Archive for the ‘Utah Law’ Category

Innocent Until Proven Guilty: What does this really mean?

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

Falsely Accused of being a Utah Gang Member?

Jesse, on the topic of  Constitutional Rights, Utah Law
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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.

Question: What is a plea in abeyance?

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

Defenses to Utah Crimes

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

US Supreme Court: Arizona v. Gant

Before the recent US Supreme Court ruling in Arizona v. Gant, police could arrest you and then search your car for “officer safety.”  The reasoning, from a previous Supreme Court ruling (New York v. Belton), was that an arrestee standing near the car might reach into the vehicle to grab a weapon and injure the police officer.

Many legal scholars and attorneys thought that this standard failed to meet the standard of probable cause.  That is, after arresting someone, the police officers wouldn’t have probable cause to search the vehicle because the arrestee wouldn’t have access to the vehicle.

Thanks to the new Supreme Court ruling, police officers cannot simply arrest someone and then search the car.  The only way police can search an arrestee’s car is if they reasonably believe that (1) the arrested individual might access the vehicle at the time of the search; or (2) the arrested individual’s vehicle contains evidence of the offense that led to the arrest.

Remember, if you are arrested and police ask to search your car, refuse!  If they do search the car without your consent, do not argue and let them.  This is a legal issue that can be dealt with later by your attorney.

When dealing with the police remember the three golden rules:
1. Don’t trust or believe the police.
2. Don’t resist being handcuffed.
3. Don’t say a damn thing.

Text Messaging while Driving in Utah

Jesse, on the topic of  Utah Law
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Photo: drp

Photo: drp

The Utah legislature recently enacted a law that prevents people from text messaging while driving. Violation of the law is a class C misdemeanor. The new statute reads:

“[A] person may not use a handheld wireless communication device for text messaging or electronic mail communication while operating a moving motor vehicle on a highway in this state.”Utah Code  § 41-6a-1716.

There are some exceptions in the statute:

• During a medical emergency
• when reporting a safety hazard or requesting assistance relating to a safety hazard
• when reporting criminal activity or requesting assistance relating to a criminal activity
• when providing roadside or medical assistance
• when used by a law enforcement officer or emergency service personnel acting within the course and scope of the law enforcement officer’s or emergency service personnel’s employment

However, enforcement of this law is rather difficult because a police officer must view you actually text messaging. What if you were reading the newspaper on your phone, reading your email, or looking at a map on your phone? Under the statute, those activities are permitted.

Utah law defines text messaging as

“a communication in the form of electronic text or one or more electronic images sent by the actor from a telephone or computer to another person’s telephone or computer by addressing the communication to the person’s telephone number”

If a person isn’t sending an “electronic text” to another person’s phone or computer, they cannot be charged under this statute.

If you have been charged with texting while driving, contact a qualified attorney who can help defend you against this charge.

Verdicts in Utah

Jesse, on the topic of  Legal Process, Utah Law
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After a trial, there are only four verdicts available.  All verdicts in a criminal case must be unanimous.

Guilty: If a jury finds the defendant guilty, the defendant’s next step is a sentencing hearing.  The defendant has the right to be sentenced within 30 days, or if he chooses, the same day of conviction.

Not-guilty: If a jury finds the defendant not-guilty, the defendant is free to leave and the case is over.  The defendant cannot be charged again for the same crime on the same facts (double jeopardy).

Not-guilty by reason of insanity:  If a jury finds the defendant not-guilty by reason of insanity, the defendant may 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.

Guilty and mentally ill:  If a jury finds the defendant guilty and mentally ill, the defendant will go to prison, a psychiatric hospital, or a combination of both.

Utah Legal Definition: Disorderly Conduct

Jesse, on the topic of  Utah Law, Utah Legal Definition
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Photo: AndyWilson

Photo: AndyWilson

If you were a member of the Utah Legislature and wanted to create a statute that was a catch-all for criminal activity, you would create Utah’s disorderly conduct statute.  It allows for police to arrest you for multiple reasons for ambiguous actions, such as knowing creating a “hazardous” condition that serves “no legitimate purpose,” or making “unreasonable” noises in a public place.  What do those parts of the statute mean?  It means whatever an arresting police officer determines those words to mean.

Utah Code § 76-9-102: Disorderly conduct.

(1) A person is guilty of disorderly conduct if: (a) he refuses to comply with the lawful order of the police to move from a public place, or knowingly creates a hazardous or physically offensive condition, by any act which serves no legitimate purpose; or (b) intending to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof, he: (i) engages in fighting or in violent, tumultuous, or threatening behavior; (ii) makes unreasonable noises in a public place; (iii) makes unreasonable noises in a private place which can be heard in a public place; or (iv) obstructs vehicular or pedestrian traffic.      (2) “Public place,” for the purpose of this section, means any place to which the public or a substantial group of the public has access and includes but is not limited to streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops. (3) Disorderly conduct is a class C misdemeanor if the offense continues after a request by a person to desist. Otherwise it is an infraction.

Utah’s Breast Feeding Law

Jesse, on the topic of  Utah Law
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Photo: c r z

Photo: c r z

Normally, a woman exposing her breast would be deemed lewd and the woman would be guilty of a Class B misdemeanor.  However, the Utah Legislature ensured that breastfeeding women could not be charged under Utah’s lewdness statute.  Specifically, they enacted a law that states:

A woman’s breast feeding, including breast feeding in any location where the woman otherwise may rightfully be, does not under any circumstance constitute a lewd act, irrespective of whether or not the breast is covered during or incidental to feeding.  Utah Code § 76-9-702(7).

Notice that the statute allows a woman to breastfeed in public whether or not she covers her breast.

If you are a woman who has been charged with lewdness simply for breastfeeding, contact a qualified attorney that can help defend your rights to breastfeed in public as the law allows.