Salt Lake Criminal Defense Attorney - Clayton Simms

new_clayton_about A criminal charge, whether it is a felony or misdemeanor, can be a life changing event. Clayton Simms is a fierce advocate for people who have been charged with misdemeanor and felony offenses. He represents clients who are facing charges in Salt Lake City and Greater Salt Lake County. In addition, he also represents clients along the Wasatch front. Clayton Simms represents defendants in other crimes Clayton has represented athletes, doctors, lawyers, and other notable people and has been featured on the news. Do you have a legal question? Contact Clayton Simms today!

Lesser Included Offense – Plea Bargain Option or Backup Charge to Ensure a Conviction

When someone is charged with a crime such as a felony, that charge is often accompanied by a lesser included offense of that greater crime.

Lesser included offense

Photo by: winnifredxoxo

Photo by: winnifredxoxo

A lesser included offense is a crime wherein the elements, or specific aspects needed to prove guilt of that crime are included within the greater crime being charged. In order for a lesser included offense to be valid, it must be impossible for the greater crime to be committed unless the lesser offense is as well. For instance, a class A misdemeanor assault would be the lesser included offense for third degree felony assault as it is impossible for someone to use “force or means likely to produce death or serious bodily injury to another” if they never caused any “substantial bodily injury”.

Use in traffic violations

Lesser included offenses come up frequently with traffic violations. An example would be if a person is arrested for reckless driving and exceeding the maximum speed limit by up to 25 mph. The first being a class B misdemeanor (greater offense), while the latter is a mere infraction (lesser included offense). Utah Code defines reckless driving as someone who “operates a vehicle in a willful or wanton disregard for the safety of persons or property”. Exceeding the speed limit in certain areas of circumstances can also fall under the same definition, but without a criminal charge attached.

One or the other

Photo by: Kyle Pearce

Photo by: Kyle Pearce

When a lesser included offense accompanies a greater offense, often the defendant cannot be convicted of both charges. Such would be the case with voluntary manslaughter and murder. If the defendant was found guilty it would be for either one or the other; not both. This can also apply to drug charges. Someone can be arrested for possession and possession with intent to distribute yet if the intent to distribute charge sticks the simple possession charge is void as it is already encompassed within the greater charge.

Lesser related offense

There are some lesser charges that are related in nature, yet not included in more severe crime. These are known as lesser related offenses. Possession is a lesser related offense to distribution and often goes hand in hand, yet possession is NOT a lesser included offense of distribution. Someone can be a middle man in a deal, never having the illegal drugs in their possession, and face distribution charges without the possession charges. If they did possess the drugs and sold them, then the possession charge would be a lesser related offense.

Use in plea bargains

Photo by: Karen Neoh

Photo by: Karen Neoh

A lesser included offense can be beneficial in defense cases as it can give the defendant an option to plead guilty to a lighter crime and have the more serious charge dropped. This is sometimes the case when there is proof beyond a reasonable doubt that the defendant is guilty of the lesser crime but the defense may not want to risk the chance of the defendant being found guilty of the higher crime, so they accept the lesser offense in exchange for dropping the greater one.

Prosecution’s use of lesser charges

The defendant isn’t the only one that has the potential to benefit from lesser included offenses. The prosecution will often add a lesser included offense to ensure that the defendant will be found guilty of something. This backup charge helps the prosecution ensure a conviction when they may doubt whether or not the more serious charge would stick. Since they can be used for or against the defendant, it is always wise to consult with an experienced criminal defense attorney to help guide you through the court proceedings and know when to accept or fight lesser included offenses.

Popular Online Dating App Bans Use by Teenagers

A popular online dating app has recently changed its policy and is banning all teenagers access to their services.

The danger of online dating for teens

Online Dating

Photo by: Don Hankins

For the last three years Tinder has let adults and teenagers alike create and utilize accounts to connect, flirt, and date others in their area. Until now, Tinder has had two separate platforms; one for adults and another for teens between the ages of 13 to 17 years old. Law enforcement and parents have expressed concerns however over sexual predators who have been gaining access to the juvenile platform where they have been found to prey on the younger users. Now Tinder has chosen to be more responsible with their app and no longer offers online dating services to users under the age of 18.

Access through dishonesty

Banning teenager from using online dating apps and websites may help shield minors from online sexual predators but as with most technology, there is a loophole. While Tinder is linked through Facebook which can help verify a user’s age, a teenager can create a Facebook account with a fake age and gain access to the online dating app. This not only puts the teen at risk but also can hurt adults as well. There have been occurrences where teens have gotten adults in trouble with the law for being untruthful about their online age.

Felony charges for misinformation

Photo by: Japanexperterna.se

Photo by: Japanexperterna.se

Last June two Clearfield, Utah men were arrested when a 13 year old boy posed as an 18 year old on the men-only dating app Grindr and solicited the two adults for sexual relations. After meeting the teen at a hotel where he was staying with his parents, one of the men was arrested on sodomy charges while the other was charged with dealing harmful materials to a minor for exchanging nude photos with the 13 year old.

Ask for ID

Users of these online dating apps are cautioned to be wary and report instances of teens posing as adults. Parents are also cautioned to be mindful of what websites and apps minors are accessing through personal laptops or smartphones. Those facing criminal charges for crimes involving online dating apps are encouraged to seek representation from a criminal defense attorney.

Law Enforcement Use of GPS Tracking Devices

Law enforcement officers have different measures to obtain information about a potential suspect including the use of “slap-on” GPS tracking devices attached to vehicles. Without a warrant however, this practice may constitute a violation of the suspect’s Fourth Amendment rights regarding unreasonable searches.

GPS tracking devices

Photo by: Surrey County Council News

Photo by: Surrey County Council News

The “slap-on” GPS tracking devices are mechanisms that can be placed inconspicuously on the undercarriage of a vehicle allowing police the ability to track the movement and location of said vehicle. These tracking tools allow law enforcement to keep tabs on potential suspects over an extended period of time and can be used to learn the whereabouts of illegal activity.

Protection from unreasonable searches

For several years, “slap-on” GPS tracking devices were under debate, with many claiming they violated a person’s Fourth Amendment rights regarding unreasonable searches. The Fourth Amendment states “The right of the people to be secure ( . . . ) against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause ( . . . ). In October of 2013, the U.S. Court of Appeals agreed that GPS tracking devices constituted a “search” and law enforcement must obtain a warrant based on probable cause before placing such devices on a vehicle.

Ankle monitors

Photo by: Washington State House Republican

Photo by: Washington State House Republican

While tracking devices on vehicles were deemed unconstitutional without a warrant, the question was raised whether or not SBM monitors, commonly referred to as ankle monitors should fall under the same scrutiny (Grady v. North Carolina). Each state has their own specific uses for electronic tracking in the form of ankle monitors. Some states use these devices to forever track the whereabouts of convicted sex offenders after they have finished their sentencing. Other states such as Utah permit law enforcement to use ankle monitors on individuals placed on probation. (Utah Code 77-18-1.16)

Grey area

As law enforcement’s use of electronic searches is being evaluated, it is wise to consult with a knowledgeable criminal defense attorney to ensure that your rights are not being violated by the use of tracking devices or other means of technological trespass.