Whether in the Phoenix area, or anywhere in Arizona, per A.R.S. §13-1502, §13-1503 and §13-1504, "Trespass" occurs when a person enters or remains unlawfully on a piece of property after they have been requested to leave, or without the expressed permission of the owner, or in violation of a posted sign warning of Trespass. Per A.R.S. §13-1504, a Trespass in the "First Degree" occurs when a person enters or remains unlawfully on a residential structure (or fenced residential yard andand they are looking into the residential structure) in reckless disregard of infringing on the inhabitants right of privacy. It can also occur on a piece of property without a valid mineral claim with the intent to hold, work, take or explore for minerals on the piece of property. Lastly, it can also occur by entering or remaining unlawfully on a critical public service facility or on a piece of property of another with the intent of burning or defacing a religious symbol (i.e., "cross burning").
Per A.R.S. §13-1503, a Criminal Trespass in the "Second Degree" merely occurs when a person unlawfully enters on a non-residential structure or fenced commercial yard.
Per A.R.S. §13-1502, a Criminal Trespass in the "Third Degree" occurs when a person has received a reasonable request to leave by the owner or any other person having lawful control over such property, and they have refused to do so. This can also occur when they are in violation of a posted "No Trespassing" sign. Sometimes this can occur when a person remains unlawfully on the right of way for train tracks, or the storage or switching yards or rolling stock of a railroad company.
Criminal Trespass in the "First Degree" is a class six (6) felony if it involves the entering or remaining unlawfully in a residential structure; involves a "cross burning"; or involves entering or remaining unlawfully in or on a critical public service facility. For a first offense a class six (6) felony, punishment can be probation with zero (0) days in jail up to one (1) year in jail; or prison of four (4) months to two (2) years of incarceration. If the person has one (1) allegeable historical prior felony conviction, then the "prison only" range is nine (9) months to two and three quarters (2.75) years in prison. If the person has two (2) allegeable historical prior felony convictions, then the "prison only" range is two and one quarter (2.25) to five and three quarters (5.75) years of incarceration.
If the Criminal Trespass involved the entering or remaining unlawfully on a fenced residential yard; or looking into a residential structure ("peeping"); or on a piece of property without a valid mineral claim ("illegal mining"), then it can be charged as a class one (1) misdemeanor. The range of punishment for a class one (1) misdemeanor is probation with anywhere from zero (0) days in jail up to six (6) months in jail, and a fine of up to $2500.00 plus an 80% surcharge.
For Criminal Trespass in the "Second Degree", it can be charged as a class two (2) misdemeanor. A class two (2) misdemeanor carries a range of punishment of probation and up to four (4) months in jail. Additionally, a fine of $750.00 plus 80% surcharges can be imposed.
For Criminal Trespass in the "Third Degree", this can be charges as a class three (3) misdemeanor. A class three (3) misdemeanor carries a range of punishment of probation with up to thirty (30) days in jail. In addition, a fine of up to $500.00 plus an 80% surcharge can be imposed.
A key defense to a Trespass charge is "Lack of Intent". This is accomplished by demonstrating that the Defendant was not properly informed that they could not enter a piece of property, or that they were to leave a piece of property. Very often we will see cases involving skateboarders who were skating in a parking lot of a local church or park, and unbeknownst to them there was a sign posted which states "No Trespassing - No Skateboarding". The sign must be conspicuously posted at an area that can be seen by all. It is important to check the actual area of the park or church parking lot to show that there were other entrances located far distances from the posted sign. This will also serve as a defense for "Lack of Knowledge".
Another defense which exists with regards to Trespassing is when a person asks somebody else to leave the premises, that they do not have actual permission to do so. Or, the Defendant has permission from another person at the residence (usually during a party) who has told them that they are allowed to stay on the premises. It is important to interview all witnesses to demonstrate the facts surrounding the incident. It is also important to demonstrate the Defendant's good character, and the reporting party's propensity to "overreact".
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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