What is criminal speed?

In Arizona, many traffic violations are considered criminal violations. Criminal speed is probably the most common criminal traffic violation that we see. 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 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 speed 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+.”

What to expect in a criminal speed case

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.  Not much happens before the initial pretrial conference.  This is because the rules of criminal procedure 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.  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.

Along the way, your attorney will likely ask you to provide information that could be helpful in mounting a defense.  Your attorney will also update you as your case develops. Never be afraid to ask your attorney questions – that’s what you are paying your attorney for.

Every case is different, and we are always happy to discuss what a defendant might expect in an excessive speed case based on that defendant’s particular circumstances.

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.

Will I have to go to trial?

The vast majority of these cases are resolved through negotiations with the prosecutor and do not go to trial.

How long will it take to complete my case?

On occasion, we are able to resolve these cases at the first pretrial conference. Sometimes it takes us a year or more to resolve these cases.  Most cases fall somewhere in between.

 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 is 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.

Consequences of a criminal speed conviction

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, 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, who 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.

Can you set aside a criminal speed conviction?

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. § 13-907. We encourage you to read the statute yourself, but a careful reading of the statute indicates that criminal speed, or excessive speeding, is a violation that technically may not be set aside. A.R.S. § 13-907 does not apply to 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. What we do know for sure is 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, 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. We can help you make this request to the court, or you can also make this request on your own.

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.

What if you live outside of Arizona?

If you live outside of Arizona, as many of our clients do, hiring a local attorney can help you avoid traveling back to Arizona to deal with your ticket. We can typically appear in court for you, and ask the court to let you appear by telephone in the event your presence is required.