What you Need to Know About Disorderly Conduct in Arizona (A.R.S. §13-2904)

by Feb 13, 2016

What is Disorderly Conduct in Arizona?

Also known as “disturbing the peace,” Disorderly Conduct in Arizona (A.R.S. §13-2904) is a general crime. It’s often used by officers issuing a citation when they’re not sure what else to cite. In other words, it’s a “catch all” offense. But its two most common applications are in domestic violence offenses and as a lesser felony weapons charge. Even though disorderly conduct in Arizona is so broad, if you find yourself charged with disorderly conduct, you’re not defenseless. First, it’s important to understand what you’re facing and how you can fight it.

There are six different ways to commit disorderly conduct in Arizona. Each of them require the state to first prove that a person 1) intended “to disturb the peace or quiet of a neighborhood, family or person” or acted with knowledge he or she was doing so and 2) one of the following:

1. Engages in fighting, violent or seriously disruptive behavior; or

2. Makes unreasonable noise; or

3. Uses abusive or offensive language or gestures to any person present in a manner likely to provoke immediate physical retaliation by such person; or

4. Makes any protracted commotion, utterance or display with the intent to prevent the transaction of the business of a lawful meeting, gathering or procession; or

5. Refuses to obey a lawful order to disperse issued to maintain public safety in dangerous proximity to a fire, a hazard or any other emergency; or

6. Recklessly handles, displays or discharges a deadly weapon or dangerous instrument.

See A.R.S. §13-2904.

The first 5 ways to commit disorderly conduct are all class 1 misdemeanors but the last one is actually a class 6 felony. The first 5 ways often come up in domestic violence cases while the last often arises out of an aggravated assault case.

Examples of misdemeanor disorderly conduct in Arizona:

Let’s say a neighbor calls police because fighting is heard in a nearby apartment. Police arrive and find that there are no visible injuries but one spouse indicates that the other disturbed his or her peace and quiet. In that scenario, officers will often charge disorderly conduct as a domestic violence offense.

Another scenario comes up in juvenile offenses. A student is taken to the principle’s office for yelling at another student by using in fighting words. If police are called, that student might be charged with disorderly conduct for using offensive language or seriously disruptive behavior if it disturbed the normal classroom routine.

Lastly, disorderly conduct comes up a lot in the “angry customer” cases. Let’s say customer is upset and begins yelling at the employees. If an employee feels threatened enough to call police, that person could face disorderly conduct charges for the same reasons as the school scenario.

Example of a felony disorderly conduct charge in Arizona:

Felony disorderly conduct often arises as a lesser offense of aggravated assault. For example, if a gun, knife, or other deadly weapon is intentionally used to place someone in apprehension of imminent physical injury, that is aggravated assault and is a very serious class 3 felony offense. But if a person instead intends to use the weapon to disturb the peace and recklessly displays or discharges a weapon to do so, then that person is only guilty of the lesser class 6 felony. While both are very serious charges, prison exposure is much lower with the latter offense because the conduct is not as egregious.

So what’s the difference between the two? Although it’s a little simplistic and doesn’t cover all the differences between the two offenses, one way to distinguish the different crimes is by comparing them to the old Looney Tunes characters Elmer Fudd and Yosemite Sam. Elmer Fudd, the hunter, intentionally points the rifle at Bugs Bunny in order to place him in fear of imminent injury. This is aggravated assault. Elmer’s intent is quite specific: he wants to fear into Bugs Bunny to catch him (only to be eluded by the clever rabbit). But Yosemite Sam’s intention is different. He wants attention. Yosemite knows how to make an entrance. He’s seen barreling down the street in a grand entrance by firing both pistols up in the air. This is disorderly conduct. Yosemite wasn’t intentionally trying to put anyone in fear of injury but disturbed everyone’s peace.

Of course, the real world is not cartoons and it’s never that clear cut. The difference between the two crimes can be very subtle. For example, let’s place this into a road rage scenario: Person A cuts off Person B on the freeway so Person B flips A off. In response, Person A pulls out a gun, waives it around, but doesn’t point it at Person B. What crime could Person A be charged with? The answer depends on what the jury believes Person A’s intent was. If pulling out the gun was to place Person B in apprehension of immediate injury, then it’s aggravated assault. But if the reason for waiving the gun around was disturb the B’s peace, it’s disorderly conduct. Perhaps it was a little of both. See how that can get tricky? And while aggravated assault must be done with intention put someone in apprehension of imminent injury, disorderly conduct only requires intent to disturb and can be done recklessly.

What are the possible penalties for disorderly conduct?

Most disorderly conduct offenses in Arizona fall into the misdemeanor category. The maximum penalty for a class 1 misdemeanor is up to 6 months in jail, a $2,500 fine and up to 3 years of probation. The minimum penalty would be just the conviction on a person’s record. There are additional penalties for domestic violence offenses but diversion may also be available in that scenario for first time offenses.

But if the case is a felony, then punishment is more complicated because it depends on the number of priors and if the case is charged as a dangerous offense. In Arizona, offenses that are deemed dangerous require mandatory prison time, even for first time offenders and they are sentenced under enhanced penalty ranges. For example, while the maximum prison term for a first offense class 6 felony is 2 years, the maximum for a first time dangerous class 6 felony is 3 years. And while probation is available for up to 3 years for a non-dangerous felony, prison is mandatory for a dangerous offense so the minimum penalty is 1.5 years prison.

Because felony disorderly conduct is nearly always charged as a dangerous offense, the first time dangerous offense prison range if a person is convicted at trial is as follows:

First Dangerous Offense Class 6 Felony (prison mandatory)
Min Presumptive Max
1.5 yrs. 2.25 yrs. 3 yrs.

What are the most common defenses to disorderly conduct in Arizona?

Although disorderly conduct is a broad offense, defenses are equally broad as well. It’s impossible to list them all but here are some of the most common:

Self Defense:

Especially in domestic violence cases, the most obvious defense is self defense. If a person attacks you, you have a right to use reasonable force to deflect that threat, including fighting or other seriously disruptive behavior. It also includes any verbal threats used to stop an assault. And, in the case of felony disorderly conduct, displaying a firearm can be used to prevent an equally dangerous threat.

Using the hypothetical road rage scenario above, let’s say that Person B used his or her vehicle in such an unsafe manner that Person A reasonably believed that displaying a firearm was necessary to prevent injury (an imminent accident), a jury could determine that Person A was justified in waiving the gun to stop the behavior.

Peace not disturbed:

Another key defense is that a person’s peace was not actually disturbed. For example, if you were only yelling back at a person who started yelling first, you could not have disturbed his or her peace. And although that behavior may be escalating the situation, that is not enough to be disorderly conduct. By that same token, the government needs to prove your intent was to disturb someone’s peace. In other words, simply being loud or even obnoxious, by itself, is not a crime.

Offensive Language is not enough:

Similarly, with respect to the abusive language charge, offensive words are not enough. The words must be fighting words. There is a conflict between free speech and criminal behavior and the line is drawn with fighting words. However rude, a person has a right to be so as long as the words don’t amount to a provocation to fight. In other words, the government must prove that the words used were likely to provoke a violent reaction. If not, that’s not disorderly conduct but protected free speech.

How can Mesa Criminal Defense Attorney Mark Heath help me if I’ve been charged with disorderly conduct?

Don’t settle for mediocrity. If you’ve been charged with disorderly conduct in Arizona (A.R.S. §13-2904), hire an attorney that is experienced in handling these types of cases and gotten results. I’m familiar with these cases and have been successful in getting charges dismissed, reduced, or even beaten at trial. There are subtleties in the law and more defenses than the common ones listed above. I can sift through your case with a fine tooth comb and pluck out all relevant defenses and factors that could help you. Even if you believe your guilty of the crime, I can still help you and assist with getting your life back on track. Don’t delay in giving us a call today.

1635 N. Greenfield Rd. #123

Mesa, AZ 85205 

mark@theheathlawfirm.com

480-442-0489

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