Whether you’re facing criminal charges or simply educating yourself, it’s important to understand your legal rights as an American citizen and Arizona resident.

When it comes to the judicial system, one of the most important legal rights you should be aware of is the right to an attorney.

Fortunately, having an attorney isn’t a luxury reserved for the wealthy. States are required to appoint an attorney for citizens who cannot afford to retain counsel, and the right applies to any case where the defendant is facing possible jail time.

Of course, like anything pertaining to the American judicial system, qualifying for legal assistance and working with a public defender can be complicated. The state of Arizona imposes strict financial qualifications, and even those who qualify may end up having to pay a portion of the legal costs for their case.

Following is a brief discussion about the right to an attorney and working with public defenders, covering the following important topics:

  • What does “the right to an attorney” mean?
  • What is a public defender?
  • Who is entitled to a public defender in Arizona?
  • What types of cases are eligible for a public defender?
  • FAQs about public defenders in Arizona
  • What to do if you don’t qualify to work with a public defender

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The Right to an Attorney

The Sixth Amendment of the US Constitution guarantees an American citizen’s right to an attorney. Furthermore, the legal precedent set by the Supreme Court case Gideon v. Wainwright mandates that state courts appoint attorneys for defendants who cannot afford to hire their own counsel.

In Arizona, this fundamental right is also guaranteed by the Arizona Constitution, the Arizona Public Defender Enabling Act, and Rule 6 of the Arizona Rules of Criminal Procedure.

In practice, this means that American citizens who are facing criminal charges with the possibility of jail time have the right to retain legal counsel and representation — even if they can’t afford it. You don’t have to hire an attorney or accept the assistance of a public defender, but you must at least be provided with the opportunity to do so.

Public Defenders

When a defendant facing criminal charges cannot afford to hire an attorney, the state of Arizona will appoint a public defender. The attorney will provide legal advice, counsel, and defense (i.e. representation in court) for no charge.

A public defender must be a licensed attorney who is in good standing with the State Bar of Arizona, so you’re not working with a student or intern — this is a full-fledged attorney with experience defending clients in criminal court and negotiating with prosecutors.

Who is entitled to a public defender in Arizona?

The 14th Amendment of the US Constitution guarantees the right to due process and equal protection for American citizens who meet the following criteria:

  1. The citizen is facing criminal prosecution in justice or superior court
  2. The criminal charges carry potential jail time
  3. The citizen cannot afford to hire a private attorney

In Arizona, the state will conduct a “means test” to determine if a defendant is financially unable to hire an attorney. The defendant must complete a questionnaire under oath, answering questions pertaining to disposable income and family size.

After the questionnaire is completed, a judge or court commissioner will assess the defendant’s financial ability to hire an attorney. Generally speaking, defendants who fall below the poverty line should be approved for a public defender. 

If your petition is denied because your disposable income and family size places you above the poverty line, you can request reconsideration based on factors such as loss in income or other financial commitments.

Types of Cases Eligible for a Public Defender

Under federal and Arizona state law, defendants involved in the following types of cases may be eligible for a public defender:

  • All mental health hearings regarding release recommendations
  • Appeals to a higher court
  • Extradition hearings (in select Arizona counties)
  • Involuntary commitment hearings
  • Juvenile delinquency proceedings
  • Justice court cases
  • Mental disorder hearings (if appointed by the court)
  • Superior court cases

Keep in mind that simply being a defendant in a qualifying case doesn’t guarantee the court will appoint a public defender. You’re only entitled to a public defender if you pass the means test and cannot afford to hire a private attorney.

FAQs about Public Defenders in Arizona

Q: Can you be denied a public defender?

Yes. Defendants who fail the means test (i.e. their family size and disposable income place them above the poverty line) will be denied a public defender.

Q: What is the income limit to qualify for a public defender?

Financial eligibility for appointing a public defender is primarily based on the Poverty Guidelines published by the US Department of Health and Human Services. The Arizona means test gathers a defendant’s disposable income and family size, then compares that information against the most recent poverty levels.

For example, in 2019 the poverty line for a family of two is $16,910. By comparison, the poverty line is $25,750 for a family of four, and $34,590 for a family of six.

Q: Can anyone use a public defender?

Not all court cases qualify for the appointment of a public defender. For a full list of qualifying case types, see the previous section entitled, “what types of cases are eligible for a public defender?”

Q: Is it better to have a lawyer or a public defender?

There’s nothing wrong with working with a public defender. Public defenders are full-fledged attorneys who are in good standing with the State Bar of Arizona. You can (and should) trust their counsel and representation.

That said, private attorneys are often far more experienced, especially those who specialize in particular criminal cases. Private attorneys can also give your case more time and attention, as public defenders are often overloaded with cases and clients.

What to Do if You Don’t Qualify for a Public Defender

If you cannot afford to hire a private criminal defense attorney but the Arizona means test determines that you’re ineligible for a public defender, you can request a reconsideration based on other factors. For example, you may argue that your income has substantially changed, or that your other financial obligations (e.g. debt, child support, alimony) put your actual take-home income below the poverty line.

When a request for reconsideration is denied, it’s time to discuss your case with a criminal attorney.

 

Call the JacksonWhite Criminal Law team at (480) 467-4370 to discuss your case today.

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