Introduction to Criminal Littering in Arizona
One would think that criminal littering, pursuant to Arizona law 13-1603, would require more nefarious circumstances than tossing a candy bar wrapper. However, depending on the place, weight of the litter, and item itself, a criminal littering charge could emerge from any act of littering whatsoever. This article will discuss the criteria required for a criminal littering charge under A.R.S. 13-1603, as well as penalties and possible criminal defense strategies.
What is Criminal Littering?
Under A.R.S. 13-1603, Arizona defines littering, and specifically criminal littering as one or more of the following:
-Placing litter or “destructive or injurious material” on public or private property that isn’t immediately removed.
-Releasing sewage or other harmful products into bodies of water or shorelines in Arizona.
-Dumping any earth material (land, soil, plant-material) on any land, public or private
The first definition is the most broadly relevant, and will encompass the lion’s share of the criminal littering charges in Arizona. The second and third definitions, however, are perhaps more important, since they deal with large-scale waste removal, and thus, hold larger ecological considerations. These definitions of criminal littering sanction how and where Arizona businesses can dump their waste. However, due to the rather low penalty ceiling for criminal littering, it does not seem unlikely that certain larger businesses will ignore the meager fines or penalties and dump anyway if it suits their interests.
Class 6 Felony- A Class 6 felony is the harshest penalty possible for criminal littering. To receive a Class 6 felony, the prohibited material or substance has to exceed three hundred pounds in weight, one hundred cubic feet in volume, or done for a commercial purpose. The presumptive prison sentence for a Arizona Class 6 felony is one year, and may include other fines. Often, with plea bargaining, a Class 6 felony will be lowered to a Class 1 misdemeanor. This penalty will apply to the corporate dumping mentioned above- a potentially meager penalty in contrast to thousands saved by illegal dumping. It must be noted that for this penalty, standards are constant across all three definitions of criminal littering. For instance, three hundred pounds of litter left on private land versus three hundred pounds of litter dumped into the water will be punished the same under this law. However, other federal organizations like the United States Environmental Protection Agency may punish subject to different and potentially harsher standards.
Class 1 Misdemeanor- A Class 1 misdemeanor charge is, just as the Class 6 felony charge, predicated on the weight of the litter. To be charged with Class 1 misdemeanor criminal littering, the substance must be between one hundred pounds and three pounds, between thirty five and one hundred cubic feet in volume, and not done for a commercial purpose. A Class 1 misdemeanor is the most serious misdemeanor offense, and is punished by up to six months in jail and three years under probation. Fines can also occur. Like the Class 6 felony charge, standards are constant across the three definitions of criminal littering. You may also be charged with a Class 1 misdemeanor if, under conditions which do not already trigger the Class 6 felony, the destructive or injurious material is placed within fifty feet of a highway, beach, or shoreline.
Class 2 misdemeanor- A Class 2 misdemeanor is charged in the absence of any of the above conditions. Thus, logically, a Class 2 misdemeanor is the most commonly dispensed punishment for criminal littering, because it contains all circumstances and conditions not formally listed above. If your litter is less than 100 pounds, smaller than thirty five cubic feet, and not left near a highway or body of water, you will likely be charged with a Class 2 misdemeanor. A Class 2 misdemeanor holds a maximum prison sentence of four months, plus two years probation and fines.
Dumping Versus Littering:
Sadly, as expressed above, the only distinction made between dumping and littering in the State of Arizona is the weight of the material itself, and not the punishment involved. However, this makes sense; large-scale dumping costs the State of Arizona far less than highway littering- over six times less! Thus, Arizona legislators are far more concerned about correcting the behavior of drivers who thoughtlessly litter from their windows than those who consciously dump waste in prohibited areas.
Every year, highway littering alone costs Arizona taxpayers three million dollars. Additionally, the presence of this trash cheapens our community which subsequently hurts the local economy. Recently, Arizona has implemented a litter hot-line, designed not to punish, but to prevent future behavior. When someone calls the hot-line to report a driver littering, the program will not alert law enforcement, but will simply send that driver a free litter bag, along with a written reminder not to litter. To submit a form, call 1-877-354-8837 or visit their website at :http://kazb.org/resources/programs/litter-hotline/
Fines for littering vary significantly, but are generally higher when it is committed on the highway. For the most part, Arizona fines for littering cannot exceed five hundred dollars, except in very specific circumstances. Pursuant to A.R.S. 28-1098 regarding vehicle loads, “littering” does not have to be intentional. The law begins by stating the correct way to transport a load, requiring the vehicle be constructed in a manner “to prevent any of its load from dropping, sifting, leaking, or otherwise escaping from the vehicle.”
Once the criteria is established, the law proceeds to establish penalties in cases of violation. If an officer finds that the load is not properly secured, but no material has escaped, the person is only subject to a civil penalty of up to 250 dollars, 350 dollars if committed twice in a five year period. However, if material seeps from the load and results in injury to another driver, the driver can be charged up to five hundred dollars. If the material causes the death of another person, the driver can be fined up to 1000 dollars.
Some may be thinking: that fine seems rather low for causing the death of another person, especially considering the nearly equal fine for tossing a snickers bar out the window. This is a fair assessment, but contrarily, exhibits a universal characteristic in determining penalty: intent. A.R.S. 28-1098, from an experiential standpoint, stands firmly between littering and manslaughter. In fact, it is a confluence of those two actions. Yet, it is punished almost identically to a criminal littering charge. This is where intent comes into play. Although an insecure load, or load seepage, is objectively more hazardous than a stray snickers bar, it is generally unintentional. Nobody wants to lose their load on the road; any loss of material is, by the nature of the situation, accidental. On the other hand, throwing trash from your window is a clearly intentional action. Intent, in nearly all criminal cases, is a huge governor of true criminality, and thus, punishment determination.
But highway littering is not the only form of criminal littering. Under Arizona law, cities are able to set their own standards and fines for litter. Under city ordinance, Scottsdale has set the city-wide fine for litter at seventy five dollars, highways notwithstanding. However, in 2012, the Scottsdale City Council wrote a provision which doubles the fine within the “entertainment district” of Downtown Scottsdale, a zone which encompasses Camelback Road to the North, Indian School Road to the South, Miller Road to the East, and Scottsdale Road to the West. But many believe this law does not address the root issue of the problem, and was designed simply as a means to make more money off tourists. This may be true, but the provision was paired with an addition of seventeen trash cans in the Downtown Scottsdale area along with signage warning about the extra fees, a move which reflects an effort to do real good in cleaning up our cities. For additional information see the Arizona statute on criminal littering.
Defenses to a criminal littering charge are limited, but possible. The underlying problem in defense of a criminal littering charge is that intent is almost always assumed by a judge. If a police officer observed you dropping something on the ground or out of your car window, it is difficult to imagine a situation where that dropping was not intentional. However, one prime example, and a common one, is the dropping of cigarette butts. Cigarette butts are one of the most littered item in the World, and account for a huge fraction of our landfills. Yet, smoking a cigarette comes paired with a litany of defense options not available to other litter items. For one, a cigarette is something which is dangled from the window while driving, an action not present with other forms of litter. This could play on lack of intent- “officer, it dropped from my hand accidentally.” This defense is only strengthened by the fact that cigarettes have a flame, allowing for the defendant to claim they dropped the cigarette because they were burned or because they feared for their or their vehicle’s well-being. It must be noted, however, that many states have increased fines for dropping lit cigarettes due to the possibility of inflammation, and in no way constitutes enhanced defense potential.
Arizona has more criminal littering defense options than most states, since most do not allow for the invocation of “mens rea,” or a guilty mind. Most states have strict liability litter laws, which means that intent does not matter in criminal proceedings. If an officer saw you litter and charges you as such, it will be your testimony against theirs in court; intervening factors really do not matter. Although Arizona is not a strict liability state in regard to litter, it certainly comes close. If a cop saw you litter and testifies as such, you will most likely be convicted. However, if you were charged with criminal littering after the fact- as in, a cop saw litter on the ground and assumed you left it there- defense is still possible. Strict liability is strict, but requires the corresponding evidence. If an officer did not physically see you litter, you and your defense attorney can always contest this in court.
This is not to say that the grand majority of littering is in fact intentional, as the law would have one think. Forty percent of litter found on Arizona freeways is accidental litter, meaning it was blown from a car or more likely from the bed of a truck. Yet, if all forty percent of this litter was excused, it would lead to a jaded society, complacent with littering. For this reason, the lack of defense options when it comes to criminal littering can be viewed as a good thing. Unintentional and intentional litter are equally destructive to the environment, and one could argue that even unintentional litter- the stuff that is flung from the bed of your truck- still implies an equally damning lack of mental wherewithal.
However, if your littering was truly a mistake, born of a genuine accident, Arizona courts can choose to rule on lack of intent if the corresponding defense evidence is present. This seems to be a perfect middle ground- punishing the bulk of litterers to dissuade future littering while still allowing for exceptions to be made. Otherwise, under strict liability, a police officer has what some may consider undue power- the power to charge people for littering without fear of defense.
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