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| Home > Statutes > Usa Arizona |
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USA Statutes : arizona
Title : Criminal Code
Chapter : MISCELLANEOUS
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13-3801 Preventing offenses; aiding officer
A. Public offenses may be prevented by intervention of peace officers as follows:
1. By requiring security to keep the peace.
2. Forming a police detail in cities and towns and requiring their attendance in
exposed places.
3. Suppressing riots.
B. When peace officers are authorized to act in preventing public offenses, other
persons, who, by their command, act in their aid, are justified in so doing.
13-3802 Right to command aid for execution of process; punishment for resisting process
A. When a sheriff or other public officer authorized to execute process finds, or
has reason to believe that resistance will be made to execution of the process, such
officer may command as many inhabitants of the county as the officer deems proper to
assist in overcoming such resistance.
B. The officer shall certify to the court from which the process issued the names
of those persons resisting, and they may be proceeded against for contempt of court.
13-3803 Preserving peace at public meetings
The mayor or other officer having direction of the police of a city or town shall
order a force, sufficient to preserve the peace, to attend any public meeting, when
apprehensive of a breach of the peace.
13-3804 Duty of officers to disperse unlawful assembly
A. Where any number of persons, whether armed or not, are unlawfully or riotously
assembled, the sheriff and his deputies, officials governing the city or town or justice
of the peace and constables, or any of them, shall go among the persons assembled, or as
near to them as possible, and command them, in the name of the state, immediately to
disperse.
B. If the people assembled do not immediately disperse, the magistrate and officers
shall arrest them, and for that purpose may command the aid of all persons present or
within the county.
13-3806 Duty of physician or attendant upon treating certain wounds; classification
A. A physician, surgeon, nurse or hospital attendant called upon to treat any
person for gunshot wounds, knife wounds or other material injury which may have resulted
from a fight, brawl, robbery or other illegal or unlawful act, shall immediately notify
the chief of police or the city marshal, if in an incorporated city or town, or the
sheriff, or the nearest police officer, of the circumstances, together with the name and
description of the patient, the character of the wound and other facts which may be of
assistance to the police authorities in the event the condition of the patient may be due
to any illegal transaction or circumstances.
B. Any violation of the provisions of this section by a physician, surgeon, nurse
or hospital attendant, is a class 3 misdemeanor.
13-3811 Complaint
A complaint may be laid before a magistrate that a person has threatened to commit
an offense against the person or property of another.
13-3812 Examination of complainant; issuance of summons or warrant of arrest
When the complaint is laid before the magistrate, he shall examine, on oath, the
complainant and any witness he produces, and if there is just reason to believe that the
commission of the offense threatened by the person complained of is imminent, the
magistrate shall issue a summons, or warrant of arrest, reciting the substance of the
complaint. If a warrant of arrest is issued, it shall command the officer to forthwith
arrest the person complained of, and bring him before the magistrate.
13-3813 Hearing; discharge; bond; new bond; filing
A. When the person complained of appears or is brought before the magistrate, if
the charge is controverted the magistrate shall hear and determine it.
B. If it appears that there is no just reason to believe the commission of the
offense alleged to have been threatened is imminent, the person complained of shall be
discharged.
C. If there is just reason to believe the commission of the offense is imminent,
the person complained of may be required to enter into a bond in such sum, not exceeding
five thousand dollars, as the magistrate may direct, with one or more sufficient
sureties, to keep the peace toward the state, and particularly toward the complainant.
D. The bond provided in subsection C shall be binding for six months, and may, upon
renewal of the complaint, be extended for a longer period, or a new bond may be required.
E. The bond shall be filed by the magistrate in the office of the clerk of the
superior court.
13-3814 Effect of filing bond; failure to file
A. If the bond required by section 13-3813 is given, the party complained of shall
be discharged. If such person does not give the bond, the magistrate shall commit him to
jail, specifying in the commitment or warrant the requirement to give security, the
amount thereof and the omission to give it.
B. The person required to give bond may be discharged by any magistrate upon giving
the bond.
13-3815 Breach and forfeiture; action for recovery; effect of conviction
Upon conviction of the person complained against of any breach of the peace, the
condition of bond is violated, and the county attorney shall thereupon commence action
upon it in the name of the state. In the action, the offense charged in the record of
conviction shall be alleged as a breach of the bond, and such record shall be conclusive
evidence of the breach.
13-3816 Offense or threat in presence of magistrate; bond
A person who, in the presence of a court or magistrate, assaults or threatens to
assault another, or to commit an offense against his person or property, or who contends
with another with angry words, may be ordered by the court or magistrate to give bond as
required in this article, and if he fails to do so he may be committed as provided by
this article.
13-3821 Persons required to register; procedure; identification card; definitions A. A person who has been convicted of a violation or attempted violation of any of the following offenses or who has been convicted of an offense committed in another jurisdiction that if committed in this state would be a violation or attempted violation of any of the following offenses or an offense that was in effect before September 1, 1978 and that, if committed on or after September 1, 1978, has the same elements of an offense listed in this section or who is required to register by the convicting jurisdiction, within ten days after the conviction or within ten days after entering and remaining in any county of this state, shall register with the sheriff of that county: 1. Unlawful imprisonment pursuant to section 13-1303 if the victim is under eighteen years of age and the unlawful imprisonment was not committed by the child's parent. 2. Kidnapping pursuant to section 13-1304 if the victim is under eighteen years of age and the kidnapping was not committed by the child's parent. 3. Sexual abuse pursuant to section 13-1404 if the victim is under eighteen years of age. 4. Sexual conduct with a minor pursuant to section 13-1405. 5. Sexual assault pursuant to section 13-1406. 6. Sexual assault of a spouse if the offense was committed before the effective date of this amendment to this section. 7. Molestation of a child pursuant to section 13-1410. 8. Continuous sexual abuse of a child pursuant to section 13-1417. 9. Taking a child for the purpose of prostitution pursuant to section 13-3206. 10. Child prostitution pursuant to section 13-3212. 11. Commercial sexual exploitation of a minor pursuant to section 13-3552. 12. Sexual exploitation of a minor pursuant to section 13-3553. 13. Luring a minor for sexual exploitation pursuant to section 13-3554. 14. Sex trafficking of a minor pursuant to section 13-1307. 15. A second or subsequent violation of indecent exposure to a person under the age of fifteen years pursuant to section 13-1402, subsection B. 16. A second or subsequent violation of public sexual indecency to a minor under the age of fifteen years pursuant to section 13-1403, subsection B. 17. A third or subsequent violation of indecent exposure pursuant to section 13-1402. 18. A third or subsequent violation of public sexual indecency pursuant to section 13-1403. 19. A violation of section 13-3822 or 13-3824. B. Before the person is released from confinement the state department of corrections in conjunction with the department of public safety and each county sheriff shall complete the registration of any person who was convicted of a violation of any offense listed under subsection A of this section. Within three days after the person's release from confinement, the state department of corrections shall forward the registered person's records to the department of public safety and to the sheriff of the county in which the registered person intends to reside. Registration pursuant to this subsection shall be consistent with subsection E of this section. C. Notwithstanding subsection A of this section, the judge who sentences a defendant for any violation of chapter 14 or 35.1 of this title or for an offense for which there was a finding of sexual motivation pursuant to section 13-118 may require the person who committed the offense to register pursuant to this section. D. The court may require a person who has been adjudicated delinquent for an act that would constitute an offense specified in subsection A or C of this section to register pursuant to this section. Any duty to register under this subsection shall terminate when the person reaches twenty-five years of age. E. A person who has been convicted of or adjudicated delinquent and who is required to register in the convicting state for an act that would constitute an offense specified in subsection A or C of this section and who is not a resident of this state shall be required to register pursuant to this section if the person is either: 1. Employed full-time or part-time in this state, with or without compensation, for more than fourteen consecutive days or for an aggregate period of more than thirty days in a calendar year. 2. Enrolled as a full-time or part-time student in any school in this state for more than fourteen consecutive days or for an aggregate period of more than thirty days in a calendar year. For the purposes of this paragraph, "school" means an educational institution of any description, public or private, wherever located in this state. F. Any duty to register under subsection D or E of this section for a juvenile adjudication terminates when the person reaches twenty-five years of age. G. The court may order the termination of any duty to register under this section on successful completion of probation if the person was under eighteen years of age when the offense for which the person was convicted was committed. H. At the time of registering, the person shall sign a statement in writing giving such information as required by the director of the department of public safety, including all names by which the person is known. The sheriff shall fingerprint and photograph the person and within three days thereafter shall send copies of the statement, fingerprints and photographs to the criminal identification section within the department of public safety and the chief of police, if any, of the place where the person resides. The information that is required by this subsection shall include the physical location of the person's residence and the person's address. If the person has a place of residence that is different from the person's address, the person shall provide the person's address, the physical location of the person's residence and the name of the owner of the residence if the residence is privately owned and not offered for rent or lease. If the person receives mail at a post office box, the person shall provide the location and number of the post office box. If the person does not have an address or a permanent place of residence, the person shall provide a description and physical location of any temporary residence. I. On the person's initial registration and every year after the person's initial registration, the person shall obtain a new nonoperating identification license or a driver license from the motor vehicle division in the department of transportation and shall carry a valid nonoperating identification license or a driver license. Notwithstanding sections 28-3165 and 28-3171, the license shall be valid for one year from the date of issuance, and the person shall submit to the department of transportation proof of the person's address and place of residence. The motor vehicle division shall annually update the person's photograph and shall make a copy of the photograph available to the criminal identification section of the department of public safety or to any law enforcement agency. J. Except as provided in subsection E or K of this section, the clerk of the superior court in the county in which a person has been convicted of a violation of any offense listed under subsection A of this section or has been ordered to register pursuant to subsection C or D of this section shall notify the sheriff in that county of the conviction within ten days after entry of the judgment. K. Within ten days after entry of judgment, a court not of record shall notify the arresting law enforcement agency of an offender's conviction of a violation of section 13-1402. Within ten days after receiving this information, the law enforcement agency shall determine if the offender is required to register pursuant to this section. If the law enforcement agency determines that the offender is required to register, the law enforcement agency shall provide the information required by section 13-3825 to the department of public safety and shall make community notification as required by law. L. A person who is required to register pursuant to this section because of a conviction for the unlawful imprisonment of a minor or the kidnapping of a minor is required to register, absent additional or subsequent convictions, for a period of ten years from the date that the person is released from prison, jail, probation, community supervision or parole and the person has fulfilled all restitution obligations. Notwithstanding this subsection, a person who has a prior conviction for an offense for which registration is required pursuant to this section is required to register for life. M. A person who is required to register pursuant to this section and who is a student at a public or private institution of postsecondary education or who is employed, with or without compensation, at a public or private institution of postsecondary education or who carries on a vocation at a public or private institution of postsecondary education shall notify the county sheriff having jurisdiction of the institution of postsecondary education. The person required to register pursuant to this section shall also notify the sheriff of each change in enrollment or employment status at the institution. N. For the purposes of this section: 1. "Address" means the location at which the person receives mail. 2. "Residence" means the person's dwelling place, whether permanent or temporary. 13-3822 Notice of moving from place of residence where living or change of name; forwarding of information; definitions
A. Within seventy-two hours, excluding weekends and legal holidays, after moving
from the person's residence within a county or after changing the person's name, a person
who is required to register under this article shall inform the sheriff in person and in
writing of the person's new residence, address or new name. If the person moves to a
location that is not a residence and the person receives mail anywhere, including a post
office box, the person shall notify the sheriff of the person's address. Within three
days after receipt of such information, the sheriff shall forward it to the criminal
identification section within the department of public safety and the chief of police, if
any, of the place from which the person moves, and shall forward a copy of the statement,
fingerprints and photograph of the person to the chief of police, if any, of the place to
which the person has moved.
B. Within seventy-two hours after a person moves from a county in which the person
is registered, the person shall notify in writing the sheriff of the county from which
the person moves. If the person is subject to community notification requirements, the
sheriff of the county from which the person moves shall advise the local law enforcement
agency of the county to which the person moves of the move. If the person moves out of
this state, the sheriff of the county from which the person moves shall advise the local
law enforcement agency in the jurisdiction to which the person moves. The local law
enforcement agency shall contact the department of public safety following ten days after
being notified to determine if the person has reregistered. If the person has not
reregistered, the local law enforcement agency shall notify the local law enforcement
agency in the county in which the person last resided. The local law enforcement agency
in the county in which the person last resided shall conduct an investigation and shall
submit a report to the appropriate county attorney.
C. For the purposes of this section:
1. "Address" means the location at which the person receives mail.
2. "Residence" means the person's dwelling place, whether permanent or temporary. 13-3823 Access to records
Except for use by law enforcement officers and for dissemination as provided in
section 41-1750, a statement, photograph or fingerprint required by this article shall
not be made available to any person.
13-3824 Violation; classification; assessment
A. A person who is subject to registration under this article and who fails to
comply with the requirements of this article is guilty of a class 4 felony.
B. Notwithstanding subsection A of this section, a person who fails to comply with
section 13-3821, subsection I is guilty of a class 1 misdemeanor and, in addition to any
other penalty prescribed by law, the court shall order the person to pay an additional
assessment of two hundred fifty dollars. This assessment is not subject to any surcharge.
The court shall transmit the monies received pursuant to this subsection to the county
treasurer. The county treasurer shall transmit the monies received to the state
treasurer. The state treasurer shall deposit the monies received in the sex offender
monitoring fund established by section 13-3828. Notwithstanding any other law, the court
shall not waive the assessment imposed pursuant to this subsection. 13-3825 Community notification
A. Within seventy-two hours after a person who was convicted is released from
confinement or who was accepted under the interstate compact for the supervision of
parolees and probationers and has arrived in this state, the agency that had custody or
responsibility for supervision of the person who was convicted of committing an offense
for which the person was required or ordered by the court to register pursuant to section
13-3821 or that has accepted supervision under the interstate compact for the supervision
of parolees and probationers shall provide all of the following information to the
department of public safety by entering all of the following information into the sex
offender profile and notification database:
1. The offender's identifying information.
2. A risk assessment of the offender.
3. The offender's date of release from confinement or, if the offender is sentenced
to probation without jail time, the date the sentence is imposed.
B. Following the tenth day after the person is released from confinement or, if the
offender is sentenced to probation without jail time, the date the sentence is imposed,
the department of public safety shall cross-reference the information the department
receives pursuant to subsection A of this section with the sex offender registry to
determine if the person is registered as required or ordered by the court pursuant to
section 13-3821. If the person is not registered, the department of public safety shall
notify the county attorney in the county in which the person was convicted or the
interstate compact administrator for this state. If the person is registered, the
department of public safety shall forward the information the department received
pursuant to subsection A of this section to the sheriff in the county where the person is
registered.
C. After receiving the information pursuant to subsection B of this section, the
sheriff shall forward the information to the chief law enforcement officer of the
community in which the person resides. After reviewing the information received and any
other information available to the local law enforcement agency, the local law
enforcement agency shall categorize each offender and place each offender into a
notification level. Within forty-five days, the local law enforcement agency shall
notify the community of the offender's presence in the community pursuant to the
guidelines established by the community notification guidelines committee. If the
community does not have a chief law enforcement officer, the sheriff shall perform the
duties of the local law enforcement agency.
D. If a person who has been convicted of an offense in another state registers
pursuant to section 13-3821, subsection A, the sheriff in the county in which the person
registers shall forward the information to the chief law enforcement officer of the
community in which the person resides. The chief law enforcement officer shall contact
the state in which the person was convicted and shall obtain information regarding the
person. After reviewing the information received and any other information available,
the local law enforcement agency shall complete the risk assessment, shall categorize the
person, shall place the person into a notification level and shall enter the information
into the computer system. If the law enforcement agency is unable to obtain sufficient
information to complete the sex offender community notification risk assessment, the
agency shall categorize the offender as a level two offender. Within forty-five days,
the local law enforcement agency shall notify the community of the person's presence in
the community pursuant to the guidelines established by the community notification
guidelines committee. If the community does not have a chief law enforcement officer, the
sheriff shall perform the duties of the local law enforcement agency.
E. On receiving notice pursuant to section 13-3822 that a person who is required to
register has moved from the person's address, the chief law enforcement officer of the
community to which the person has relocated may notify that community of the person's
relocation to the community, pursuant to subsection C of this section. If the community
does not have a local law enforcement agency, the sheriff of the county to which the
person has relocated shall notify the community of the person's relocation.
F. In cooperation with the county probation department or the state department of
corrections, a law enforcement agency may delegate all or part of the notification
process for offenders on community supervision to the county probation department or to
the state department of corrections, as appropriate.
G. Information concerning a person who is required to register pursuant to section
13-3821 and who is subject to the provisions of community notification and who is a
student at a public or private institution of postsecondary education or who is employed
or carries on a vocation, with or without compensation, at a public or private
institution of postsecondary education shall be promptly made available by the county
sheriff to the law enforcement agency having jurisdiction for performing community
notification pursuant to guidelines adopted under section 13-3826. The law enforcement
agency shall notify the institution's administration and shall complete appropriate
campus notification pursuant to guidelines adopted under section 13-3826.
H. This section does not prohibit law enforcement officers from giving a community
notice of any circumstances or persons that pose a danger to the community under
circumstances that are not provided for under this section.
I. Except as provided in subsection J of this section, this section applies to all
persons who are subject to the registration requirements in section 13-3821 whether or
not the person was convicted before or after June 1, 1996.
J. This section does not apply to persons subject to the registration requirements
in section 13-3821 as a result of offenses adjudicated by a juvenile court unless ordered
by the court.
K. Notwithstanding section 13-3825, subsections B and C, the agency that had
custody or responsibility for supervision of an offender or the court that sentenced the
offender who was convicted of committing an offense that subjects the offender to the
registration requirements of section 13-3821 and who committed the offense before June 1,
1996 may conduct a risk assessment for the offender as existing resources are available
pursuant to guidelines adopted by the community notifications guidelines committee
pursuant to section 13-3826. Community notification pursuant to section 13-3825 and sex
offender web site notification pursuant to section 13-3827 shall only be conducted after
the risk assessment is complete.
13-3826 Community notification guidelines committee; members; duties; definition
A. The community notification guidelines committee is established consisting of the
following members:
1. A member of the senate who is appointed by the president of the senate to serve
as cochair of the committee.
2. A member of the house of representatives who is appointed by the speaker of the
house of representatives to serve as cochair of the committee.
3. The attorney general or the attorney general's designee.
4. The chairman of the senate judiciary committee or its successor committee, who
serves as an advisory member.
5. A member of the minority party in the senate who is appointed by the president
of the senate and who serves as an advisory member.
6. The chairman of the house of representatives judiciary committee or its
successor committee, who serves as an advisory member.
7. A member of the minority party in the house of representatives who is appointed
by the speaker of the house of representatives and who serves as an advisory member.
8. Two sheriffs or their designees who are appointed by the president of the
ARIZONA county attorneys and sheriffs association, one of whom represents a county with a
population of more than four hundred thousand persons according to the most recent United
States decennial census and one of whom represents a county with a population of four
hundred thousand persons or less according to the most recent United States decennial
census.
9. Two chiefs of police or their designees who are appointed by the president of
the ARIZONA association of chiefs of police, one of whom represents a city or town in a
county with a population of more than four hundred thousand persons according to the most
recent United States decennial census and one of whom represents a city or town in a
county with a population of four hundred thousand persons or less according to the most
recent United States decennial census.
10. Two county attorneys or their designees who are appointed by the chairman of the
ARIZONA prosecuting attorneys' advisory council, one of whom represents a county with a
population of more than four hundred thousand persons according to the most recent United
States decennial census and one of whom represents a county with a population of four
hundred thousand persons or less according to the most recent United States decennial
census.
11. Two county adult probation officers or their designees who are appointed by the
chief justice of the supreme court, one of whom represents a county with a population of
more than four hundred thousand persons according to the most recent United States
decennial census and one of whom represents a county with a population of four hundred
thousand persons or less according to the most recent United States decennial census.
12. One state adult parole administrator or the administrator's designee who is
appointed by the governor.
13. The director of the department of public safety or the director's designee.
14. The director of the department of transportation or the director's designee.
15. One person who is licensed under title 32, chapter 19.1 and who is appointed by
the state board of psychologist examiners.
16. One representative of a public defender's office who is recommended by an
association of public defenders and who is appointed by the speaker of the house of
representatives.
17. One advocate or community restitution provider who is appointed by the president
of the senate.
18. Two public members, one of whom is appointed by the president of the senate and
one of whom is appointed by the speaker of the house of representatives.
B. Appointed members serve two year terms.
C. The members shall meet at a time and place set by the cochairpersons.
D. Members of the committee are not eligible to receive compensation but are
eligible for reimbursement of expenses pursuant to title 38, chapter 4, article 2.
E. The committee shall:
1. Adopt community notification guidelines. The committee shall monitor the
implementation of the community notification guidelines that the committee adopts. The
guidelines shall provide for levels of notification based on the risk that a particular
sex offender poses to the community. The notification requirements are as follows:
(a) For level two and level three offenders, the notification shall be made to the
surrounding neighborhood, area schools, appropriate community groups and prospective
employers. The notification shall include a flyer with a photograph and exact address of
the offender as well as a summary of the offender's status and criminal background. A
press release and a level two or level three flyer shall be given to the local electronic
and print media to enable information to be placed in a local publication. If a level two
or level three offender fails to register or reregister pursuant to section 13-3821 or
13-3822 and a warrant is issued, before the issuance of the warrant the law enforcement
agency that requested the warrant shall assemble, print and distribute appropriate flyers
regarding the offender.
(b) For level one offenders, the local law enforcement agency that is responsible
for notification shall maintain information about the offender. The local law
enforcement agency may disseminate this information to other law enforcement agencies and
may give notification to the people with whom the offender resides. If a level one
offender fails to register or reregister pursuant to section 13-3821 or 13-3822 and a
warrant is issued, before the issuance of the warrant the law enforcement agency that
requested the warrant may assemble, print and distribute appropriate flyers regarding the
offender.
2. Develop and recommend a process for a sex offender to request a notification
level review and for the court to determine if a sex offender notification level may be
reduced or the offender is no longer required to register. The committee shall submit a
report of its recommendation to the governor, the president of the senate and the speaker
of the house of representatives on or before December 15, 2004 and shall provide a copy
of this report to the secretary of state and the director of the ARIZONA state library,
archives and public records.
3. Study whether there is uniform and consistent application of the community
notification guidelines on a statewide basis, including whether offenders who pose
similar risks are assigned similar notification levels in different jurisdictions.
F. The committee shall adopt guidelines regarding how community notification
pursuant to section 13-3825, subsection K should be conducted, including whether
community notification should occur. The guidelines should provide for flexibility based
on resources and the availability of records. The committee may adopt procedures that
allow offenders required to register to not be classified if necessary records are not
reasonably available.
G. For the purposes of this section, "advisory member" means a member who advises
other committee members during meetings but who is ineligible to vote and who is not a
member for the purposes of determining if a quorum is present. 13-3827 Internet sex offender web site; investigation of records; immunity
A. The department of public safety shall establish and maintain an internet sex
offender web site for offenders whose risk assessment has been determined to be a level
two or level three. The purpose of the internet sex offender web site is to provide sex
offender information to the public.
B. The internet sex offender web site shall include the following information for
each convicted sex offender in this state who is required to register pursuant to section
13-3821:
1. The offender's name, address and age.
2. A current photograph.
3. The offense committed and notification level pursuant to section 13-3826,
subsection E, if a risk assessment has been completed pursuant to section 13-3825.
C. The department of public safety shall annually update on the web site the name,
address and photograph of each sex offender.
D. The motor vehicle division of the department of transportation shall send copies
of each sex offender's nonoperating identification license or driver license photograph
to the department of public safety for inclusion on the sex offender web site.
E. The department of public safety shall annually verify the addresses of all sex
offender registration records contained within the ARIZONA criminal justice information
system. Before including the address of a sex offender on the web site, the department
of public safety shall confirm that the address is correct. To confirm a sex offender's
address, the department shall conduct a search of the ARIZONA criminal justice
information system. If this search does not provide the necessary confirmation, the
department shall use alternative public and private sector resources that are currently
used for criminal investigation purposes to confirm the address. The department of
public safety is prohibited from using or releasing the information from the alternative
public and private sector resources except pursuant to this section. A custodian or
public or private sector resource that releases information pursuant to this subsection
is not civilly or criminally liable in any action alleging a violation of
confidentiality.
F. The department of public safety may petition the superior court for enforcement
of subsection E of this section if a public or private sector resource refuses to
comply. The court shall grant enforcement if the department has reasonable grounds to
believe the records sought to be inspected are relevant to confirming the identity and
address of a sex offender.
G. A person who provides or fails to provide information required by this section
is not civilly or criminally liable unless the act or omission is wanton or wilful.
13-3828 Sex offender monitoring fund
The sex offender monitoring fund is established consisting of monies collected from
assessments pursuant to sections 13-119 and 13-3824. The department of public safety
shall administer the fund. Monies in the fund are subject to legislative appropriation.
13-3831 Definitions
In this article, unless the context otherwise requires:
1. "State" includes the District of Columbia.
2. "Close pursuit" does not necessarily imply instant pursuit, but pursuit without
unreasonable delay, and includes:
(a) Close pursuit as defined by the common law.
(b) Pursuit of a person who has committed a felony, or who is reasonably suspected
of having committed a felony.
(c) Pursuit of a person suspected of having committed a supposed felony, though no
felony has actually been committed, if there is reasonable ground for believing that a
felony has been committed.
13-3832 Authority of peace officer entering state in close pursuit
A member of a duly organized state, county or municipal law enforcement agency of
another state who enters this state in close pursuit, and continues within this state in
close pursuit of a person in order to arrest him on the ground that he is believed to
have committed a felony in such other state, shall have the same authority to arrest and
hold the person in custody as has a member of any duly organized state, county or
municipal law enforcement agency of this state to arrest and hold in custody a person on
the ground that he is believed to have committed a felony in this state.
13-3833 Arrest and hearing; duty of officer and magistrate
If an arrest is made in this state by an officer of another state in accordance with
the provisions of section 13-3832, he shall without unnecessary delay take the person
arrested before a magistrate of the county in which the arrest was made, who shall
conduct a hearing for the purpose of determining the lawfulness of the arrest. If the
magistrate determines that the arrest was lawful he shall commit the person arrested to
await for a reasonable time the issuance of an extradition warrant by the governor of
this state. If the magistrate determines that the arrest was unlawful he shall discharge
the person arrested.
13-3834 Effect of arrest
Section 13-3832 shall not be construed to make unlawful any arrest in this state
which would otherwise be lawful.
13-3841 Definitions
In this article, unless the context otherwise requires:
1. "Charged with crime", "criminal charge" or "criminal offense" includes any of
the following:
(a) A felony or misdemeanor offense.
(b) Escape from confinement or the custody of any of the following:
(i) A law enforcement officer.
(ii) A custodial official.
(iii) A custodial agency.
(iv) A custodial institution.
(c) Being accused on a warrant of violating the terms of federal or state
supervision.
(d) Being accused of violating bail or conditions of release.
(e) The conviction of a crime.
(f) Having an unserved remaining criminal sentence.
(g) Being subject to the death penalty on criminal conviction.
2. "Governor" includes any person performing the functions of governor by authority
of the law of this state.
3. "Executive authority" includes the governor, and any person performing the
functions of governor in a state other than this state.
4. "State," when referring to a state other than this state, means any other state
or territory, organized or unorganized, of the United States.
13-3842 Fugitives from justice; duty of governor
Subject to the provisions of this article, the provisions of the Constitution of the
United States controlling, and any and all acts of Congress enacted in pursuance thereof,
it is the duty of the governor of this state to have arrested and delivered up to the
executive authority of any other state of the United States any person charged in that
state with treason, felony, or other crime, who has fled from justice and is found in
this state.
13-3843 Form of demand
A. No demand for the extradition of a person charged with crime in another state
shall be recognized by the governor unless in writing and accompanied by a copy of an
indictment found or by an information supported by affidavit in the state having
jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there.
B. The indictment, information, or affidavit made before the magistrate must
substantially charge the person demanded with having committed a crime under the law of
that state, and the copy must be authenticated by the executive authority making the
demand, which shall be prima facie evidence of its truth.
13-3844 Governor may investigate case
When a demand shall be made upon the governor of this state by the executive
authority of another state for the surrender of a person so charged with crime, the
governor may call upon the attorney general or any prosecuting officer in this state to
investigate or assist in investigating the demand, and to report to him the situation and
circumstances of the person so demanded, and whether he ought to be surrendered.
13-3845 Extradition documents; contents
A. A warrant of extradition shall not be issued unless the documents presented by
the executive authority making the demand show that:
1. Except in cases arising under section 13-3846, the accused was present in the
demanding state at the time of the commission of the alleged crime, and thereafter fled
from the state;
2. The accused is now in this state; and
3. The accused is lawfully charged by indictment found or by information filed by a
prosecuting officer and supported by affidavit to the facts, or by affidavit made before
a magistrate in that state, with having committed a crime under the laws of that state,
or that he has been convicted of a crime in that state and has escaped from confinement
or broken his parole.
B. In addition to the information required by subsection A of this section, a
warrant of extradition shall not be issued unless the documents presented by the
executive authority making the demand include:
1. A photograph and photo affidavit identifying the accused as the fugitive charged
with the offense; or
2. Fingerprints certified by the issuing authority that can be used to identify the
accused as the fugitive charged with the offense.
13-3846 Extradition of persons not present in demanding state at time of commission of crime
The governor of this state may also surrender, on demand of the executive authority
of any other state, any person in this state charged in such other state in the manner
provided in section 13-3845 with committing an act in this state, or in a third state,
intentionally resulting in a crime in the state whose executive authority is making the
demand, and the provisions of this article not otherwise inconsistent, shall apply to
such cases, even though the accused was not in that state at the time of the commission
of the crime, and has not fled therefrom.
13-3847 Issue of governor's warrant of arrest; its recital
If the governor decides that the demand should be complied with, he shall sign a
warrant of arrest, which shall be sealed with the state seal, and be directed to any
peace officer or other person whom he may think fit to entrust with the execution
thereof. The warrant must substantially recite the facts necessary to the validity of
its issuance.
13-3848 Manner and place of execution
Such warrant shall authorize the peace officer or other person to whom directed to
arrest the accused at any time and any place where he may be found within the state and
to command the aid of all peace officers or other persons in the execution of the
warrant, and to deliver the accused, subject to the provisions of this article, to the
duly authorized agent of the demanding state.
13-3849 Authority of arresting officer
Every such peace officer or other person empowered to make the arrest, shall have
the same authority, in arresting the accused, to command assistance therein, as peace
officers have by law in the execution of any criminal process directed to them, with like
penalties against those who refuse their assistance.
13-3850 Duty of arresting officer; application for writ of habeas corpus; notice
A. No person arrested upon such warrant shall be delivered over to the agent whom
the executive authority demanding him shall have appointed to receive him unless he has
been informed of the demand made for his surrender and of the crime with which he is
charged, and that he has the right to demand legal counsel; and if the prisoner, his
friends, or counsel shall state that he or they desire to test the legality of his
arrest, the prisoner shall be taken forthwith before a judge of a court of record, who
shall fix a reasonable time to be allowed him within which to apply for a writ of habeas
corpus. When such writ is applied for, notice thereof, and of the time and place of
hearing thereon, shall be given to the public prosecuting officer of the county in which
the arrest is made and in which the accused is in custody, and to the said agent of the
demanding state.
13-3851 Noncompliance with preceding section; classification
Any officer who shall deliver to the agent for extradition of the demanding state a
person in his custody under the governor's warrant in disobedience to section 13-3850,
shall be guilty of a class 2 misdemeanor.
13-3852 Confinement in jail when necessary
The officer or persons executing the governor's warrant of arrest, or the agent of
the demanding state to whom the prisoner may have been delivered may, when necessary,
confine the prisoner in the jail of any county or city through which he may pass; and the
keeper of such jail must receive and safely keep the prisoner until the officer or person
having charge of him is ready to proceed on his route, such officer or person being
chargeable with the expense of keeping.
13-3853 Arrest prior to requisition
When any person within this state shall be charged on the oath of any credible
person before any judge or magistrate of this state with the commission of any crime in
any other state, and, except in cases arising under section 13-3846, with having fled
from justice, or whenever complaint shall have been made before any judge or magistrate
of this state setting forth on the affidavit of any credible person in another state that
a crime has been committed in such other state and that the accused has been charged in
such state with the commission of the crime, and, except in cases arising under section
13-3846, has fled therefrom and is believed to be in this state, the judge or magistrate
shall issue a warrant directed to the sheriff of the county in which the oath or
complaint is filed directing him to apprehend the person charged, wherever he may be
found in this state, and bring him before the same or any other judge, magistrate, or
court who or which may be convenient of access to the place where the arrest may be made,
to answer the charge or complaint and affidavit, and a certified copy of the sworn charge
or complaint and affidavit upon which the warrant is issued shall be attached to the
warrant.
13-3854 Arrest without a warrant
The arrest of a person may be lawfully made also by any peace officer or a private
citizen without a warrant upon reasonable information that the accused stands charged in
the courts of another state with a crime punishable by death or imprisonment for a term
exceeding one year, but when so arrested the accused must be taken before a judge or
magistrate with all practicable speed and complaint must be made against him under oath
setting forth the ground for the arrest as in section 13-3853, and thereafter his answer
shall be heard as if he had been arrested on a warrant.
13-3855 Commitment to await requisition; bail
If from the examination before the judge or magistrate it appears that the person
held is the person charged with having committed the crime alleged and that he probably
committed the crime and, except in cases arising under section 13-3846, that he has fled
from justice, the judge or magistrate must commit him to jail by a complaint reciting the
accusation for such a time specified in the complaint, not exceeding thirty days, as will
enable the arrest of the accused to be made under a warrant of the governor on a
requisition of the executive authority of the state having jurisdiction of the offense,
unless the accused gives bail as provided in section 13-3856 or until he is legally
discharged.
13-3856 Bail; in what cases; conditions of bond
Unless the offense with which the person is charged is an offense that is punishable
by death or life imprisonment under the laws of the state in which it was committed, or
the person is alleged to have escaped from jail or prison or violated the terms of
release following conviction of a crime that is punishable in the state of conviction by
imprisonment for a term exceeding one year, a judge or magistrate in this state shall
admit the person arrested to bail by bond or undertaking, with sufficient sureties, and
in such sum as the court deems proper, conditioned on the person's appearance before the
court at all times specified by the court, and for the person's surrender, upon the
warrant of the governor of this state. This section does not prevent the immediate
service of the governor's warrant that is issued pursuant to section 13-3847.
13-3857 If no arrest made on governor's warrant before the time specified
If the accused is not arrested under warrant of the governor by the expiration of
the time specified in the complaint, bond or undertaking, the judge or magistrate may
discharge him or may recommit him to a further day, not to exceed sixty days, or may
again take bail for his appearance and surrender as provided in section 13-3856, and at
the expiration of the second period of commitment, or if he has been bailed and appeared
according to the terms of his bond or undertaking, the judge or magistrate may either
discharge him, or may require him to enter into a new bond or undertaking, to appear and
surrender himself at another day.
13-3858 Forfeiture of bail
If the prisoner is admitted to bail, and fails to appear and surrender himself
according to the conditions of his bond, the court, by proper order, shall declare the
bond forfeited; and recovery may be had thereon in the name of the state as in the case
of other bonds or undertaking given by the accused in criminal proceedings within this
state.
13-3859.01 Local criminal prosecution; continuance of status; time limits tolled
A. If this state initiates criminal prosecution under the laws of this state
against a person who is charged pursuant to section 13-3853 or 13-3854, the length of
commitment restrictions under sections 13-3855 and 13-3857 are tolled during the period
that the criminal prosecution is pending disposition in this state. The ARIZONA court
shall retain jurisdiction over the fugitive matter and shall continue in effect the
fugitive release conditions until one of the following occurs:
1. The local criminal prosecution is disposed.
2. The fugitive matter is vacated pursuant to section 13-3859.02.
3. The governor issues a directive pursuant to subsection B of this section.
B. If a fugitive is sentenced to serve a term of imprisonment in a correctional
facility in the state department of corrections or county jail, on the governor's
directive the ARIZONA court having jurisdiction of the fugitive matter shall vacate the
pending proceedings and shall direct the sheriff to provide written notice to the
requesting state of the term and place of the fugitive's imprisonment in this state. The
fugitive matter will then proceed pursuant to section 13-3859.02.
13-3859.02 Imprisonment; alternative methods of extradition
If after a local criminal prosecution a fugitive defendant is sentenced to serve a
term of imprisonment in a correctional facility or a county jail, the court shall vacate
the fugitive proceedings and shall exonerate the fugitive bond. After the proceedings
are vacated and the bond is exonerated, except for death penalty cases, sections 31-481
and 31-482 apply. If sections 31-481 and 31-482 do not apply, the fugitive matter is
governed by any other applicable procedure for the rendition or extradition of fugitives,
subject to section 13-3859. The defendant's fugitive status is not extinguished by the
sentence of imprisonment.
13-3859 Persons under criminal prosecution in this state at time of requisition
A. If a criminal prosecution has been instituted against such person under the laws
of this state and is still pending the governor either may surrender the person on demand
of the executive authority of another state or may hold the person until the person has
been tried and discharged or convicted and punished in this state.
B. This article does not constitute a waiver by this state of its right, power or
privilege to try a demanded person for a crime that was committed in this state or to
regain custody of a demanded person by extradition proceedings or otherwise for the
purposes of trial, sentencing or punishment for any crime that was committed in this
state. A proceeding under this article that results or fails to result in extradition is
not a waiver by this state of its right, power or privilege.
13-3860 Guilt or innocence of accused; when inquired into
The guilt or innocence of the accused as to the crime of which he is charged may not
be inquired into by the governor or in any proceeding after the demand for extradition
accompanied by a charge of crime in legal form as provided by this article shall have
been presented to the governor, except as it may be involved in identifying the person
held as the person charged with the crime.
13-3861 Governor may recall warrant or issue alias
The governor may recall his warrant of arrest, or may issue another warrant whenever
he deems proper.
13-3862 Fugitives from this state; duty of governors
Whenever the governor of this state shall demand a person charged with crime in this
state, from the executive authority of any other state, or from the chief justice or an
associate justice of the supreme court of the District of Columbia authorized to receive
such demand under the laws of the United States, he shall issue a warrant under the seal
of this state, to some agent, commanding him to receive the person so charged if
delivered to him and convey him to the proper officer of the state attorney general or of
the county in this state in which the offense was committed.
13-3863 Application for issuance of requisition; by whom made; contents
When the return to this state of a person charged with crime in this state is
required, the attorney general or county attorney of the county in which the offense is
committed shall present to the governor his written application for a requisition for the
return of the person charged, in which application shall be stated the name of the person
so charged, the crime charged against him, and the state in which he is believed to be,
including the location of the accused therein at the time the application is made and
certifying that, in the opinion of the attorney general or county attorney, the ends of
justice require the arrest and return of the accused to this state for trial and that the
proceeding is not instituted to enforce a private claim. The application shall be
verified by affidavit, shall be executed in duplicate and shall be accompanied by two
certified copies of the indictment returned, or information and affidavit filed, or of
the complaint made to the judge or magistrate, stating the offense with which the accused
is charged. The attorney general or county attorney may also attach such further
affidavits and other documents in duplicate as he shall deem proper to be submitted with
such application. One copy of the application, with the action of the governor indicated
by endorsement thereon, and one of the certified copies of the indictment, complaint,
information and affidavits shall be filed in the office of the secretary of state to
remain of record in that office. The other copies of all papers shall be forwarded with
the governor's requisition.
13-3864 Payment of account of agent; method as exclusive; classification
A. When the governor of this state, in the exercise of the authority conferred by
law, demands from the executive authority of any other state or foreign country the
surrender to the authorities of this state of a fugitive from justice, the accounts of
the persons employed by him for that purpose shall be paid by the state upon presentation
to the department of administration or the county in which the offense was committed upon
presentation of the account to the board of supervisors. If the state or the board of
supervisors neglects to pay the claim within thirty days after its presentation, the
superior court may, upon petition filed in such court, order the payment of the claim.
B. No compensation, fee or reward shall be paid to or received by a public officer
of this state, or other person, for a service rendered in procuring from the governor the
demand, the surrender of the fugitive, conveying the fugitive to this state, or detaining
him therein, except as provided in this section, and any person receiving or accepting
such compensation, fee or reward in violation of the provisions of this section is guilty
of a class 2 misdemeanor.
13-3865.01 Written waiver of extradition proceedings; prior waiver
A. Any person who is arrested in this state and who is charged with having
committed a crime in another state or alleged to have escaped from confinement or broken
the terms of his bail, probation or parole may waive the issuance and service of the
warrant provided for in sections 13-3847 and 13-3848 and all other procedures incidental
to extradition proceedings by executing or subscribing in the presence of a judge of a
court of record within this state a writing which states that he consents to return to
the demanding state, except that before the waiver is executed or subscribed to by the
person it is the duty of the judge to inform the person of his right to the issuance or
service of a warrant of extradition, the right to contest extradition by habeas corpus as
provided in section 13-3850 and the right to bail as provided in section 13-3856.
B. If the consent is duly executed, the judge shall direct the officer who has
custody of the person to deliver the person promptly to the accredited agent or agents of
the demanding state and to deliver or cause to be delivered to the agent or agents a copy
of the consent.
C. Notwithstanding subsection A of this section, a law enforcement agency holding a
person who is alleged to have broken the terms of his probation, parole, bail or other
release shall immediately deliver the person to the duly authorized agent of the
demanding state without the requirement of a governor's warrant if all of the following
apply:
1. The person has signed a prior waiver of extradition as a term of his current
probation, parole, bail or other release in the demanding state.
2. The law enforcement agency holding the person has received both of the
following:
(a) An authenticated copy of the prior waiver of extradition signed by the person.
(b) A photograph and fingerprints properly identifying the person as the person who
signed the waiver.
D. This section does not constitute a waiver by this state of its right, power or
privilege to try a fugitive for a criminal offense committed in this state. If a local
criminal charge is pending against the fugitive in a court in this state, the fugitive's
transfer of custody is subject to the discretion of the governor as provided for in
section 13-3859 and the provisions of sections 13-3855, 13-3856 and 13-3857 do not apply.
E. The delivery of a fugitive to an agent of a demanding state does not constitute
a waiver by this state of its right, power or privilege to regain custody of the person
by extradition, detainer proceedings or other process for the purpose of trial,
sentencing or punishment for any criminal offense charged against the person in this
state.
F. Any proceeding under this article that results or fails to result in the
rendition of a fugitive person by extradition or detainer proceedings does not constitute
a waiver by this state of its rights, privileges or jurisdiction.
13-3865 Exemption from civil process
A person brought into this state on extradition based on a criminal charge shall not
be subject to service of personal process in civil actions arising out of the same facts
as the criminal proceedings to answer which he is returned, until he has been convicted
in the criminal proceeding, or, if acquitted, until he has had ample opportunity to
return to the state from which he was extradited.
13-3866 No right of asylum
After a person has been brought back to this state upon extradition proceedings, he
may be tried in this state for other crimes which he may be charged with having committed
here as well as that specified in the requisition for his extradition.
13-3867 Interpretation
The provisions of this article shall be so interpreted and construed as to
effectuate its general purpose to make uniform the law of those states which enact it.
13-3868 Short title
This article may be cited as the uniform criminal extradition act.
13-3869 Extradition of persons to and from Indian jurisdiction
A. If this state seeks the extradition of an Indian from within the jurisdiction of
an Indian tribe in this state, this state shall comply with any applicable requirements
of tribal extradition law.
B. An Indian tribe that permits extradition by this state of Indians from a tribal
jurisdiction may request the extradition of Indians from state jurisdiction pursuant to
this section.
C. An Indian tribe shall direct a demand for extradition to the county attorney of
the county in which the person demanded is thought to be located, or if the location of
the person is unknown, to the attorney general.
D. A written demand for extradition by an Indian tribe shall be recognized if the
demand is accompanied by both:
1. A copy of a warrant issued for the person.
2. A criminal complaint or sworn statement made before a tribal judge substantially
charging the person demanded with the commission of a crime under tribal law, with escape
from confinement or with a violation of probation or parole.
E. The provisions of this article relating to extradition from a state that are not
inconsistent with this section apply to extradition by an Indian tribe under this
section. The public officer who receives the written demand under this section shall
perform the functions of the governor under this article.
13-3870.01 Use of facsimile signature
For the purposes of this article, a facsimile of the signature of the governor that
is applied at his direction and under his supervision is deemed to be the authorized
signature of the governor.
13-3870.02 Extradition; recovery of expenses
On conviction of the crime that caused a person to be extradited to this state, the
state or political subdivision, either jointly or severally, may recover from the
convicted person the actual expenses incurred by the extraditing agency. 13-3870 Executive agreements
A. If this state wishes to obtain custody of a person charged in this state with a
criminal offense and the person was convicted or is imprisoned or held under criminal
proceedings then pending against him in another state, the governor of this state and the
executive authority of the other state may agree on the extradition of the person before
the criminal proceedings against the person have terminated or the person's sentence has
been served in the other state.
B. Any executive agreement entered into pursuant to subsection A of this section
shall be conditioned on the return of the person to the other state at this state's
expense as soon as the prosecution in this state is terminated, unless the person is
sentenced to death under the laws of this state.
C. On demand of the executive authority of another state the governor may surrender
a person in this state who was returned to this state pursuant to section 13-3863 and who
has been charged with a criminal offense in the demanding state. The person may be
surrendered even if the person left the demanding state involuntarily.
13-3871 Authority of peace officers
The authority of a peace officer may extend in any of the following circumstances to
any place within the state:
1. Where he has the prior consent of the chief of police, marshal, sheriff, or
other department or agency head with peace officer jurisdiction, or his duly authorized
representative, having the primary responsibility for law enforcement within the
jurisdiction or territory.
2. Under any of the circumstances set forth in section 13-3883.
13-3872 Mutual aid agreements
Any two or more public agencies as defined by section 11-951 having and maintaining
peace officers may, by action of their respective legislative or other governing body,
enter into mutual aid agreements with respect to law enforcement provided mutual aid
agreements entered into on the part of the state of ARIZONA shall be approved by the
agency involved and the governor. A peace officer acting within the jurisdiction of any
other public agency pursuant to a mutual aid agreement shall have full authority to act
as a peace officer to the same extent as if he were a duly appointed, qualified and
acting peace officer of such public agency as herein defined. Mutual aid agreements
provided for in this section shall be entered into pursuant to the provisions of title
11, chapter 7, article 3.
13-3873 Provisions cumulative and supplemental
The provisions of this article are cumulative and supplemental and are in addition
to any other authority granted by other provisions of law.
13-3874 Indian police; powers; qualifications
A. While engaged in the conduct of his employment any Indian police officer who is
appointed by the bureau of Indian affairs or the governing body of an Indian tribe as a
law enforcement officer and who meets the qualifications and training standards adopted
pursuant to section 41-1822 shall possess and exercise all law enforcement powers of
peace officers in this state.
B. Each agency appointing any Indian police officer pursuant to this section shall
be liable for any and all acts of such officer acting within the scope of his employment
or authority. Neither the state nor any political subdivision shall be liable for any
acts or failure to act by any such Indian police officer.
13-3875 Cross-certification of federal peace officers; policy; powers; qualifications; liability; records
A. The sheriff of each county shall develop and adopt a policy on
cross-certification of federal peace officers, including whether cross-certification
shall be permitted in that county.
B. A federal peace officer who is employed by an agency of the United States and
who has completed the basic training curriculum for the officer's agency shall possess
and exercise all law enforcement powers of peace officers in this state for one year,
including, if directed by the officer's employer, the capability to enforce the criminal
laws of this state if the federal peace officer:
1. Submits to the sheriff a written request for certification as a peace officer in
this state.
2. Submits evidence that the officer has been certified as a federal peace officer,
is authorized by federal law to engage in or supervise the prevention, detection,
investigation or prosecution of a violation of federal law and is authorized by federal
law to make arrests, serve warrants and carry firearms.
C. Each federal peace officer who requests cross-certification may submit to the
sheriff a written request for certification as a peace officer in this state pursuant to
subsection B. The cross-certification remains in effect for one year from the date on
which the certification was authorized by the sheriff.
D. Neither the state nor any political subdivision is liable for any acts or
failure to act by a federal peace officer.
E. The ARIZONA peace officer standards and training board shall maintain records of
all federal peace officers who are certified as peace officers in this state. 13-3881 Arrest; how made; force and restraint
A. An arrest is made by an actual restraint of the person to be arrested, or by his
submission to the custody of the person making the arrest.
B. No unnecessary or unreasonable force shall be used in making an arrest, and the
person arrested shall not be subjected to any greater restraint than necessary for his
detention.
13-3882 Time of making arrest
An arrest may be made on any day and at any time of the day or night.
13-3883 Arrest by officer without warrant
A. A peace officer may, without a warrant, arrest a person if he has probable cause
to believe:
1. A felony has been committed and probable cause to believe the person to be
arrested has committed the felony.
2. A misdemeanor has been committed in his presence and probable cause to believe
the person to be arrested has committed the offense.
3. The person to be arrested has been involved in a traffic accident and violated
any criminal section of title 28, and that such violation occurred prior to or
immediately following such traffic accident.
4. A misdemeanor or a petty offense has been committed and probable cause to
believe the person to be arrested has committed the offense. A person arrested under
this paragraph is eligible for release under section 13-3903.
B. A peace officer may stop and detain a person as is reasonably necessary to
investigate an actual or suspected violation of any traffic law committed in the
officer's presence and may serve a copy of the traffic complaint for any alleged civil or
criminal traffic violation. A peace officer who serves a copy of the traffic complaint
shall do so within a reasonable time of the alleged criminal or civil traffic violation.
13-3884 Arrest by private person
A private person may make an arrest:
1. When the person to be arrested has in his presence committed a misdemeanor
amounting to a breach of the peace, or a felony.
2. When a felony has been in fact committed and he has reasonable ground to believe
that the person to be arrested has committed it.
13-3885 Arrest of principal by surety; prohibited conduct; violation; classification; definitions
A. For the purpose of surrendering the defendant, a surety on the bail bond of a
defendant may arrest the defendant before the forfeiture of the undertaking or, by
written authority attached to a certified copy of the undertaking, may empower a bail
recovery agent or a bail bond agent as defined in section 20-340 to arrest the defendant.
B. A bail recovery agent or a bail bond agent shall not do any of the following:
1. Enter an occupied residential structure without the consent of the occupants who
are present at the time of the entry.
2. Conduct a bail recovery arrest or apprehension without written authorization
from a bail bond agent licensed in ARIZONA.
3. Wear, carry or display any uniform, badge, shield or other insignia or emblem
that implies that the bail recovery agent is an employee, officer or agent of this state,
a political subdivision of this state or the federal government. A bail recovery agent
may display identification that indicates the agent's status as a bail recovery agent
only.
4. Authorize or allow any third party bail recovery agent to undertake an
apprehension or arrest if the bail recovery agent has been convicted in any jurisdiction
of theft or of any felony or any crime involving carrying or the illegal use or
possession of a deadly weapon or dangerous instrument.
C. The surety or bail bond agent employing, hiring as an independent contractor or
otherwise utilizing a bail recovery agent shall advise the department of insurance in
writing that the bail recovery agent is providing the services to the surety or bail bond
agent on a given case or cases. The written notice to the department of insurance must
be given within twenty-four hours after the retention and shall include the name, date of
birth, home and business addresses and telephone number of the bail recovery agent. The
bail recovery agent identified in the written notice shall certify on the written notice,
under penalty of perjury, that the bail recovery agent has never been convicted in any
jurisdiction of theft or of any felony or any crime involving carrying or the illegal use
or possession of a deadly weapon or dangerous instrument and that the bail recovery agent
has complied with section 20-340.04.
D. Bail bond agents shall provide an annual report to the department of insurance
listing all bail recovery agents employed, hired as independent contractors or otherwise
utilized by the bail bond agent during the year. This report shall certify that all
employees of the bail bond agent have met the requirements prescribed in section
20-340.03 and that all bail recovery agents have complied with section 20-340.04. The
report shall include the name, home and business addresses, date of birth, telephone
number, and a two-inch wide by three-inch high photograph of the face of each person
identified in the report.
E. To satisfy the requirements of this section, a bail bond agent who is licensed
in another state but is not licensed in this state shall contract with a bail bond agent
licensed in this state to retain the services of a bail recovery agent in this state.
F. Any person who violates subsection B or E of this section is guilty of a class 5
felony. Any person who violates subsection C or D of this section is subject to the
provisions of section 20-295.
G. For the purposes of this section:
1. "Bail bond agent" has the same meaning prescribed in section 20-282.01.
2. "Bail recovery agent" means any person who has never been convicted in any
jurisdiction of theft or of a felony or any crime involving carrying or the illegal use
or possession of a deadly weapon or dangerous instrument and who is employed or hired as
an independent contractor or otherwise utilized by a bail bond agent to assist the bail
bond agent in presenting a defendant in court when required, in apprehending a defendant
and surrendering the defendant to a court or in keeping a defendant under necessary
surveillance. Bail recovery agent does not include an attorney or law enforcement
officer who acts in an official capacity and who assists a bail bond agent in the bail
bond agent's business.
3. "Occupied residential structure" means an edifice of a type that is generally
used to house human beings.
13-3886 Arrest by telephone or telegram; filing copy of warrant
A. Any magistrate may, by an endorsement under his hand upon a warrant of arrest,
authorize the service of the warrant by telegraph or telephone, and thereafter a
telegraphic or telephonic copy of such warrant may be sent by telegraph or telephone to
one or more peace officers. The copy shall be as effectual in the hands of any officer,
and he shall proceed in the same manner under it, as though he held an original warrant
issued by the magistrate making the endorsement.
B. Every officer causing a telegraphic or telephonic copy of a warrant to be sent,
shall certify as correct and file in the telegraph or telephone office from which such
copy is sent, a copy of the warrant and endorsement thereon, and shall return the
original with a statement of his action thereunder.
13-3887 Method of arrest by officer by virtue of warrant
When making an arrest by virtue of a warrant the officer shall inform the person to
be arrested of the cause of the arrest and of the fact that a warrant has been issued for
his arrest, except when he flees or forcibly resists before the officer has opportunity
so to inform him, or when the giving of such information will imperil the arrest. The
officer need not have the warrant in his possession at the time of the arrest, but after
the arrest, if the person arrested so requires, the warrant shall be shown to him as soon
as practicable.
13-3888 Method of arrest by officer without warrant
When making an arrest without a warrant, the officer shall inform the person to be
arrested of his authority and the cause of the arrest, unless the person to be arrested
is then engaged in the commission of an offense, or is pursued immediately after its
commission or after an escape, or flees or forcibly resists before the officer has
opportunity so to inform him, or when the giving of such information will imperil the
arrest.
13-3889 Method of arrest by private person
A private person when making an arrest shall inform the person to be arrested of the
intention to arrest him and the cause of the arrest, unless he is then engaged in the
commission of an offense, or is pursued immediately after its commission or after an
escape, or flees or forcibly resists before the person making the arrest has opportunity
so to inform him, or when the giving of such information will imperil the arrest.
13-3891 Right of officer to break into building
An officer, in order to make an arrest either by virtue of a warrant, or when
authorized to make such arrest for a felony without a warrant, as provided in section
13-3883, may break open a door or window of any building in which the person to be
arrested is or is reasonably believed to be, if the officer is refused admittance after
he has announced his authority and purpose.
13-3892 Right of private person to break into building
A private person, in order to make an arrest where a felony was committed in his
presence, as authorized in section 13-3884, may break open a door or window of any
building in which the person to be arrested is or is reasonably believed to be, if he is
refused admittance after he has announced his purpose.
13-3893 Right to break door or window to effect release
When an officer or private person has entered a building in accordance with the
provisions of section 13-3891 or 13-3892, he may break open a door or window of the
building, if detained therein, when necessary for the purpose of liberating himself.
13-3894 Right to break into building in order to effect release of person making arrest detained therein
A peace officer or a private person may break open a door or window of any building
when necessary for the purpose of liberating a person who entered the building in
accordance with the provisions of section 13-3891 or 13-3892 and is detained therein.
13-3895 Weapons to be taken from person arrested
Any person making a lawful arrest may take from the person arrested all weapons
which he may have about his person and shall deliver them to the magistrate before whom
he is taken.
13-3896 Arrest after escape or rescue; method of recapture
A. If a person lawfully arrested escapes or is rescued, the person from whose
custody he escaped or was rescued may immediately pursue and retake him without a warrant
at any time and in any place within the state.
B. To retake the person escaping or rescued the person from whose custody he
escaped who is lawfully pursuing may use the same means as are authorized for an arrest.
13-3897 Duty of officer after arresting with warrant
When the arrest by virtue of a warrant occurs in the county where the alleged
offense was committed and where the warrant was issued, the officer making the arrest
shall without unnecessary delay take the person arrested before the magistrate who issued
the warrant or, if that magistrate is absent or unable to act, before the nearest or most
accessible magistrate in the same county.
13-3898 Arrest without warrant; magistrate; complaint
A. A person arrested without a warrant shall without unnecessary delay be taken
before the nearest or most accessible magistrate in the county in which the arrest
occurs, and a complaint shall be made before the magistrate setting forth the facts, and
the basis for his statement of the facts, showing the offense for which the person was
arrested.
B. The provisions of subsection A of this section shall not apply where the person
making the arrest is a peace officer and decides to proceed under the provisions of
section 13-3903.
13-3899 Complaint need not be verified
A. Complaints stating misdemeanor charges laid before a magistrate under the
provisions of section 13-3898, or filed with the magistrate under the provisions of
section 13-3903 need not be sworn to if they contain a form of certification by the
arresting officer in substance as follows: "I hereby certify that I have reasonable
grounds to believe and do believe that the person cited herein committed the offense
described herein contrary to law."
B. A false certification under the provisions of subsection A of this section shall
constitute perjury.
13-3900 Duty of private person after making arrest
A private person who has made an arrest shall without unnecessary delay take the
person arrested before the nearest or most accessible magistrate in the county in which
the arrest was made, or deliver him to a peace officer, who shall without unnecessary
delay take him before such magistrate. The private person or officer so taking the
person arrested before the magistrate shall make before the magistrate a complaint, which
shall set forth the facts showing the offense for which the person was arrested. If,
however, the officer cannot make the complaint, the private person who delivered the
person arrested to the officer shall accompany the officer before the magistrate and
shall make to the magistrate the complaint against the person arrested.
13-3901 Right of attorney to visit person arrested
Any attorney at law entitled to practice in the courts of this state shall, at the
request of the person arrested or of some one acting in his behalf, be permitted, under
reasonable regulations, to visit the person arrested.
13-3902 Treatment of arrested person
No peace officer, or other official engaged in administering the criminal law, shall
use oppressive methods of any kind for the purpose of securing a confession or other
evidence of guilt from an arrested person.
13-3903 Notice to appear and complaint
A. In any case in which a person is arrested for an offense that is a misdemeanor
or a petty offense, the arresting officer may release the arrested person from custody in
lieu of taking such person to the police station by use of the procedure prescribed in
this section.
B. At any time after taking a person arrested for an offense that is a misdemeanor
or a petty offense to the police station, the arresting officer may, instead of taking
such person to a magistrate, release such person from further custody by use of the
procedure prescribed in this section.
C. In any case in which a person is arrested for an offense that is a misdemeanor
or a petty offense, the arresting officer may prepare in quadruplicate a written notice
to appear and complaint, containing the name and address of such person, the offense
charged, and the time and place where and when such person shall appear in court,
provided:
1. The time specified in the notice to appear is at least five days after arrest.
2. The place specified in the notice shall be the court specified in section
13-3898.
3. The arrested person, in order to secure release as provided in this section,
shall give his written promise so to appear in court by signing at least one copy of the
written notice and complaint prepared by the arresting officer. The officer shall
deliver a copy of the notice and complaint to the person promising to appear. Thereupon,
the officer shall forthwith release the person arrested from custody.
4. The officer shall, as soon as practical, deliver the original notice and
complaint to the magistrate specified therein. Thereupon, the magistrate shall promptly
file the notice and complaint and enter it into the docket of the court.
D. The ARIZONA traffic ticket and complaint may be utilized not only for the
purposes provided in the ARIZONA supreme court rule, but to satisfy the requirements of
this section.
E. When a person has given his written promise to appear in court upon a designated
date pursuant to this section, and thereafter fails to appear, personally or by counsel,
on or before that date, the magistrate shall file a complaint, in writing, under oath,
setting forth the offense of wilfully violating a written promise to appear in court in
accordance with section 13-3904, and shall issue a warrant of arrest thereon. Upon such
person's appearance in court for arraignment on the charge of violating section 13-3904,
such magistrate shall also arraign such person on the charge stated in the notice to
appear and complaint for which such person had previously promised to appear.
F. Nothing in this section shall be construed to affect a peace officer's authority
to conduct an otherwise lawful search incident to his arrest even though such arrested
person is released before being taken to the police station or before a magistrate
pursuant to this section.
13-3904 Violation of promise to appear; classification
A. Any person knowingly violating his written promise to appear, given as provided
in this article, is guilty of a class 2 misdemeanor regardless of the disposition of the
charge upon which he was originally arrested.
B. A written promise to appear in court may be complied with by an appearance by
counsel.
13-3905 Detention for obtaining evidence of identifying physical characteristics; definition
A. A peace officer who is engaged, within the scope of the officer's authority, in
the investigation of a felony may make written application upon oath or affirmation to a
magistrate for an order authorizing the temporary detention, for the purpose of obtaining
evidence of identifying physical characteristics, of an identified or particularly
described individual residing in or found in the jurisdiction over which the magistrate
presides. The order shall require the presence of the identified or particularly
described individual at such time and place as the court shall direct for obtaining the
identifying physical characteristic evidence. The magistrate may issue the order on a
showing of all of the following:
1. Reasonable cause for belief that a felony has been committed.
2. Procurement of evidence of identifying physical characteristics from an
identified or particularly described individual may contribute to the identification of
the individual who committed such offense.
3. The evidence cannot otherwise be obtained by the investigating officer from
either the law enforcement agency employing the affiant or the criminal identification
division of the department of public safety.
B. Any order issued pursuant to this section shall specify the following:
1. The alleged criminal offense which is the subject of the application.
2. The specific type of identifying physical characteristic evidence which is
sought.
3. The relevance of the evidence to the particular investigation.
4. The identity or description of the individual who is to be detained for
obtaining the evidence.
5. The name and official status of the investigative officer authorized to detain
the individual and obtain the evidence.
6. The place at which the evidence will be obtained.
7. The time that the evidence shall be taken, except that no person may be detained
for a period of more than three hours for the purpose of taking evidence.
8. The period of time, not exceeding fifteen days, during which the order shall
continue in force and effect. If the order is not executed within fifteen days and is
not extended by the magistrate, a new order may be issued pursuant to this section. The
magistrate may extend the time for execution of the order for no longer than fifteen
days.
C. The order issued pursuant to this section shall be returned to the court not
later than thirty days after its date of issuance and shall be accompanied by a sworn
statement indicating the type of evidence taken. The court shall give to the person from
whom the evidence was taken a copy of the order and a copy of the sworn statement
indicating what type of evidence was taken, if any.
D. In lieu of, or in addition to, a written application as provided in subsection
A, the magistrate may take an oral statement under oath which shall be recorded on tape,
wire or other comparable method. This statement may be given in person to a magistrate
or by telephone, radio or other means of electronic communication. This statement is
deemed an application for the purpose of issuance of an order authorizing the temporary
detention for the purpose of obtaining evidence of identifying physical
characteristics. If a recording of the sworn statement is made, the statement shall be
transcribed at the request of the court or either party and certified by the magistrate
and filed with the court.
E. The magistrate may orally authorize a peace officer to sign the magistrate's
name on an application if the peace officer applying for the application is not in the
presence of the magistrate. The application shall be called a duplicate original
application and shall be deemed an application for the purpose of this section. In such
cases the magistrate shall cause to be made an original application and shall enter the
exact time of the issuance of the duplicate application on the face of the original
application. On the return of the duplicate original application, the magistrate shall
file the original application and the duplicate original application as provided for in
this section.
F. A magistrate may affix the magistrate's signature on a telefacsimile of an
original application. The telefacsimile of the original application is deemed to be an
application for the purposes of this section. On return of the telefacsimile of the
original application, the magistrate shall file the original application and the
telefacsimile of the original application as provided in this section.
G. For the purposes of this section, "identifying physical characteristics"
includes, but is not limited to, the fingerprints, palm prints, footprints, measurements,
handwriting, handprinting, sound of voice, blood samples, urine samples, saliva samples,
hair samples, comparative personal appearance or photographs of an individual.
13-3911 Definition
A search warrant is an order in writing issued in the name of the state of ARIZONA,
signed by a magistrate, directed to a peace officer, commanding him to search for
personal property, persons or items described in section 13-3912.
13-3912 Grounds for issuance
A search warrant may be issued upon any of the following grounds:
1. When the property to be seized was stolen or embezzled.
2. When the property or things to be seized were used as a means of committing a
public offense.
3. When the property or things to be seized are in the possession of a person
having the intent to use them as a means of committing a public offense or in possession
of another to whom he may have delivered it for the purpose of concealing it or
preventing it being discovered.
4. When property or things to be seized consist of any item or constitute any
evidence which tends to show that a particular public offense has been committed, or
tends to show that a particular person has committed the public offense.
5. When the property is to be searched and inspected by an appropriate official in
the interest of the public health, safety or welfare as part of an inspection program
authorized by law.
6. When the person sought is the subject of an outstanding arrest warrant.
13-3913 Conditions precedent to issuance
No search warrant shall be issued except on probable cause, supported by affidavit,
naming or describing the person and particularly describing the property to be seized and
the place to be searched.
13-3914 Examination on oath; affidavits
A. Before issuing a warrant, the magistrate may examine on oath the person or
persons seeking the warrant, and any witnesses produced, and must take his affidavit, or
their affidavits, in writing and cause the affidavit to be subscribed by the party or
parties making the affidavit. Before issuing the warrant, the magistrate may also
examine any other sworn affidavit submitted to him which sets forth facts tending to
establish probable cause for the issuance of the warrant.
B. The affidavit or affidavits must set forth the facts tending to establish the
grounds of the application, or probable cause for believing the grounds exist.
C. In lieu of, or in addition to, a written affidavit, or affidavits, as provided
in subsection A, the magistrate may take an oral statement under oath which shall be
recorded on tape, wire or other comparable method. This statement may be given in person
to the magistrate or by telephone, radio or other means of electronic
communication. This statement is deemed to be an affidavit for the purposes of issuance
of a search warrant. If a recording of the sworn statement is made, the statement shall
be transcribed at the request of the court or either party and certified by the
magistrate and filed with the court.
13-3915 Issuance; form of warrant; duplicate original warrant; telefacsimile
A. If the magistrate is satisfied that probable cause for the issuance of the
warrant exists, the magistrate shall issue a search warrant commanding a search by any
peace officer of the person or place specified, for the items described.
B. On a reasonable showing that an announced entry to execute the warrant would
endanger the safety of any person or would result in the destruction of any of the items
described in the warrant, the magistrate shall authorize an unannounced entry.
C. The warrant shall be in substantially the following form:
County of ___________________, state of ARIZONA.
To any peace officer in the state of ARIZONA:
Proof by affidavit having been this day made before me by (naming every
person whose affidavit has been taken) there is probable cause for believing
that (stating the grounds of the application) according to section 13-3912,
you are therefore commanded in the daytime (or in the night, as the case may
be, according to section 13-3917) to make a search of (naming persons,
buildings, premises or vehicles, describing each with reasonable
particularity) for the following property, persons or things: (describing such
with reasonable particularity), and if you find such or any part thereof, to
retain such in your custody subject to section 13-3920.
Given under my hand or direction and dated _____________ (judge, justice
of the peace or magistrate.)
D. The magistrate may orally authorize a peace officer to sign the magistrate's
name on a search warrant if the peace officer applying for the warrant is not in the
actual physical presence of the magistrate. This warrant shall be called a duplicate
original search warrant and shall be deemed a search warrant for the purposes of this
chapter. In such cases, the magistrate shall cause to be made an original warrant and
shall enter the exact time of issuance of the duplicate original warrant on the face of
the original warrant. Upon the return of the duplicate original warrant, the magistrate
shall file the original warrant and the duplicate original warrant as provided in section
13-3923.
E. A magistrate may affix the magistrate's signature on a telefacsimile of an
original warrant. The telefacsimile of the original warrant is deemed to be a search
warrant for the purposes of this chapter. On return of the telefacsimile of the original
warrant, the magistrate shall file the original warrant and the telefacsimile of the
original warrant as provided in section 13-3923.
13-3916 Service of warrant; breaking and entering to execute
A. A search warrant may be served by any peace officer but by no other person
except in aid of an officer engaging in service of the warrant.
B. An officer may break into a building, premises or vehicle or any part of a
building, premises or vehicle, to execute the warrant when:
1. After notice of the officer's authority and purpose, the officer receives no
response within a reasonable time.
2. After notice of the officer's authority and purpose, the officer is refused
admittance.
3. A magistrate has authorized an unannounced entry pursuant to section 13-3915.
4. The particular circumstances and the objective articulable facts are such that a
reasonable officer would believe that giving notice of the officer's authority and
purpose before entering would endanger the safety of any person or result in the
destruction of evidence.
C. A peace officer executing a search warrant may seize any property discovered in
the course of the execution of the warrant if the officer has reasonable cause to believe
that the item is subject to seizure under section 13-3912, even if the property is not
enumerated in the warrant.
D. A peace officer executing a search warrant may make or cause to be made
photographs, measurements, impressions or scientific tests.
E. A peace officer executing a search warrant directing a search of any premises or
a vehicle may search any person in the premises or vehicle if either of the following
applies:
1. It is reasonably necessary to protect himself or others from the use of any
weapon that may be concealed upon the person.
2. It reasonably appears that property or items enumerated in the search warrant
may be concealed upon the person. 13-3917 Time of service; exception
Upon a showing of good cause therefor, the magistrate may, in his discretion insert
a direction in the warrant that it may be served at any time of the day or night. In the
absence of such a direction, the warrant may be served only in the daytime. For the
purposes of this section night is defined as the period from ten p.m. to six-thirty a.m.
13-3918 Time of execution and return
A. A search warrant shall be executed within five calendar days from its issuance
and returned to a magistrate within three court business days after the warrant is
executed. Upon expiration of the five day period, the warrant is void unless the time is
extended by a magistrate. The time for execution of the warrant may be extended for no
longer than five calendar days. The documents and records of the court relating to the
search warrant need not be open to the public until the return of the warrant or the
warrant is deemed void pursuant to this section unless a magistrate orders the time to be
shortened or lengthened for good cause. Thereafter, if the warrant has been executed, the
documents and records shall be open to the public as a judicial record.
B. If a duplicate original search warrant has been executed, the peace officer who
executed the warrant shall enter the exact time of its execution on its face. 13-3919 Receipt for property; definitions
A. If an officer takes any property under the warrant, the officer shall give a
detailed receipt for the property taken to the person from whom it was taken or in whose
possession it was found. If the property was not taken from a person, the officer shall
leave the receipt at the place where the property was found.
B. The court may delay for a reasonable period the service of the detailed receipt
required by subsection A of this section if all of the following apply:
1. The court finds that there is reasonable cause to believe that the delay is
necessary to protect the safety of any person or to prevent flight from prosecution,
tampering with evidence, intimidation of witnesses or jeopardizing an investigation.
2. Unless the court finds reasonable necessity for the seizure, the warrant
prohibits the seizure of any tangible property, any wire or electronic communication or,
except as expressly provided in section 13-3016, any stored wire or electronic
information.
3. The warrant provides for service of a detailed receipt within a reasonable
period after the execution of the warrant. Extensions may be granted, but only on an
application and judicial finding. The period of each extension shall not exceed ten days.
C. For the purposes of this section:
1. "Electronic communication" has the same meaning prescribed in section 13-3001.
2. "Wire communication" has the same meaning prescribed in section 13-3001.
13-3920 Retention of property
All property or things taken on a warrant shall be retained in the custody of the
seizing officer or agency which he represents, subject to the order of the court in which
the warrant was issued, or any other court in which such property or things is sought to
be used as evidence.
13-3921 Return of warrant and inventory; copy of inventory
A. The officer shall return the warrant to the magistrate and at the same time
deliver to him a written inventory of the property taken. The inventory shall be made
publicly, or in the presence of the person from whose possession it was taken, and of the
applicant for the warrant, if they are present. The inventory shall be verified by the
affidavit of the officer which shall be taken by the magistrate at the time it is
delivered to the magistrate. The affidavit shall recite that the inventory contains a
true and detailed account of all the property taken.
B. The magistrate shall, if requested, deliver a copy of the inventory to the
person from whose possession the property was taken and to the applicant for the warrant.
13-3922 Controverting grounds of issuance; procedure; restoration of property
A. If an owner of seized property controverts the grounds on which the warrant was
issued, the magistrate shall proceed to take testimony relative thereto unless a
proceeding pursuant to chapter 39 of this title is or has been initiated relating to the
same property interest. The testimony given by each witness shall be reduced to writing
and certified by the magistrate. If it appears that the property taken is not the same
as that described in the warrant and is not within section 13-3916, subsection C, D or E
or section 13-3925, subsection C, or that probable cause does not exist for believing the
items are subject to seizure, the magistrate shall cause the property to be restored to
the person from whom it was taken if the property is not such that any interest in it is
subject to forfeiture or its possession would constitute a criminal offense.
B. Any order under this section as to a property interest is subject to revision at
any time before the entry of judgment adjudicating all the claims and the rights and
liabilities of that person in all actions pursuant to this title. Other orders are
appealable, if permitted by the ARIZONA rules of civil procedure.
C. No stay may issue on the forfeiture of seized property or its use in an action
pursuant to this title while contravention of the warrant is being litigated.
13-3923 Filing and transmittal of papers
The magistrate shall annex the affidavits, the search warrant and return, and the
inventory, and if he does not have jurisdiction to inquire into the offense in respect to
which the warrant was issued, he shall at once file the warrant, and return the
affidavits and inventory to the court having jurisdiction to inquire into the offense.
13-3924 Unlawful procurement of search warrant without probable cause
A person who, with intent to harass and without probable cause, causes a search
warrant to be issued and executed, is guilty of a class 2 misdemeanor.
13-3925 Unlawful search or seizure; admissibility of evidence; definitions
A. Any evidence that is seized pursuant to a search warrant shall not be suppressed
as a result of a violation of this chapter except as required by the United States
Constitution and the constitution of this state.
B. If a party in a criminal proceeding seeks to exclude evidence from the trier of
fact because of the conduct of a peace officer in obtaining the evidence, the proponent
of the evidence may urge that the peace officer's conduct was taken in a reasonable, good
faith belief that the conduct was proper and that the evidence discovered should not be
kept from the trier of fact if otherwise admissible.
C. The trial court shall not suppress evidence that is otherwise admissible in a
criminal proceeding if the court determines that the evidence was seized by a peace
officer as a result of a good faith mistake or technical violation.
D. This section does not limit the enforcement of any appropriate civil remedy or
criminal penalty in actions pursuant to other provisions of law against any individual or
government entity found to have conducted an unreasonable search or seizure.
E. This section does not apply to unlawful electronic eavesdropping or wiretapping.
F. For the purposes of this section:
1. "Good faith mistake" means a reasonable judgmental error concerning the
existence of facts that if true would be sufficient to constitute probable cause.
2. "Technical violation" means a reasonable good faith reliance on:
(a) A statute that is subsequently ruled unconstitutional.
(b) A warrant that is later invalidated due to a good faith mistake.
(c) A controlling court precedent that is later overruled, unless the court
overruling the precedent orders the new precedent to be applied retroactively.
13-3931 Search of accused by magistrate
When a person charged with felony is believed by the magistrate before whom he is
brought to have on his person a dangerous weapon, or anything which may be used as
evidence of the commission of the offense, the magistrate may direct that the accused be
searched in his presence, and that the weapon or other thing be retained subject to his
order, or to the order of the court in which defendant may be tried.
13-3941 Disposition and return of stolen or embezzled property
A. When property alleged to have been stolen or embezzled comes into the custody of
a peace officer or of a magistrate, he shall hold it subject to the order of the
magistrate before whom the complaint is laid or who examines the charge against the
person accused of stealing or embezzling such property.
B. The person to whom the property is delivered shall enter in a suitable book a
description of every article of property alleged to be stolen or embezzled and brought
into the office, or taken from the person of a prisoner, and shall attach a number to
each article and make a corresponding entry thereof.
C. The magistrate shall, upon satisfactory proof of the ownership, order the
property to be delivered to the owner. The order entitles the owner to demand and
receive the property unless the property, or any part thereof, is required as evidence in
any criminal action. If it is so required, it shall remain in possession of the officer
or magistrate until the termination of the action.
D. If the property has not been delivered to the owner, the court before which a
trial is had for the theft or embezzlement of the property may, on proof of title of the
owner, order it restored to him.
E. No charge or fee may be imposed upon the owner of property ordered to be
returned to him pursuant to this section.
13-3942 Delivery of unclaimed stolen or embezzled property to county sheriff
If property stolen or embezzled is not claimed by the owner within six months after
the conviction of the person for such theft or embezzlement, the magistrate or other
officer having it in custody shall, upon payment of the necessary expenses incurred in
its preservation, deliver it to the county sheriff, who shall sell such property in the
same manner as personal property is sold under execution in a civil action, and the
proceeds shall be paid into the county treasury.
13-3951 Order of commitment; duty of officer
If the magistrate orders the defendant committed upon the preliminary examination,
he shall prepare a commitment signed by him with his name of office, and deliver it with
the defendant to the officer to whom he is committed, or, if that officer is not present,
to a peace officer, who shall deliver the defendant to the officer to whom he is
committed, together with the commitment.
13-3952 Compensation of court reporter appearing at preliminary hearing; fees for transcribing notes
When a regularly appointed court reporter appears and takes testimony at a
preliminary hearing in a criminal proceeding, the reporter's compensation shall be fixed
by the magistrate before whom the examination is had. Such compensation shall not exceed
the amount of fifteen dollars per day for each preliminary hearing actually attended upon
such examination, and two dollars fifty cents per page for transcribing his notes, to be
allowed and paid as other county charges. The reporter, when requested, shall furnish at
county expense to the county attorney or the attorney general a copy of the transcript of
testimony of any proceedings held in the justice court when the state or an
instrumentality thereof is ordered to provide such transcripts by a federal court in a
habeas corpus proceeding in the federal courts or when ordered by the ARIZONA supreme
court to provide such transcripts in a habeas corpus proceeding in state court.
13-3961.01 Offenses not bailable; postconviction; exceptions
A person shall not be continued at large on bail or be admitted to bail after
conviction of a felony offense for which the person has received a sentence of
imprisonment except when the superior court or a judge thereof is satisfied upon
investigation that the person in custody is in such physical condition that continued
confinement would endanger his life.
13-3961 Offenses not bailable; purpose; preconviction; exceptions
A. A person who is in custody shall not be admitted to bail if the proof is evident
or the presumption great that the person is guilty of the offense and the offense charged
is either:
1. A capital offense.
2. Sexual assault.
3. Sexual conduct with a minor who is under fifteen years of age.
4. Molestation of a child who is under fifteen years of age.
B. The purposes of bail and any conditions of release that are set by a judicial
officer include:
1. Assuring the appearance of the accused.
2. Protecting against the intimidation of witnesses.
3. Protecting the safety of the victim, any other person or the community.
C. A person who is in custody shall not be admitted to bail if the person is
charged with a felony offense and the state certifies by motion and the court finds after
a hearing on the matter that there is clear and convincing evidence that the person
charged poses a substantial danger to another person or the community or engaged in
conduct constituting a violent offense, that no condition or combination of conditions of
release may be imposed that will reasonably assure the safety of the other person or the
community and that the proof is evident or the presumption great that the person
committed the offense for which the person is charged. For the purposes of this
subsection, "violent offense" means either of the following:
1. A dangerous crime against children.
2. Terrorism.
D. On oral motion of the state, the court shall order the hearing required by
subsection C at or within twenty-four hours of the initial appearance unless the person
who is subject to detention or the state moves for a continuance. A continuance that is
granted on the motion of the person shall not exceed five calendar days unless there are
extenuating circumstances. A continuance on the motion of the state shall be granted on
good cause shown and shall not exceed twenty-four hours. The person may be detained
pending the hearing. The person is entitled to representation by counsel and is entitled
to present information by proffer or otherwise, to testify and to present witnesses in
the person's own behalf. Testimony of the person charged that is given during the hearing
shall not be admissible on the issue of guilt in any subsequent judicial proceeding,
except as it might relate to the compliance with or violation of any condition of release
subsequently imposed or the imposition of appropriate sentence or in perjury proceedings,
or for the purposes of impeachment. The case of such person shall be placed on an
expedited calendar and, consistent with the sound administration of justice, the person's
trial shall be given priority. Such person may be admitted to bail in accordance with the
ARIZONA rules of criminal procedure whenever a judicial officer finds that a subsequent
event has eliminated the basis for detention.
E. The finding of an indictment or the filing of an information does not add to the
strength of the proof or the presumption to be drawn.
13-3962 Admission to bail in certain non-bailable offenses
A person in custody for the commission of a non-bailable offense described in
section 13-3961, where the proof is not evident or the presumption not great that he is
guilty of the offense, shall before conviction be admitted to bail by a court having
jurisdiction of the offense.
13-3963 Admission to bail when arrest occurs in another county
When an arrest by virtue of a warrant occurs in a county other than that in which
the alleged offense was committed and the warrant issued, if the person arrested is
bailable as of right in respect of the offense set forth in the warrant, the officer
making the arrest shall, upon being so required by the person arrested, take him before a
magistrate or other official of such county having authority to admit to bail for such
offense, who shall admit him to bail for his appearance before the magistrate who issued
the warrant or, if he is absent or unable to act, before the nearest or most accessible
magistrate in the same county.
13-3964 Bail when warrant issued in other county
If the person arrested is bailable as of right in respect of the offense set forth
in the warrant, the officer making the arrest shall, upon being so required by the person
arrested, take him before a magistrate or other official, having authority to admit to
bail for such offense, of the county in which the arrest is made, who shall admit him to
bail for his appearance before the magistrate named or otherwise designated in the
warrant or, if he is absent or unable to act, before the nearest or most accessible
magistrate in such county.
13-3965 Procedure when bail not given
If the person arrested is not bailable as of right in respect of the offense set
forth in the warrant, or if, on the admission to bail of the person arrested as provided
in section 13-3963, bail is not forthwith given, the officer who made the arrest shall
take the person arrested before the magistrate who issued the warrant or, if he is absent
or unable to act, before the nearest or most accessible magistrate in the same county.
13-3966 Validity of undertaking by minor
Minors shall be capable of binding themselves by an undertaking for the purpose of
securing their release on bail in like manner and with like effect as persons sui juris.
13-3967 Release on bailable offenses before trial; definition
A. At his appearance before a judicial officer, any person who is charged with a
public offense that is bailable as a matter of right shall be ordered released pending
trial on his own recognizance or on the execution of bail in an amount specified by the
judicial officer.
B. In determining the method of release or the amount of bail, the judicial
officer, on the basis of available information, shall take into account all of the
following:
1. The views of the victim.
2. The nature and circumstances of the offense charged.
3. The weight of evidence against the accused.
4. The accused's family ties, employment, financial resources, character and mental
condition.
5. The results of any drug test submitted to the court.
6. Whether the accused is using any substance if its possession or use is illegal
pursuant to chapter 34 of this title.
7. Whether the accused violated section 13-3407, subsection A, paragraph 2, 3, 4 or
7 involving methamphetamine or section 13-3407.01.
8. The length of residence in the community.
9. The accused's record of arrests and convictions.
10. The accused's record of appearance at court proceedings or of flight to avoid
prosecution or failure to appear at court proceedings.
C. If a judicial officer orders the release of a defendant who is charged with a
felony either on his own recognizance or on bail, the judicial officer shall condition
the defendant's release on the defendant's good behavior while so released. On a showing
of probable cause that the defendant committed any offense during the period of release,
a judicial officer may revoke the defendant's release pursuant to section 13-3968.
D. After providing notice to the victim pursuant to section 13-4406, a judicial
officer may impose any of the following conditions on a person who is released on his own
recognizance or on bail:
1. Place the person in the custody of a designated person or organization agreeing
to supervise him.
2. Place restrictions on the person's travel, associates or place of abode during
the period of release.
3. Require the deposit with the clerk of the court of cash or other security, such
deposit to be returned on the performance of the conditions of release.
4. Prohibit the person from possessing any dangerous weapon or engaging in certain
described activities or indulging in intoxicating liquors or certain drugs.
5. Require the person to report regularly to and remain under the supervision of an
officer of the court.
6. Impose any other conditions deemed reasonably necessary to assure appearance as
required including a condition requiring that the person return to custody after
specified hours.
E. In addition to any of the conditions a judicial officer may impose pursuant to
subsection D of this section, the judicial officer shall impose both of the following
conditions on a person who is charged with a felony violation of chapter 14 or 35.1 of
this title and who is released on his own recognizance or on bail:
1. Electronic monitoring where available.
2. A condition prohibiting the person from having any contact with the victim.
F. The judicial officer who authorizes the release of the person charged on his own
recognizance or on bail shall do all of the following:
1. Issue an appropriate order containing statements of the conditions imposed.
2. Inform the person of the penalties that apply to any violation of the conditions
of release.
3. Advise the person that a warrant for his arrest may be issued immediately on any
violation of the conditions of release.
G. At any time after providing notice to the victim pursuant to section 13-4406,
the judicial officer who orders the release of a person on any condition specified in
this section or the court in which a prosecution is pending may amend the order to employ
additional or different conditions of release, including either an increase or reduction
in the amount of bail. On application, the defendant shall be entitled to have the
conditions of release reviewed by the judicial officer who imposed them or by the court
in which the prosecution is pending. Reasonable notice of the application shall be given
to the county attorney and the victim.
H. Any information that is stated or offered in connection with any order pursuant
to this section need not conform to the rules pertaining to admissibility of evidence in
a court of law.
I. This section does not prevent the disposition of any case or class of cases by
forfeiture of bail or collateral security if such disposition is authorized by the court.
J. A judicial officer who orders the release of a juvenile who has been transferred
to the criminal division of the superior court pursuant to section 8-327 or who has been
charged as an adult pursuant to section 13-501 shall notify the appropriate school
district on the release of the juvenile from custody.
K. For the purposes of this section and section 13-3968, "judicial officer" means
any person or court authorized pursuant to the constitution or laws of this state to bail
or otherwise release a person before trial or sentencing or pending appeal. 13-3968 Violation of conditions of release; hearing
A. Upon a verified application by the prosecuting attorney alleging that a
defendant charged with a felony has wilfully violated the conditions of his release, a
judicial officer may issue a warrant directing that the defendant be arrested and taken
forthwith before a superior court for hearing.
B. After a hearing and upon a finding that the defendant has wilfully violated the
conditions of his release, the court may impose different or additional conditions upon
the defendant's release. Upon a finding of probable cause that the defendant committed a
felony during the period of release, the defendant's release may be revoked.
C. Nothing contained in this section shall be construed to authorize the release of
a person not bailable as a matter of right.
13-3969 Bail bond agent lists; prohibition; rotation; acceptance of bonds
A. The sheriff or keeper of the jail shall provide to a person charged with a
bailable offense in his custody a list containing the names and telephone numbers of
those persons authorized to post bail bonds in the county. Persons authorized to post
bail bonds in the county may be listed under their own name or a trade name if the trade
name is registered with the secretary of state. The list shall be updated annually.
B. The sheriff or keeper of the jail shall not recommend any authorized bail bond
agent to a person charged with a bailable offense in the sheriff's or keeper's custody
and shall rotate quarterly the order of the names and telephone numbers of the authorized
bail bond agents listed.
C. The sheriff or keeper of the jail in the county in which criminal charges are
filed or in which the person charged is jailed shall accept the bond from any person.
13-3971 Bail after examination
When defendant has been held to answer upon examination for a crime or public
offense, admission to bail may be by the magistrate by whom he is held, or by any
magistrate who has the power to issue a writ of habeas corpus.
13-3972 Restraint before conviction
A person charged with a crime or public offense shall not, before conviction, be
subject to more restraint than is necessary for his detention to answer the charge.
13-3974 Exoneration of appearance bond
A surety may be relieved from liability on an appearance bond if the surety
surrenders the defendant into the custody of the sheriff of the county in which the
prosecution is pending and the sheriff reports the surrender to the court.
13-3981 Compromise of misdemeanors and petty offenses; domestic violence; effect of order of dismissal; exceptions and limitations
A. When a defendant is accused of a misdemeanor or petty offense for which the
person injured by the act constituting the offense has a remedy by a civil action, the
offense may be compromised as provided in this section, except:
1. When the offense is committed by or upon any officer of justice while in the
execution of the duties of his office.
2. When the offense is committed riotously.
3. When the offense is committed with intent to commit a felony.
B. If a defendant is accused of an act involving assault, threatening or
intimidating or a misdemeanor offense of domestic violence as defined in section 13-3601,
the offense shall not be compromised except on recommendation of the prosecuting
attorney.
C. If the party injured appears before the court in which the action is pending at
any time before trial, and acknowledges that he has received satisfaction for the injury,
the court may, on payment of the costs incurred, order the prosecution dismissed, and the
defendant discharged. The reasons for the order shall be set forth and entered of record
on the minutes and the order shall be a bar to another prosecution for the same offense.
D. No public offense shall be compromised or the prosecution or punishment upon a
compromise dismissed or stayed except as provided by law.
13-3983 Waiver of jury by consent of parties
A trial by jury may be waived in criminal actions by the consent of both parties
expressed in open court and entered on its minutes.
13-3984 Procedure where proof shows higher offense; effect
A. If upon the trial of any action it appears to the court by the testimony that
the facts proved constitute an offense of a higher nature than that charged, the court
may direct that the jury be discharged and all proceedings on the indictment or
information suspended, and may order the commitment of the defendant, and if the offense
is bailable, direct in the order that the defendant may be admitted to bail in the amount
fixed, which shall be specified in the order, to answer any indictment which may be
returned, or any information which may be filed against him following a preliminary
hearing, within thirty days after such suspension of proceedings by the court.
B. If the defendant is committed or admitted to bail in order to hold him for a
higher offense, as provided in subsection A, it is not an acquittal of the offense in
which proceedings were suspended, and no plea of former jeopardy or former acquittal
shall be sustained by reason thereof.
13-3985 Effect of acquittal on merits
If a defendant in a criminal action is acquitted on the merits, he is acquitted of
the same offense notwithstanding any defect in form or substance in the indictment or
information on which the trial was had.
13-3986 Title of affidavits or depositions
It is not necessary to give a title to an affidavit or deposition in a criminal
action, whether taken before or after indictment or information, or upon appeal. If the
affidavit or deposition is made without a title, or with an erroneous title, it shall be
as valid and effectual for every purpose as if it were given a title, if it intelligibly
refers to the proceeding, indictment, information or appeal in which it is made.
13-3987 Harmless error
Neither a departure from the form or mode prescribed in respect to any pleadings or
proceedings, nor an error or mistake therein, shall render the pleading or proceeding
invalid, unless it actually has prejudiced, or tended to prejudice, the defendant in
respect to a substantial right.
13-3988 Admissibility of confessions
A. In any criminal prosecution brought by the state, a confession shall be
admissible in evidence if it is voluntarily given. Before such confession is received in
evidence, the trial judge shall, out of the presence of the jury, determine any issue as
to voluntariness. If the trial judge determines that the confession was voluntarily made
it shall be admitted in evidence and the trial judge shall permit the jury to hear
relevant evidence on the issue of voluntariness and shall instruct the jury to give such
weight to the confession as the jury feels it deserves under all the circumstances.
B. The trial judge in determining the issue of voluntariness shall take into
consideration all the circumstances surrounding the giving of the confession, including
but not limited to the following:
1. The time elapsing between arrest and arraignment of the defendant making the
confession, if it was made after arrest and before arraignment.
2. Whether such defendant knew the nature of the offense with which he was charged
or of which he was suspected at the time of making the confession.
3. Whether or not such defendant was advised or knew that he was not required to
make any statement and that any such statement could be used against him.
4. Whether or not such defendant had been advised prior to questioning of his right
to the assistance of counsel.
5. Whether or not such defendant was without the assistance of counsel when
questioned and when giving such confession. The presence or absence of any of the
factors indicated in paragraphs 1 through 5 of this subsection which are taken into
consideration by the judge need not be conclusive on the issue of voluntariness of the
confession.
C. Nothing contained in this section shall bar the admission in evidence of any
confession made or given voluntarily by any person to any other person without
interrogation by anyone, or at any time at which the person who made or gave such
confession was not under arrest or other detention. As used in this section, the term
"confession" means any confession of guilt of any criminal offense or any
self-incriminating statement made or given orally or in writing.
13-3989.01 Admissibility; 911 emergency service records and recordings; definition
A. The records and recordings of 911 emergency service telephone calls are
admissible in evidence in any action without testimony from a custodian of records if the
records and recordings are accompanied by the following signed form:
The accompanying records and recordings and explanatory material are
from the (name of agency) public safety answering point communications
facility. This form authenticates (number) pages. This form authenticates
(number) tapes. These documents and tapes pertain to: case number
_____________, department report number _________________, call receipt date
and time ______________, caller name _______________________, call origination
location address _______________________, originating telephone number
_____________________, dispatch time _____________________, arrival
time_____________________.
Signed: ________________________ Custodian of records.
B. 911 emergency records and recordings and any copies of the records and
recordings that comply with subsection A of this section are deemed to be authenticated
pursuant to rule 901(b)(10) of the ARIZONA rules of evidence.
C. Nothing in this section affects the confidentiality of medical records as
provided in section 12-2292.
D. For the purposes of this section, "records and recordings" includes telephone
calls, data compilation from and copies of 911 emergency records and recordings and
accompanying explanatory materials.
13-3989.02 Admissibility; radio traffic records and recordings; definition
A. The records and recordings of public safety radio traffic calls are admissible
in evidence in any action without testimony from a custodian of records if the records
and recordings are accompanied by the following signed form:
The accompanying records and recordings and explanatory material are
from the (name of agency) public safety answering point communications
facility. This form authenticates (number) pages. These documents and tapes
pertain to: case number ___________, department report number ____________,
call receipt date and time ___________, caller name _____________, call
origination location address ____________, originating telephone number
_____________, dispatch time ___________, arrival time _______________.
Signed:__________________ custodian of records.
B. Radio records and recordings and any copies of the records and recordings that
comply with subsection A of this section are deemed to be authenticated pursuant to rule
901(b)(10) of the ARIZONA rules of evidence.
C. This section does not affect the confidentiality of medical records under
section 12-2292.
D. For the purposes of this section, "records and recordings" includes radio calls,
data compilation from and copies of radio traffic records and recordings and accompanying
explanatory materials.
13-3989 Admissibility in evidence of eye witness testimony
The testimony of a witness that he saw the accused commit or participate in the
commission of the crime for which the accused is being tried shall be admissible in
evidence in a criminal prosecution in any trial court of this state.
13-3990 Notice of conviction of teachers
On the conviction of a person of an offense in this title or of any felony, if the
person is certified to teach by the state board of education or is teaching in a
community college district or charter school, a copy of the judgment and sentence, and of
the opinion of the court or magistrate, if any opinion is filed, shall be sent by the
clerk of the court, or by the magistrate, to the state board of education, to the
community college district or to the charter school. 13-3991 Detention of defendant during insanity; restoration to sanity
If a defendant is committed to the state hospital for the reason that he is insane
or mentally defective to the extent that he is unable to understand the proceedings
against him or to assist in his defense, if charged with a crime, or for the reason that
he is found insane after conviction and prior to pronouncing sentence, he shall be
detained in the state hospital until he becomes sane. When the defendant becomes sane,
the superintendent of the state hospital shall give notice of that fact to the sheriff
and county attorney of the county. The sheriff shall thereupon, without delay, bring the
defendant from the state hospital and place him in proper custody, until he is brought to
trial or sentenced, or is legally discharged.
13-3992 Expenses of maintenance of insane defendant as county charge
When a defendant in a criminal action, any time prior to pronouncement of sentence,
is committed to the state hospital, the expenses of transporting him to and from the
hospital and of maintaining him while confined therein shall be a charge against the
county in which the indictment was found or information filed, but the county may recover
such expenses from the estate of the defendant or from a relative, town, city or county
required by law to provide for and maintain the defendant.
13-3993 Examination of defendant pleading not guilty by reason of insanity; privilege inapplicability; reports
A. In any criminal prosecution in which the defendant has declared the defendant's
intent to invoke an insanity defense, on a showing of unequal resources the state shall
have the right to nominate and have appointed for examination of the defendant to
determine the defendant's mental state the same number of medical doctors and licensed
psychologists that will testify on behalf of the defense.
B. If a defendant in a criminal prosecution refuses to be examined by the state's
mental health experts, the court shall preclude the defendant from offering expert
evidence of the defendant's mental state at the time of the alleged crime.
C. The privilege of confidential communications between a medical doctor or
licensed psychologist and the defendant as it relates to the defendant's mental state at
the time of the alleged crime does not apply if any mental disability defense is raised.
D. If any mental disability defense is raised, both the state and the defendant
shall receive prior to the trial complete copies of any report by a medical doctor or
licensed psychologist who examines the defendant to determine the defendant's mental
state at the time of the alleged crime or the defendant's competency.
13-3994 Commitment; hearing; jurisdiction; definition
(L02, ch 161, sec 3. Eff. 7/1/06)
A. A person who is found guilty except insane pursuant to section 13-502 shall be
committed to a secure state mental health facility under the department of health
services for a period of treatment.
B. If the criminal act of the person committed pursuant to subsection A of this
section did not cause the death or serious physical injury of or the threat of death or
serious physical injury to another person, the court shall set a hearing date within
seventy-five days after the person's commitment to determine if the person is entitled to
release from confinement or if the person meets the standards for civil commitment
pursuant to title 36, chapter 5. The court shall notify the medical director of the
mental health facility, the attorney general, the county attorney, the victim and the
attorney representing the person, if any, of the date of the hearing. Fourteen days
before the hearing the director of the mental health facility shall submit to the court a
report addressing the person's mental health and dangerousness.
C. At a hearing held pursuant to subsection B of this section:
1. If the person proves by clear and convincing evidence that the person no longer
suffers from a mental disease or defect and is not dangerous, the court shall order the
person's release and the person's commitment ordered pursuant to section 13-502,
subsection D shall terminate. Before determining to release a person pursuant to this
paragraph, the court shall consider the entire criminal history of the person and shall
not order the person's release if the court determines that the person has a propensity
to reoffend.
2. If the court finds that the person still suffers from a mental disease or
defect, may present a threat of danger to self or others, is gravely disabled, is
persistently or acutely disabled or has a propensity to reoffend, it shall order the
county attorney to institute civil commitment proceedings pursuant to title 36 and the
person's commitment ordered pursuant to section 13-502, subsection D shall terminate.
D. If the court finds that the criminal act of the person committed pursuant to
subsection A of this section caused the death or serious physical injury of or the threat
of death or serious physical injury to another person, the court shall place the person
under the jurisdiction of the psychiatric security review board. The court shall state
the beginning date, length and ending date of the board's jurisdiction over the
person. The length of the board's jurisdiction over the person is equal to the sentence
the person could have received pursuant to section 13-703, subsection A or section 13-707
or the presumptive sentence the defendant could have received pursuant to section 13-604,
section 13-604.01, section 13-701, subsection C, section 13-710 or section 13-1406. In
making this determination the court shall not consider the sentence enhancements for
prior convictions under section 13-604.
E. A person who is placed under the jurisdiction of the psychiatric security review
board pursuant to subsection D of this section is not eligible for discharge from the
board's jurisdiction until the board's jurisdiction over the person expires.
F. A person who is placed under the jurisdiction of the psychiatric security review
board pursuant to subsection D of this section is not entitled to a hearing before the
board earlier than one hundred twenty days after the person's initial commitment. A
request for a subsequent release hearing may be made pursuant to subsection G of this
section. After the hearing, the board may take one of the following actions:
1. If the psychiatric security review board finds that the person still suffers
from a mental disease or defect and is dangerous, the person shall remain committed at
the secure state mental health facility.
2. If the person proves by clear and convincing evidence that the person no longer
suffers from a mental disease or defect and is not dangerous, the psychiatric security
review board shall order the person's release. The person shall remain under the
jurisdiction of the board. Before determining to release a person pursuant to this
paragraph, the board shall consider the entire criminal history of the person and shall
not order the person's release if the board determines that the person has a propensity
to reoffend.
3. If the psychiatric security review board finds that the person still suffers
from a mental disease or defect or that the mental disease or defect is in stable
remission but the person is no longer dangerous, the board shall order the person's
conditional release. The person shall remain under the board's jurisdiction. The board
in conjunction with the state mental health facility and behavioral health community
providers shall specify the conditions of the person's release. The board shall continue
to monitor and supervise a person who is released conditionally. Before the conditional
release of a person, a supervised treatment plan shall be in place, including the
necessary funding to implement the plan.
G. A person who is placed under the jurisdiction of the psychiatric security review
board pursuant to subsection D of this section may not seek a new release hearing earlier
than twenty months after a prior release hearing, except that the medical director of the
state mental health facility may request a new release hearing for a person under the
jurisdiction of the psychiatric security review board at any time. The person shall not
be held in confinement for more than two years without a hearing before the board to
determine if the person should be released or conditionally released.
H. At any hearing for release or conditional release pursuant to this section:
1. Public safety and protection are primary.
2. The applicant has the burden of proof by clear and convincing evidence.
I. At least fifteen days before a hearing is scheduled to consider a person's
release, or before the expiration of the board's jurisdiction over the person, the state
mental health facility or supervising agency shall submit to the psychiatric security
review board a report on the person's mental health. The psychiatric security review
board shall determine whether to release the person or to order the county attorney to
institute civil commitment proceedings pursuant to title 36.
J. The procedures for civil commitment govern the continued commitment of the
person after the expiration of the jurisdiction of the psychiatric security review board.
K. Before a person is released or conditionally released, at least three of the
five psychiatric security review board members shall vote for the release or conditional
release.
L. If at any time while the person remains under the jurisdiction of the
psychiatric security review board it appears to the board, the chairman or vice-chairman
of the board or the medical director of the state mental health facility that the person
has failed to comply with the terms of the person's conditional release or that the
mental health of the person has deteriorated, the board, the chairman or vice-chairman of
the board for good cause or the medical director of the state mental health facility may
order that the person be returned to a secure state mental health facility for evaluation
or treatment. A written order of the board, the chairman or vice-chairman of the board
or the medical director is sufficient warrant for any law enforcement officer to take the
person into custody and to transport the person accordingly. Any sheriff or other peace
officer shall execute the order and shall immediately notify the board of the person's
return to the facility. Within twenty days after the person's return to a secure state
mental health facility the board shall conduct a hearing and shall give notice within
five days before the hearing of the time and place of the hearing to the person, the
victim, the attorney representing the person, the county attorney and the attorney
general.
M. The director of a facility that is providing treatment to a person on
conditional release or any other person who is responsible for the supervision of the
person may take the person or request that the person be taken into custody if there is
reasonable cause to believe that the person's mental health has deteriorated to the point
that the person's conditional release should be revoked and that the person is in need of
immediate care, custody or treatment or that deterioration is likely because of
noncompliance with a treatment program. A person who is taken into custody pursuant to
this subsection shall be transported immediately to a secure state mental health facility
and shall have the same rights as any person appearing before the psychiatric security
review board.
N. Before the initial hearing or any other hearing before the psychiatric security
review board on the release or conditional release of the person, the person, the
attorney who is representing the person and the attorney general or county attorney who
is representing the state may choose a psychiatrist licensed pursuant to title 32,
chapter 13 or 17 or a psychologist licensed pursuant to title 32, chapter 19.1 to examine
the person. All costs in connection with the examination shall be approved and paid by
the county of the sentencing court. The written examination results shall be filed with
the board and shall include an opinion as to:
1. The mental condition of the person.
2. Whether the person is dangerous.
O. Notwithstanding subsection N of this section, the board or the chairman of the
board for good cause may order an independent mental health evaluation by a psychiatrist
licensed pursuant to title 32, chapter 13 or 17 or a psychologist licensed pursuant to
title 32, chapter 19.1. The written examination results shall be filed with the board
pursuant to subsection N of this section.
P. For the purposes of this section, "state mental health facility" means a secure
state mental health facility under the department of health services.
13-3994 Commitment; hearing; jurisdiction; definition
(L02, ch 161, sec 1. Rpld. 7/1/06)
A. A person who is found guilty except insane pursuant to section 13-502 shall be
committed to a secure state mental health facility under the department of health
services for a period of treatment.
B. If the criminal act of the person committed pursuant to subsection A of this
section did not cause the death or serious physical injury of or the threat of death or
serious physical injury to another person, the court shall set a hearing date within
seventy-five days after the person's commitment to determine if the person is entitled to
release from confinement or if the person meets the standards for civil commitment
pursuant to title 36, chapter 5. The court shall notify the medical director of the
mental health facility, the attorney general, the county attorney, the victim and the
attorney representing the person, if any, of the date of the hearing. Fourteen days
before the hearing the director of the mental health facility shall submit to the court a
report addressing the person's mental health and dangerousness.
C. At a hearing held pursuant to subsection B of this section:
1. If the person proves by clear and convincing evidence that the person no longer
suffers from a mental disease or defect and is not dangerous, the court shall order the
person's release and the person's commitment ordered pursuant to section 13-502,
subsection D shall terminate. Before determining to release a person pursuant to this
paragraph, the court shall consider the entire criminal history of the person and shall
not order the person's release if the court determines that the person has a propensity
to reoffend.
2. If the court finds that the person still suffers from a mental disease or
defect, may present a threat of danger to self or others, is gravely disabled, is
persistently or acutely disabled or has a propensity to reoffend, it shall order the
county attorney to institute civil commitment proceedings pursuant to title 36 and the
person's commitment ordered pursuant to section 13-502, subsection D shall terminate.
D. If the court finds that the criminal act of the person committed pursuant to
subsection A of this section caused the death or serious physical injury of or the threat
of death or serious physical injury to another person, the court shall place the person
under the jurisdiction of the psychiatric security review board. The court shall state
the beginning date, length and ending date of the board's jurisdiction over the
person. The length of the board's jurisdiction over the person is equal to the sentence
the person could have received pursuant to section 13-703, subsection A or section 13-707
or the presumptive sentence the defendant could have received pursuant to section 13-604,
section 13-604.01, section 13-701, subsection C, section 13-710 or section 13-1406. In
making this determination the court shall not consider the sentence enhancements for
prior convictions under section 13-604.
E. A person who is placed under the jurisdiction of the psychiatric security review
board pursuant to subsection D of this section is not eligible for discharge from the
board's jurisdiction until the board's jurisdiction over the person expires.
F. A person who is placed under the jurisdiction of the psychiatric security review
board pursuant to subsection D of this section is not entitled to a hearing before the
board earlier than one hundred twenty days after the person's initial commitment. A
request for a subsequent release hearing may be made pursuant to subsection G of this
section. After the hearing, the board may take one of the following actions:
1. If the psychiatric security review board finds that the person still suffers
from a mental disease or defect and is dangerous, the person shall remain committed at
the secure state mental health facility.
2. If the person proves by clear and convincing evidence that the person no longer
suffers from a mental disease or defect and is not dangerous, the psychiatric security
review board shall order the person's release. The person shall remain under the
jurisdiction of the board. Before determining to release a person pursuant to this
paragraph, the board shall consider the entire criminal history of the person and shall
not order the person's release if the board determines that the person has a propensity
to reoffend.
3. If the psychiatric security review board finds that the person still suffers
from a mental disease or defect or that the mental disease or defect is in stable
remission but the person is no longer dangerous, the board shall order the person's
conditional release. The person shall remain under the board's jurisdiction. The board
in conjunction with the state mental health facility and behavioral health community
providers shall specify the conditions of the person's release. The board shall continue
to monitor and supervise a person who is released conditionally. Before the conditional
release of a person, a supervised treatment plan shall be in place, including the
necessary funding to implement the plan.
G. A person who is placed under the jurisdiction of the psychiatric security review
board pursuant to subsection D of this section may not seek a new release hearing earlier
than twenty months after a prior release hearing, except that the medical director of the
state mental health facility may request a new release hearing for a person under the
jurisdiction of the psychiatric security review board at any time. The person shall not
be held in confinement for more than two years without a hearing before the board to
determine if the person should be released or conditionally released.
H. At any hearing for release or conditional release pursuant to this section:
1. Public safety and protection are primary.
2. The applicant has the burden of proof by clear and convincing evidence.
I. At least fifteen days before a hearing is scheduled to consider a person's
release, or before the expiration of the board's jurisdiction over the person, the state
mental health facility or supervising agency shall submit to the psychiatric security
review board a report on the person's mental health. The psychiatric security review
board shall determine whether to release the person or to order the county attorney to
institute civil commitment proceedings pursuant to title 36.
J. The procedures for civil commitment govern the continued commitment of the
person after the expiration of the jurisdiction of the psychiatric security review board.
K. Before a person is released or conditionally released, at least three of the
five psychiatric security review board members shall vote for the release or conditional
release.
L. If at any time while the person remains under the jurisdiction of the
psychiatric security review board it appears to the board, the chairman or vice-chairman
of the board or the medical director of the state mental health facility that the person
has failed to comply with the terms of the person's conditional release or that the
mental health of the person has deteriorated, the board or the chairman or vice-chairman
of the board for good cause or the medical director of the state mental health facility
may order that the person be returned to a secure state mental health facility for
evaluation or treatment. A written order of the board, the chairman or vice-chairman of
the board or the medical director is sufficient warrant for any law enforcement officer
to take the person into custody and to transport the person accordingly. Any sheriff or
other peace officer shall execute the order and shall immediately notify the board of the
person's return to the facility. Within twenty days after the person's return to a
secure state mental health facility the board shall conduct a hearing and shall give
notice within five days before the hearing of the time and place of the hearing to the
person, the victim, the attorney representing the person, the county attorney and the
attorney general.
M. The director of a facility that is providing treatment to a person on
conditional release or any other person who is responsible for the supervision of the
person may take the person or request that the person be taken into custody if there is
reasonable cause to believe that the person's mental health has deteriorated to the point
that the person's conditional release should be revoked and that the person is in need of
immediate care, custody or treatment or that deterioration is likely because of
noncompliance with a treatment program. A person who is taken into custody pursuant to
this subsection shall be transported immediately to a secure state mental health facility
and shall have the same rights as any person appearing before the psychiatric security
review board.
N. Before the initial hearing or any other hearing before the psychiatric security
review board on the release or conditional release of the person, the person, the
attorney who is representing the person and the attorney general or county attorney who
is representing the state may choose a psychiatrist licensed pursuant to title 32,
chapter 13 or 17 or a psychologist licensed pursuant to title 32, chapter 19.1 to examine
the person. All costs in connection with the examination shall be approved and paid by
the county of the sentencing court. The written examination results shall be filed with
the board and shall include an opinion as to:
1. The mental condition of the person.
2. Whether the person is dangerous.
O. Notwithstanding subsection N of this section, the board or the chairman of the
board for good cause may order an independent mental health evaluation by a psychiatrist
licensed pursuant to title 32, chapter 13 or 17 or a psychologist licensed pursuant to
title 32, chapter 19.1. The written examination results shall be filed with the board
pursuant to subsection N of this section.
P. If a person is found guilty except insane pursuant to section 13-502, the
department of health services shall assume custody of the person within ten days after
receiving the order committing the person pursuant to subsection A of this section. The
ARIZONA state hospital shall collect census data for guilty except insane treatment
programs to establish maximum capacity and the allocation formula required pursuant to
section 36-206, subsection D. If the ARIZONA state hospital reaches its funded capacity
for forensic programs, the department of health services may defer the admission of the
person found guilty except insane for up to an additional twenty days. The department of
health services shall reimburse the county for the actual costs of each day the admission
is deferred. If the department of health services is not able to admit the person found
guilty except insane at the conclusion of the twenty day deferral period, the department
of health services shall notify the sentencing court, the prosecutor and the defense
counsel of this fact. On receipt of this notification, the prosecutor or the person's
defense counsel may request a hearing to determine the likely length of time admission
will continue to be deferred and whether any other action should be taken. On receipt of
the request for hearing, the court shall set a hearing within ten days.
Q. For the purposes of this section, "state mental health facility" means a secure
state mental health facility under the department of health services.
13-4011 Costs of criminal action on removal before trial
When a criminal action is removed to another county before trial, the costs of
removal and trial shall be a charge against the county in which the indictment or
information is filed. The judge of the court in the county to which the action is
removed shall certify the amount of the cost incurred, giving the items thereof, to the
clerk of the board of supervisors of the county from which removed, and the board shall
audit and allow the amount certified and transmit a warrant therefor to the treasurer of
the county to which the action was removed.
13-4012 Costs of transmittal of records of prosecution to another county upon discovery that trial court is without jurisdiction
The expenses of transmitting to the county attorney of another county a certified
copy of the indictment or information and all papers filed in an action, pursuant to
suspension of proceedings in a criminal action, upon discovery during the trial that the
court in which the trial was being conducted was without jurisdiction of the offense
charged, shall be a charge upon the county to which such papers are transmitted.
13-4013 Counsel assigned in criminal proceeding or insanity hearings; investigators and expert witnesses; compensation
A. If counsel is appointed by the court and represents the defendant in either a
criminal proceeding or insanity hearing, counsel shall be paid by the county in which the
court presides, except that in those matters in which a public defender is appointed, no
compensation shall be paid by the county. Compensation for services rendered to the
defendant shall be in an amount that the court in its discretion deems reasonable,
considering the services performed.
B. If a person is charged with a felony offense the court may on its own initiative
and shall on application of the defendant and a showing that the defendant is financially
unable to pay for such services appoint investigators and expert witnesses as are
reasonably necessary to adequately present a defense at trial and at any subsequent
proceeding.
C. Compensation for investigators and expert witnesses who are appointed pursuant
to subsection B of this section shall be at such rates as the county contracts for such
services. If a necessary expert witness represents a discipline or has a skill that is
not then the subject of a county contract, the county may either promptly procure those
services pursuant to section 11-254.01 or ask the court to establish a reasonable fee for
that witness. If no investigator or expert witness who is under contract with the county
to provide services is available and the defendant is unable to obtain such services at
the county rate, the court shall establish a reasonable fee for the expert witness or
investigator providing the service. 13-4014 Fees for expert witnesses in sanity hearing; fees of physician examining defendant alleging pregnancy as cause for not pronouncing sentence
A. When expert witnesses are appointed by the court in the conduct of a sanity
hearing before or during the trial of a criminal action, or prior to pronouncing sentence
upon a person convicted of crime, they shall be allowed such fees as the court in its
discretion deems reasonable, having regard to the services performed by the
witnesses. The fees so allowed shall be paid by the county where the indictment was
found or the information filed.
B. Physicians appointed by the court to examine a defendant who alleges pregnancy
as a cause for not pronouncing sentence shall be allowed fees the court deems
reasonable. Such fees shall be paid by the county in which the indictment was found or
the information filed.
13-4021 Competency to be executed; definition
A. A person who is sentenced to death shall not be executed as long as he is
mentally incompetent to be executed.
B. As used in this article, "mentally incompetent to be executed" means that due to
a mental disease or defect a person who is sentenced to death is presently unaware that
he is to be punished for the crime of murder or that he is unaware that the impending
punishment for that crime is death.
13-4022 Determining competency
A. If after a sentence of death is imposed the director of the state department of
corrections, the prisoner's attorney or an attorney for the state has good reason to
believe that the prisoner may be mentally incompetent to be executed, the director, the
prisoner's attorney or an attorney for the state may file a motion in the superior court
in the county in which the prisoner is located setting forth the facts relating to the
prisoner's conviction and sentence and the facts giving rise to the belief that the
prisoner may be mentally incompetent to be executed and requesting the court to order
that the prisoner be examined for mental competency to be executed.
B. A stay of execution may not be granted by the superior court on the filing of a
motion for examination of competency. If a stay is desired before the superior court
rules on the motion, an application for a stay shall be submitted to the ARIZONA supreme
court.
C. On receipt of a motion for examination of competency, the superior court shall
determine if the motion is timely, as prescribed by section 13-4024, and presents
reasonable grounds for the requested examination. If the motion is timely and presents
reasonable grounds for the requested examination, the court shall appoint experts
pursuant to the ARIZONA rules of criminal procedure. The appointed experts shall make
copies of their reports available to all of the parties. The experts' reports shall
indicate whether the prisoner suffers from a mental disorder, illness, defect or
disability such that the prisoner is incompetent to be executed and would benefit from
competency restoration treatment. The parties shall also disclose to the appointed
experts and to each other the names and addresses of any other previously undisclosed
mental health experts who have examined the prisoner and the results of the examinations.
D. The court may order the prisoner to submit to physical, neurological,
psychological or other examinations or evaluations that are reasonably necessary to
adequately determine the prisoner's mental competency to be executed. A prisoner who is
subject to an examination or evaluation for mental competency to be executed waives all
privileges concerning information relevant to the competency determination. The prisoner
shall submit to and cooperate in all examinations or evaluations ordered by the court,
regardless of which party appointed the mental health experts. If the prisoner refuses
to be examined by the state's mental health experts, the court shall not consider any
expert evidence offered by the prisoner concerning the prisoner's competency. Evidence
obtained under this article is not admissible at any proceeding to determine guilt or
innocence unless the defendant presents evidence intended to rebut the presumption of
sanity or otherwise consents to admission of the evidence.
E. After the examinations are completed, the court may conduct a hearing to
determine the prisoner's competency to be executed. At the hearing, all the parties may
present evidence, cross-examine witnesses and present argument or by stipulation may
submit the matter for the court's determination on the basis of the experts' reports or
other evidence.
F. Prisoners who are sentenced to death are presumed competent to be executed. A
prisoner may be found incompetent to be executed only on clear and convincing evidence of
incompetency.
G. The superior court shall specifically state its findings on the record. If the
court finds that the prisoner is competent, the director of the state department of
corrections shall execute the judgment as specified in the warrant. If the court finds
that the prisoner is incompetent, the court shall suspend the execution and shall
immediately transmit a copy of its order to the supreme court. If the prisoner is
incompetent to be executed, the court shall determine whether the prisoner suffers from a
mental disorder, illness, defect or disability and shall order competency restoration
treatment. The prisoner shall remain in the custody of the state department of
corrections until the time for review has expired or a supreme court review is
completed. If no review is sought or the supreme court upholds the finding of
incompetency to be executed, the director of the state department of corrections shall
transfer the prisoner to a licensed behavioral health or mental health inpatient
treatment facility operated by the state department of corrections for competency
restoration treatment. The prisoner shall remain confined in the licensed behavioral
health or mental health inpatient treatment facility operated by the state department of
corrections until the prisoner becomes competent to be executed.
H. Pursuant to subsection G of this section, the department of health services
shall provide competency restoration treatment, including prescribing medication, to a
prisoner found incompetent to be executed. The person who supervises the treatment of a
prisoner found incompetent to be executed shall submit a written report to the court, the
attorney general and the prisoner's attorney when the person believes the prisoner is
competent to be executed. The written report shall include at least the following
information:
1. The name of each mental health expert who examines the prisoner.
2. The description of the nature, content, extent and results of the examination
and any tests conducted.
3. The facts on which the findings are based.
4. An opinion as to the prisoner's competency to be executed.
I. Within five days after the superior court grants or denies a motion for
examination or rules whether the prisoner is competent, a party may file with the ARIZONA
supreme court a petition for special action to obtain review of the superior court's
decision.
J. The clerk of the court shall prepare a statement of the costs incurred by the
county. The judge shall certify the statement and shall forward it to the governor for
approval. After approval, the governor shall order that the costs be paid to the county
treasurer in the county in which the hearing was held from monies appropriated to the
state department of corrections.
13-4023 Recovery of competency
A. Within sixty days after a prisoner is committed for restoration to competency
treatment, the chief medical officer of the state hospital shall file with the superior
court a report setting forth the treatment being provided, the status of the prisoner and
the prognosis as to when the prisoner will be competent. The chief medical officer shall
provide copies of the report to all of the parties and to the ARIZONA supreme court. The
chief medical officer shall update the report every sixty days until the prisoner is
determined to be competent to be executed.
B. After a prisoner recovers competency to be executed, the chief medical officer
of the state hospital shall certify to the ARIZONA supreme court that the prisoner is
competent. The ARIZONA supreme court shall order that the execution be conducted
according to the original warrant, if unexpired, or shall issue a new warrant appointing
a time for execution of the judgment.
C. After a prisoner recovers competency and within ten days after a warrant is
issued, the superior court shall appoint psychological experts pursuant to rule 11.3,
ARIZONA rules of criminal procedure to assess the prisoner's competency to be executed.
After considering the written opinions of the appointed experts, if the superior court
believes that there is a significant question about the prisoner's competency to be
executed, the superior court shall conduct a competency hearing to address that issue.
If the prisoner and the state agree, the superior court may determine the issue of
competency without a hearing and based on the submitted reports.
D. On the request of a party, the superior court may appoint psychological experts
after a prisoner's competency has been certified and before a warrant has been issued.
E. The prisoner may waive the appointment of experts pursuant to this section.
F. Within five days after the superior court determines a prisoner's competency to
be executed, a party may file with the supreme court a petition for special action to
obtain review of the superior court's decision.
G. The costs incurred by the county in appointing experts under this section shall
be paid pursuant to section 13-4022.
13-4024 Untimely or successive motions
A. A motion for an examination under section 13-4022 that is filed fewer than
twenty days before a scheduled execution is untimely and shall not be considered by the
court unless it is accompanied by both of the following:
1. At least one affidavit from a licensed physician or licensed psychologist who
has examined the prisoner that states the physician's or psychologist's opinion that the
prisoner is not competent to be executed.
2. A statement that establishes good cause for the failure to file the motion in a
timely manner.
B. A motion that is filed fewer than twenty days before a scheduled execution shall
be served on the state department of corrections and the attorney representing the state
in the criminal proceeding. The filing of an untimely motion constitutes consent by the
prisoner to be evaluated by a mental health expert who is designated by the state
department of corrections. The mental health expert shall report the expert's findings
to the superior court and the parties as expediently as practicable. If the prisoner
fails to cooperate with an evaluation, the court shall dismiss the motion.
C. If the superior court denies a motion for an examination under section 13-4022
or determines that the prisoner is competent for execution, no further hearings on
competency may be granted unless the successive motion is accompanied by an affidavit
from a physician who is licensed pursuant to title 32, chapter 13 or 17 or a psychologist
who is licensed pursuant to title 32, chapter 19.1 and who has examined the prisoner and
the affidavit shows a substantial change of circumstances since the previous motion for
hearing was denied or the prior determination of competency was made and the showing is
sufficient to raise a significant question about the prisoner's competency to be
executed.
13-4025 Procedure upon discovery that prisoner under death sentence may be pregnant; examination
If, after delivery to the superintendent of the state prison of a female prisoner
under a sentence of death, there is reason at any time prior to execution of such
sentence to believe that she is pregnant, the superintendent shall give notice of such
fact to the county attorney of the county in which the prison is located, who shall
immediately file in the superior court of such county a petition, setting forth the
conviction and sentence and the fact that the prisoner is believed to be pregnant, and
requesting that the question of pregnancy be determined. The court shall immediately
summon three disinterested physicians to inquire into the alleged pregnancy and to report
thereon. If the court, after hearing the report of the physicians, decides that the
defendant is pregnant, it shall make a written finding thereof and enter it upon the
minutes.
13-4026 Proceedings subsequent to examination for pregnancy
A. If it is determined that the female prisoner is not pregnant, the superintendent
shall execute the sentence.
B. If it is determined that she is pregnant, the superintendent shall suspend the
execution of the sentence and transmit a certified copy of the finding to the governor.
C. When the governor receives from the superintendent a certificate that the
defendant is no longer pregnant, he shall issue to the superintendent his warrant,
appointing a day for the execution of the sentence.
13-4031 Right of appeal
The state, or any party to a prosecution by indictment, information or complaint,
may appeal as prescribed by law and in the manner provided by the rules of criminal
procedure, except criminal actions involving crimes for which a sentence of death has
actually been imposed may only be appealed to the supreme court.
13-4032 Appeal by state
An appeal may be taken by the state from:
1. An order dismissing an indictment, information or complaint or count of an
indictment, information or complaint.
2. An order granting a new trial.
3. A ruling on a question of law adverse to the state when the defendant was
convicted and appeals from the judgment.
4. An order made after judgment affecting the substantial rights of the state or a
victim, except that the state shall only take an appeal on an order affecting the
substantial rights of a victim at the victim's request.
5. A sentence on the grounds that it is illegal, or if the sentence imposed is
other than the presumptive sentence authorized by section 13-604 or 13-701.
6. An order granting a motion to suppress the use of evidence.
7. A judgment of acquittal of one or more offenses charged in an indictment,
information or complaint or count of an indictment, information or complaint that is
entered after a verdict of guilty on the offense or offenses.
13-4033 Appeal by defendant
A. An appeal may be taken by the defendant only from:
1. A final judgment of conviction or verdict of guilty except insane.
2. An order denying a motion for a new trial or from an order made after judgment
affecting the substantial rights of the party.
3. A sentence on the grounds that it is illegal or excessive.
B. In noncapital cases a defendant may not appeal from a judgment or sentence that
is entered pursuant to a plea agreement or an admission to a probation violation.
13-4034 Expense of record or transcript upon appeal by indigent as county charge
The expense of a certified copy of the record on appeal or of the reporter's
transcript, or both, when appellant files an affidavit that he is without means or wholly
unable to pay for such copies, and such affidavit is found true, shall be a charge upon
the county in which the appellant was convicted.
13-4036 Power of supreme court on appeal from judgment of conviction
The supreme court may reverse, affirm or modify the judgment appealed from, and may
grant a new trial or render any judgment or make any order which is consistent with the
justice and the rights of the state and the defendant. On an appeal from an order made
after judgment, it may set aside, affirm or modify the order or any proceeding subsequent
to or dependent upon such order.
13-4037 Power of supreme court to correct and reduce sentence upon appeal by defendant
A. Upon an appeal by the defendant either from a judgment of conviction or from
sentence, if an illegal sentence has been imposed upon a lawful verdict or finding of
guilty by the trial court, the supreme court shall correct the sentence to correspond to
the verdict or finding. The sentence as corrected shall be enforced by the court from
which the appeal was taken.
B. Upon an appeal from the judgment or from the sentence on the ground that it is
excessive, the court shall have the power to reduce the extent or duration of the
punishment imposed, if, in its opinion, the conviction is proper, but the punishment
imposed is greater than under the circumstances of the case ought to be inflicted. In
such a case, the supreme court shall impose any legal sentence, not more severe than that
originally imposed, which in its opinion is proper. Such sentence shall be enforced by
the court from which the appeal was taken.
13-4038 Power of supreme court on appeal by state
Upon an appeal by the state from any order the supreme court may affirm or reverse
such order. Upon an appeal from a sentence on the ground that it is illegal the court
shall either approve such sentence or if it decides that the sentence is illegal shall
correct the sentence to correspond to the verdict. The sentence as approved or corrected
shall be enforced by the court from which the appeal was taken.
13-4039 Failure of appellant to prosecute appeal; effect
If the appellant fails to prosecute the appeal, the appellate court shall dismiss
the appeal.
13-4040 Divestiture of jurisdiction of supreme court after remission of minute entry and decision; exception
After a certified copy of the minute entry and a copy of the decision of the supreme
court in a criminal appeal has been remitted to the trial court from which the appeal was
taken, the supreme court shall have no further jurisdiction of the appeal, or of the
proceedings thereon. All orders which may be necessary to carry the decision of the
supreme court into effect shall be made by the court to which the copy of the minute
entry and decision is remitted, except when a judgment or sentence of death has been
affirmed on appeal after the time appointed for the execution of the sentence and the
supreme court has fixed a new time for execution and issued a warrant to the director of
the department of corrections to execute the sentence at the time designated in the
warrant.
13-4041 Fee of counsel assigned in criminal proceeding or insanity hearing on appeal or in post-conviction relief proceedings; reimbursement; definitions
A. Except pursuant to subsection G of this section, if counsel is appointed by the
court to represent the defendant in either a criminal proceeding or insanity hearing on
appeal, the county in which the court from which the appeal is taken presides shall pay
counsel, except that in those appeals where the defendant is represented by a public
defender or other publicly funded office, compensation shall not be set or
paid. Compensation for services rendered on appeal shall be in an amount as the supreme
court in its discretion deems reasonable, considering the services performed.
B. After the supreme court has affirmed a defendant's conviction and sentence in a
capital case, the supreme court, or if authorized by the supreme court, the presiding
judge of the county from which the case originated shall appoint counsel to represent the
capital defendant in the state post-conviction relief proceeding. Counsel shall meet the
following qualifications:
1. Membership in good standing of the state bar of ARIZONA for at least five years
immediately preceding the appointment.
2. Practice in the area of state criminal appeals or post-conviction proceedings
for at least three years immediately preceding the appointment.
3. No previous representation of the capital defendant in the case either in the
trial court or in the direct appeal, unless the defendant and counsel expressly request
continued representation and waive all potential issues that are foreclosed by continued
representation.
C. The supreme court shall establish and maintain a list of qualified
candidates. In addition to the qualifications prescribed in subsection B of this
section, the supreme court may establish by rule more stringent standards of competency
for the appointment of post-conviction counsel in capital cases. The supreme court may
refuse to certify an attorney on the list who meets the qualifications established under
subsection B of this section or may remove an attorney from the list who meets the
qualifications established under subsection B of this section if the supreme court
determines that the attorney is incapable or unable to adequately represent a capital
defendant. The court shall appoint counsel pursuant to subsection B of this section from
the list.
D. Notwithstanding subsection C of this section, the court may appoint counsel
pursuant to subsection B of this section from outside the list of qualified candidates if
either:
1. No counsel meets the qualifications under subsections B and C of this section.
2. No qualified counsel is available to serve.
E. Before filing a petition, the capital defendant may personally appear before the
trial court and waive counsel. If the trial court finds that the waiver is knowing and
voluntary, appointed counsel may withdraw. The time limits in which to file a petition
shall not be extended due solely to the change from appointed counsel to
self-representation.
F. If at any time the trial court determines that the capital defendant is not
indigent, appointed counsel shall no longer be compensated by public monies and may
withdraw.
G. Unless counsel is employed by a publicly funded office, counsel appointed to
represent a capital defendant in state post-conviction relief proceedings shall be paid
an hourly rate of not to exceed one hundred dollars per hour for up to two hundred hours
of work, whether or not a petition is filed. Monies shall not be paid to court appointed
counsel unless either:
1. A petition is timely filed.
2. If a petition is not filed, a notice is timely filed stating that counsel has
reviewed the record and found no meritorious claim.
H. On a showing of good cause, the trial court shall compensate appointed counsel
from county funds in addition to the amount of compensation prescribed by subsection G of
this section by paying an hourly rate in an amount that does not exceed one hundred
dollars per hour. The attorney may establish good cause for additional fees by
demonstrating that the attorney spent over two hundred hours representing the defendant
in the proceedings. The court shall review and approve additional reasonable fees and
costs. If the attorney believes that the court has set an unreasonably low hourly rate
or if the court finds that the hours the attorney spent over the two hundred hour
threshold are unreasonable, the attorney may file a special action with the ARIZONA
supreme court. If counsel is appointed in successive post-conviction relief proceedings,
compensation shall be paid pursuant to section 13-4013, subsection A.
I. The county shall request reimbursement for fees it incurs pursuant to
subsections G, H and J of this section arising out of the appointment of counsel to
represent an indigent capital defendant in a state post-conviction relief
proceeding. The state shall pay fifty per cent of the fees incurred by the county out
of monies appropriated to the supreme court for these purposes. The supreme court shall
approve county requests for reimbursement after certification that the amount requested
is owed.
J. The trial court may authorize additional monies to pay for investigative and
expert services that are reasonably necessary to adequately litigate those claims that
are not precluded by section 13-4232.
13-4042 Appellate proceedings; request for extension; victim notification
(Rpld. 10/1/07)
A. In any appellate proceeding in a capital case in which an extension of the time
to file a brief is requested, the victim, after filing a notice of appearance, has a
right to respond to the request for extension within ten days after the filing of the
request.
B. On the filing of a notice of appearance, the victim shall serve a copy on the
state and the defendant.
C. The victim may exercise the right to respond through the state.
D. The party that requests the extension shall provide notice of the request to the
victim in a manner prescribed by the court.
E. This section does not provide any party or the victim with a right to oral
argument. 13-4051 Entry on records; stipulation; court order
A. Any person who is wrongfully arrested, indicted or otherwise charged for any
crime may petition the superior court for entry upon all court records, police records
and any other records of any other agency relating to such arrest or indictment a
notation that the person has been cleared.
B. After a hearing on the petition, if the judge believes that justice will be
served by such entry, the judge shall issue the order requiring the entry that the person
has been cleared on such records, with accompanying justification therefor, and shall
cause a copy of such order to be delivered to all law enforcement agencies and
courts. The order shall further require that all law enforcement agencies and courts
shall not release copies of such records to any person except upon order of the court.
C. Any person who has notice of such order and fails to comply with the court order
issued pursuant to this section shall be liable to the person for damages from such
failure.
13-4061 Competency of witness
In any criminal trial every person is competent to be a witness.
13-4062 Anti-marital fact privilege; other privileged communications
A person shall not be examined as a witness in the following cases:
1. A husband for or against his wife without her consent, nor a wife for or against
her husband without his consent, as to events occurring during the marriage, nor can
either, during the marriage or afterwards, without consent of the other, be examined as
to any communication made by one to the other during the marriage. These exceptions do
not apply in a criminal action or proceeding for a crime committed by the husband against
the wife, or by the wife against the husband, nor in a criminal action or proceeding
against the husband for abandonment, failure to support or provide for or failure or
neglect to furnish the necessities of life to the wife or the minor children. Either
spouse, at his or her request, but not otherwise, may be examined as a witness for or
against the other in a prosecution for an offense listed in section 13-604, subsection W,
paragraph 4, for bigamy or adultery, committed by either spouse, or for sexual assault
committed by the husband.
2. An attorney, without consent of the attorney's client, as to any communication
made by the client to the attorney, or the attorney's advice given in the course of
professional employment.
3. A clergyman or priest, without consent of the person making the confession, as
to any confession made to the clergyman or priest in his professional character in the
course of discipline enjoined by the church to which the clergyman or priest belongs.
4. A physician or surgeon, without consent of the physician's or surgeon's patient,
as to any information acquired in attending the patient which was necessary to enable the
physician or surgeon to prescribe or act for the patient. 13-4063 Competency of female concerned in certain offenses; effect of marriage to accused
In a prosecution for rape, abduction, seduction, pandering, receiving earnings of a
prostitute, transporting a female for immoral purposes, forcing a woman to marry,
defiling a woman, inveigling or enticing a female into a house of ill-fame or to have
illicit carnal relation with a man, the female concerned in the offense is a competent
witness to testify to any and all matters, including conversations with the accused, or
by him with third persons in her presence, notwithstanding her having married the accused
either before or after the commission of the offense charged.
13-4064 Order compelling person to testify or produce evidence; immunity from use of such evidence; contempt
In any criminal proceeding before a court or grand jury, if a person refuses to
answer a question or produce evidence of any other kind on the ground that he may be
incriminated thereby and if the prosecuting attorney, in writing, requests the court to
order that person to answer the question or produce the evidence, the court may so order
and that person shall comply with the order. When the court denies such a request, the
court shall state its reasons for denial in writing. After complying, such testimony or
evidence, or any information directly or indirectly derived from such testimony or
evidence, shall not be used against the person in any proceeding or prosecution for a
crime or offense concerning which he gave answer or produced evidence under court
order. However, he may nevertheless be prosecuted or subjected to penalty or forfeiture
for any perjury, false swearing or contempt committed in answering, or failing to answer,
or in producing, or failing to produce, evidence in accordance with the order. If a
person refuses to testify after being granted immunity and after being ordered to testify
as aforesaid, he may be adjudged in contempt and committed to the county jail. If the
grand jury before which he was ordered to testify has been dissolved, he may then purge
himself by testifying before the court.
13-4065 Prohibition on psychological or psychiatric examination to determine credibility
Except on agreement of the parties or as provided in section 13-3993, the court
shall not order an adult or child victim or witness in a prosecution for any offense in
violation of chapter 14 of this title, a dangerous crime against children in the first or
second degree or child abuse to submit to a psychological or psychiatric examination for
the purpose of assessing the witness' or victim's credibility.
13-4066 Privileged communication; sex offender treatment
Any statement that is made by a person who undergoes sex offender treatment that is
ordered by the court or that is provided by the state department of corrections or the
department of juvenile corrections to a person who is convicted of an offense listed in
chapter 14 or 35.1 of this title and any evidence that results from that treatment is not
admissible against the person in any criminal or juvenile delinquency proceeding unless
the person consents, except that the statement or evidence may be used pursuant to rule
404 (b) and (c), ARIZONA rules of evidence.
13-4071 Subpoena; issuance; duty of clerk
A. The process by which attendance of a witness before a court or magistrate is
required is a subpoena.
B. The subpoena may be signed and issued:
1. By a magistrate before whom a complaint is laid for witnesses, either on behalf
of the state or the defendant.
2. By the county attorney, attorney general, municipal prosecutor or city
prosecutor for witnesses to appear before the grand jury, or for witnesses on a
complaint, indictment or information to appear before the court in which the complaint,
indictment or information is to be heard or tried or by the county attorney, attorney
general, municipal prosecutor or city prosecutor for witnesses requested by a grand jury.
3. By the clerk of the court in which an indictment or information is to be tried,
or by the clerk as authorized in subsection C.
C. The clerk of the court or the clerk's designee shall upon request of the county
attorney or attorney general issue a subpoena for witnesses to appear before the grand
jury, without prior authorization by a grand jury, provided all of the following occur:
1. A duly impaneled grand jury is sworn and is in existence at the time of the
issuance of such subpoena.
2. The county attorney or attorney general designates the subpoena with the
standard identifying grand jury number.
3. The county attorney or attorney general reports to the foreman of the grand
jury, or in the foreman's absence the acting foreman, the fact of the issuance of the
subpoena within ten days following its issuance or, if the grand jury is in recess, at
the first succeeding session of the grand jury after the expiration of the ten day
period.
4. The county attorney or attorney general reports to the presiding judge of the
superior court the fact of the issuance of the subpoena within ten days following its
issuance.
D. The clerk shall, at any time, upon application of the defendant, and without
charge, issue as many blank subpoenas, subscribed by the clerk as clerk, for witnesses as
the defendant requires.
13-4072 Service of subpoena
A. A subpoena may be served by any person.
B. A subpoena may be served by any of the following methods:
1. Personal service.
2. Certified mail.
3. First class mail, if a certificate of service and return card is returned by the
addressee.
C. Personal service of a subpoena is made by showing the original to the witness
personally, informing him of its contents and delivering a copy of the subpoena to such
witness. Written return of service of a subpoena must be made without delay, stating the
time and place of service.
D. Subpoenas may be served by certified mail for delivery to addressee only. The
subpoena shall be registered and mailed, postage and registry fee prepaid, to the
addressee with a request endorsed on the envelope in the usual form for the return of the
letter to the sender if not delivered within five days. The receipt of such certified
letter by the addressee is deemed valid service upon him and the returned receipt signed
by the addressee named in the subpoena is prima facie evidence of notification.
E. Subpoenas may be served by first class mail if the addressee is supplied with a
certificate of service and return card. The return of such card signifies and states
that the addressee has received official notice to appear in court, that he waives all
further service of subpoena and that he submits to the jurisdiction of the court for the
purposes set forth in the subpoena. The return of the signed card is prima facie
evidence of notification.
F. A peace officer shall serve in his county any subpoena delivered to him for
service, either on behalf of this state or the defendant.
G. The methods described in this section also apply to out-of-county subpoenas as
set forth in section 13-4076.
13-4073 Refusal to attend, be sworn or testify as contempt; civil liability
A. Disobedience to a subpoena or refusal to be sworn or to testify as a witness may
be punished by the court or magistrate as a contempt.
B. A witness disobeying a subpoena issued on behalf of defendant, unless he shows
good cause for his non-attendance, is liable to defendant in the sum of one hundred
dollars, which may be recovered in a civil action, if defendant is damaged by the
non-attendance of such witness.
13-4074 Attendance of witness; liability for non-attendance
A. When a witness has been subpoenaed in a criminal action, the witness shall
attend and be present in the court before which he has been summoned at the time named in
the subpoena and from time to time without further subpoena, until finally discharged by
the court.
B. Should the witness subpoenaed neglect to attend and be present in court, the
cost of procuring the attendance of such witness when required by the court, shall be
taxed against the witness unless excused by the court for good cause shown, and if the
witness has entered into an undertaking to appear, the undertaking is forfeited in the
same manner as undertakings of bail.
13-4075 Removal of prisoner to attend as witness; procedure; duty of sheriff
A. When the testimony of a material witness for the state or for defendant is
required in a criminal action before a court of record, and the witness is a prisoner in
the state prison, or a jail, an order for his temporary removal from such prison or jail,
and for his production before the court, may be made by the court in which the action is
pending, or by the judge thereof. If the prison or jail is without the county in which
the application is made, the order shall be made only upon the affidavit of the attorney
for the state or for defendant, showing that the testimony is material and
necessary. The granting of the order is in the discretion of the court or judge.
B. The order provided in subsection A of this section shall be executed by the
sheriff of the county in which it is made, who shall bring the prisoner before the court,
safely keep him and, when he is no longer required as a witness, return him to the prison
or jail from which he was taken.
13-4077 Allowance of expenses of out of county or indigent witness
A. When a witness has been subpoenaed to appear before a magistrate, grand jury or
court, the witness may receive a reasonable amount for travel expenses if either:
1. The witness resides outside of the county in which the legal proceeding is held.
2. The witness is unable to pay for these travel expenses.
B. The board of supervisors shall pay the witness only on the order of the
presiding judge of the superior court.
13-4081 Undertaking by witnesses
If there is a pending criminal prosecution or a grand jury investigation that has
commenced or is about to commence, a magistrate may require each material witness for the
state, and each material witness for the defendant if so requested by him, to enter into
a written undertaking to appear and testify in the criminal prosecution or grand jury
investigation or to forfeit such amount as the magistrate fixes.
13-4082 When further security may be required
When the magistrate from the proceedings had before him or from testimony on oath
has reasonable ground to believe that any witness who has entered into such undertaking
as provided in section 13-4081 will not appear and testify unless further security is
required, he may order the witness to give further security for his appearance, either by
entering into a written undertaking with such sureties and in such amount as the
magistrate deems proper, or by depositing money or bonds as provided upon the admission
of a defendant to bail.
13-4083 Procedure when witness does not give security
A. If a witness required to enter into an undertaking to appear to testify either
with or without security refuses compliance with the order for that purpose, the
magistrate shall commit him to custody until he complies or is legally discharged.
B. When it satisfactorily appears by examination on oath of the witness or any
other person that the witness is unable to give further security as provided in section
13-4082, the magistrate shall make an order finding such fact and the witness shall be
detained pending application for his conditional examination. Within three days from the
entry of such order, the witness so detained may be conditionally examined in behalf of
the state or the defendant on application made for that purpose. Such examination shall
be by question and answer in the presence of the other party, or when a witness for the
state is being examined, after notice to the defendant if on bail. The examination shall
be conducted in the same manner as the examination of witnesses before a committing
magistrate is required to be conducted. At the completion of the examination the witness
shall be discharged, and his testimony may be admitted in evidence at the trial under the
same conditions and for the same purpose as the testimony of a defendant or witness
testifying at a preliminary hearing.
C. If no conditional examination is held within the period of three days, the
witness so detained shall be forthwith discharged.
13-4084 Undertaking by witnesses in other courts
The court in which an indictment is found and returned, or an information filed, may
require the witnesses to enter into a written undertaking for their appearance at the
trial, as provided in this article.
13-4091 Definitions
In this article, unless the context otherwise requires:
1. "Witness" includes a person whose testimony is desired in any proceeding or
investigation by a grand jury or in a criminal action, prosecution or proceeding.
2. "State" includes any territory of the United States and the District of
Columbia.
3. "Summons" includes a subpoena, order or other notice requiring the appearance of
a witness.
13-4092 Summoning witness in this state to testify in another state
A. If a judge of a court of record in any state which by its laws has made
provision for commanding persons within that state to attend and testify in this state
certifies under the seal of such court that there is a criminal prosecution pending in
such court, or that a grand jury investigation has commenced or is about to commence,
that a person being within this state is a material witness in such prosecution, or grand
jury investigation, and that his presence will be required for a specified number of
days, upon presentation of such certificate to any judge of a court of record in the
county in which such person is, such judge shall fix a time and place for a hearing, and
shall make an order directing the witness to appear at a time and place certain for a
hearing.
B. If at a hearing the judge determines that the witness is material and necessary,
that it will not cause undue hardship to the witness to be compelled to attend and
testify in the prosecution or a grand jury investigation in the other state, and that the
laws of the state in which the prosecution is pending, or grand jury investigation has
commenced or is about to commence, will give to him protection from arrest and the
service of civil and criminal process, he shall issue a summons, with a copy of the
certificate attached, directing the witness to attend and testify in the court where the
prosecution is pending, or where a grand jury investigation has commenced or is about to
commence at a time and place specified in the summons. In any such hearing the
certificate shall be prima facie evidence of all the facts stated therein.
C. If the certificate recommends that the witness be taken into immediate custody
and delivered to an officer of the requesting state to assure his attendance in the
requesting state, such judge may, in lieu of notification of the hearing, direct that
such witness be forthwith brought before him for the hearing; and the judge at the
hearing being satisfied of the desirability of such custody and delivery, for which
determination the certificate shall be prima facie proof of such desirability may, in
lieu of issuing subpoena or summons, order that the witness be forthwith taken into
custody and delivered to an officer of the requesting state.
D. If the witness, who is summoned as above provided, after being paid or tendered
by some properly authorized person the sum of ten cents a mile for each mile by the
ordinary traveled route to and from the court where the prosecution is pending and five
dollars for each day that he is required to travel and attend as a witness, fails without
good cause to attend and testify as directed in the summons, he shall be punished in the
manner provided for the punishment of a witness who disobeys a summons issued from a
court of record in this state.
13-4093 Witness from another state summoned to testify in this state
A. If a person in any state, which by its laws has made provision for commanding
persons within its borders to attend and testify in criminal prosecutions, or grand jury
investigations commenced or about to commence, in this state, is a material witness in a
prosecution pending in a court of record in this state, or in a grand jury investigation
which has commenced or is about to commence, a judge of such court may issue a
certificate under the seal of the court stating these facts and specifying the number of
days the witness will be required. This certificate shall be presented to a judge of a
court of record in the county in which the witness is found.
B. If the certificate recommends that the witness be taken into immediate custody
and delivered to an officer of this state to assure his attendance in this state, such
judge may direct that the witness be forthwith brought before him; and the judge being
satisfied of the desirability of such custody and delivery, for which determination the
certificate shall be prima facie proof, may order that the witness be forthwith taken
into custody and delivered to an officer of this state, which order shall be sufficient
authority to the officer to take the witness into custody and hold him unless and until
he may be released by bail, recognizance or order of the judge issuing the certificate.
C. If the witness is summoned to attend and testify in this state he shall be
tendered the sum of ten cents a mile for each mile by the ordinary traveled route to and
from the court where the prosecution is pending and five dollars for each day that he is
required to travel and attend as a witness. A witness who has appeared in accordance
with the provisions of the summons shall not be required to remain within this state a
longer period of time than the period mentioned in the certificate, unless otherwise
ordered by the court. If such witness, after coming into this state, fails without good
cause to attend and testify as directed in the summons, he shall be punished in the
manner provided for the punishment of any witness who disobeys a summons issued from a
court of record in this state.
13-4094 Exemption from arrest and service of process
A. If a person comes into this state in obedience to a summons directing him to
attend and testify in this state he shall not while in this state pursuant to such
summons be subject to arrest or the service of process, civil or criminal, in connection
with matters which arose before his entrance into this state under the summons.
B. If a person passes through this state while going to another state in obedience
to a summons to attend and testify in that state or while returning therefrom, he shall
not while so passing through this state be subject to arrest or the service of process,
civil or criminal, in connection with matters which arose before his entrance into this
state under the summons.
13-4095 Uniformity of interpretation
This article shall be so interpreted and construed as to effectuate its general
purpose to make uniform the law of the states which enact it.
13-4096 Short title
This article may be cited as the uniform act to secure the attendance of witnesses
from without a state in criminal proceedings.
13-4101 Witness for defendant
When a defendant has been held to answer for a public offense, he or the state may,
either before or after an indictment or information has been filed, have witnesses
examined conditionally on his behalf, as prescribed in this article.
13-4102 Grounds for examination; application
A. When a material witness for defendant or the state is about to leave the state,
or is so sick or infirm as to afford reasonable grounds to believe that he will be unable
to attend the trial, defendant or the state may apply to the court for an order that the
witness be examined conditionally.
B. The application shall be made upon affidavit stating:
1. The nature of the offense charged.
2. The name and residence of the witness.
3. That his testimony is material to the defense or prosecution of the action.
4. That the witness is about to leave the state or is so sick or infirm as to
afford reasonable grounds to believe that he will not be able to attend the trial.
13-4103 Order for examination; notice; proof of service
A. If the court is satisfied that the examination of the witness is necessary, an
order shall be made that the witness be examined conditionally at a specified time and
place, and that a copy of the order be served on the opposite party at least two days
before the examination.
B. The order shall direct that the examination be taken before the clerk of the
court, the court reporter, a magistrate or a notary public named therein, and on proof of
service upon the opposite party of a copy of the order, though no counsel appears for the
state, the examination shall proceed.
13-4104 Attendance of witness; testimony; transmittal
A. The attendance of the witness may be enforced by subpoena, issued by the officer
before whom the examination is to be taken.
B. The testimony given by the witness shall be reduced to writing and authenticated
in the same manner as testimony of a witness taken as provided in taking testimony of
witnesses at preliminary examinations.
C. The officer shall seal the deposition and transmit it to the clerk of the court
in which the action is pending.
13-4105 Use of deposition at trial; objection to testimony
The deposition may be read in evidence by either party on the trial, when it appears
that the witness is unable to attend, by reason of death, insanity, sickness or
infirmity, or of his continued absence from the state, and subject to the same objections
to a question or answer therein as if the witness were examined in court.
13-4111 Witness for defendant; grounds; application; issuance of commission; stay of trial
A. When an issue of fact is joined upon an indictment or information, the defendant
may have any material witness residing without the state examined in his behalf, as
prescribed in this article, upon application to the court in which the action is pending,
supported by an affidavit showing:
1. The nature of the offense.
2. The name of the witness.
3. That his testimony is material to the defense of the action.
4. That the witness resides without the state.
B. If the court is satisfied of the truth of the facts stated and that the
examination of the witness is necessary to the attainment of justice, an order shall be
made that a commission be issued to take his testimony.
C. The trial of the indictment or information may be stayed for a time reasonably
sufficient for the execution and return of the commission.
13-4112 Interrogatories and cross-interrogatories; notice; service; duty of court; execution of commission
A. When the commission is ordered, the defendant shall serve upon the county
attorney, without delay, a copy of the commission and interrogatories, with two days
notice of the time when they will be presented to the court. The county attorney if he
desires to present cross-interrogatories, shall forthwith serve upon defendant or his
counsel the cross-interrogatories, which shall be annexed to the commission.
B. When the interrogatories and cross-interrogatories are presented to the court,
the court shall reframe the questions to conform them to the rules of evidence, and shall
endorse upon them his allowance and annex them to the commission.
C. Unless the parties otherwise consent by an endorsement upon the commission, the
court shall endorse thereon a direction as to the manner in which and by whom it shall be
executed and returned, and may direct that it be returned by mail or otherwise, addressed
to the clerk of the court in which the action is pending.
13-4113 Duty of commissioner in executing commission; attachment of section to commission
A. The commissioner, unless otherwise specially directed, shall execute the
commission as follows:
1. Publicly administer an oath to the witness that his answers given to the
interrogatories shall be the truth, the whole truth, and nothing but the truth.
2. Cause the examination of the witness to be reduced to writing, and subscribed by
him.
3. Write the answers of the witness as nearly as possible in the language in which
he gives them, and read to him each answer as it is taken down, and correct or add to it
until it conforms to what he declares is the truth.
B. If the witness declines to answer a question, that fact, with the reason
assigned by him for declining, shall be stated. If any papers or documents are produced
before him and proved by the witness, they, or copies of them, shall be annexed to the
deposition subscribed by the witness and certified by the commissioner.
C. The commissioner shall subscribe his name to each sheet of the deposition, and
annex the deposition, with the papers and documents proved by the witness, or copies
thereof, to the commission, enclose it in an envelope under seal and address it as
directed by the endorsement thereon. If there is a direction on the commission to return
it by mail, the commissioner shall immediately deposit it in the nearest post office. If
any other direction is made by written consent of the parties, or by the court on the
commission, as to its return, he shall comply with the directions.
D. A copy of this section shall be attached to the commission.
13-4114 Receipt and filing of commission; inspection
A. The clerk or judge receiving the commission and return shall immediately open
and file it in the office of the clerk of the court in which the indictment or
information is pending.
B. If the commission and return is transmitted by mail, the clerk to whom it is
addressed shall receive it from the post office, and open and file it in his office.
C. The commission and return shall at all times be open to inspection of the
parties, who shall be furnished by the clerk with copies of it or any part thereof on
payment of his fees.
13-4115 Use of deposition at trial; objection to testimony
The depositions taken under the commission may be read in evidence by either party
on the trial upon it being shown that the witness is unable to attend from any cause
whatever, and subject to the same objections as if the witness were examined in court.
13-4116 Delivery of commission by agent; inability of agent to deliver
A. If the commission and return is delivered by the commissioner to an agent, the
agent shall deliver the commission to the clerk to whom it is directed or to the judge of
the court in which the action is pending, by whom it may be received upon the agent
making affidavit that he received it from the commissioner, and that it has not been
opened or altered since he received it.
B. If the agent is dead, or from sickness or other casualty, is unable personally
to deliver the commission and return, it may be received by the clerk or judge from any
other person, upon such person making an affidavit that:
1. He received it from the agent, that the agent is dead or from sickness or other
casualty unable to deliver it.
2. It has not been opened or altered since the person making the affidavit received
it.
3. He believes it has not been opened or altered since it came from the
commissioner.
13-4121 Prosecution of writ
A person unlawfully committed, detained, confined or restrained of his liberty,
under any pretense whatever, may petition for and prosecute a writ of habeas corpus to
inquire into the cause of such imprisonment or restraint.
13-4122 Application for writ
Application for the writ shall be made by verified petition, signed either by the
party for whose relief it is intended or by some person in his behalf, and shall state
that the person in whose behalf the writ is applied for is imprisoned or restrained of
his liberty, the place where, and the officer or person by whom he is so confined or
restrained, naming all the parties, if they are known, or describing them if they are not
known. If the imprisonment is alleged to be illegal, the petition shall also state the
particulars of the alleged illegality.
13-4123 Granting of writ; remand of prisoner
A. The writ of habeas corpus may be granted:
1. By the supreme court or any judge thereof. When so issued it may be made
returnable before the court or any judge thereof, or before any superior court or any
judge thereof.
2. By the superior court or a judge thereof, in their respective counties.
B. If the writ is granted by a superior court or judge, and after hearing thereof
the prisoner has been remanded, he shall not be discharged from custody by the same or
any other superior court or judge, unless upon some ground not existing at the time of
issuing the prior writ, or unless upon some point of law not raised at the hearing upon
the return of the prior writ.
13-4124 Granting writ; time; bail
A. A court or judge authorized to grant a writ of habeas corpus, to whom a petition
therefor is presented, if it appears that the writ ought to issue, shall grant it without
delay.
B. If the person by or upon whose behalf the application for the writ is made is
detained upon a criminal charge, the court or judge may admit him to bail if the offense
is bailable, pending determination of the proceeding.
13-4125 Direction of writ
The writ shall be directed to the person having custody of or restraining the person
on whose behalf the petition is made, and shall command him to have the body of such
person before the court or judge before whom the writ is returnable, at a time and place
therein specified.
13-4126 Delivery and service of writ
A. If the writ is directed to the sheriff or other officer of the court out of
which the writ is issued, it shall be delivered by the clerk to such officer without
delay, as other writs are delivered for service. If the writ is directed to any other
officer or person, the writ shall be delivered to the sheriff, and shall be by him served
upon such officer or person by delivering the writ to him without delay.
B. If the officer or person to whom the writ is directed cannot be found, or
refuses admittance of the officer or person serving or delivering the writ, the writ may
be served or delivered by leaving it at the residence of the officer or person to whom it
is directed, or by affixing it on some conspicuous place on the outside either of his
dwelling house or of the place where the party is confined or under restraint.
13-4127 Compelling obedience to writ
If the officer or person to whom the writ is directed refuses, after service
thereof, to obey it, the court or judge shall, upon affidavit, issue an attachment
against such person, directed to the sheriff, commanding him forthwith to apprehend the
person, and bring him immediately before such court or judge. Upon being brought before
the court or judge, such officer or person shall be committed to jail until he makes due
return to the writ, or is otherwise legally discharged.
13-4128 Return to writ
A. The person upon whom the writ is served shall state in his return, plainly and
unequivocally whether or not he has the party in his custody or under his power or
restraint and if so, by what authority, and the cause of such imprisonment or restraint,
setting forth such authority and cause in detail.
B. If the party is restrained by virtue of any writ, warrant or other written
authority, a copy thereof shall be annexed to the return, and the original shall be
produced and exhibited to the court or judge on the hearing of the return.
C. If the person upon whom the writ is served has had the party in his custody or
under his power or restraint any time prior or subsequent to the date of the writ of
habeas corpus, but has transferred the custody or restraint to another, the return shall
state particularly at what time and place, for what reason and by what authority the
transfer was made.
D. The return shall be signed by the person making it, and, except when such person
is a public officer who has taken the oath of office and makes the return in his official
capacity, it shall be verified by his oath or affirmation.
13-4129 Production of prisoner; exception
A. The person upon whom the writ is served shall bring the body of the party in his
custody or under his restraint before the court or judge according to the command of the
writ.
B. When from sickness or infirmity of the person directed to be produced, the
person cannot without danger be brought before the court or judge, the person in whose
custody or power he is may state that fact in his return to the writ. If the court or
judge is satisfied of the truth of the allegations of sickness or infirmity, and the
return to the writ is otherwise sufficient the court or judge may decide the matter on
such return and dispose of the matter as if the party had been produced on the writ, or
the hearing thereof may be adjourned until the party can be produced.
13-4130 Hearing on return
A. The court or judge to whom the writ is returned shall, immediately after the
return thereof, hear and examine the return, and such other matters as may be properly
submitted.
B. The petitioner may controvert the return, or object to the sufficiency thereof,
or allege any fact to show either that his imprisonment or detention is unlawful or that
he is entitled to discharge. The court or judge shall thereupon hear the evidence, and in
a summary manner dispose of the party as justice may require.
13-4131 Discharge of prisoner
A. If no legal cause is shown for the imprisonment or restraint, or for
continuation thereof, the party shall be discharged from custody or restraint.
B. If the time during which the party may be legally detained in custody has not
expired and he is detained in custody by virtue of process issued by any court, judge or
agency of the United States, in an action where such court, judge or agency has exclusive
jurisdiction, or by virtue of the final judgment or decree of any court of competent
jurisdiction, or of any process issued upon such judgment or decree, the person shall not
be discharged.
13-4132 Discharge of prisoner held on process
If it appears, on the return of the writ, that the prisoner is in custody by virtue
of process from any court of this state, or judge or officer thereof, the prisoner shall
be discharged in any one of the following cases subject to the restrictions of section
13-4131:
1. When the jurisdiction of the court or officer has been exceeded.
2. When the imprisonment was at first lawful, but by some act, omission or event,
which has taken place afterward, the party has become entitled to be discharged.
3. When the process is defective in some matter of substance required by law
rendering the process void.
4. When the process, though proper in form, has been issued in a proceeding not
authorized by law.
5. When the person having custody of the prisoner is not the person authorized by
law to detain him.
6. Where the process is not authorized by a judgment, order or decree of any court,
nor by any provision of law.
7. Where a party has been committed on a criminal charge without reasonable or
probable cause.
13-4133 Effect of defect in form
If a person is committed or is in the custody of any officer on any charge by virtue
of a warrant or commitment of a justice of the peace, such person shall not be discharged
from imprisonment or custody on the ground of a mere defect of form in the warrant or
commitment.
13-4134 Defective process or commitment; re-examination
If it appears to the court or judge that the party is guilty of a criminal offense,
or should not be discharged, the court or judge, although the charge is defectively set
forth in the process or warrant of commitment, shall cause the witnesses to be subpoenaed
to attend at the time ordered to testify before such court or judge. Upon the
examination, the court shall discharge the prisoner, admit him to bail, if the offense is
bailable, or recommit him to custody.
13-4135 Writ to admit to bail
When a person is imprisoned or detained in custody on any criminal charge for want
of bail, such person shall be entitled to a writ of habeas corpus for the purpose of
giving bail, upon averring that fact in his petition and without alleging that he is
illegally confined. The court or judge may take a recognizance from such person as in
other cases and file the recognizance in the proper court without delay.
13-4136 Remand of prisoner
A. If a party brought before the court or judge on the return of the writ, is not
entitled to discharge or to bail, the court or judge shall remand him to the custody or
restraint from which he is taken, if the person under whose custody or restraint he was
is legally entitled thereto.
B. Where the party is held under illegal restraint or custody, but any other person
is entitled to the restraint or custody of such party, he may be committed to the
restraint or custody of the person who is by law entitled thereto.
13-4137 Custody pending judgment
Until judgment is given on the return, the court or judge may commit the party to
the custody of the sheriff of the county or place him in such care, or under such
custody, as his age or circumstances may require.
13-4138 Disobedience of writ for defect of form
No writ of habeas corpus shall be disobeyed for defect of form, if it sufficiently
appears therefrom who has custody of, or who restrains the party imprisoned or
restrained, the officer or person detaining him, and the court or judge before whom he is
to be brought.
13-4139 Finality of discharge; exceptions
A person who has been discharged by order of the court or judge upon habeas corpus
shall not be again imprisoned, restrained or kept in custody for the same cause, except:
1. If he was discharged from custody on a criminal charge, and is afterwards
committed for the same offense by legal order or process.
2. If, after discharge for defect of proof, or for any defect in process, warrant
or commitment, the prisoner is again arrested on sufficient proof and committed by legal
process for the same offense.
13-4140 Warrant for immediate production of person restrained or restraining; grounds
A. When it appears from a petition, supported by satisfactory proof or affidavit,
presented to a court or judge authorized to grant a writ of habeas corpus, that a person
is illegally held in custody, confinement or restraint, and that there is good reason to
believe that such person will be taken from the jurisdiction of the court or judge to
whom the petition is made, or that the person will suffer some irreparable injury before
compliance with a writ of habeas corpus can be enforced, the court or judge may cause a
warrant to be issued reciting the facts, and directed to the sheriff or any constable of
the county, commanding such officer to take the person thus held in custody, confinement
or restraint, and forthwith bring him before the court or judge to be dealt with
according to law.
B. The court or judge may also insert in the warrant a command for apprehension of
the person charged with such illegal detention and restraint.
13-4141 Execution of warrant; return and hearing
A. The officer to whom the warrant authorized by section 13-4140 is delivered shall
execute the warrant by bringing the person therein named before the court or judge who
ordered the issuance of such warrant.
B. The person alleged to have such party under illegal confinement or restraint may
make return to the warrant as in the case of a writ of habeas corpus, and the same
proceedings shall be had thereupon as upon a return to such writ.
13-4142 Issuance, service and return of writ or process; time; manner; duty of clerk
A. Any writ or process authorized by this article may be issued and served on any
day or at any time.
B. The writs, processes, warrants and subpoenas shall be issued by the clerk of the
court, and, except subpoenas, sealed with the seal of such court, and shall be served and
returned forthwith unless the court or judge specifies a particular time for the
return. When the writs or processes are made returnable before a judge, they shall be
returned before him at the county seat and there heard and determined.
13-4143 Charging fee in habeas corpus prohibited
No fee or compensation of any kind shall be charged or received by any officer for
duties performed or services rendered in habeas corpus proceedings.
13-4144 Form of writ
The writ of habeas corpus shall be substantially in the following form: "The state
of ARIZONA - - To the sheriff of the county of ....... (or to 'A. B.'):
We command you that you have the body of C.D., by you imprisoned and detained, as it
is said, together with the time and cause of such imprisonment and detention, by
whatsoever name the said C.D. shall be called or charged, before (naming the court or
judge) at ......., on ........ (or immediately after the receipt of this writ), to do and
receive what shall then and there be considered concerning the said C.D. And have you
then and there this writ. Witness, etc."
13-4145 Disobedience of command of writ; classification
An officer or person to whom a writ of habeas corpus is directed, who, after service
thereof, neglects or refuses to obey the command thereof, or who, either solely or as a
member of a court, knowingly and unlawfully recommits, imprisons or restrains of his
liberty, for the same cause, any person who has been discharged upon a writ of habeas
corpus, is guilty of a class 1 misdemeanor.
13-4147 Avoidance of command of writ; classification
A person having in his custody, or under his restraint or power, any person for whom
a writ of habeas corpus has been issued, who, with intent to elude the service of such
writ, or to avoid the effect thereof, transfers such person to the custody of another, or
places him under the power or control of another, or conceals or changes the place of his
confinement or restraint or removes him without the jurisdiction of the court or judge
issuing the writ, is guilty of a class 1 misdemeanor.
13-4201 Definitions
In this article, unless the context otherwise requires:
1. "Accused" means a person who has been arrested for a felony committed in the
state of ARIZONA and either has been bound over for trial pursuant to a finding by a
magistrate during a preliminary hearing of probable cause or has waived such a
preliminary hearing or who has been lawfully indicted.
2. "Commission" means the state industrial commission.
3. "Person" means a person as defined in section 13-105 and includes a
representative or assignee of such person.
4. "Victim" means any person, including the surviving dependent of a person, who
has suffered physical injury or pecuniary loss resulting from the crime of the accused.
13-4202 Void contracts; crime victim accounts; establishment; notice to victims; exceptions; civil liability; definition
A. Every contract whether written or oral, express or implied, with an accused with
respect to the reenactment, description or depiction of a crime by movie, book, article,
radio or television presentation, internet or on-line presentation or depiction, live
entertainment or expression of thoughts, feelings, opinions or emotions is contrary to
public policy and void unless the contract provides for payment to the commission of any
monies which would be paid to the accused for such information or rights.
B. The commission shall deposit the monies received pursuant to subsection A from
the contracts or agreements of each accused, for each crime committed by the accused, in
a separate account designated as a crime victim account. The money shall be distributed
as determined by the commission to any victim of the crime committed by the accused if
both of the following apply:
1. The accused is convicted of the crime.
2. The victim, within five years after the date of establishment of the account,
applies to the commission for compensation and demonstrates by sufficient reliable
evidence, as determined by the commission, that the victim has suffered a loss resulting
from such crime and the amount of such loss.
C. The commission, at least once every year for five years from the date of receipt
of monies pursuant to subsection B, shall publish a legal notice in a newspaper of
general circulation in the county wherein the crime was committed and in counties
contiguous to such county advising all victims for which monies have been received that
funds are available to satisfy money judgments pursuant to this section. Such notice
shall identify the accused, describe the criminal act involved and the proceedings
against the accused and state the procedure to be followed for recovery of monies
pursuant to subsection B. No reference to the identity of the victim shall be made. The
commission may, in its discretion, provide for such additional notice as it deems
necessary.
D. Upon disposition of charges favorable to an accused, the commission shall
immediately pay any monies in the account owing to such person.
E. After five years have elapsed following the establishment of the account
pursuant to subsection B and upon a showing that no applications for compensation are
pending pursuant to this section, the commission shall immediately pay any monies in the
account to the state general fund.
F. For purposes of this section, a person found guilty except insane pursuant to
rule 23.2, ARIZONA rules of criminal procedure, shall be deemed to be a convicted person.
G. Whenever it is found, pursuant to rule 11, ARIZONA rules of criminal procedure,
that a person accused of a crime is unfit to proceed as a result of mental illness or
defect because such person lacks capacity to understand the proceedings against the
person or to assist in the person's own defense, the commission shall bring an action of
interpleader pursuant to rule 22, ARIZONA rules of civil procedure, to determine
disposition of the escrow account.
H. Notwithstanding any inconsistent provision of law or of the rules of civil
procedure with respect to the timely bringing of an action, the five-year period provided
for in subsection B shall not begin to run until an account has been established.
I. Notwithstanding subsections B through F the commission shall make payments from
the account to any accused upon the order of a court of competent jurisdiction after a
showing by the accused that the money will be used for the sole purpose of retaining
legal representation at any stage of proceedings against such accused.
J. An action taken by any person, whether by execution of a power of attorney,
creation of a corporate entity or otherwise, to defeat the purpose of this section shall
be null and void as against the public policy of this state.
K. The cost of administering the account and the monies therein shall be reimbursed
to the industrial commission from the account.
L. Any person entering into a contract described in subsection A which does not
comply with this section shall be liable to the state for deposit in the crime victim
account of an amount equal to all monies paid or received including monies paid to or
received by another person by execution of a power of attorney, creation of a corporate
entity or otherwise done to defeat the purposes of this section.
M. For purposes of this section "loss" includes the value of any property damaged,
destroyed or taken, the cost of medical treatment or counseling, lost wages and any other
damage suffered as a result of the crime.
13-4231 Scope of post-conviction relief
Subject to the limitations of section 13-4232, any person who has been convicted of
or sentenced for a criminal offense may, without payment of any fee, institute a
proceeding to secure appropriate relief on any of the following grounds:
1. The conviction or the sentence was in violation of the Constitution of the
United States or of this state.
2. The court was without jurisdiction to render judgment or to impose sentence.
3. The sentence imposed exceeded the maximum authorized by law or is otherwise not
in accordance with the sentence authorized by law.
4. The person is being held in custody after his sentence has expired.
5. Newly discovered material facts probably exist and that the facts probably would
have changed the verdict or sentence. Newly discovered material facts exist if:
(a) The newly discovered material facts were discovered after the trial.
(b) The defendant exercised due diligence in securing the newly discovered material
facts.
(c) The newly discovered material facts are not merely cumulative or used solely
for impeachment, unless the impeachment evidence substantially undermines testimony which
was of critical significance at trial such that the evidence probably would have changed
the verdict or sentence.
6. The defendant's failure to appeal from the judgment or sentence, or both, within
the prescribed time was without fault on his part.
7. There has been a significant change in the law that if determined to apply to
the defendant's case would probably overturn the defendant's conviction or sentence.
13-4232 Preclusion of post-conviction relief; exceptions; proof
A. A defendant is precluded from relief under this article based on any ground:
1. Still raisable on direct appeal or on a post-trial motion.
2. Finally adjudicated on the merits on appeal or in any previous collateral
proceeding.
3. That was waived at trial, on appeal or in any previous collateral proceeding.
B. This section does not apply to claims for relief pursuant to section 13-4231,
paragraph 4, 5, 6 or 7. If a claim under section 13-4231, paragraph 4, 5, 6 or 7 is to
be raised in a successive or untimely petition, the notice shall set forth the substance
of the claim and the reasons for not raising the claim in the previous petition or in a
timely manner. If the notice does not state meritorious reasons substantiating the
claim and why the claim was not stated in the previous petition or in a timely manner,
the proceeding shall be summarily dismissed.
C. Except for summary dismissals pursuant to subsection B of this section, the
state shall plead and prove any ground of preclusion by a preponderance of the
evidence. Though the state has the burden to plead and prove grounds of preclusion, any
court on review of the record may determine and hold that an issue is precluded
regardless of the state's failure to raise the preclusion issue.
13-4233 Nature of proceeding and relation to other remedies
A proceeding pursuant to this article is a part of the original criminal action and
not a separate action. It displaces and incorporates all trial court post-trial remedies
except post-trial motions and habeas corpus. If a defendant applies for a writ of habeas
corpus in a court having jurisdiction of his person attacking the validity of his
conviction or sentence, that court pursuant to this article shall transfer the cause to
the court where the defendant was convicted or sentenced and that court shall treat it as
a petition for relief under this article and the procedures of this article apply.
13-4234.01 Post-conviction relief proceedings; request for extension; victim notification
(Rpld. 10/1/07)
A. In any post-conviction relief proceeding in a capital case in which an extension
of the time to file a brief is requested, the victim, after filing a notice of
appearance, has a right to respond to the request for extension within ten days after the
filing of the request.
B. On the filing of a notice of appearance, the victim shall serve a copy on the
state and the defendant.
C. The victim may exercise the right to respond through the state.
D. The party that requests the extension shall provide notice of the request to the
victim in a manner prescribed by the court.
E. This section does not provide any party or the victim with a right to oral
argument. 13-4234 Commencement of proceedings; notice; appointment of counsel for capital defendants; assignment of judge; stay
A. A proceeding is commenced by timely filing a notice of post-conviction relief
with the clerk of the court in which the conviction occurred. The clerk of the trial
court shall provide notice forms for commencement of first and successive post-conviction
relief proceedings. The notice shall bear the caption of the original criminal action to
which it pertains. The notice in successive post-conviction relief proceedings shall
comply with section 13-4232, subsection B. On receipt of the notice, the clerk of the
trial court shall file a copy of the notice in the case file of each original action and
promptly send copies to the defendant, the defendant's attorney, if known, the county
attorney and the attorney general, noting the date and manner of sending the copies in
the record. The state shall notify the victim on request.
B. If an appeal of the defendant's conviction or sentence, or both, is pending, the
clerk, within five days after the filing of the notice for post-conviction relief, shall
send a copy of the notice to the appropriate appellate court, noting the date and manner
of sending the copy in the record.
C. In noncapital cases, the notice shall be filed within ninety days after the
judgment and sentence are entered or within thirty days after the order and mandate
affirming the judgment and sentence is issued on direct appeal, whichever is later. A
defendant has sixty days from the filing of the notice in which to file a petition. On
the filing of a successive notice, a defendant has thirty days from the filing of the
notice in which to file a petition.
D. In capital cases, on the issuance of a mandate affirming the defendant's
conviction and sentence on direct appeal, the clerk of the supreme court expeditiously
shall file a notice of post-conviction relief with the trial court. On the first notice
in capital cases, a defendant has sixty days from the filing of the notice in which to
file a petition. The supreme court shall appoint counsel pursuant to section 13-4041,
subsection B. All indigent state prisoners under a capital sentence are entitled to the
appointment of counsel to represent them in state post-conviction proceedings. A
competent indigent defendant may reject the offer of counsel with an understanding of its
legal consequence. On successive notice in capital cases, the trial court shall appoint
the previous post-conviction relief counsel of the capital defendant unless counsel is
waived pursuant to section 13-4041, subsection E or good cause exists to appoint another
qualified attorney pursuant to section 13-4041, subsection B. On the filing of a
successive notice, a capital defendant or an appointed attorney has thirty days from the
filing of the notice in which to file a petition.
E. A defendant who has pled guilty and who is precluded from filing a direct appeal
pursuant to section 13-4033 may be granted an additional thirty day extension of time in
which to file the petition if the defendant's counsel refuses to raise issues and leaves
the defendant insufficient time to file a petition within the time limits.
F. On a specific and detailed showing of good cause, a defendant in a noncapital
case may be granted up to a sixty day extension of time in which to file the
petition. On a specific and detailed showing of good cause, a defendant in a capital
case may be granted one thirty day extension of time in which to file the petition.
G. The time limits are jurisdictional, and an untimely filed notice or petition
shall be dismissed with prejudice.
H. If the record of the trial proceeding has not been transcribed, the defendant
may request on a form provided by the clerk of the superior court that the record be
prepared. The court shall order that those portions of the record be prepared that it
deems necessary to resolve the issues to be raised in the petition. The preparation of
the record is a county expense if the defendant is indigent. The time for filing the
petition is tolled from the time a request for the record is made until the record is
prepared or the request is denied.
I. The proceeding shall be assigned to the sentencing judge if it is possible. If
it appears that the sentencing judge's testimony is relevant, the sentencing judge shall
transfer the case to another judge.
J. If the defendant has received a sentence of death and the supreme court has
fixed the time for execution of the sentence, a stay of execution shall not be granted on
the filing of a second or subsequent petition except on separate application for a stay
to the supreme court setting forth with particularity those issues raised which are not
precluded under section 13-4232. The warrant shall not be stayed to allow for the filing
of a petition.
13-4235 Contents of petition
The defendant shall include every ground known to the defendant for vacating,
reducing, correcting or otherwise changing all judgments or sentences imposed and shall
verify under oath that the petition contains all such grounds. Facts within the
defendant's personal knowledge shall be noted separately from other allegations of fact
and shall be under oath. Affidavits, records or other evidence currently available to
the defendant supporting the allegations of the petition shall be attached to it. Legal
citations and memoranda of points and authorities are required. Petitions which are
incomplete shall be returned by the court to the defendant for completion. If the court
does not receive the completed petition within thirty days after the defendant receives
the incomplete petition, the court shall dismiss the proceeding with prejudice.
13-4236 Additional pleadings; summary disposition; amendments
A. Forty-five days after the filing of the petition, the state shall file with the
court a response. Affidavits, the record and other evidence that are available to the
state and that contradict the allegations of the petition shall be attached to the
response. On a showing of good cause, the state may be granted a thirty day extension in
which to file a response. Additional extensions shall be granted only in extraordinary
circumstances.
B. Within fifteen days after receipt of the response, the defendant may file a
reply. Extensions shall be granted only in extraordinary circumstances.
C. The court shall review the petition within twenty days after the defendant's
reply is due. On reviewing the petition, response, reply, files and records, and
disregarding defects of form, the court shall identify all procedurally precluded claims
under this article. If after identifying all precluded claims the court determines that
no material issue of fact or law exists which would entitle the defendant to relief under
this article and that no purpose would be served by any further proceedings, the court
shall order the petition dismissed. If the court does not order the petition dismissed,
the court shall set a hearing within thirty days on those claims that present a material
issue of fact or law. If a hearing is ordered, the state shall notify the victim on
request of the time and place of the hearing.
D. After the filing of a post-conviction relief petition, amendments are not
permitted except by leave of the court on a showing of extraordinary circumstances.
13-4237 Informal conference
The court at any time may hold an informal conference to expedite the proceeding, at
which the defendant need not be present if he is represented by counsel who is present.
13-4238 Evidentiary hearing
A. The defendant is entitled to a hearing to determine issues of material fact,
with the right to be present and to subpoena witnesses. If facilities are available, the
court may, in its discretion, order the hearing to be held at the place of confinement,
giving at least fifteen days' notice to the officer in charge of the confinement
facility. A verbatim record of the hearing shall be made.
B. The rules of evidence applicable in criminal proceedings shall apply, except
that the defendant may be called to testify at the hearing.
C. The defendant has the burden of proving the allegations of fact by a
preponderance of the evidence. If a constitutional defect is proven, the state has the
burden of proving that the defect was harmless beyond a reasonable doubt.
D. The court shall rule within ten days after the hearing ends. If the court finds
in favor of the defendant, it shall enter an appropriate order with respect to the
conviction, sentence or detention, any further proceedings, including a new trial and
conditions of release, and other matters that may be necessary and proper. The court
shall make specific findings of fact and state expressly its conclusions of law relating
to each issue presented.
13-4239 Review
A. Any party aggrieved by a final decision of the trial court in these proceedings
may, within fifteen days after the ruling of the court, move the court for a rehearing
setting forth in detail the grounds for believing that the court erred. A response shall
be filed within fifteen days after service of the motion on the adverse party. A reply,
if any, shall be filed within ten days after service of the response. The filing of a
motion for rehearing in the trial court is not a prerequisite to the filing of a petition
for review pursuant to subsection C.
B. If the motion for rehearing is granted, the court may either amend its previous
ruling without a hearing or grant a new hearing and then either amend or reaffirm its
previous ruling. If the court amends its previous ruling, the court shall set forth its
reasons for amending the previous ruling. The state shall notify the victim on request
of any action that is taken by the court.
C. Within thirty days after the final decision of the trial court on the petition
for post-conviction relief or motion for rehearing, an aggrieved party may petition the
appellate court for review of the trial court's actions. A cross-petition for review may
be filed with the clerk of the trial court within fifteen days after service of a
petition for review. The petition or cross-petition shall be filed with the clerk of the
trial court and shall set forth in detail the grounds for believing that the court
erred. The filing of a motion for rehearing pursuant to subsection A does not limit the
issues that may be raised in the petition or cross-petition for review. The failure to
raise an issue that could be raised in the petition or cross-petition for review
constitutes a waiver of appellate review of that issue. A response shall be filed within
fifteen days and a reply shall be filed within ten days.
D. The form, contents and service for a post-conviction relief petition and
cross-petition shall be as prescribed by rule 32.9 of the rules of criminal procedure.
E. A motion for rehearing or a petition for review that is filed pursuant to this
section shall stay an order of the trial court issued in the post-conviction relief
proceedings until final review is completed unless the trial court specifically orders
otherwise. The state shall notify the victim on request of any action taken.
F. Within thirty days after the expiration of the time for filing the last reply,
the record, including the trial court file, the reporter's transcript, the original and
all copies of the petition and cross-petition for review, responses and replies shall be
transmitted to the appellate court.
G. The appellate court may grant review and may order oral argument on the petition
if deemed necessary and may issue such orders and grant such relief as it deems necessary
and proper. The state shall notify the victim on request of any action taken by the
appellate court.
H. The provisions that govern the filing of motions for reconsideration and
petitions for review in criminal appeals that are set forth in rules 31.18 and 31.19,
ARIZONA rules of criminal procedure, apply to and govern motions for reconsideration and
petitions for review pursuant to rule 32, ARIZONA rules of criminal procedure.
I. When the matter is determined the clerk of the appellate court shall return the
record to the appropriate clerk of the court for retention according to law.
13-4240 Postconviction deoxyribonucleic acid testing
A. At any time, a person who was convicted of and sentenced for a felony offense
and who meets the requirements of this section may request the forensic deoxyribonucleic
acid testing of any evidence that is in the possession or control of the court or the
state, that is related to the investigation or prosecution that resulted in the judgment
of conviction, and that may contain biological evidence.
B. After notice to the prosecutor and an opportunity to respond, the court shall
order deoxyribonucleic acid testing if the court finds that all of the following apply:
1. A reasonable probability exists that the petitioner would not have been
prosecuted or convicted if exculpatory results had been obtained through deoxyribonucleic
acid testing.
2. The evidence is still in existence and is in a condition that allows
deoxyribonucleic acid testing to be conducted.
3. The evidence was not previously subjected to deoxyribonucleic acid testing or
was not subjected to the testing that is now requested and that may resolve an issue not
previously resolved by the previous testing.
C. After notice to the prosecutor and an opportunity to respond, the court may
order deoxyribonucleic acid testing if the court finds that all of the following apply:
1. A reasonable probability exists that either:
(a) The petitioner's verdict or sentence would have been more favorable if the
results of deoxyribonucleic acid testing had been available at the trial leading to the
judgment of conviction.
(b) Deoxyribonucleic acid testing will produce exculpatory evidence.
2. The evidence is still in existence and is in a condition that allows
deoxyribonucleic acid testing to be conducted.
3. The evidence was not previously subjected to deoxyribonucleic acid testing or
was not subjected to the testing that is now requested and that may resolve an issue not
previously resolved by the previous testing.
D. If the court orders testing pursuant to subsection B, the court shall order the
method and responsibility for payment, if necessary. If the court orders testing pursuant
to subsection C, the court may require the petitioner to pay the costs of testing.
E. The court may appoint counsel for an indigent petitioner at any time during any
proceedings under this section.
F. If the court orders testing pursuant to this section, the court shall select a
laboratory that meets the standards of the deoxyribonucleic acid advisory board to
conduct the testing.
G. If the prosecutor or defense counsel has previously subjected evidence to
deoxyribonucleic acid testing, the court may order the prosecutor or defense counsel to
provide all the parties and the court with access to the laboratory reports that were
prepared in connection with the testing, including underlying data and laboratory notes.
If the court orders deoxyribonucleic acid testing pursuant to this section, the court
shall order the production of any laboratory reports that are prepared in connection with
the testing and may order the production of any underlying data and laboratory notes.
H. If a petition is filed pursuant to this section, the court shall order the state
to preserve during the pendency of the proceeding all evidence in the state's possession
or control that could be subjected to deoxyribonucleic acid testing. The state shall
prepare an inventory of the evidence and shall submit a copy of the inventory to the
defense and the court. If evidence is intentionally destroyed after the court orders its
preservation, the court may impose appropriate sanctions, including criminal contempt,
for a knowing violation.
I. The court may make any other orders that the court deems appropriate, including
designating any of the following:
1. The type of deoxyribonucleic acid analysis to be used.
2. The procedures to be followed during the testing.
3. The preservation of some of the sample for replicating the testing.
4. Elimination samples from third parties.
J. If the results of the postconviction deoxyribonucleic acid testing are not
favorable to the petitioner, the court shall dismiss the petition. The court may make
further orders as it deems appropriate, including any of the following:
1. Notifying the board of executive clemency or a probation department.
2. Requesting that the petitioner's sample be added to the federal combined DNA
index system offender database.
3. Providing notification to the victim or family of the victim.
K. Notwithstanding any other provision of law that would bar a hearing as untimely,
if the results of the postconviction deoxyribonucleic acid testing are favorable to the
petitioner, the court shall order a hearing and make any further orders that are required
pursuant to this article or the ARIZONA rules of criminal procedure.
13-4251 Applicability; definition
A. This article applies to the testimony or statements of a minor in criminal
proceedings involving acts committed against the minor or involving acts witnessed by the
minor whether or not those acts are charged and in civil proceedings including
proceedings involving a dependency or a termination of parental rights.
B. In this article, "minor" means a person under fifteen years of age or a person
who has a developmental disability as defined in section 41-2451 and who has a tested
intelligence quotient score below seventy-five.
13-4252 Recording of testimony
A. The recording of an oral statement of a minor made before a proceeding begins is
admissible into evidence if all of the following are true:
1. No attorney for either party was present when the statement was made.
2. The recording is both visual and aural and is recorded on film or videotape or
by other electronic means.
3. Every voice on the recording is identified.
4. The person conducting the interview of the minor in the recording is present at
the proceeding and available to testify or be cross-examined by either party.
5. The defendant or the attorney for the defendant is afforded an opportunity to
view the recording before it is offered into evidence.
6. The minor is available to testify.
7. The recording equipment was capable of making an accurate recording, the
operator of the equipment was competent and the recording is accurate and has not been
altered.
8. The statement was not made in response to questioning calculated to lead the
minor to make a particular statement.
B. If the electronic recording of the oral statement of a minor is admitted into
evidence under this section, either party may call the minor to testify and the opposing
party may cross-examine the minor.
13-4253 Out of court testimony; televised; recorded
A. The court, on motion of the prosecution, may order that the testimony of the
minor be taken in a room other than the courtroom and be televised by closed circuit
equipment in the courtroom to be viewed by the court and the finder of fact in the
proceeding. Only the attorneys for the defendant and for the state, persons necessary to
operate the equipment and any person whose presence would contribute to the welfare and
well-being of the minor may be present in the room with the minor during his testimony.
Only the attorneys may question the minor. The persons operating the equipment shall be
confined to an adjacent room or behind a screen or mirror that permits them to see and
hear the minor during his testimony but does not permit the minor to see or hear
them. The court shall permit the defendant to observe and hear the testimony of the
minor in person but shall ensure that the minor cannot hear or see the defendant.
B. The court, on motion of the prosecution, may order that the testimony of the
minor be taken outside the courtroom and be recorded for showing in the courtroom before
the court and the finder of fact in the proceeding. Only those persons permitted to be
present at the taking of testimony under subsection a may be present during the taking of
the minor's testimony, and the persons operating the equipment shall be confined from the
minor's sight and hearing as provided by subsection A. The court shall permit the
defendant to observe and hear the testimony of the minor in person but shall ensure that
the minor cannot hear or see the defendant. The court shall also ensure that:
1. The recording is both visual and aural and is recorded on film or videotape or
by other electronic means.
2. The recording equipment was capable of making an accurate recording, the
operator was competent and the recording is accurate and is not altered.
3. Each voice on the recording is identified.
4. Each party is afforded an opportunity to view the recording before it is shown
in the courtroom.
C. If the court orders the testimony of a minor to be taken pursuant to this
section, the minor shall not be required to testify in court at the proceeding for which
the testimony was taken.
13-4261 Law enforcement officer; affidavit; definition
A. If a prosecutor charges a criminal offense by complaint, the prosecutor may
attach an affidavit of a law enforcement officer or employee that swears on information
and belief to the accuracy of the complaint in lieu of making an oath before a
magistrate.
B. For the purposes of this section, "complaint" means a written statement of the
essential facts constituting a public offense.
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