Do you agree or disagree with the concept of drug legalization, and do you make a distinction between Marijuana and other hard drugs like, Heroin, Cocaine, Meth and illegal pills (Oxycotin, Lortab and Valium). The following is an interesting discussion on Utah drug legalization and victimless crimes by the Sutherland Institute’s Paul Mero.
Archive for the ‘Question’ Category
Utah Drug Legalization and Victimless Crimes. Does the Legalization Argument work for Heroin, Cocaine, Meth and Illegal Pills or Just Marijuana?
Jan
05
Clayton Simms, Criminal Defense Attorney, on the topic of Drugs in Utah, Question
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Shaken Baby Syndrome in Utah
Nov
28
A Utah man was recently arrested for suspicion of felony child abuse after he spent time tending his baby while the mother was out of the home. Although the father stated that the baby had fallen, medical officials do not believe the baby’s injuries were accidental.
Photo: Cary and Kacey Jordan
As always, the father is innocent unless he’s proven guilty in a court of law. Even though this may well have been an accident, sometimes babies are shaken on purpose, a circumstance also known as Shaken Baby Syndrome.
What Causes Shaken Baby Syndrome?
Shaken Baby Syndrome has been the cause of many injuries and deaths throughout the United States. There are different situations that may lead a caregiver to shake a baby, but shaking usually occurs when a baby cries for an extended period.
Most people who’ve been left in charge of a baby for any length of time will agree on at least one thing: babies cry. Sometimes they cry loudly and for a long time. Being a caregiver can be difficult under the best of circumstances, even for individuals with experience handling babies.
How to Avoid Shaken Baby Syndrome
Experts tend to agree that the best way to handle a baby that been crying for a long time, after you’ve taken care of his diapering and feeding needs, is to put the baby down in a crib and walk away. Shaking a baby can lead to brain damage, hearing loss and blindness, to name just a few consequences. Death can occur as well.
If you or a loved one needs legal assistance as a result of any crime, whether it involves Shaken Baby Syndrome or something else, contact a Utah criminal defense attorney immediately. Even if you’ve made a serious mistake, legal help is available to you no matter what you’ve been accused of. Let an attorney help you sort out Utah law and represent your best interests in court.
Use of Deadly Force in Utah
Nov
22
There are times when deadly force is justified and times when the use of force only is appropriate. The difference between the two is that deadly force is when someone is likely to be seriously injured or killed.
Use of Force or Deadly Force
• Any person is justified in using any force except deadly force when making an arrest or to defend himself or another person while making an arrest.
• A person can use force when he reasonably believes it’s necessary to prevent or stop someone’s unlawful attempt to enter or attack his residence.
• However, he can only use deadly force if the entry is made or attempted in a violent and tumultuous manner, surreptitiously or by stealth for the purpose of assaulting or causing personal violence upon a person in the residence, the dwelling or a being in the residence; or
• If the person reasonably believes that the attacker is trying to enter for the purpose of committing a felony.
Force Concerning Protection of Property
Photo: Elvert Barnes
People are entitled to use force, but not deadly force, when they reasonably believe they need to use force to stop or prevent a person from criminally interfering with their real or personal property when the property is:
• Lawfully in their possession
• Lawfully in the possession of a member of their immediate family or
• When they have a legal duty to protect the property for another individual.
If you do use force to defend property as stated, there are some considerations that will be taken into account:
• The extent of damage to the property
• Property damage previously caused by the other person
• Threats of personal injury or damage to property that the other person has made and
• Any patterns of abuse or violence between the individuals involved.
If there comes a time when force is necessary, hopefully the police are just a phone call away. After all, they’re specifically trained to handle violent situations.
Don’t hesitate to contact a Utah criminal defense attorney if you have additional questions about use of force or deadly force. If you’ve been accused of any crime, regardless of the charges, you need and deserve representation.
Utah Public Intoxication Laws – What You Need to Know
Nov
19
Utah Attorney, Brooke Winters, on the topic of Alcohol in Utah, Crimes, Criminal Defense Misc, Question, Utah Law
You are leaving a bar, a restaurant, a friend’s house, a sporting event and you have had a little too much to drink…can you be charged with public intoxication? Yes, but only if you pose a danger to yourself or others. To simplify, you can not be charged with public intoxication simply because you are drunk in public. There must be evidence that you are posing a danger to yourself or others. Such dangers can be getting in a vehicle to drive or walking in the street.
If convicted of public intoxication you could face up to 30 days in jail and a $750 fine.
Crime Victims Rights in Utah
Nov
12
Utah Attorney, Brooke Winters, on the topic of Constitutional Rights, Criminal Defense Misc, Legal Process, Question, Utah Law
It should come as no surprise to learn that crime victims have rights and those rights are protected under the Utah Constitution which provides in pertinent part:
(a) To be treated with fairness, respect, and dignity, and to be free from harassment and abuse throughout the criminal justice process;
(b) Upon request, to be informed of, be present at, and to be heard at important criminal justice hearings related to the victim, either I person or through a lawful representative, once a criminal information or indictment charging a crime has been publicly filed in court; and
(c) To have a sentencing judge, for the purpose of imposing and appropriate sentence, receive and consider, without evidentiary limitation, reliable information concerning the background, character, and conduct of a person convicted of an offense except that this subsection does not apply to capital cases or situations involving privileges.
Although there are state and federal statutes protecting victims’ rights including state constitutional amendments, an amendment to the United States Constitution extending constitutional rights to victims has never been passed putting victims at a distinct disadvantage in the system. Currently, because victims’ rights are not guaranteed by the U.S. Constitution whereas defendant’s rights are, victims are not on equal footing with defendants as far as enforcing their rights and being provided with appropriate and meaningful remedies.
First, even though the Crime Victims’ Rights Act provides for victims’ rights enforcement through a writ of mandamus there is currently a four district split as to the appropriate standard of review leaving victims’ without an adequate remedy thereby compromising their rights. Second, none of the state statutory rights extended to victims or the Crime Victims’ Rights Act provides for civil damages as an appropriate remedy for rights violations. Although there is a question as to who would pay in the event civil damages were an option or if this is even an appropriate remedy for enforcement, it would at least provide some teeth to a statutory system of rights which might be described as un-enforceable due to a lack of available remedies. It is clear, just based on these two examples, that enforcing victims’ rights is a challenge courts are currently facing. However, within the last few years, Utah had enacted legislation which provides a remedy for victims whose rights have been violated by allowing for a “do-over” provision. Under, Utah Code Annotated 77-38-11, that as long as a victim does not unduly delay in seeking to protect their rights and was not voluntarily absent from relevant proceedings, the court must first determine whether there was a violation of rights and can proceed to determine the appropriate remedy such actions as are necessary to provide to the victim the right to which the victim was entitled which may include reopening previously held proceedings. Obviously this is a step in the right direction and will hopefully will provide a meaningful remedy should rights be violated.
Although the area of crime victim’s rights is still evolving, there are services in Utah where victims can get assistance.
• Utah Crime Victim Reparations – They assist victims, through financial compensation, to help them get their lives back on track which includes medical and dental care, mental health counseling, funeral and burial costs, cost of relocation if necessary, lost wages, loss of support to defendants and child care.
• The Department of Health and Human Services – Services include a domestic violence program through Child and Family Services and the Utah Domestic Violence Counsel which offers assistance through a 24/7 hotline which when called can offer victims free help including counseling and shelter programs.
• Utah Crime Victims Legal Clinic – Serves as a contact point, including a website, which provides victims with information outlining their rights and contact information for crime victim service agencies throughout the state including websites, addresses and phone numbers for these agencies. In addition being a great resource for victims, the Crime Victims Legal Clinic provides free legal representation to crime victims whose rights are at issue. This is possible through pro bono attorneys and law students dedicated to protecting victims’ rights.
False Representation of Military Award
Nov
11
Since today is Veteran’s Day, we thought it might be appropriate to address the false representation of military award statute. It is against the law in Utah for a person to misrepresent their right to wear certain military awards, insignia, etc.
Photo: David C. Foster
First, a military organization is a public or private society, order or organization made up of current or former military members and/or their relatives. Second, a military medal or service medal consists of the following:
• A congressional medal of honor;
• A distinguished service cross;
• A Navy or Air Force cross;
• A silver or bronze star;
• A purple heart;
• A Utah National Guard medal or ribbon;
• Any decoration, medal or badge awarded to members of the United States armed forces.
If a person purposefully lies about being awarded a service medal, whether verbally or in writing, they are guilty of a class C misdemeanor.
A person is guilty of a class C misdemeanor if he wears or uses a military organization-related medal that: 1) he is not entitled to wear and 2) he intends to defraud or falsely represent that he was awarded the medal.
If an individual uses the name, officer title, insignia, ritual or ceremony of a military organization that he is not entitled to use and does so with the intent to defraud or lie about being a member of the organization, he will be guilty of a class C misdemeanor.
Committing false representation of military award takes away the importance of the person who actually earned the award. If you need to improve the way you appear to others, don’t do so by pretending to be something you’re not.
However, people make mistakes and sometime cross the legal line. If you need help, call a Utah criminal defense attorney who will understand where you’re coming from and be your advocate at a much-needed time.
Desecration of a Dead Body
Nov
10
Abuse or desecration of a dead body is a crime, regardless of the stage of decomposition the body is at. Disclaimer: If you are reading this while eating you might want to stop eating now or finish reading this blog entry after your meal is over.
Things to Avoid Doing to a Dead Human Body
Photo: Diego Torres Silvestre
Strange as it may seem, people have been known to do unusual things to dead bodies. Here’s a list of some things that you shouldn’t do to a dead body.
• Don’t disturb, move, remove, conceal or destroy a dead body or any part of it.
• Don’t un-bury a dead human body unless you have a court order. (Dr. Frankenstein did not have a court order.)
• Don’t dismember a dead body (or any part of it) or detach or damage any part of a dead body.
• Don’t attempt or commit any sexual penetration upon a dead body. That may seem obvious, but the Utah Legislature probably wouldn’t have included it in the law if it wasn’t a potential problem.
• Do contact law enforcement if you find a dead body.
Trouble Awaits Those Who Desecrate a Dead Body
Aside from failure to report a dead body, which is a class B misdemeanor, the other crimes are all classified as third-degree felonies. Class B misdemeanors may carry up to a six-month jail sentence, and a third-degree felony can send you to prison for up to five years. Seriously consider whether tampering with a dead body is really worth it.
Follow Our Advice. Please.
Frankly, the best thing to do if you come across a dead body is leave it alone and contact the police. If you are tempted to commit desecration of a dead body, you’ll likely have legal troubles. On that note, if you are experiencing trouble with the law, get an attorney right away. Find a Utah criminal defense attorney who takes his responsibility to defend you seriously and who will fight vigorously for you.
Reporting Child Abuse is the Law in Utah
Nov
09
We’ve mentioned before that child abuse is a serious matter and inappropriate under all circumstances. Committing child abuse is obviously illegal, but did you know that failing to report child abuse is also against the law in many states, Utah included? It is also a crime in Pennsylvania.
Photo: UggBoy
A current headline you may be familiar with involves Joe Paterno’s notice of resignation as head coach from the Penn State football team. Jerry Sandusky, who retired from Penn State in 1999 and was once in line for Paterno’s job, is accused of molesting 8 boys over a 15 year period. Some of the alleged child sex abuse is said to have occurred at the Penn State football complex.
In 2002, a graduate assistant went to Paterno to report that he had seen Sandusky in the showers at the school with a 10-year-old boy. Paterno passed the report on to two Penn State employees. Tim Curley, the athletic director, and Gary Schultz, a vice president, were the employees and are currently charged with failing to report the alleged child abuse incident to authorities. Paterno is not facing charges.
In Utah, when any person has reason to believe that a child has been subjected to abuse, that person shall immediately notify the nearest peace officer or law enforcement agency. Also, any person, official, or institution required to report a case of suspected abuse, neglect, fetal alcohol syndrome, or fetal drug dependency, who willfully fails to do so, is guilty of a class B misdemeanor.
The consequences of failing to report child abuse don’t affect just the individual with the information. It’s important to protect children, as well.
Sandusky is maintaining his innocence. Fortunately, he has an attorney working hard to defend him. Whether he is guilty or innocent is for a jury to decide. We want to remind you how vital it is to have a Utah criminal defense attorney on your side if you are facing criminal charges of any nature. Don’t leave your innocence to chance. Contact an attorney immediately.
Inchoate Offense in Utah
Nov
08
Yesterday’s blog briefly referred to a specific inchoate offense, solicitation to commit aggravated murder. Today we’re going to delve more deeply into inchoate offenses, so that you have a better idea of what they entail.
What is an Inchoate Offense?
Photo: Eric The Fish
An inchoate offense is an incomplete crime which has to be connected to a substantive crime in order for a conviction to be obtained. According to the Utah Code, a person is guilty of an inchoate offense if he does something that puts him substantially closer to committing the crime and if he intends to commit the crime. Essentially, it is the act of preparing for or seeking to commit another crime.
What Happens When You Commit An Inchoate Offense?
Generally, if you attempt to commit a crime, you will be guilty of the next lower offense. For example:
• If you attempt to commit a capital felony, you will be guilty of a first-degree felony;
• An attempt to commit a first-degree felony makes you guilty of a second-degree felony, and so on.
Criminal Solicitation is an Inchoate Crime
It is possible that a person could criminally solicit another person to be involved in a criminal attempt. A person is guilty of criminal solicitation if, intending that a felony be committed, he:
• Solicits,
• Requests,
• Commands,
• Offers to hire, or
• Importunes
another person to do something specific that solicitor believes will result in a crime. The code does state that no person shall be convicted of both an inchoate offense and a principal offense, or of both an attempt to commit an offense and a conspiracy to commit the same offense.
Is it as Clear as Mud? Call an Attorney.
As you can see, understanding what constitutes an inchoate offense can be confusing; can you imagine trying to figure it out on your own? That’s where a Utah criminal defense attorney comes in. Call an attorney right away if you have any legal questions you need assistance with. He or she will help you navigate the potentially perplexing world of criminal law.
Are Utah Prosecutors Required to Disclose the Identity of a Confidential Informant?
Nov
04
Utah Attorney, Brooke Winters, on the topic of Constitutional Rights, Criminal Defense Misc, Evidence, Question, Utah Court, Utah Law
In a nutshell…maybe. A confidential informant or C.I. is someone who assists law enforcement by providing useful information used in the arrest and conviction of another person. The informant can act in a number of ways either by acting as a concerned citizen without the motivation of personal gain while other C.I.’s provide information in exchange for money or for perhaps leniency in cases where they are the defendant.
In Utah, the court can order prosecution to release the identity of the C.I. if it would be relevant or helpful or essential to ensuring the defendant receive a fair trial. The court must weigh relevant factors in making a determination such as potential hazards to safety of parties involved, public interest in protecting the flow of informant information and the defendant’s right to prepare his defense. Generally, the identity of an informant who was a witness to the crime with which the accused is charged or who was an actual participant in the commission of the alleged crime is subject to an order of disclosure. State v. Forsbee, 611 P.2d 1222 (Utah 1980).
If police or prosecutors do not want to reveal the identity of the C.I. they will have to go to great lengths to show the court that revealing his identity will jeopardize his/her safety or make the C.I. unusable in the future. In the end it is at the court’s discretion and the judge will have to balance the utility of keeping the C.I.’s identify a secret against the constitution rights of the accused.
