you.

    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 or your dad 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 
  • Photo traffic ticket attorney

    how find best attorney to handle photo traffic ticket in paradise valley, arizona. did not receive the ticket until five days after time to respond, thanks

    Michael’s Answer

    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.

    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.

    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.

    At this stage, it is your call to make, to wait to see if you get served (95% chance of that), or elect one of the other options. 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 otherwise avoid the fine by, for example using Defensive Driving.

    Remember, your actions may have important legal consequences, so make sure you understand them before you proceed. You should certainly seek out the services of a competent and experienced attorney to review this matter with you carefully, to perhaps challenge the ticket 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

    See question 
  • Destroying Juvenile Record. Will I have to go to court?

    I was arrested for shoplifting 8 years ago, I am now 21 and applying to get my certificate to be a Certified Nursing Assistant. I needed to get the police report and court documents. I am just waiting on the court documents now. I also am going to...

    Michael’s Answer

    You might send something like this to the court, listing your name, any case number, complaint number, or police report number, and edit as appropriate:

    ========

    Pursuant to A.R.S. § 8-349(B), Defendant hereby applies for the destruction of juvenile records, including Arizona Department of Juvenile Corrections records, if any, as well as Sometown Police Department Complaint # 123456789 and related records or reports which may have been created or maintained by the Sometown Police Department.

    Defendant meets each of the conditions required for the relief requested:

    - Defendant is at least 18 years of age; and
    - Defendant has not been convicted of a felony offense (in an adult court) or adjudicated delinquent (in juvenile court) for an offense listed in A.R.S. 13-501 subsection A or B or Title 28 Chapter 4; and
    - No criminal charge is pending against Defendant in an adult court; and
    - Defendant has successfully completed all of the conditions of court-ordered probation, OR has received an absolute discharge from the Arizona Department of Juvenile Corrections pursuant to A.R.S. § 41-2820 on successful completion of Defendant’s individualized treatment plan; and
    - All restitution and monetary assessments, if any, have been paid in full

    ========

    Add your signature and contact information, and mail it to the court that handled your case out the outset.

    Good luck!

    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 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

    See question 
  • 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

    See question 
  • 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

    See question 
  • 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

    See question