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Michael Kielsky’s Answers

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  • If my backpack is locked with my lock can a cop take the key I have on me for it and unlock it without my consent or a warrent

    I am homeless and unfortunately a drug user so I carry a backpack everywhere with me that has drug paraphernalia in it that I lock up with a key opened master lock so I am trying to find out what the police can and cannot do if I have the key to t...

    Michael’s Answer

    Aside from the other answers, here is additional information and some detail as to how and why it is important to invoke the right to remain silent, as soon as you are being questioned by law enforcement. 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. Am I free to go?

    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 any admissions, get an attorney, and, above all else remember, you have a right to remain silent. Use it! Memorize these three short phrases:

    - I want my attorney.
    - I invoke my right to remain silent.
    - Am I free to go?"

    Repeat as needed. If you are told you are free to go, go, quickly, without any parting words.

    In Liberty,

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

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  • Can i legally own a firearm

    need to know if i am legally allowed to purchase a fire arm in the state of az i have been charged with a dv and took a plea deal andit was only a misdomenaor

    Michael’s Answer

    You are almost certainly a prohibited possessor under Federal (and therefore likely State) law:

    Under federal law, 18 U.S.C. § 922(d)(9), "It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person ... has been convicted in any court of a misdemeanor crime of domestic violence."

    Under A.R.S. § 13-3102.(A)(4), it is misconduct involving weapons for a prohibited possessor to possess a weapon. Interestingly, even though the definitions under A.R.S. § 13-3101 (A)(7) appears more limited, including only a person "Who is at the time of possession serving a term of probation pursuant to a conviction for a domestic violence offense", State or Federal prosecutors are almost certainly going to rely on the federal definition to charge individuals who meet either definition while possessing firearms.

    In Liberty,

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

    See question 
  • Will owning these guns be another legal problem? Get ride of them? Tell her about the pot before she finds out? Move to Mexico?

    I am 42 years old, I own three firearms that i purchased over a year ago, 2 of them have never even been opened, my only police record is two dui's over 8 years and 12 years ago which were completely taken care of, i am married and have a 9 year o...

    Michael’s Answer

    Whenever a government agent tells you that you don't need a lawyer, you probably already needed one a while ago.

    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, investigators, 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. Am I being detained?

    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!

    As far as the firearms issue, perhaps you are concerned with the possibility that you might be a prohibited possessor under Federal (and therefore State) law:

    Under federal law, 18 U.S.C. § 922(g)(3), "a person who is an unlawful user of or who is addicted to a controlled substance" is a prohibited possessor. Under A.R.S. § 13-3102.(A)(4), it is misconduct involving weapons for a prohibited possessor to possess a weapon. Interestingly, even though the definitions under A.R.S. § 13-3101 (A)(7) do not include the same "a person who is an unlawful user of or who is addicted to a controlled substance" language, State prosecutors regularly try to rely on the federal definition to charge individuals who are found in possession (or are users) of drugs while possessing firearms.

    At this point, this problem may be more remote, but again another reason to STOP TALKING TO THE GOVERNMENT AGENTS and get a lawyer to help you.

    -- 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 are the laws for statutory rape for couples like us

    I am 17 turning 18 in September and my girlfriend is 15 turning 16 in October and I have been told many different things regarding statutory rape and "romeo and Juliet" laws

    Michael’s Answer

    First of all, an 17 to 18-year-old should not be dating a 15 to 16-year-old. An 18-year-old should limit themselves to someone at least 18 to be perfectly safe, or maybe 17. This age-difference (across that line) is just asking for things to develop to a point where the 18-year-old will ultimately have to register as a sex-offender, perhaps for life.

    In this scenario, you will be 18 for a month or so, while she is still 15 -- that is sexual conduct with a minor, and because the age difference is MORE than 24 months, no defense is available to you -- prison and life-time registration as a sex-offender is what you are looking at, even after she turns 16.

    The following are excerpts from the applicable statutes:

    A.R.S. 13-1401. Definitions; In this chapter, unless the context otherwise requires: (1) "Oral sexual contact" means oral contact with the penis, vulva or anus. (2) "Sexual contact" means any direct or indirect touching, fondling or manipulating of any part of the genitals, anus or female breast by any part of the body or by any object or causing a person to engage in such contact. (3) "Sexual intercourse" means penetration into the penis, vulva or anus by any part of the body or by any object or masturbatory contact with the penis or vulva.

    13-1405 A person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age. [ ... ] (B) [ ... ] Sexual conduct with a minor who is at least fifteen years of age is a class 6 felony. ...

    13-1407 B. It is a defense to a prosecution pursuant to sections 13-1404 and 13-1405 in which the victim's lack of consent is based on incapacity to consent because the victim was fifteen, sixteen or seventeen years of age if at the time the defendant engaged in the conduct constituting the offense the defendant did not know and could not reasonably have known the age of the victim. [ ... ] (F) It is a defense to a prosecution pursuant to sections 13-1405 and 13-3560 if the victim is fifteen, sixteen or seventeen years of age, the defendant is under nineteen years of age or attending high school and is no more than twenty-four months older than the victim and the conduct is consensual.

    13-1405 D. It is a defense to a prosecution pursuant to section 13-1404 or 13-1405 that the person was the spouse of the other person at the time of commission of the act. [ ... ]

    What all this means is that, before marriage, it is a felony, with serious consequences. After marriage, it would still be a crime that may be charged, but the defendant may admit the conduct, and they could not be punished as the defense that they were married to the purported victim applies.

    If the defendant was no more than 24 months older than the "victim", that may also be a defense -- but remember, it is a defense to a prosecution, something that may prevent a conviction, though it is still technically a crime. You don't have that fact here, you are too much older than she is.

    Nothing in these statutes appears to prohibit hand-holding or mere kissing and such. It is when things get beyond that point, that there will be serious, life-altering, sometimes permanent consequences.

    In Liberty,

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

    See question 
  • Is this valid service and do we need to pay the ticket.

    My son attends college in Arizona and drives a car that is registered to my wife in Illinois. We received in the mail (In Illinois) a photo speeding ticket (10-12 over) that occurred in Scottsdale, AZ.

    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 mailed copy is not personal service.

    A service 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.

    In this case, it is unclear who the defendant (the person accused of the violation) is.

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

    To properly challenge this, you really should have an attorney help you, one who has experience challenge service of process in traffic court cases.

    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.

    We regularly fight these cases, and have challenged the perfection and sufficiency of personal service in hundreds of cases, with great success.

    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.

    Once you are past the service issue, then the remaining issues are related to whether the prosecution can prove that the accused was the driver and that they violated the applicable traffic laws. Arizona is a driver responsibility state, the registered owner is not liable for these types of traffic tickets.

    In Liberty,

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

    See question 
  • What I want to know is if he calls the cop for harassment for slapping him 3 times,can I go to jail?

    So i slapped my ex-boyfriend 3 times, 2 at school and 1 when we got off the school bus in our neighborhood. His parents came to my house to talk to my parents and they don't want him to talk to me at all and wise-versa. But 2 days later I texted h...

    Michael’s Answer

    • Selected as best answer

    Yes, you can go to jail for the physical contact, as your acts could easily be considered domestic violence. Your repeated demands and threats could also be considered harassment. His postings could be the same, depends on exactly what was posted.

    But, you need to be very careful about what you reveal here or any place else -- you've already admitted too much.

    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. Am I free to go?

    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 any admissions, get an attorney, and, above all else remember, you have a right to remain silent. Use it! Memorize these three short phrases: "I want my attorney. I invoke my right to remain silent. Am I free to go?" Repeat as needed. If you are told you are free to go, go, quickly, without any words.

    Finally, he may be guilty of felonies for any sexual contact with you, and he may not qualify for any of the defenses depending on how much older than you he is.

    The following are excerpts from the applicable statutes:

    A.R.S. 13-1405 A person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age. [ ... ] (B) [ ... ] Sexual conduct with a minor who is at least fifteen years of age is a class 6 felony. ...

    13-1407 B. It is a defense to a prosecution pursuant to sections 13-1404 and 13-1405 in which the victim's lack of consent is based on incapacity to consent because the victim was fifteen, sixteen or seventeen years of age if at the time the defendant engaged in the conduct constituting the offense the defendant did not know and could not reasonably have known the age of the victim. [ ... ] (F) It is a defense to a prosecution pursuant to sections 13-1405 and 13-3560 if the victim is fifteen, sixteen or seventeen years of age, the defendant is under nineteen years of age or attending high school and is no more than twenty-four months older than the victim and the conduct is consensual.

    In Liberty,

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

    See question 
  • Is there a way to postpone traffic survival school till after this semester ends?

    I just moved to the state of Arizona in September. At the end of October I received one speeding ticket in the mail everyday for the next five days! All the same traffic camera at the same spot sometimes even for the same day but at a different ti...

    Michael’s Answer

    Upon notice that TSS has been ordered by the MVD, one may request a hearing to challenge the agency determination. The time to request a hearing is short, and failing to timely request a hearing means that the determination will stand.

    You should immediately request a hearing. You only have a very limited amount of time to request a hearing, after that, you have no options.

    An attorney who understand the MVD processes can help you improve the situation. They will be familiar with the process of requesting a hearing, they will know where to review the applicable regulations and statutes, and they will know how to present an argument for you.

    In any case, if you timely request a hearing, the MVD TSS assignment order is put on hold until a hearing can be scheduled. At the hearing, you can explain your situation, and the administrative law judge has the authority to extend the time for you to complete TSS.

    Someone in such a situation might consider hiring a qualified professional to help.

    Needless to say, if you get even one more point on your license, your driving license privileges in Arizona will be suspended.

    You should not be so quick to just pay these photo-tickets without understanding the consequences -- again, a qualified professional could have made a huge difference.

    In Liberty,

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

    See question 
  • What would be possible problems that could come out of allowing this for either my son or myself and how can I stop them?

    I have a 17 year old son currently living with me in California who will be 18 in 8 months, he is wanting to move to Arizona to live with his girlfriend and her family. The girlfriend will only be 16 in March. Her parents are agreeing to let him m...

    Michael’s Answer

    First of all, an 18-year-old should not be dating a 16-year-old. A 18-year-old should limit themselves to someone at least 18 to be perfectly safe, or maybe 17. This age-difference (across that line) is just asking for things to develop to a point where the 18-year-old will ultimately have to register as a sex-offender, perhaps for life.

    The following are excerpts from the applicable statutes:

    A.R.S. 13-1401. Definitions; In this chapter, unless the context otherwise requires: (1) "Oral sexual contact" means oral contact with the penis, vulva or anus. (2) "Sexual contact" means any direct or indirect touching, fondling or manipulating of any part of the genitals, anus or female breast by any part of the body or by any object or causing a person to engage in such contact. (3) "Sexual intercourse" means penetration into the penis, vulva or anus by any part of the body or by any object or masturbatory contact with the penis or vulva.

    13-1405 A person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age. [ ... ] (B) [ ... ] Sexual conduct with a minor who is at least fifteen years of age is a class 6 felony. ...

    13-1407 B. It is a defense to a prosecution pursuant to sections 13-1404 and 13-1405 in which the victim's lack of consent is based on incapacity to consent because the victim was fifteen, sixteen or seventeen years of age if at the time the defendant engaged in the conduct constituting the offense the defendant did not know and could not reasonably have known the age of the victim. [ ... ] (F) It is a defense to a prosecution pursuant to sections 13-1405 and 13-3560 if the victim is fifteen, sixteen or seventeen years of age, the defendant is under nineteen years of age or attending high school and is no more than twenty-four months older than the victim and the conduct is consensual.

    13-1405 D. It is a defense to a prosecution pursuant to section 13-1404 or 13-1405 that the person was the spouse of the other person at the time of commission of the act. [ ... ]

    What all this means is that, before marriage, it is a felony, with serious consequences. After marriage, it would still be a crime that may be charged, but the defendant may admit the conduct, and they could not be punished as the defense that they were married to the purported victim applies.

    If the defendant was no more than 24 months older than the "victim", that may also be a defense -- but remember, it is a defense to a prosecution, something that may prevent a conviction, though it is still technically a crime.

    Nothing in these statutes appears to prohibit hand-holding or mere kissing and such. It is when things get beyond that point, that there will be serious, life-altering, sometimes permanent consequences.

    In Liberty,

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

    See question 
  • Would I go to jail if my boyfriend is 15 and I'm 17

    My boyfriend is 15 almost 16, and I'm almost 18 and have been together for over a year I posted a question like 5 mins ago but I typed his age wrong. We are not sexual together. And I wanted to know if I could be in trouble

    Michael’s Answer

    First of all, an 18-year-old should not be dating a 16-year-old. A 18-year-old should limit themselves to someone at least 18 to be perfectly safe, or maybe 17. This age-difference (across that line) is just asking for things to develop to a point where the 18-year-old will ultimately have to register as a sex-offender, perhaps for life.

    The following are excerpts from the applicable statutes:

    A.R.S. 13-1401. Definitions; In this chapter, unless the context otherwise requires: (1) "Oral sexual contact" means oral contact with the penis, vulva or anus. (2) "Sexual contact" means any direct or indirect touching, fondling or manipulating of any part of the genitals, anus or female breast by any part of the body or by any object or causing a person to engage in such contact. (3) "Sexual intercourse" means penetration into the penis, vulva or anus by any part of the body or by any object or masturbatory contact with the penis or vulva.

    13-1405 A person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age. [ ... ] (B) [ ... ] Sexual conduct with a minor who is at least fifteen years of age is a class 6 felony. ...

    13-1407 B. It is a defense to a prosecution pursuant to sections 13-1404 and 13-1405 in which the victim's lack of consent is based on incapacity to consent because the victim was fifteen, sixteen or seventeen years of age if at the time the defendant engaged in the conduct constituting the offense the defendant did not know and could not reasonably have known the age of the victim. [ ... ] (F) It is a defense to a prosecution pursuant to sections 13-1405 and 13-3560 if the victim is fifteen, sixteen or seventeen years of age, the defendant is under nineteen years of age or attending high school and is no more than twenty-four months older than the victim and the conduct is consensual.

    13-1405 D. It is a defense to a prosecution pursuant to section 13-1404 or 13-1405 that the person was the spouse of the other person at the time of commission of the act. [ ... ]

    What all this means is that, before marriage, it is a felony, with serious consequences. After marriage, it would still be a crime that may be charged, but the defendant may admit the conduct, and they could not be punished as the defense that they were married to the purported victim applies.

    If the defendant was no more than 24 months older than the "victim", that may also be a defense -- but remember, it is a defense to a prosecution, something that may prevent a conviction, though it is still technically a crime.

    Nothing in these statutes appears to prohibit hand-holding or mere kissing and such. It is when things get beyond that point, that there will be serious, life-altering, sometimes permanent consequences.

    In Liberty,

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

    See question 
  • Are camera generated tickets fully legal in Arizona? Do they violate our right to confront our accuser?

    Camera speeding ticket when using cruise control at 10 mph lower speed than they say I was going. ZERO prior moving violation ticket in 52 yrs of driving!

    Michael’s Answer

    • Selected as best answer

    I will disagree a tad with my learned colleagues.

    To the extent there are confrontation rights, it is the 'complainant' a defendant may confront -- but the camera is not the complainant.

    While the 6th Amendment (criminal) confrontation rights don't apply, the 14th Amendment 'due process confrontation rights' may come into play, under the right circumstances.

    The U.S. Supreme Court has held that the statutory classification of an action as civil or criminal must be assessed in light of the sanction or fine. “[T]he labels affixed whether to the proceeding or to the relief imposed … are not controlling and will not be allowed to defeat the applicable protections of federal constitutional law.” “[I]n determining whether a particular civil sanction constitutes criminal punishment, it is the purposes actually served by the sanction in question, not the underlying nature of the proceeding giving rise to the sanction, that must be evaluated.” “[A] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment.”

    This is case law in Arizona: "The Court held that in determining whether a proceeding is criminal or civil, it is the character of the sanction imposed that is crucial, as opposed to the labels “criminal” and “civil.” The Court noted that “civil proceedings may advance punitive as well as remedial goals, and, conversely, that both punitive and remedial goals may be served by criminal penalties." Nichols, id., 169 Ariz. at 412, 819 P.2d at 998.

    In State v. Boudette, 164 Ariz. 180, 791 P.2d 1063 (Ct. App. 1990) the Arizona Court of Appeals determined that although stopping an automobile and detaining a driver to serve a traffic citation is a seizure within the meaning of the Fourth Amendment, the exercise of this power did not depend on whether the State defined traffic offenses as civil or criminal. The Court stated:

    In Taylor v. Sherrill, 169 Ariz. 335, 819 P.2d 921 (1991) our Arizona Supreme Court (1) discussed civil traffic tickets; (2) found traffic offenses to be civil; and (3) concluded civil traffic violations did not violate double jeopardy if the individuals were also prosecuted for criminal offenses arising from the same conduct. Boudette, id., and Sherrill, id., indicate differing Constitutional mandates in the context of civil traffic offenses. For double jeopardy purposes, the civil traffic offense lies squarely within the civil arena and therefore, does not preclude criminal charges arising from the same conduct. For Fourth Amendment purposes, civil traffic violations are akin to criminal acts and allow the police to stop and inquire about the activity.

    Because traffic offenses fall within the realm of civil as opposed to criminal acts, Defendant has no right to confront accusing witnesses under the Sixth Amendment. However, Defendant did retain a due process right to cross-examine witnesses under the Fifth and Fourteenth Amendments. In Goldberg v. Kelly, 397 U.S. 254, 269, 90 S. Ct. 1011 (1970) — a civil case involving receipt of financial aid under a federally assisted AFDC program — the U.S. Supreme Court held: "In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses."

    Importantly, this critical point does not implicate the rules of evidence, but rather a defendant’s Constitutional Due Process Right to be able to confront the State’s witnesses -- not whether such evidence is admissible, but whether a defendant has a Constitutional Right to confront the witnesses responsible for the creation of this evidence, and whether the proper remedy for denying Defendant the opportunity to confront witnesses is to preclude considering such.

    Very tough argument, and we have had mixed results.

    In Liberty,

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

    See question