Petition for Special Action from the Superior Court in Mohave
County No. CR-2018-01854 The Honorable Richard D. Lambert,
American Civil Liberties Union Foundation of Arizona, Phoenix
By Jared G. Keenan, Kathleen E. Brody, Marty Lieberman
Co-Counsel for Petitioner
Watkins & Diesel, P.L.L.C., Flagstaff By Michael J.
Wozniak Co-Counsel for Petitioner
County Attorney’s Office, Kingman By Megan McCoy, Jacob
Cote Counsel for Real Party in Interest
County Public Defender’s Office, Tucson By David J.
Euchner Counsel for Amicus Curiae Arizona Attorneys for
Coconino County Public Defender’s Office, Flagstaff By
Sandra L.J. Diehl Counsel for Amicus Curiae Arizona Public
Arizona Attorney General’s Office, Phoenix By Rusty D.
Crandell, Anthony R. Napolitano Counsel for Amicus Curiae
Arizona Attorney General
Lawrence F. Winthrop delivered the opinion of the Court, in
which Presiding Judge Paul J. McMurdie and Chief Judge Peter
B. Swann joined.
Arizona Revised Statutes ("A.R.S.") section
13-3967(E)(1) mandates that persons charged with certain
bailable sex offenses be subject to electronic monitoring
"where available." In this special action, we
address a question raised but not directly answered by §
13-3967(E)(1): Must the defendant pay the cost of that
pretrial electronic monitoring? We answer that question in
the negative, and we also address other issues raised by the
Robert Louis Hiskett ("Petitioner"), whose criminal
charges trigger the application of A.R.S. §
13-3967(E)(1), challenges the superior court's pretrial
release orders requiring him to pay for electronic location
monitoring and later requiring him to post bond in the amount
of $100, 000 or be jailed pending trial. Petitioner argues
the cost of pretrial electronic location monitoring must not
be imposed on pretrial defendants. He also argues the
superior court failed to properly determine whether such
monitoring was "available" under §
13-3967(E)(1) and failed to conduct the proper inquiry
regarding the bond. For the following reasons, we accept
special action jurisdiction, grant relief in part, and direct
the superior court to conduct further proceedings consistent
with this opinion.
AND PROCEDURAL HISTORY
Petitioner is facing three counts of sexual conduct with a
minor under fifteen years of age, each a class two felony and
a dangerous crime against children.
In December 2018, the superior court released Petitioner on
his own recognizance pending trial. Given the nature of the
charges, A.R.S. § 13-3967(E)(1) required the court to
impose "[electronic monitoring where available."
The court ordered Petitioner "to wear a GPS monitoring
device within 48 hours of [his release] and [be] responsible
for all costs associated with it."
Petitioner began wearing an electronic location monitoring
device from a monitoring service provider that contracted
with the Mohave County probation department. Petitioner was
required to make a $150 down payment and pay a charge of more
than $10 per day or approximately $400 per month for the
monitoring device. Because he was released on his own