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Affirmative Defenses

Facing criminal charges can be an overwhelming experience. You may feel like there are no options to help protect your future. However, Arizona law provides that there are acceptable defenses in certain situations, known as "affirmative defenses."

In Arizona, an affirmative defense is one that contends an alleged offender's actions were justified by some legally accepted mitigating factors. It is important to recognize these defenses early in a case.  A Mesa criminal defense lawyer can help you determine if an affirmative defense could apply to your particular case.

Defenses After an Arrest in Maricopa County

If you have been charged with a criminal offense in Arizona, contact Tempe criminal law attorney James Novak at The Law Office of James E. Novak. James has more than a decade of experience fighting for the rights of those facing criminal charges and working to get the best possible outcome in each case.  James investigates each case and is dedicated to making sure the rights of his clients are represented.

James is knowledgeable in all areas of Arizona's criminal laws. He represents clients throughout the state, including in Phoenix, Gilbert, Tempe, Chandler, Scottsdale and East Valley. Call (480) 413-1499 to schedule a free case evaluation. James will work with you to explore all of your options in building a strong and solid defense.


Affirmative Defenses Information Center


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Affirmative Defenses in Arizona

According to Arizona law, an affirmative defense is considered a defense that is offered and that attempts to excuse the criminal actions of the accused or another person for whose actions the accused may be deemed to be accountable.  A defendant shall prove any affirmative defense raised by a preponderance of the evidence, according to Arizona Revised Statutes § 13-205.

Justification defenses, however, are not considered affirmative defenses. Justification defenses describe conduct that, if not justified, would constitute an offense but, if justified, does not constitute criminal or wrongful conduct, according to ARS § 13-205.


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Entrapment

In Arizona, it is an affirmative defense to a criminal charge that the person was entrapped. To claim entrapment, the person must admit by the person's testimony or other evidence the substantial elements of the offense charged, according to ARS § 13-206.

A person who asserts an entrapment defense must prove:

  • The idea of committing the offense started with law enforcement officers or agents rather than with the person, such as an officer requesting to purchase drugs.
  • The law enforcement officers or agents urged and induced the person to commit the offense.
  • The person was not predisposed to commit the type of offense charged before the law enforcement officers or their agents urged and induced the person to commit the offense.

Under the law, a person cannot establish entrapment if he or she was predisposed to commit the offense and the law enforcement officers or their agents merely provided the person with an opportunity to commit the offense.
For example, if a person is accused of attempting to sell illegal narcotics to an undercover officer, it could be argued the accused likely would have committed the crime whether the person was an officer or not.

It is not entrapment for law enforcement officers or their agents merely to use a ruse or to conceal their identity, according to ARS § 13-206. The conduct of law enforcement officers and their agents may be considered in determining if a person has proven entrapment.


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Justification Defenses

There are several different types of justification defenses that can be applied in Arizona, according to state law. Some examples include:

Self-defense: A person is justified in threatening or using physical force against another when a reasonable person would believe physical force is immediately necessary to protect himself or herself against the other's use or attempted use of unlawful physical force. The protection also must be done so to the extent that a reasonable person would believe it is necessary, according to ARS § 13-404.

However, the threat or use of physical force against another is not justified in response to verbal provocation without the threat of violence or to resist an arrest, whether or not the person believes the arrest is lawful or unlawful.

Use of Physical Force: According to ARS § 13-403 there are several instances in which the use of physical force could be considered justifiable, including if a parent or other caregiver uses appropriate force to maintain discipline, such as a spanking.  A person also could use physical force if he or she is a superintendent or jail official who uses force to maintain order or prevent the commission of a felony or misdemeanor. 

Necessity Defense: A person could claim the necessity defense if he or she participated in conduct that would otherwise constitute an offense, but was justified because there was no reasonable alternative to avoid imminent public or private injury greater than the injury that might reasonably result from the person's own conduct, according to ARS § 13-417. This could not be used for homicide or serious physical injury.

Defense of Another or Property: A person is justified in threatening or using physical force or deadly physical force against another to protect a third person if a reasonable person would believe it was necessary for protection, according to ARS § 13-406. A person also could claim this defense, according to ARS § 13-4068, if he or she uses force during an attempt or commission by another person of theft or criminal damage involving tangible movable property under his possession or control.

Defense Display of a Firearm: The defensive display of a firearm by a person against another is justified when and to the extent a reasonable person would believe physical force is immediately necessary to protect himself or herself, according to ARS § 13-421.


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Affirmative Defenses in Crime Prevention

A person is justified in threatening or using both physical force and deadly physical force against another if he or she believes physical force or deadly physical force is immediately necessary to prevent a crime from happening. However, the force must be considered reasonable.

According to ARS § 13-411, a person could use force to prevent:

  • Arson of an occupied structure, § 13-1704
  • Burglary in the second or first degree, § 13-1507 or § 13-1508
  • Kidnapping, § 13-1304
  • Manslaughter, § 13-1103
  • Second or first-degree murder, § 13-1104 or § 13-1105
  • Sexual conduct with a minor, § 13-1405
  • Sexual assault, § 13-1406
  • Child molestation, § 13-1410
  • Armed robbery, § 13-1904
  • Aggravated assault, § 13-1204

This also includes the use or threatened use of physical force or deadly physical force in a person's home, residence, place of business, land the person owns or leases, conveyance of any kind or any other place in this state where a person has a right to be.


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The Law Office of James E. Novak | Criminal Defense Lawyer in Tempe

James Novak understands the severity of your charges and the possible consequences you face if convicted. His experience and knowledge are beneficial when working to have the charges reduced or even dropped. If you are facing criminal charges in Arizona, a strong defense is important in fighting to get a favorable outcome. Contact The Law Office of James E. Novak at (480) 413-1499 to discuss the facts of your case.