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Michael Kielsky’s Answers

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  • What is the statue of limitation in the state of Arizona to go after someone for molestation?

    My sister and I were being molested from child to teenage years. My mother had told us not to tell no one and to keep quiet. He was suppose to be our step father. After torment of this we decided to see a counselor and they told us that we should ...

    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 looks like it is far 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.

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

    In Liberty,

    -- Michael Kielsky
    Counselor & Attorney at Law
    Udall Shumway PLC
    Mesa, AZ 85201

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  • Should I keep my court appointed lawyer?

    I just talked to my court appointed lawyer and he just made me cry. He doesnt know anything about my case. The first thing he told me was the statistics of innocent people in prison and how three out of four people that go to trial go to prison. I...

    Michael’s Answer

    Another option might be to hire Knapp counsel:

    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.

    Basically, that allows a family to hire a private attorney to be added to the public defender, usually at a far lower cost that having only the private attorney (our office typically charges 1.2, for example), while keeping the public defender. So, 2 attorneys for 1/2 the cost.

    In my experience, not only is there now a second attorney on the case, the assigned public defender now has someone looking over their shoulder, and that usually gets them to put their best foot forward, if they hadn't already.

    More details about Knapp counsel are in this link:

    http://www.udallshumway.com/blog/mesa-az-public-defender-or-private-attorney-wait-theres-another-option/

    Good luck!

    In Liberty,

    -- Michael Kielsky
    Counselor & Attorney at Law
    Udall Shumway PLC
    Mesa, AZ 85201
    #lawballs

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  • What should I do, my fiancée and I are both being charged with shoplifting? We have court today, help us.

    On 06/05/2016 my fiancee and I got caught and charged with shoplifting. Difficult times resulted in my fiancee and I having to steal our daughter a box of diapers, at a local Apache Junction Safeway. I waited outside as my fiancee (Kristin) went i...

    Michael’s Answer

    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. You should not post such a detailed admission online either.

    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://www.udallshumway.com/blog/mesa-az-invoke-your-rights-and-secure-counsel/

    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!

    -- Michael Kielsky
    Counselor & Attorney at Law
    Udall | Shumway
    Mesa, AZ 85201
    #lawballs

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  • My son stole from Walmart in Arizona. Should he pay a $250 civil demand from Michael Ira Asen law firm?

    My son got caught stealing in Walmart in Arizona. We received a letter from the law firm of Michael Ira Asen requesting $250 as a civil demand penalty. They say they are representing Walmart. Should my son pay this fee?

    Michael’s Answer

    On these demand letters, they are usually based on the following statutes:

    A.R.S. § 12-691. Civil liability for shoplifting; adult; emancipated minor

    An adult or emancipated minor who commits shoplifting as defined by section 13-1805 is civilly liable to the owner of the obtained goods for all of the following:

    1. A penalty in the amount of the retail value of the obtained goods.

    2. For an adult, an additional penalty of at least two hundred fifty dollars but not more than two hundred fifty dollars plus the actual damages to the owner.

    3. For an emancipated minor, an additional penalty of at least one hundred dollars but not more than one hundred dollars plus the actual damages to the owner.

    A.R.S. § 12-693. Conviction for shoplifting; admissibility

    A conviction for shoplifting under section 13-1805 is not required to maintain an action pursuant to this article. An adjudication of not guilty of violation of section 13-1805 is admissible in an action for civil liability under sections 12-691 and 12-692. A person convicted for shoplifting under section 13-1805 is precluded from subsequently denying the essential allegations of the offense in any action pursuant to this article. For the purposes of this section, a conviction may result from a verdict or a plea including a no contest plea.

    A.R.S. § 12-694. Bringing action; court

    An action for recovery of damages under this article may be brought in any court of competent jurisdiction, including the small claims division of a justice court, if the total actual damages and penalties do not exceed the jurisdictional limit of the court.

    We have dealt with this issue several times. If there is a conviction, a plea of guilty or no contest, it's pretty clear that there is liability. If there is an acquittal, that would usually mean there is no liability, but that's not automatic or guaranteed. If there is no such conviction or plea, then they could prove the shoplifting in a civil action and get a judgment, as described in the statutes. Of course, they don't always bother.

    In Liberty,

    -- Michael Kielsky
    Counselor & Attorney at Law
    Udall | Shumway
    Mesa, AZ 85201
    #lawballs

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  • Are Arizona photo radar speeding tickets legal?

    Arizona photo radar speeding ticket. Got 2 in one day they were mailed to me. Do I have to go to court or pay these? Are they legal? Shouldn't I be served by a process server?

    Michael’s Answer

    Pet peeve: Attorneys from other jurisdictions who do not know Arizona law on this topic, nor have they dealt with these tickets in Arizona courts. Please ignore them.

    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.

    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 look up the case online, if possible, to see what the current status is, or contact an attorney to look it up for you. Here is a collection of links to look up case information:

    http://www.mycriminaldefenselawyeraz.com/records/

    Finally, the Attorney General has recently issued an opinion that the information used in photo radar tickets was gathered illegally.

    A third party which operates photo enforcement systems in the State falls within the definition of “private investigator” under A.R.S. § 32-2401(16)(b). Contractors who operate photo enforcement systems are required to be licensed as private investigators under A.R.S. § 32-2401(16), either under subsection (a)(i) because they engage in the business of making an investigation for the purpose of obtaining information with reference to a crime or wrong done against the state, or under subsection (b) because they secure evidence to be used in the trial of civil or criminal cases and the preparation therefore. Photo enforcement system contractors are not exempted from the private investigator licensing requirements. See Arizona Attorney General Opinion No. I16 002, issued March 16, 2016. It is a class 1 misdemeanor to act as a private investigator unless licensed and acting within the scope of employment for an agency that is licensed to conduct private investigations. Information illegally obtained via a photo enforcement system operated by contractors not licensed as private investigators cannot form the basis of a valid a civil traffic complaint.

    You should certainly seek out the services of a competent and experienced attorney to review this matter 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
    Udall Shumway PLC
    Mesa, AZ 85201
    #lawballs

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  • Will her name show up as wanted if her name is run by a law enforcement agency in another state say if she was pulled over

    My girlfriend was put on probation in Maricopa county for drug pariphanalea a class 6 undesignated felony. She told me she wants to ditch probation and move to another state.

    Michael’s Answer

    She's on track to have her felony reduced to a misdemeanor ... but not if she pulls this stunt.

    If she absconds, there will be a felony warrant issued for her arrest, and any encounter with law enforcement anywhere will get her locked up -- and he chance to have her felony reduced to a misdemeanor will also likely vanish.

    Bad idea. She should tough it out, and if she can do very well on probation, there are even opportunities to reduce the length of probation and perhaps reduce some of the conditions with which she may have to comply. Do poorly, and it gets tougher, and more time in custody may be in her future.

    Good luck!

    -- Michael Kielsky
    Counselor & Attorney at Law
    Udall Shumway PLC
    Mesa, AZ 85201
    #lawballs

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  • I need help with my son.

    My son just got back from a status hearing and they are moving to trial at the end of the month. We have been asking to hire a forensic computer specialist and i will pay for and his lawyer will not let us and is just pushing my son to take a plea...

    Michael’s Answer

    Another option might be to hire Knapp counsel:

    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.

    Basically, that allows a family to hire a private attorney to be added to the public defender, usually at a far lower cost that having only the private attorney (our office typically charges 1.2, for example), while keeping the public defender. So, 2 attorneys for 1/2 the cost.

    In my experience, not only is there now a second attorney on the case, the assigned public defender now has someone looking over their shoulder, and that usually gets them to put their best foot forward, if they hadn't already.

    More details about Knapp counsel are in the attached link.

    Good luck!

    In Liberty,

    -- Michael Kielsky
    Counselor & Attorney at Law
    Udall Shumway PLC
    Mesa, AZ 85201
    #lawballs

    See question 
  • How to answer application question with expunged charges.

    I have been offered a job and want to make sure I answer this correctly. Years ago I was entered into a pti program in NJ for drug charges. I successfully completed the program over a year and then the charges were dropped. I then had it expunged....

    Michael’s Answer

    If you pleaded guilty, the answer is "yes", and then explain in detail. If you did not, then the answer is "no". Since you said in your question that you do not remember, it would be very difficult for anyone else to know the answer to that critical point -- did you or did you not plead guilty to any charges?

    As a practical matter, you need to try to figure this out, if there is any way to do it -- maybe you have old copies of any of the paperwork (either for the original case or for what it took to get the record expunged). Maybe you need to get someone to dig through old court files.

    Or maybe, you just need to answer "yes", and then explain that you were charged and then went through a program after which everything was dismissed, and then the records were expunged, but you do not remember and have no records one way or the other to say whether you pleaded guilty at any point during the process, and any records that might have existed were expunged so there is no way to determine that answer, but, most importantly, this was XX years ago, and it's all long in the past.

    Good luck.

    -- Michael Kielsky
    Counselor & Attorney at Law
    Udall Shumway PLC
    Mesa, AZ 85201
    #lawballs

    See question 
  • Excessive speed Gila Bend

    I received a citation for excessive speed on highway 8 near Gila Bend. I rented a car and was driving to San Diego from Phoenix area. No reason to be driving at that rate I just wasn't paying attention and didn't set cruise control. I belive I...

    Michael’s Answer

    Here are the realistic options/possibilities, in order of likelihood:

    1. Conviction of this Class 3 misdemeanor, fine of $300-750
    2. Conviction of a civil speeding ticket, fine of $300-500
    3. Dismissal of the case upon your successful completion of a Defensive Driving program (online)

    Because of the speed alleged, #2 and #3 are really unlikely, but see below.

    If you just "pay the fine" you would also be pleading guilty to a criminal charge. Maybe that's not a big deal if you already have several other criminal convictions (this type is the lowest level misdemeanor), but for most people who do not have any criminal record, they would like to keep it that way.

    Unless you have a long and serious criminal history, or many, many traffic tickets, you will not get jail. #1 is the worst-case scenario, and you may be able to improve upon that. An attorney could help improve upon that -- I regularly do, and I would work hard to get you the option of having the case dismissed after defensive driving school, or changing it from criminal to a regular (civil) ticket -- regardless of how remote the chances, they improve with the assistance of skilled counsel.

    While this ticket could be charged as a criminal speeding ticket, it could be changed by plea agreement to a regular civil speeding ticket. The fine will be less, there will be no criminal records, although the points are the same 3 points.

    If you can't afford an attorney, go to the arraignment hearing an plead "Not Guilty". At that time, sometimes the judge will let you plead responsible to the civil charge, or perhaps even offer defensive driving to dismiss the case. Often all you can do is plead Not Guilty. The court will set a hearing called a pre-trial conference, at which you will get a chance to meet with the prosecutor to discuss your case.

    At the pre-trial conference, explain your good driving records, non-existent criminal history, and ask if they would let you do defensive driving to dismiss the ticket, or change it to a civil speeding ticket.

    As this this is treated as a criminal case, if you start without an attorney, at any time you can stop everything and explain that you really need an attorney, you will be given some time to go hire an attorney.

    Good luck,

    -- Michael Kielsky
    Counselor & Attorney at Law
    Udall Shumway PLC
    Mesa, AZ 85201
    #lawballs

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  • Was it illegal for us to have sex even though he's 18 and it was consensual

    I had sex with an 18 year old but have known his ever since he was 17. I am 17 and 7 months and had consensual sex with him but now my parents are threatening to call the police. Is this illegal?

    Michael’s Answer

    First of all, an 18-year-old should not be dating a 17-year-old if any sexual contact is involved. A 18-year-old should limit themselves to someone at least 18 to be perfectly safe. This age-difference (across that line) is just asking for things to develop to a point where the 18-year-old could 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
    Udall Shumway PLC
    Mesa, AZ 85201
    #lawballs

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