Archive for the ‘Question’ Category

Plea Bargaining and the Utah Judicial Process

Utah Attorney, Brooke Winters, on the topic of  Criminal Defense Misc, Legal Process, Question, Utah Court
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Plea bargaining first made its way into the criminal justice system during the mid-nineteenth century and has since become a powerful tool in adjudicating cases. There appears to be much debate over why plea bargaining has developed but one thing is clear and that is there is no singular answer. The most common factors cited in the rise of plea bargaining include: crowded court dockets, the oppressiveness of pretrial detention, the low quality of public defenders, the financial incentives of private attorneys, lazy prosecutors and uninformed judges. Several of these examples are not very complimentary to the players in the criminal justice system suggesting that we are sacrificing justice in the name of laziness and personal greed. In speaking with those in the Utah legal community, both judges and attorneys alike, have suggested plea bargaining is a necessary tool to keep the wheels of justice moving and without it, justice would come to a screeching halt. The overwhelming support in favor of plea bargaining is due in part to budget constraints and overcrowded dockets however, plea bargaining continues to develop in areas where court congestion is not a problem suggesting that plea bargaining is not simply a knee jerk response to a system overwhelmed but instead a shift in previously defined roles and how they affect justice.

In a cost benefit analysis; there are some very definite benefits to plea bargaining as opposed to taking every case to trial. Many supporters suggest plea bargaining has more to offer the players in the criminal justice process than a trial based system. It is suggested that plea bargaining allows the prosecutor to be more efficient, thereby being able to handle a greater case load than if more cases went to trial. The same would be true as well for judges, as they would be able to effectively handle a greater case load, and move their cases along with little or no delay. This is very attractive for judges who are faced with increasing pressure, due to case volume, to keep their docket moving. Additionally, plea bargaining is perceived as offering the accused a choice. There is a strong incentive in choosing plea bargaining over trial for both the prosecutor and the accused because there is more control over the outcome.

However, as attractive as plea bargaining looks from the standpoint of efficiency, cost effectiveness and predictability, there is also a downside. Plea bargaining gives enormous control over the outcome of the case to a single player in the process, the prosecutor. By giving such control to the prosecutor, it effectively removes the judge and reduces their role to that of an overseer of events. This is a far cry from the more active traditional role referenced previously. Similar to the different branches of government, the criminal justice system is based on a division of authority where no singular person has greater authority than another. Each person, the prosecutor, defense attorney and judge, has a role in the trial process which helps to ensure the victim, society and the individual rights of the accused are protected in the search for truth. By circumventing this process in favor of one which puts more power in the hands of a single person, the truth finding process is compromised in favor of efficiency.

From a defense perspective, plea bargaining is a lot like playing the odds in Las Vegas. The defendant must guess at what the evidence is and how strong the case is against him and hope that he does not guess wrong. In this situation, you run the risk of extracting guilty pleas from an innocent defendant who takes the safer bet but society pays as well in the case of a guilty defendant who due to plea bargaining gets a lighter sentence.

Critics of plea bargaining argue compromising the outcome of a case through the plea bargaining process is morally wrong. Indeed, the critics suggest efficiency is not enough to justify a system which although resolving some issues creates others such as wrongful convictions, broad prosecutorial power and sacrificing trials in favor of pleas.  Ultimately plea bargaining plays an important role in the Utah criminal justice system and will not be going away anytime soon.

No Idling in Salt Lake City

Utah Attorney, Brooke Winters, on the topic of  Criminal Defense Misc, Question, Utah Crime News, Utah Law
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The cold weather is almost upon us but if you are thinking of staying in your idling vehicle to keep warm you better think again. In an effort to reduce vehicle emissions which contribute to Utah’s poor air quality, Salt Lake City has passed one of the strictest anti-idling ordinances in the nation.

The new law has a six month grace period giving the public time to become informed but once strictly enforced the penalties will be great. For the first offense violators will receive a simple warning however a second offense carries a $160 fine and a third $210.

In an effort of fairness and compromise, there are exceptions for restaurants with drive up windows and drive up banking. In addition there won’t be any penalties if caught idling when the temperatures are greater than 90 degrees or lower than 32 degrees. The ordinance in its current form is targeting certain idling hot spots, specifically cars idling in front of homes, schools and businesses. Currently the city will not be enforcing the anti-idling ordinance for vehicles parked in driveways but that could change in the future.

Search Warrant in Utah

Utah Criminal Defense Blog, on the topic of  Constitutional Rights, Question
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When a search warrant or administrative warrant is served upon a person in Utah, there are some procedures that must be followed.

Administrative Checkpoint for Vehicles

Photo: Karl Baron

A vehicle may be stopped and the occupants detained when a police officer:

(1) is following the requirements of a search warrant or arrest warrant;
(2) has probable cause to arrest or search;
(3) has reasonable suspicion that criminal activity has occurred or is occurring;
(4) is acting under emergency circumstances; or
(5) is acting pursuant to duly authorized administrative traffic checkpoint authority granted by a magistrate.

Law enforcement may not display a sign that notifies motorists of an administrative traffic checkpoint unless the checkpoint has been approved by a magistrate.

Put Your Brakes On

If you decide to ignore an administrative checkpoint by blazing on past it, you will be guilty of a class B misdemeanor.

Officer-Requested Assistance

When a police officer serves a search warrant, he may request the help of other people in performing the search.

Use of Force in Executing Search Warrant

There are times when law enforcement can use reasonably necessary force in their efforts to serve a search warrant and enter the premises. If a police officer gives notice of his authority and purpose, and he is not responded to promptly, he may use appropriate force to conduct the business of the search warrant. Also, a magistrate may give officers permission to enter a location without notice of their authority and purpose.

Searches on Parolees

You may not know that before a person can be paroled, he must sign an agreement that he will allow himself or his property to be searched, without a warrant, at any time by a parole officer or police officer. Theoretically, this is not to be used as a form of harassment.

Questions Regarding a Search

Don’t hesitate to contact an attorney if you believe you’ve been involved in an inappropriate search by police. Law enforcement has rules to follow, and they need to be held accountable to those rules. You don’t have to just hope that the police do their job the right way. A Utah criminal defense attorney can help you with your legal questions and problems.

Gun Found in Carry-on Luggage in Utah

Utah Criminal Defense Blog, on the topic of  Constitutional Rights, Question
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The right to have a gun in Utah is acceptable, with the appropriate permits. However, no matter what type of license or concealed weapons permit you may possess, you need to remember that attempting to take a gun in your carry-on luggage through any airport security will get you arrested. Five people planning to board various flights leaving the Salt Lake International Airport this month didn’t heed that particular piece of advice.

There’s a Gun in My Bag?

Photo: Bill Bradford

The most recent gun-related incident involved a passenger carrying a handgun with seven rounds of ammunition in his carry-on bag. The man was arrested, but the FBI isn’t planning to file federal charges. In Utah, it is at least an infraction to possess a dangerous weapon, which includes a loaded gun, in an airport. A person could be charged with a class A misdemeanor if the authorities determine the person knowingly or intentionally had the loaded gun in his possession.

The Best Way to Take Your Gun on a Trip

According to the Transportation Safety Administration, there is a proper way to travel with a gun—but that doesn’t include carrying it with you on board a plane. You should declare the gun to the TSA, keep it in a case, unload it and place it in checked luggage.

A Few Utah Gun Rules

For those of you that keep firearms, there are some rules in Utah to follow to keep yourself and others safe. Even if you have a concealed weapons permit, you are generally prohibited from taking a gun into a private residence or house of worship. Also, don’t fire a gun from any type of vehicle. It’s illegal to shoot at road signs, too—even the ones with cow shadows on them. Just in case you’re tempted, don’t fire a gun inside a house, either.

Consult an Attorney

In spite of a lot of rules concerning where and when you can carry or fire a gun, Utah is generally a friendly state when it comes to the right to bear arms. If you still have questions about gun laws or if you are involved in any criminal legal action, whether it involves guns or not, take time to consult with a Utah criminal defense attorney. He or she can help you with your particular situation and give you the advice you need.

Force in Defense of Property in Utah

Utah Criminal Defense Blog, on the topic of  Question
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You’ve heard of self-defense: the right to defend yourself or another from the imminent use of unlawful force. But, what about big-screen TV defense? Or diamond ring defense? Or classic car defense?

Photo: puuikibeach

Believe it or not, you don’t have to stand by and let someone steal from you. In Utah, you have the right to use force – but not deadly force – to prevent someone from stealing or criminally interfering with your real or personal property.

The problem is figuring out whether the force you use is reasonable. The law says it’s not reasonable to use deadly force to defend property. So, if you kill someone to protect your TV, it probably won’t fly as a defense.

In deciding whether your use of force in defense of property is reasonable, the jury gets to consider lots of factors. For example, if the person previously damaged or stole your property, or if the person made threats of personal injury or property damage, that could help the jury decide whether it was reasonable for you to use force. Or, if it appears that person is going to really do a lot of damage to your property, the jury could use that to consider whether you were reasonable to use force.

One factor the jury can consider is whether there is a pattern of abuse or violence between you and the other person.

Deciding whether any particular use of force is reasonable can be tricky. The law seems to suggest that the amount of force should not be out of proportion to the property theft or damage. For example, it might not be reasonable to break the arm of a child for stealing an apple. As the saying goes, you don’t want to use a sledge hammer to hit a bug.

Plus, it’s always better to avoid violence if possible. Legal problems could be the least of your worries if a fight over property escalates to serious bodily injury or death.

Still, the limited right to use force in defense of property is one of the possible defenses to criminal charges in Utah. If you or someone you know is facing criminal charges, it’s always a good idea to talk to an experienced defense lawyer. You might have options that you wouldn’t even guess.

Elder Abuse in Utah

Utah Criminal Defense Blog, on the topic of  Criminal Defense Misc, Question
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Most often we think of think of the term abuse as applying to the mistreatment of children, not elder abuse. That’s true – but Utah has laws on the books that also criminalize several types mistreatment of elderly or vulnerable adults, often referred to as elder abuse.

Photo: Ethan Prater

These laws make impose strict penalties on those who financially exploit, physically abuse, or sexually exploit people who are older than 65 or those over 18 who suffer significant mental or physical impairments.

For example, many elderly or vulnerable adults lose the capacity to carefully take care of their own finances. It is a crime for anyone in a position of trust of confidence with an elderly adult to even temporarily use that adult’s money or property for the advantage of any other person.

Sometimes, family members of elderly or vulnerable adults may feel that because of the care their giving to aging parent, the children are entitled to early access to their inheritance. Although it may seem harmless, there have been several cases where families are torn apart and criminal charges filed because one sibling has been helping themselves to an elderly parent’s checkbook.

Diverting an elderly person’s money to someone else could result second degree felony criminal charges, which could carry up to fifteen years in prison.

In addition, someone who intimidates, isolates, or neglects a vulnerable adult can face criminal charges. Anyone who has the care or custody of an elderly or vulnerable adult who permits the adult to be placed in a situation that endangers the elderly person’s health could be guilty of as much as a second degree felony.

Obviously, the best thing to do if you have the care or custody of vulnerable adults is to safeguard them or their property with care. But, if you or a loved one find yourself in trouble, it’s very important to get quality legal help.

Juries generally are not sympathetic to defendants charged with taking advantage of the elderly. Get a good legal defense as soon as possible.

Hit and Run in Utah?

Utah Criminal Defense Blog, on the topic of  Question
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Getting in a car accident is bad enough. At best, you’re stuck with the hassle of insurance claims. But, leaving the scene of the accident can make it much worse.
Every now and then, the news has stories of people who hit a pedestrian or cyclist and flee the scene.

Photo: shrff14

In Utah, it’s a crime. If you hit and run, you’ll make yourself look guilty of what might only be an accident and possibly subject yourself to multiple criminal charges.

What if it’s only a fender bender? If there’s more than $1500 of damage, you have to call the police as soon as possible.

Even if no one was hurt, the law still requires you to stay at the scene until you share your insurance, name and address, and driver’s license with any other driver involved, the owner of any property damaged, or the police. The law allows you to move your cars off the road to the nearest safe area.

If someone is hurt in the accident, besides sharing all the information, you have a duty to help get emergency care, including transportation to a doctor or hospital. And, you must call the nearest law enforcement agency as soon as possible.

Sometimes people panic in the heat of the moment. But, giving into the panic and fleeing the scene of an accident will probably only compound the problems.
Leaving the scene of an accident without complying with your obligations can result in third degree felony charges if someone is hurt or killed. Even if there’s only a little property damage, you could face a misdemeanor criminal charge.

Don’t hit and run. It’s an example of the mistake digging your hole deeper. But if someone you know or love finds them self in legal trouble after an accident, it’s a good idea to consult with an experienced criminal defense lawyer.

Committing Perjury in Utah

Utah Criminal Defense Blog, on the topic of  Dealing with Police, Question
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Most people are aware that perjury is illegal in Utah, but you should also know that there are significant penalties for committing perjury in an official proceeding.

Photo: West Point Public Affairs

An event is considered to be an official proceeding when a person who is authorized by law to take evidence under oath or affirmation in connection with a particular event does so before a legislative, judicial, administrative or other governmental body. If you are a witness testifying in court, for example, you are considered to be part of an official proceeding.

A material statement is a statement that is capable of affecting the course or outcome of a proceeding. A statement made by a witness, for instance, is not material if the statement is taken back in the course of the official proceeding in which it was made, before it became apparent that the perjury was or would be exposed and before it substantially affected the proceeding.

If a person makes a false material statement under oath, and he knows such a material statement is a lie or if he makes inconsistent material statements, one of which he knows to be a lie, he will be guilty of a second-degree felony.

A person will be guilty of a class B misdemeanor if he perjurs himself in order to mislead a public servant who is doing his job or if he makes inconsistent statements and knows one statement to be untrue.

It is also a class B misdemeanor to make false written statements, whether notarized, with intent to deceive a public servant, or for any personal benefit.

Don’t give false information to law enforcement officers, government agencies or to people in the following professions: social work, psychology or marriage and family therapy (concerning the commission of an offense that you know didn’t occur or that you have no information about). If you choose to do so, you will be guilty of a class B misdemeanor.

Witness tampering and juror tampering are not allowed either. You also should avoid trying to extort or bribe someone to dismiss a criminal case. Don’t tamper with evidence, unless you don’t mind a class A misdemeanor charge, at a minimum.

Hopefully you see a pattern emerging here. Whether you call it deceiving or flat out lying, you’ll be in trouble with the law if you engage in the art of deception. Call a Utah criminal defense attorney right away if you have any questions about statements you have made in an official proceeding that may get you, or someone else, in hot water.

Former Coach Enters Plea in Abeyance

Utah Criminal Defense Blog, on the topic of  Hiring a Lawyer, Question
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A former Utah high school coach recently entered a plea in abeyance for the assault of a student after originally being charged with child abuse, a class A misdemeanor. Steve North used to be the head football coach at Wasatch High School, but after being placed on leave following the incident his contract was not renewed.

Photo: Gordon Joly

Assault is a class B misdemeanor and can be defined as:

• Using unlawful force or violence in the attempt to do bodily injury to someone;
• Threatening to injure someone and accompanying that threat with a show of force or violence; or
• The actual act of injuring someone.

What is a Plea in Abeyance?

A plea in abeyance takes your plea and holds it in abeyance, which is a fancy term that essentially means the court sets the plea on a “shelf” instead of entering the plea in the court record for a certain time period. If you don’t have any criminal convictions during the time period specified and you comply with the terms of the plea in abeyance agreement, then the charge can be dismissed.

A plea in abeyance agreement includes whatever terms both the prosecution and the defense agree to. Some of the stipulations may include attending anger management training, paying fines and/or restitution, etc.

Why a No-Contest Plea?

A no-contest plea has the same legal effect as a guilty plea. Pleading no-contest is admitting that there is evidence that could convict you of the charge(s) against you. Some people prefer entering a plea of no-contest in a criminal case because a no-contest plea cannot be used as evidence of guilt in a civil case.

Do Yourself a Favor and Hire an Attorney

Hiring a Utah criminal defense attorney is vital regardless of what type of criminal case you’re involved in, because he can carefully advise you of the benefits and drawbacks of entering various pleas. Don’t hesitate to contact a reputable attorney who will defend you with vigor.

The Insanity Defense

Utah Criminal Defense Blog, on the topic of  Legal Process, Question
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Is insanity a defense in Utah? Can someone be so insane that they can commit a crime yet be found not guilty?

Technically, there is an insanity defense on the books. Back in the 1980s, John Hinckley was found not guilty by reason of insanity after trying to assassinate President Reagan. The Utah legislature reacted to public outrage over the Hinckley verdict by crafting one of the country’s strictest laws.

Utah’s law allows a person to plead “not guilty by reason of insanity.” But, for all practical purposes the defense is very narrow. In most states, a person who did not understand the wrongfulness of their actions or who was acting under an irresistible impulse cannot be convicted of a crime.

In Utah, the insanity defense is more restricted. The defense only applies to people who have such severe mental illness that their disease prevents them from possessing the mental state required as an element of the crime. For example, a person who murdered his girl friend because he thought she was a robot working for the Mafia could be found not guilty by reason of insanity. Why? Because he lacked the intent to kill a human being.

But, a defendant who knowingly kills another person because of a psychotic episode would not be entitled to the insanity defense if the defendant could act knowingly or intentionally, even if he couldn’t appreciate the wrongfulness of his actions or acted under an irresistible impulse. Under Utah law, it wouldn’t matter if the defendant had a mental illness.

Still, the law allows a jury to take a defendant’s mental illness into account. For example, a jury may reach a verdict of “guilty and mentally ill.” Under that verdict, a defendant would first be sent to the State Hospital for a mental health evaluation and treatment. After spending up to 18 months at the hospital or until the defendant gets the maximum benefit from treatment, whichever comes first, the defendant would then be sent to prison for the balance of his sentence.

Issues of crime and mental illness are complicated. Some mental illness may even affect a defendant’s competence to stand trial. If the mental illness is severe enough, the case may even be dismissed without trial.

If you or a loved one struggling with mental illness find yourselves tangled in the criminal justice system, it’s important to seek competent legal counsel as soon as possible. Defendants with mental health issues have special needs that must be addressed quickly and aggressively.