In Arizona, many traffic violations are considered criminal violations. Criminal speed, also known as excessive speed, is probably the most common criminal traffic violation that we see. Below, we have tried to address the questions we frequently receive about criminal speeding violations.
- What is criminal speeding in Arizona?
- What is the worst-case outcome?
- What are the possible outcomes in a criminal speed case?
- What does the court process look like?
- How long will it take to complete my case?
- Will I have to appear in court?
- What if I don’t live in Arizona?
- Will a criminal speed conviction affect my job?
- Will a criminal speed conviction affect my immigration status?
- Can I expunge or set aside a criminal speed conviction?
- Can you help me get a criminal speed conviction off my record?
- Do I need an attorney?
- Can you guarantee an outcome?
- What information do you need from me to get started?
What is criminal speeding in Arizona?
Most people are surprised to learn that exceeding the posted speed limit by more than 20 mph, or exceeding 85 mph regardless of the posted speed limit, can be charged as a criminal speeding violation. You can also be charged with criminal speed if you exceed 35 mph approaching a school crossing, or if you exceed 45 mph when there is no posted speed limit.
Criminal speeding is covered in the Arizona Revised Statutes, specifically, A.R.S. 28-701.02(A). Criminal speed is often referred to as “excessive speed” because of the language of the statute. In fact, if you receive a criminal speed ticket, the description of the violation on your ticket will likely read something like “excessive speed,” “exceeding 85 mph” or “exceeding speed limit by 20+.”
Most of excessive speed tickets are issued in-person by a police officer, but we have seen them arising from photo enforcement devices, especially in Scottsdale and Paradise Valley.
What is the worst-case possible outcome?
A conviction for criminal speed is a class 3 misdemeanor, the lowest level misdemeanor in Arizona. In theory, a class 3 misdemeanor can result in up to 30 days in jail, and fines up to $500 plus surcharges (just about doubling the fines). Jail is rarely a possibility unless you are a repeat criminal traffic offender, or unless the speed was particularly egregious, like 95 mph in a 40 mph zone, or over 100 mph, or 50 in a 15 mph school zone, for example. In those cases where jail is a possibility, one to four days in jail would typically be a worst-case scenario.
If you are convicted of a criminal speed violation, the court will report the conviction to the Arizona MVD. The MVD will assess 3 points on your license (the same as for a civil speeding violation). This typically will not impact your license status, unless you already have a significant number of points. You may also face increased insurance premiums, and the conviction will come up on any criminal background checks.
In summary, for the vast majority of people, the worst-case scenario involves the misdemeanor conviction, a fine, and 3-points on an Arizona license.
What are the possible outcomes in a criminal speed case?
Our primary goal is usually to avoid the criminal conviction. This can happen a few different ways.
Defensive Driving Diversion
Defensive driving diversion, alternatively known as defensive driving school, is the ideal outcome in an excessive speed case because it results in the charge being dismissed. Unlike a civil violation, where you may simply choose to take defensive driving diversion, in an excessive speed case this option is only available at the discretion of the judge. As a result, the likelihood of a judge allowing defensive driving diversion varies by court. Some courts will never allow defensive driving diversion, whereas other courts may allow it even if the alleged speed is 100 mph or more. A clean driving record really helps when making this request to the court.
We may be able to negotiate a plea to a regular (non-criminal) speeding ticket.
If we cannot achieve defensive driving diversion, obtaining a plea to a civil speeding violation is usually the next best outcome. There are two approaches we focus on when trying to negotiate a plea to a civil speeding violation. First, we try to create doubt as to whether our client actually committed the alleged violation. We look for errors or inconsistencies in the citing officer’s story, and we also look for facts that would call into doubt the officer’s allegations. The goal is to convince the prosecutor that they would be unlikely to prevail at trial, and that offering a civil plea is a better use of resources than taking the matter to trial. The second approach is to leverage notable details in our client’s background, such as work or school achievements, community involvement, volunteer work, commendations, letters of reference, or anything else that tends to show that our client is a peaceful, productive, an law-abiding citizen who should be given a break. Often, these personal details make a big difference in the outcome we are able to achieve.
We may be able to get the charge dismissed.
This is very rare, because there is almost always evidence that our client was speeding, even if it was not criminal, and the prosecutor will at least want our client to plead to a civil speeding violation and pay a fine. Nevertheless, on occasion there is some irregularity or a failure of the State to follow the applicable rules that results in the case being dismissed. We are always on the lookout for such details that could result in a dismissal.
Proceeding to trial or pleading to the charge.
If we cannot achieve defensive driving diversion, a reduced plea, or a dismissal, two options remain: taking the case to trial or pleading to the violation. By the time we get to this decision point, we have all of the information that is available and that will be used at trial, so our client can make an informed decision. If we have not found any information to refute the State’s claims, often it makes more sense to plead to the charge rather than spend the time and resources to go through a trial we will almost certainly lose. However, if we have found information that calls into doubt the officer’s allegations and we believe we can make a plausible argument, then we will take the case to trial.
After we have finished the discovery process, we may submit a written request to the prosecution asking them to deviate from the charge. In other words, we may ask them to offer a plea to something less, like a civil speeding ticket. This request will present your background and good character, and depending on what we have learned during the discovery process, ideally we can make a factual argument too.
What does the court process look like?
What you should expect is much the same as what you would expect in any criminal case in Arizona. When you are issued a criminal ticket for speeding, there will be a date listed on your ticket. When the officer gives you the ticket and lets you continue driving, you are promising to appear in court on that date. This date is called the arraignment date. The arraignment date is simply the date on which you will enter a plea. If you hire an attorney before your arraignment date, your attorney will file paperwork with the court entering a “not guilty” plea. The court will then vacate, or cancel, your arraignment date and set a new date for a pretrial conference.
The pretrial conference is the first opportunity for your attorney to meet with the prosecutor in your case and discuss settlement and request information (known as discovery) that may be useful in defending against the charge of excessive speed. Sometimes not much happens before the initial pretrial conference. This is because the rules of criminal procedure in a misdemeanor case do not require the prosecutor to do anything before that initial pretrial conference. You can expect in an excessive speed case that there will be several pretrial conferences, usually occurring about 30 days apart.
Before your initial pretrial conference we will send discovery requests to the prosecutor seeking to get information that may be helpful to your case. We will continue the discovery process until we have all relevant information that is available.
Pretrial conferences will continue to occur until either a settlement has been reached, or until it is apparent that no settlement can been reached and all relevant information has been obtained from the prosecutor, at which point the case will be set for trial. If we are able to reach an agreement, the court will generally conduct a change of plea hearing to formally resolve the case.
You can read about these different stages of a case in more detail by clicking the links below.
The court process in a criminal speeding case
How long will it take to complete my case?
Will I have to appear in court?
If you hire an attorney, your attorney can often attend the pretrial conferences without you. Some courts require that a defendant attend pretrial conferences, but this is the exception rather than the rule. We represent many clients from out-of-state who never return to Arizona or attend court. You can discuss whether or not your presence is necessary with your attorney. If your case goes to trial, you will almost certainly need to attend the trial in person.
What if I don’t live in Arizona?
Most courts will let you appear by telephone for court appearances other than a trial. Some courts may require you to make this request in writing, others not. If you live out of state, call the court and ask them about their policies regarding telephonic appearances. If you have an attorney, your attorney can take care of this. If your case ends up going to trial, you will need to come back to Arizona for the trial. If your case is resolved without going to trial, you probably won’t need to physically return to Arizona.
Will a criminal speed conviction affect my job?
This will of course depend on your job, but for the vast majority of people, the answer is no. We frequently represent clients who are required to undergo background checks as part of their job, or who hold security clearances, or who have professional licenses (like attorneys or doctors), and a criminal speed conviction probably won’t derail your career. However, a criminal speed conviction will likely require an explanation, and it is always ideal to avoid having to make that explanation.
For some jobs though, a criminal speed conviction is devastating. For example, for some commercial drivers such a violation could end their employment.
If you are concerned about how an excessive speed conviction could impact your job, you may want to review your company’s policies regarding criminal convictions and consult an attorney about your specific situation.
Will a criminal speed conviction affect my immigration status?
Maybe. We always advise our clients to consult with an immigration attorney to get a definitive answer to this question. Keep in mind though that criminal speed is not like assault, fraud, theft, burglary or any crime that involves a victim. Also, it is not a crime of moral turpitude, which is important because crimes of moral turpitude can prevent a person from being allowed entry into the U.S. Merriam-Webster defines moral turpitude as “an act or behavior that gravely violates the sentiment or accepted standard of the community.” Things like fraud, theft, blackmail and manslaughter are examples of crimes of moral turpitude. In contrast, criminal speed does not involve any victim or moral element.
Can I set aside or expunge a conviction for criminal speed?
In Arizona, many convictions can be set aside, meaning when the conviction is set aside, you are no longer convicted of the crime. The record of the crime still exists. To expunge a conviction means to erase the conviction, which is not possible in Arizona. A record of the case will still exist.
The answer to “can you set aside a criminal speed conviction” is, in typical lawyer fashion, “it depends.” The setting aside of criminal convictions is governed by Arizona statute, in particular A.R.S. § 13-905. We encourage you to read the statute yourself, but a careful reading of the statute indicates that criminal speed, or excessive speed, is a violation that technically may not be set aside. A.R.S. § 13-905 excludes almost all violations listed in Title 28, chapter 3, of the Arizona Revised Statutes. Chapter 3 of Title 28 contains many moving violations, including criminal speed, but also racing, reckless driving, aggressive driving, and a variety of accident-related criminal violations. Technically speaking, convictions for any of those violations, may not be set aside. Reckless driving is the lone exception.
Nevertheless, and while we do not know the reason for sure, we have found that more often than not, courts will set aside a criminal speed conviction. If you have been convicted of a criminal speed violation, or another criminal traffic violation, you have nothing to lose by requesting that the court set aside the conviction. The worst the court can say is “no”. Even if your initial request is denied, you can wait a few months and resubmit the request. We have found that the more time that has passed since the conviction, the more likely it is the court will set aside the conviction.
Even if a court sets aside your excessive speed conviction, that may not remove the conviction from your criminal background. Arizona Department of Public Safety (DPS) maintains criminal background records. A.R.S. § 13-905(F) provides that the department of public safety must “update the person’s criminal history with an annotation that the conviction has been set aside”. But because an excessive speed conviction cannot technically be set aside, DPS may not do this.
There is good news though – We anticipate new legislation to pass in 2020 that will make it legally possible to set aside an excessive speed conviction.
Please keep in mind that even if the court sets aside your conviction, it will not remove the violation from your MVD record or otherwise undo any action the MVD may have taken against you.
Can you help me get a criminal speed conviction off my record?
See our answer above about setting aside a criminal speed conviction. While you may be able to get the conviction set aside, you will not be able to get rid of the record of the case, and you cannot remove the violation from your MVD record, also known as your driver license motor vehicle record.
Do I need an attorney?
This is a question only you can answer, but here are some considerations.
An attorney can be very helpful if you live out of state and do not want to come back to Arizona because the attorney can often appear for you or arrange for you to appear by phone.
An attorney is familiar with the court process and the particular court you are dealing with. Courts of limited jurisdiction (the ones that handle traffic tickets) vary greatly in their procedures. We’ve appeared in over 60 courts all over Arizona, so odds are good we are familiar with the court handling your ticket, and that we’ve had experience with the prosecuting agency.
Based on our experience and talking with clients who have tried it on their own before hiring us, having an attorney can make a difference in the negotiation process. For most people, a criminal speed ticket is their first encounter with the criminal court system. An attorney does this every day. An attorney knows what information to ask for, and has experience looking for weak spots in the prosecution’s case. When you appear without an attorney, the prosecutor knows you don’t know what you’re doing, and they have little incentive to work with you. When you have an attorney, this changes the equation. An attorney is going to make the prosecutor do work (and they’re human, they don’t want to do more work). This changes the cost-benefit equation for the prosecutor. Maybe it will be easier for the prosecutor to offer a favorable plea rather than deal with a bunch of discovery requests and a trial.
We have even had a case of a defendant asking the court for defensive driving school for a criminal speed ticket, the court denying the request, then the defendant hired us and we made the very same request, and the court granted it. It stinks that this can happen, but sometimes having an attorney who knows the rules and can present your case well can make a big difference.
Can you guarantee an outcome?
The short answer is no, we cannot guarantee an outcome. Every case is different, and we cannot control how the prosecutor and judge will act. We often have a good idea about what the outcome will be based on the hundreds of cases we’ve handled, but sometimes even we are surprised by the outcome.
When discussing the outcome for your particular case, we can share what we have achieved in the past in similar cases. Considering criminal speed, racing, exhibition of speed, reckless driving and aggressive driving as typically similar and related charges, we have been able to avoid the criminal conviction in about 84% of the cases. This number has been surprisingly consistent, varying by only a percentage point or two in either direction over the years.
What information do you need to get started on my case?
We will want to know:
- What court is handling your ticket
- What is the alleged speed, and what was the posted speed?
- Do you have a clean driving history, or do you have prior tickets?
- What is your next court date?
- Your contact information (full name, phone number, email and address)
- We like to get a written narrative about what happened leading up to and during your traffic stop.
If you decide to hire us, then we will want:
- A copy of your driving history
- documents that reflect your good character (we’ll send you a list of things to collect). These documents can help set you apart from crowd and can make a big difference in the result we can achieve.
- There may be other information we want depending on the specifics of your case.
If you’d like our help, or if you have some questions about your case, give us a call or send us an email and we’re happy to discuss your case with you.