What is an outstanding arrest warrant in Utah?

Mar

Jesse, on the topic of Legal Process

Contrary to its name, an outstanding arrest warrant is not a good thing. It is simply an arrest warrant that has not been served on a person. A person might be evading law enforcement to prevent the warrant from being served or the person might not even know that law enforcement is looking for him. Additionally, there might be a backlog of warrants to serve and therefore a law enforcement agency might have a lot of outstanding warrants.

When police pull over a vehicle, they typically search a warrant database to see if the suspect has any outstanding warrants.

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Jury Selection in Utah

Mar

Jesse, on the topic of Legal Process

Before a trial begins, the clerk of the court where the defendant will have his trial calls a panel of prospective jurors. These people will sit in a courtroom and be able to see the judge, the prosecution and defense lawyers, and the defendant. The judge will usually say something about the jury selection process (“voir dire”). In most cases, each potential juror will stand up and say a few things about themselves (guided by a sheet of paper that the clerk handed out before they entered the courtroom).

After this, the judge or lawyers will ask the potential jurors questions about their background and general beliefs to ensure that anyone with biases or prejudices are not allowed on the jury. If any attorney or judge feel that any of the potential jurors is not qualified for the case, the juror will be excused “for cause.” A judge or lawyer can dismiss as many potential jurors for cause to ensure that the defendant gets a fair jury of his peers.

The prosecution and defense are also allowed to excuse some potential jurors with “peremptory challenges.” This means that any lawyer can dismiss a potential juror without stating their reason. The only thing not allowed are gender, ethnically, or racially motivated dismissals. Other than that, it is at the discretion of the lawyer.

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Question: My daughter has to appear in Utah juvenile court. What should I do?

Feb

Jesse, on the topic of Legal Process, Question

Question: I’m so worried about my 16-year-old daughter. She was charged with shoplifting from the mall (she says her friends bet her to do it) and now has to go to juvenile court. I’ve never dealt with this kind of thing. What is juvenile court like? My daughter is a really a good kid and just got mixed up in the wrong crowd. I don’t want her to be branded a criminal forever.

The first thing you should do is to take a deep breath and realize everything will be okay. In many juvenile court cases, the teenager simply made a bad choice. Juvenile court was created to rehabilitate teenagers and help them become responsible adults, not punish and condemn them for a mistake. Because that is the focus, you should be relieved to know that juvenile court exists to help your daughter, not simply punish her.

Your daughter is not alone in the crime she allegedly committed. According to Utah courts, the most common types of crimes that juveniles commit are shoplifting, possession of alcohol, theft, burglary, possession of marijuana, destruction of property, possession of tobacco, trespassing, violation of curfew, and assault. While the courts take criminal activity seriously, those violations do not justify giving a teenager a prison sentence.

Juvenile courts are different that adult courts. The formality of adult court does not exist in juvenile court. As the parent, you must attend all court hearings. Members of the public can’t attend your daughter’s hearing to ensure her privacy. Your daughter doesn’t have a right to a jury and can’t post bail to get out of detention (if she is required to go to detention). One of the few things similar between juvenile courts and adult courts is your daughter’s constitutional right to due process. This means that she must be told the charges against her, can call witnesses on her behalf, can cross-examine witnesses, and is protected against self-incrimination. She also has a right to an attorney.

If your daughter is found guilty or admits to guilt, she will likely face restitution, fines, and/or community service. Juvenile courts sometimes order a combination of all three.

As far as your daughter’s record, it will not be public information because it is only a shoplifting charge. Only your daughter, you as the parent, and the attorney representing your daughter have access to your daughter’s record. If your daughter committed a felony (and is 14 or older), certain parts of her record would be available to the public.

However, if your daughter is later convicted as an adult of a crime, her record may be made available to a probation officer. Therefore, it is important that your daughter gets her record expunged. A judge can expunge a juvenile’s record if the juvenile has stayed out of trouble for one year after the juvenile court ruled and the juvenile is 18.

Depending on the offense of a juvenile, it is wise to hire an attorney that can help you.

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Innocent Until Proven Guilty: What does this really mean?

Feb

Jesse, on the topic of Constitutional Rights, Legal Process, Utah Law

Photo: Ann Althouse

Our criminal justice system is based upon the idea that a person is innocent until proven guilty. Until a jury decides whether they believe you are guilty or innocent, the law treats you as an innocent person. During your trial, the prosecution has the burden of proof to convince a jury that you are guilty. The belief behind this system is that if the government is going to take away your liberty, they must prove, beyond a reasonable doubt, that you in fact committed the crime. If they cannot prove you are guilty, you are allowed to keep your liberty. That is the way the system is supposed to work.

Unfortunately, the system isn’t that perfect. When the news reports that a person allegedly committed a crime, most viewers automatically assume that the person is guilty. If the newspaper reports on a teacher who is accused of having sex with his students, people assume that the teacher is guilty.

Even though our criminal justice system is based on “innocent until proven guilty,” the general public always rushes to judgment. During jury selection, the judge or lawyers will usually ask, “Does anyone believe that because a person is arrested and charged with a crime, they probably committed that crime?” Potential jurors often raise their hands. As a defendant, you wouldn’t want that kind of person on the jury deciding your future.

Because the general public has a difficult time with the concept of “innocent until proven guilty,” it is critical that you hire an attorney who can explain this concept to juries. If your attorney can prove that the prosecution cannot prove guilt, then you will be found innocent.

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Falsely Accused of being a Utah Gang Member?

Feb

Jesse, on the topic of Constitutional Rights, Utah Law

Photo: vabellon

Wearing certain clothing, being in a certain place, or being of a certain racial minority could possibly identify you as a gang member to police. Seems unfair? It is. And during the 2009 Utah Legislative session, lawmakers made it easier for police to arrest innocent racial minorities for standing in the wrong place for too long and accuse them of being a member of a gang.

Senate Bill 16 (which was passed and is now law), sponsored by Senator Jon Griener (who is the Odgen City Police Chief), allows police officers to confront a group of people and tell them to disperse. The only requirements are that the police officer must “reasonably believe” that the group includes at least one gang member and the area where people are in is a “gang area.” There is no limitation on how big the “area” can be, so a “gang area” could be the entire city of West Valley.

If you don’t disperse, the police officer can arrest you and will be charged with a class B misdemeanor and a $100 fine.

So imagine that you are standing in front of your house on the sidewalk with your friends, two who are a racial minority. You live in a safe place in West Valley, but the entire city has been designated a “gang area” because the mayor is “tough on crime.” A West Valley police officer comes up to you and your friends and tells you that you can’t stand on the sidewalk. When you point to your house, he accuses you of refusing to leave and arrests all of you. Even though your friends aren’t gang members, the police only has to “reasonably believe” that someone is a gang member. Because most gang members are racial minorities, the police can target anyone who looks a certain way or has a darker skin color.

Although the First Amendment of the United States Constitution guarantees citizens a right to assemble (meaning that they can gather in public without fear of arrest), Utah’s new law goes against that right. If police make a group of people with no gang affiliation disperse, they have violated that group’s constitutional rights.

If you were arrested and accused of being a gang member, you should contact a qualified attorney that can help you claim your innocence.

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How To Get Jail Time For A Speeding Ticket

Feb

Jesse, on the topic of Dealing with Police

If you watch the video below, you’ll see that rather than being silent, the person pulled over tried to argue with the cop. If you are pulled over, don’t argue with the cop. Don’t say anything incriminating because those statements can be used against you in court.

And most importantly, when you drive away, make sure your car isn’t in reverse.

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Question: What is a plea in abeyance?

Jan

Jesse, on the topic of Legal Process, Question, Utah Law

Question: I went to court on a trespassing charge. Instead of jail, I got a “plea in abeyance” cause the judge said this was better. Now I have to do community service. There were lots of people in the courtroom, so I didn’t ask any questions. So what is a “plea in abeyance”?

The Utah Code of Criminal Procedure defines a plea in abeyance as, “order by a court… accepting a plea of guilty or of no contest from the defendant but not, at that time, entering judgment of conviction against him nor imposing sentence upon him on condition that he comply with specific conditions as set forth in a plea in abeyance agreement.” (Utah Code § 77-2a-1(1)).

Abeyance means “a state of suspension.” This means that if you take this plea, you are not being convicted of anything and the judge isn’t sentencing you. You just have to follow the conditions that the judge sets, and if you do, the court will reduce or dismiss your charges.

If you do violate the conditions, you will have to go back into court and explain why the judge should not find that you violated the conditions of the plea. If the judge finds that you violated the conditions, then she can terminate the plea agreement and enter a judgment of conviction and impose a sentence against you for the original crime that you were charged. It goes without saying that it is much better to follow the conditions of your plea in abeyance than to be convicted of a crime.

If you are going to court because you were charged with a crime, you should have a qualified attorney with you that can negotiate a favorable plea in abeyance for you.

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Choosing a Salt Lake Criminal Defense Attorney

Jan

Jesse, on the topic of Hiring a Lawyer

Hiring an qualified attorney can be a daunting task. If you open the phone book, you’ll find full page ads for certain criminal defense attorneys. If you ask multiple friends for attorney recommendations, you’ll likely get a few different answers. What can you do to find the best Salt Lake criminal defense attorney for you? Here’s a checklist of questions to ask any attorney before hiring them.

1. What experience do you have with representing someone charged with [insert the crime you are charged with here].
2. How long have you been practicing?
3. What percentage of your practice is focused on criminal law?
4. What outcomes have you achieved for other clients in similar situations?
5. What are the possible outcomes of my case?
6. What is the best strategy in my case?
7. Will you be doing the work yourself, or will you be working with a team?
8. What are you fees?
9. How much do you think my case will cost?
10. How will you keep me informed about my case? Email, telephone?
11. How long do you think my case will take?
12. Have you ever had your law license revoked?
13. Have you been the subject of a disciplinary proceedings ?
14. Have former clients made complaints about you to the Utah Bar?

In addition to those questions, make sure you consider the following:
1. Distance of attorneys office to your house or work
2. Attorneys personality matching your personality
3. Whether you feel you can ask questions freely or are intimidated by the attorney
4. Whether you feel confident that this attorney can help you

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Defenses to Utah Crimes

Jan

Jesse, on the topic of Legal Process, Utah Law

When you are charged with a crime, you have to plead guilty, not-guilty, or no-contest in some circumstances. If you plead not-guilty, you have to present a defense to the charges. Here are some typical defenses that are used:

I Didn’t Do It

Prove that I did it: The prosecution has the burden of proving that you actually committed the crime because you are presumed innocent until proven guilty. This mean that the prosecution has to convince a judge or jury that you were in the right place, at the right time, and you committed the crime. You, as the defendant, are not obligated to present a case, call witnesses, or even argue that the prosecutor is wrong. If the judge or jury doesn’t believe the prosecution’s story, then you will be found not-guilty.

I Wasn’t There

If you were charged with robbery of a bank at 3pm, your alibi defense would be that you were working across town from 1pm-5pm and couldn’t have robbed the bank. For an alibi defense to work, you will have to convince the jury with evidence that your alibi is truthful.

I Did It, But It Was Self Defense!

Charges of battery (hitting someone), assault, and murder will often result in a self-defense claim. The defendant will argue that their actions were justified because of the other person’s (the victim) threatening actions. The questions that will be important here are (1) who was the aggressor, (2) was the threat that the defendant perceived a reasonable threat, and (3) did the defendant use only the reasonable force necessary to protect himself? If a reasonable person in similar circumstances would have been justified in using the same force that the defendant used, then the defendant has the right to protect himself. But the defendant can only use force that is reasonable to combat the threat (fist vs. fist okay, but shooting someone with a gun who only threatens you with a fist is not okay).

I Did It, But I Was Insane!

This defense rarely works, and when it does, the defendant doesn’t simply go free. To prove insanity, the defendant must prove insanity, which can only be accomplished by involving psychiatrists. The defendant must go through complex testing of their mental state. If the defendant is found not guilty by reason of insanity, the defendant will be moved to a psychiatric hospital where they will be treated. Sometimes, the time spent in this hospital will be longer than the prison sentence they would have gotten with a guilty plea.

In Utah, the insanity defense will not work because the state abolished it. However, a defendant can be found guilty but mentally ill.

Whatever defense you want to present, having the assistance of a qualified attorney will help you to decide what kind of defense is best for your case.

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Utah Legal Definition: Dangerous Weapon

Dec

Jesse, on the topic of Utah Legal Definition

Photo: mr.smashy

Utah’s statute defining dangerous weapon is very broad. It not only covers the use of an actual weapon, but fake weapons as well. If a defendant takes a toy gun that leads a victim to believe that it is real, the law will treat them the same as if the defendant did have a real gun. The statute goes further in that the defendant doesn’t even have to show the toy gun—she could simply verbally tell the victim that she is in control of a real gun.

Utah Code § 76-1-601(5): Definition of Dangerous Weapon
(5) “Dangerous weapon” means:
(a) any item capable of causing death or serious bodily injury; or
(b) a facsimile or representation of the item, if:
(i) the actor’s use or apparent intended use of the item leads the victim to reasonably believe the item is likely to cause death or serious bodily injury; or (ii) the actor represents to the victim verbally or in any other manner that he is in control of such an item.

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