Criminal Speeding in Arizona Defense Guide 28-701.02


Criminal Speeding in Arizona Defense Guide

Today we are going to discuss one of the most common offenses that we see as criminal defense lawyers in Scottsdale, AZ: Criminal Speeding in Arizona.

Our practice is limited to criminal defense law and Criminal Speeding is by far the most common offense that we hear about. It occurs all over the state and it affects people who live here as well as people who do not. People can be tourists from out of the country, out of the state or they can live locally. Perhaps people are on their way to visit the Grand Canyon, Sedona, Tucson, or just driving around town. It happens all over the state. It’s quite common and the police seem to take pleasure in writing these tickets up!

People are driving and they get stopped. They think they are getting an ordinary speeding ticket, but when they look down at the citation, they see that it says criminal traffic or criminal on the ticket. This can be very shocking. The criminal box is checked and immediately they are wondering why am I being charged with a crime? Most other states do not have criminal speeding. Many people wonder why speeding in Arizona can rise to the level of criminality. In other states like California, Colorado, New Mexico or any place else for that matter, they simply don’t have it. This can add a whole new level of shock and fear. We get a lot of calls about it and one of the major concerns that people have is that they are worried if this is a felony or something like that. They wonder if they are going to prison. Speeding does not constitute a felony, but it does become a criminal charge; it is considered a criminal violation. So, this article will detail where speeding fits into the scheme of criminal misconduct in the context of Arizona statutes, what the potential penalties are, how the case goes through the court process since it is a crime, and what are some possible resolutions.

Let’s look at what is considered criminal speeding in the state of Arizona and how is it defined. There are three ways that one can get cited for criminal speeding in Arizona. The Arizona Revised Statute (ARS) is 28-701.02 and there are three different levels known as subsections A1, A2 and A3.

A-1 The first way that you can be charged with criminal speeding is if you are approaching a school crossing and are exceeding 35 miles per hour.

A-2 The second way is if you are exceeding the posted speed limit in a business district or residential area by more than 20 miles per hour. So, for example, if you are driving 56 in a 35 posted speed limit (21 mph over) this is considered criminal speeding. This is the second most common way people are cited for criminal speeding.

A-3 Finally, and by far the most common, is driving at any speed which exceeds 85 miles per hour. It does not matter what the posted speed limit is. So, say you are driving on a major interstate traveling at 86 miles per hour in a 75 mile per hour zone. A police officer can, and most likely will, site you for criminal speeding. We have seen this many, many times.

Many people are ensnared as they are traveling with the flow of traffic, which is going 90 miles per hour, or even much faster. People think that they are safe because they are going 10 to 15 miles over the posted speed. But the police are lying in wait at certain mileposts. They know exactly what they are looking for, so they just wait for it. It’s not a matter of if it will happen, only when. I have seen many people get cited for going one mile over 85. It is ridiculous, but it happens all the time.

So, what do these mean? A lot of people think they are going to prison and that this is going to be a major issue. It is criminal, but it is at the lower end of the spectrum of criminal charges. In Arizona, we have civil violations, which are at the lowest level of the spectrum. These will be for offenses like running a red light or making an unsafe lane change or following too close or regular civil speeding tickets.

Then you have the felonies, which are at highest level of the spectrum. These are the profoundly serious offenses. This is if you are trafficking in drugs, if you have aggravated assaulted someone where you inflicted great injury. These are the most serious level of offenses.

Sandwiched between the two most opposing of crime categories (civil violations and felonies) you have what are called misdemeanors. Think of them as middle of the road offenses. Within this misdemeanor category you also have three different classifications of misdemeanors. You have class 1,2 and 3.

Class 1 is the most serious, which would be for offenses like DUIs or domestic violence. Class 2 would include things like reckless driving or leaving the scene of an accident. And then you have Criminal Speeding, which falls in Class 3. So, it is the lowest level misdemeanor, and it is one level up from a civil violation. It is nowhere near a felony, so you do not have to worry about that, but it is still considered a crime under Arizona law. Therefore, it is going to follow the same procedure as any other misdemeanor.
So, your criminal case, once in court, or whosever case you are researching, is going to be processed along with people who have also been charged with misdemeanors. Not just class 3’s like yours, but with class 1’s and 2’s as well. Therefore, the guy sitting to your right might be charged with a DUI (1) and the gal sitting to your left might be charged with leaving the scene of an accident (2). So, all misdemeanors cases are processed together once in court.

The maximum potential penalties for a Class 3 misdemeanor are as follows:

  • 30 days of jail.
  • Fines of $500, plus surcharges.
  • Three points on your license.
  • One year of probation.

You would also have a criminal conviction that would follow you forever. Additionally, you cannot get this type of violation removed from your record in the state of Arizona. But these are the maximum penalties, or the worst-case scenario. This is what a judge would tell you as they must advise you what the maximum penalties are for a Class 3 misdemeanor (either A-1, A-2 or A-3) on your first court date. The judge would then do the same for the guy with the class 1 (DUI) misdemeanor and the gal with the class 2 (leaving the scene of the accident) misdemeanor. This is known as an arraignment, or your initial court date. The judge would then ask what do you want to do with your case?

  • Do you want to plead guilty?
  • Do you want to plead not guilty?
  • Do you want to set it right for a trial?
  • Do you want a continuance to go hire a lawyer?

Those are really the only options that you have at this initial court date. When the judge explains all of that to you, he is arraigning you. He is explaining what the maximum penalties are and he must do that. But this is not the time for you to get into it with the judge and say:

“I was not doing that.”
“The officer was lying.”
“I had an emergency.”

Or any of those things. Really, it is pretty cut and dry. The judge explains what you have been charged with and what the maximum penalties are. That’s about it.
Now, what our office does from a defense perspective, when we are representing a client, is we contact the court and we contact the prosecutor because there will be a prosecutor who is assigned to your case and we enter a plea for you of not guilty. We don’t need to attend this initial court date since we already know what the maximum penalties are. We do not need to go listen to a judge tell us something that we already know. When they receive what is called our Notice of Appearance, they are going to go ahead and delete this court date and reschedule it for what is called a Pretrial Conference. It is called that since this is not a trial. So, if you want to use the bookend analogy, you could think of the arraignment as the beginning of a case, and a trial as the end of a case. What happens in between those two bookends, if you will, are the pretrial conferences. There are sometimes two, sometimes three pretrial conferences. Different things happen at each one of these pretrial conferences. The case should be progressing towards a resolution and what our office does immediately after notifying the court and the prosecutor that you are being represented, is we file motions to begin obtaining everything that the government has in their file. Most of the time the arresting police officer will have written a report. There will be notes. There will be records with regards to whatever speed measurement device was used to document the speed you were traveling. Whether it was radar, lidar or pacing. There are different technologies that can be used to document how fast someone is driving. There should also be calibration records and documentation that the arresting officer created to substantiate his decision to arrest you. We have an absolute right to gain access to this information. Sometimes it can reveal that the officer made an error on something, or that it doesn’t exist. Perhaps the officer was not properly certified to even use these technologies. There are a wide variety of variables that can come into play and this is why we request those records. At that first pretrial conference we might just receive basic notes and the police report. Then there is a continuance that lasts about 30 days or so. So, when we return for that second pretrial hearing, that’s where we want to get more of the data that is in their file. This would include dash cam footage, body cam footage, GPS data and AVL (automatic vehicle location) data. There are all sorts of materials that we want to request because we need to know what is in their file (arsenal) before we can build our defense.

Practically speaking, what this does from our experience, most of the prosecutors’ offices do not want to deal with all of this. They have got DUI’s to worry about. They have got domestic violence cases that are more interesting to them. Typically, they just do not want to go through all of this. So, this gives us leverage to negotiate. From our perspective we do not think there is any reason why you should have a criminal conviction over a speeding ticket. There is just no valid reason for it. So, if they are willing to negotiate with us, it does not matter what your alleged speed was. If you were going 100 or 200 or whatever. It does not really matter. We want a reduction. We want this to be negotiated down. We want to meet your goals and so if they are willing to work with us, we do not need all this stuff. We do not need the body cam, the dash cam, the calibration records. We do not need to interview the police officer. We do not need the computer aided dispatch record. We do not need any of that.

What we do need is some negotiation. We need an outcome. We need to make sure that your goals are being met and so if they are willing to do that then that is great! We can break off the case at really any point and resolve it with a plea deal and close out the case. However, if they are not willing to do that, then we are properly preparing ourselves to go forward with a trial at that point. If they refuse to work with us, then we can request that the judge compel them to disclose things to us. We can pressure them to sit down and have an interview with us. We can kind of turn the fire back on them, reminding them that they have the burden of proof.
I have talked to many people who call our office and they say:
“Well, I was going 115.” Or,
“I was doing 112.”

Whatever their speed was, it is irrelevant to us at this stage until something changes. That person who calls our office or you are totally innocent. That is how the system works. There is no reason to believe that you are guilty when they have not proven it, or you have not agreed to that level of guilt. So, the burden is back on them to prove that number, and by us being aggressive and saying if your officer is claiming that the speed was whatever he says it is, they have got to prove it. They have got to have the evidence to back that up, and in many cases they simply don’t. Or they don’t want to go through the headache or the trouble to actually provide that documentation to us. And so, it creates a little bit of leverage. We can push back and say we do not want to litigate this case for 30 days here and another 30 days there and have it turn into a six-month process. We just want to resolve it quickly. We ask them to give us a good deal that we can accept and that’s how you create that little wedge in there to break certain policies.

So, if your speed is over a certain threshold say, for example, you are in the triple digits and you are in a jurisdiction where their policy says that they do not reduce these down. Now we can say we are not going to accept anything less. We are happy to take the case to trial. We are fully prepared to do so, so either you work with us or let us begin to subpoena everybody. Let’s get the interviews scheduled. Let us begin preparations for the trial. So that’s kind of the legal side of the case.
Now, on the other side is what is called mitigation. This is also very important, and I think a lot of defense attorneys overlook this side of the case. This is where we are not talking about calibrations, we are not talking about doing interviews with the officers or any of that stuff. We are more talking about you, who you are as an individual, what your driving record looks like, whether you have got any criminal history. What you are doing with your life. Whether you are in school, whether you are working, whether you are raising a family, all those personal aspects of the case are very important.
Because if we do not go through this mitigation process, they do not know anything about you. They just know what they see on the front of the ticket and that’s it. And that is just not the rest of the story. Sometimes there is an emergency. Sometimes people are not familiar with the laws. Sometimes the impact of a criminal conviction on a person’s record can grossly outweigh the benefits that the law was intended to support. There is just no reason for that person to be convicted of it, and so we need to tell their story.

In our office we have a very robust onboarding process that we go through with you to really flush out this information so that we can take it to each one of these pretrial conferences and go back and forth and negotiate it. Then we can say look Mr. Prosecutor/Mrs. Prosecutor, not only was your officer not certified, and they did not do this properly, but our client is a particularly good individual. Here is what is going on in their life. He has got kids. She has got kids. She has got a good job and she is going to lose her ability to provide for her family. We can flush out that full story and that is how we get to these resolutions. Truth be told, most of these cases do not go to trial. They just do not. Many prosecutors consider these types of cases a lower priority and because of that most of them are resolved. But we still need to set our goals and go through this process to reach them. So, we always start at the top.
Of course, nobody wants to go to jail. So, we want to make sure that nobody is going to be spending time in jail. There are some cities in Arizona like Glendale and Scottsdale where, if you are over a certain speed, they will ask for jail time. Many people think I cannot possibly go to jail for a criminal speeding ticket. Well, that is not always the case, some jurisdictions are profoundly serious about it. They will ask for a day or two days of jail depending on your speed and depending on your background. So that needs to be the top priority. Of course, we do not want you to go into custody over a speeding ticket. So that’s our number one priority, avoiding jail time.

The number two priority is preventing a conviction. We want to make sure that you are not going to end up with a criminal conviction because of this speeding ticket. As stated earlier, this type of violation cannot be expunged. It is essentially permanent. Currently Arizona does not have expungement. There are some initiatives passing through the legislature where that may change, but as it stands right now this is permanent. It stays on your record. You cannot expunge it; you cannot set it aside. It stays on forever. We want to avoid that at the onset. However, some people will call our office after they have pled guilty. They have already gone to the first court date and pled guilty, and then they want us to do something about it. And we just cannot fix it. It is too late at that point.

And the third goal, of course, is to avoid points. People are very concerned about points and rightfully so because having a criminal conviction for criminal speeding, or even having a civil violation for a criminal speeding charge will result in three points in Arizona. Many of the people that we speak with are from out-of-state visiting the Grand Canyon or in town visiting family. So, how that transfers to your home state is going to be dependent upon your home state’s polices governing speeding violations. But the Arizona Motor Vehicle Department does assess three points in Arizona, and they do report these violations to out-of-state jurisdictions.

There are many other alternatives that we use during our negotiations, whether it’s driving school, or a life skills program, maybe community service or something like that can be negotiated. There are many, many different angles and different variables that we can use to negotiate these down. There is a list of them on our website, but a lot of it is jurisdiction driven. Tucson approaches things one way; Flagstaff approaches things another way. There are even variables between judges. Some judges in the city of Scottsdale, for example, are accepting of our proposals, other judges are not. Some utilize a hard line, extremely strict rule and based on your speed they have a cut-off point where they refuse to budge an inch. And that’s kind of across the board in Arizona, whether it is justice courts or city courts.
So, this is the general overview. On average these cases take about three months to resolve. If you do hire an attorney, for example, if you hire us, we do not need you to go to court for almost any of this. You would need to go to court if your case were going to a trial. However, going to trial is the exception rather than the rule. Most of the time your case is going to be resolved through negotiation. Some courts want you to be there for negotiated resolutions, others do not.

So, if and when you speak with us, we would be able to review those specifics with you in greater detail. But I hope this helps. I am sorry that you’re going through this. I think it’s probably safe to say that you do have a ticket if you have made it this far through the article. You are wise to do your homework and research how this process works in Arizona. I encourage you to continue your research.
If you do want to speak with us, or if you want to come into our office, we offer free case evaluations. So come in, sit down with our team and we will look at exactly what you have got going on. We will look at all your paperwork and make sure that we have a plan in place. We want you to reach your goals and be sure that you have the best options, so you can put this behind you and move forward with your life. Thank you and I wish you the best!

About the Author: Robert Gruler

author infoRobert was admitted to the Arizona State Bar in 2013 and the California State Bar in 2015. Robert is also admitted in Federal Court in the District of Arizona and has being awarded the distinction of being in the Nations Top 1% of Attorneys awarded by the National Association of Distinguished Counsel. Robert’s primary focus in criminal defense is DUI and allegation of driving while impaired. Robert believes a vigorous defense is essential to protecting all citizens’ rights and upholding the traditions embodied by the Bill of Rights. Robert was born in Arizona and attended Arizona State University and Brophy College Preparatory where he was regional champion and captain of the wrestling team.