Whether in the Phoenix area, or anywhere in Arizona, per A.R.S. §13-1209 "Drive-By Shooting" occurs when a person intentionally discharges a firearm from a motor vehicle at a person, other occupied motor vehicle, or an occupied structure. This is similar to Misconduct Involving a Weapon, per A.R.S. §13-3102, except that an automobile is involved.
Drive-by Shooting is charged as a class two (2) felony with an "Allegation of Dangerousness". The reason it is a "Dangerous" offense, is that a dangerous instrument or deadly weapon was involved (i.e., a gun). A first offense Dangerous class two (2) felony involves mandatory "prison only" sentence of seven (7) years minimum; ten and one half (10.5) years presumptive; and twenty-one (21) years maximum of incarceration. If a person has one (1) allegeable historical prior dangerous felony conviction, then the range of "prison only" range is fourteen (14) years minimum; fifteen and three quarters (15.75) years presumptive; and twenty-eight (28) years maximum of incarceration. If the person has two (2) allegeable historical prior dangerous felony convictions, then the "prison only" mandatory minimum punishment is twenty-one (21) years; the presumptive is twenty-eight (28) years; and the maximum is thirty-five (35) years of incarceration.
The strongest defense to a charge of Drive-By Shooting is "Misidentification". Many times the police will pull over a vehicle suspected of a "Drive-By Shooting" and there will be multiple occupants in that vehicle. Usually, any witnesses who were at the shooting scene were so panicked that they would not be able to positively make an identification. However, the police will conduct what is known as a "show-up" identification instead of a proper "line-up" identification. A "show-up" is when they drive an individual suspect back to the scene (usually in handcuffs), and then they have witnesses at the scene indicate whether that was the person who fired the gun or not. The problem is that this form of identification is "unduly suggestive". Why else would somebody be there, in handcuffs, with police officers standing next to them unless the police assumed that this was the person who committed the crime.
It is also imperative to challenge any claim of "gunshot residue" being left behind on the shooter's hands. Many times a gun will be fired by one individual, but then handed to another individual. The three (3) elements of gunshot residue (barium, antimony, and lead) will also be left behind on that person's hands. It then become virtually impossible to distinguish who actually fired the weapon. It is important to utilize the proper forensic experts to attack the State's evidence.
The "Common Defenses", which may apply in any criminal case are numerous and diverse. One of the most common defenses we encounter is a "Miranda Rights Violation". In Arizona, the standard of whether any inculpatory statement (i.e., a statement which tends to admit guilt) is admissible into evidence is based upon a "Voluntariness" standard. If we can demonstrate that the police coerced you (i.e., intimidated or tricked you) into making a confession or inculpatory statement, or that they did not properly read you your Miranda Rights, then we can suppress those statements and any evidence gathered as a direct result of those statements. In addition, "Denial of Right to Counsel" is another common defense which is often raised. This occurs when a suspect is in custody and requests to speak to their lawyer, but is denied and questioning continues. In certain cases (such as DUI) it is mandatory that you speak to an attorney as soon as possible in order to determine your rights before your body burns away the evidence of your presumably low alcohol content. Other defenses include challenging the validity of any search warrant, or whether there were any "forensic flaws" during the investigation of your case. This could include exposing flawed procedures regarding blood, breath, and urine testing; fingerprints analysis; DNA testing; ballistics; gunshot residue testing; computer analysis / "cloning hard drive" procedures; forensic financial accounting reviews; etc. Lastly, one of the most common defenses is exposing sloppy or misleading police reports which include everything from misstatements, false statements, flawed photo line-ups and inaccurate crime scene reconstruction.
It is important to hire an AV® rated law firm (the highest possible rating by Martindale Hubbell®), with the most Certified Criminal Law Specialists of any AV® rated Arizona Law Firm, per the Arizona Board of Legal Specialization. In addition, the Firm and all of it's lawyers are listed in the Bar Register of Preeminent Lawyers®. At the Law Offices of David Michael Cantor, P.C., the majority of our Attorneys are ex-Prosecutors, and all of our Attorneys know the system well. For a free initial consultation, call us at 1-888-822-6867, or click here to contact us now.
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