Reduce the Risk of Additional Charges Following an Arrest

When someone is placed under arrest, they are booked under specific charges pertaining to that arrest. Just as the individuals arrested can fight to have charges reduced or dropped, there is also the chance that extra charges can be added following the arrest.

Failure to comply with arrest and booking

Photo by: Campaign Against Arms Trade

One main cause of added charges following an arrest is due to the behavior of the alleged offender during the time of being arrested and placed behind bars. Being handcuffed and whisked off to jail is a stressful moment that can unfortunately bring out the worst in people. Some individuals make a bad situation worse by:

• Resisting arrest or as Utah Code 76-8-305 states “refusing to perform any act required by lawful order necessary to effect the arrest or detention (…) made by a peace officer”, a class B misdemeanor;
• Attempting to flee police, a class A misdemeanor;
Spitting, urinating, or propelling any bodily fluid at an officer, potentially adding a third degree felony onto the list of charges;
• Physically assaulting an officer while in the custody of law enforcement, a third degree felony defined by section 76-5-102.5. If the charges are enhanced to aggravated assault by a prisoner, then the defendant may face an additional second or first degree felony as stated in 76-5-103.5; or
• Once at the local jail, kicking, punching, or otherwise damaging jail property, resulting in an added third degree felony.

Regardless of whether or not the arrestee feels they should be taken into police custody, they are encouraged to be respectful and cooperative during and after being read their Miranda rights. This does not mean they have to converse with officers regarding details of the arrest however, as that in itself can lead to added charges.

Spilling all the beans

Photo by: Emilio Küffer

While there are some who react vehemently to being placed under arrest, there are others who go too far the other direction by trying to be overly compliant to officers on the scene. In an effort to possibly smooth things over, some arrestees decide to share every single detail related to the charges. Not only can their over-the-top candor cement the charges against that individual, it can help investigators who may already be trying to tie other charges to the defendant. It is best to politely decline any discussion with officers until an attorney is present.

Accumulating charges prior to trial

Another way charges can be added is if more evidence comes to light or if the prosecution attempts to add or enhance charges. For example, if a person is arrested for possession of marijuana, the prosecution could look at the amount of marijuana in question, and attempt to call it enough to charge the defendant with intent to distribute, even if it was initially determined to be only for personal use. If the person drove through a school zone with the marijuana in their car, the prosecution could also add enhanced possession in a school zone charges. Maybe they had kids in the home or car, so by all means throw in some child abuse or child neglect charges on top. Also known as stacking charges, this is a common occurrence and a reason so many individuals get scared into accepting plea deals (a.k.a. pleading guilty to lesser charges) without first obtaining proper counsel for themselves.

Have an attorney ready

Photo by: Kevin Johnston

With so many variables working against someone following an arrest, the best plan to avoid additional charges is to:

• remain calm;
• be prepared with the name of a reputable attorney;
• give the defense attorney’s name to authorities during the arrest;
• Stay quiet until advised otherwise by counsel; and finally
• Trust that a knowledgeable attorney will be able to see through charge stacking to decide the best option possible for each defendant depending on their specific case.

Police Use of Radar Guns to Detect Texting and Driving

Radar guns have been used by police since 1949 to catch speeding drivers and are now being developed to also detect those texting and driving.

Distracted driving

Photo by: Intel Free Press

According to the National Highway Traffic Safety Administration, distracted driving is dangerous, claiming 3,477 lives in 2015 alone [and] 391,000 were injured in motor vehicle crashes involving distracted drivers. ( . . . ) [T]exting is the most alarming distraction. Sending or reading a text takes your eyes off the road for 5 seconds. At 55 mph that’s like driving the length of an entire football field with your eyes closed.” The NHTSA also announced that “During daylight hours, approximately 660,000 drivers are using cell phones while driving. With smart phones offering consumers communication, shopping, entertainment and so much more on the go, it is hard to not look at our phones- even on short trips in the car. Ignoring the sound of a notification or delaying the sending of a quick message to a friend takes a lot of willpower to avoid.

Texting and driving

Many individuals that text and drive can appear to do so stealthily, often without being noticed by other drivers or law enforcement until their distracted driving gets them into trouble. Cell phone use prior to an accident is extremely common, so common in fact that those at fault are often blamed for using a cell phone use whenever a vehicle accident occurs from a driver who was distracted. Following an accident, law enforcement can usually determine whether or not a cell phone was actually in use leading up to the collision. Now however, officers would like to detect texting and driving prior to a potential accident.

Texting radar guns

Photo by: James G

A company called ComSonics has been working on a radar gun that can help police detect whether or not a cell phone is being used in a moving vehicle. The texting radar gun, named Sniffer Sleuth uses radar technology to detect radio frequencies that are emitted from a cell phone during use. Every time a text is sent, a call is made, or the phone is otherwise being used by a distracted driver, the Sniffer Sleuth will be able to pick up on the change in frequencies, alerting the officer on the other side of the gun.

A work in progress

While the Sniffer Sleuth seems like a great idea to catch those who text or Facebook while driving, there are some concerns with its accuracy and thus its validity as proof of distracted driving. For one, a speeding radar gun targets the entire car yet a texting gun is going to pinpoint where in the moving car a phone is being used? Unless a driver is alone, it seems highly unlikely that a radar gun would be able to determine from where in the car the radio frequencies are being discharged from. Another issue is for those who are texting or calling legally through the use of hands-free technology such as Bluetooth connections in their vehicle. Although law enforcement should be able to note a driver is using one of these hands-free options after viewing the driver’s phone, that driver still has to deal with the embarrassment of being pulled over along with the loss of time from the traffic stop. The other major concern that is at stake is the privacy of the public. Will the texting radar guns be able to pick up any content of messages and if not, won’t law enforcement then be able to use more privacy concerning gadgets such as the Textalyzer? Finally, will officers use this new technology as a means of pulling over a suspicious vehicle whose driver is otherwise following the law?

Criminal Charges

Photo by: houstondwiPhotos mp

If someone is found guilty of texting while driving, they will face a class C misdemeanor or a class B misdemeanor if they cause an accident where someone is seriously injured. Utah Code 41-6a-1716 states unless for navigation or during an emergency, “A person may not use a handheld wireless communication device while operating a moving motor vehicle on a highway in this state to manually:
(a) write, send, or read a written communication, including:
(i) a text message;
(ii) an instant message; or
(iii) electronic mail;
(b) dial a phone number;
(c) access the Internet;
(d) view or record video; or
(e) enter data into a handheld wireless communication device”

Anyone facing charges following law enforcement’s use of text-detecting gadgets such as Sniffer Sleuths or Textlyers should speak to an attorney about the reliability of the information collected and whether or not it will hold up in court.

Chatty Officer May Actually be performing a Consensual Encounter

Meeting a chatty police officer could mean nothing more than they are approachable or talkative; however Utah residents are warned to use caution as a presumably friendly conversation with police could actually be consensual encounter.

Local festivities

Photo by: Johnny Silvercloud

Communities around Utah are joining together for a slew of holiday festivities tomorrow that guarantee to bring in larger crowds than normal. These large crowds necessitate cities to increase the amount of law enforcement on duty. As everyone- both young and old, rich or poor, normal citizen or officer, come together to celebrate a commonality, it is not unusual for Utah residents to strike up conversations with one another. Unfortunately, as law enforcement on duty continues to perform their job while spending time in the community, they will often use simple conversations as consensual encounters.

Consensual encounter

A consensual encounter is a tactic used by law enforcement to obtain information from a person without having reasonable suspicion to do so. If an officer wants to investigate a person but has not identified a viable reason to do so yet, they may do nothing more than visit with the person for a short while.

Consensual Encounter

Photo by: D_M_D

A consensual encounter does not violate a citizen’s Fourth Amendment rights as it is nothing more than an encounter that ends in a conversation and at no time is the person detained or otherwise unable to leave. It is considered a consensual encounter as long as the officer kept their questioning short and simple and refrained from:

• Drawing their weapon;
• Placing someone in handcuffs;
• Turning on police lights or sirens;
• Physically detaining a person;
• Blocking someone with a patrol vehicle; or
• Speaking with force or intimidation.

Terry stop vs arrest

Photo by: David Poe

If any of the above points end up taking place during a consensual encounter, it then becomes either an investigatory stop or an arrest. An investigatory stop, otherwise known as a Terry stop takes place if a person is detained briefly by law enforcement. In order to perform a Terry stop officers must have a reasonable suspicion that the person has been or is currently involved in criminal activity. This can include instances such as if illegal contraband is in plain view or if police have a hunch the person is armed and dangerous and wish to do a brief pat-down. Terry stop often consist of traffic stops and are to be no longer than 20 minutes. If the officer either has a warrant or develops probable cause during a Terry stop, then an arrest is made. An arrest is a more formal detainment such as being handcuffed and placed in the back of a patrol vehicle and this act should always be preceded by the Miranda Warning.

Questionable stops

All residents are advised to be aware about the possibility of increased consensual encounters during the festivities tomorrow. Anyone who feels they have been unjustly questioned or detained by police during a consensual encounter and are now facing criminal charges, it is encouraged to speak to a defense attorney who will ensure their Fourth Amendment rights against unreasonable searched and seizures are protected.