US Supreme Court: Arizona v. Gant

Dec

Jesse, on the topic of Constitutional Rights, Dealing with Police, News, Utah Law

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.

Posted in Constitutional Rights, Dealing with Police, News, Utah Law | No Comments »

Text Messaging while Driving in Utah

Dec

Jesse, on the topic of Utah Law

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.

Posted in Utah Law | No Comments »

Verdicts in Utah

Nov

Jesse, on the topic of Legal Process, Utah Law

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.

Posted in Legal Process, Utah Law | No Comments »

Question: Do I have to talk to Salt Lake Police?

Nov

Jesse, on the topic of Constitutional Rights, Dealing with Police

Photo: Thomas Hawk

Q: A Salt Lake City police officer stopped me on the street and asked me if he could ask some questions. I felt like I had no choice but to say yes. He asked me a few questions and then let me go. Could I have said no?

There are three levels of stops in Utah: Level 1, Level 2, and Level 3. The difference between the three is how much a police officer suspects you of committing a crime. The more he suspects that you did something illegal, the more legal authority he has in keeping you from walking away.

It sounds like you experienced a Level 1 stop, which means you could have politely declined to answer any questions. Think of this as a stranger who walks up to you to ask a question: you can always say no. When the officer asks, be polite and say something like, “I’m sorry, I’m in a hurry. Have a nice day!” If the officer didn’t suspect you of anything when he first asked the question, he cannot detain you.

If the cop tries to intimidate you to answer his questions, you should ask, “Are you detaining me right now, or am I free to leave?” If this really is a Level 1 stop, the officer should let you go on your way.

A Level 2 stop is when a police officer has “reasonable articulable suspicion” that you committed a crime. This means that the officer reasonably suspects that you are involved in illegal activity. A Level 3 stop is when the officer has “probable cause” that you committed the crime, meaning that he thinks that you probably did something illegal. Under both a Level 2 and Level 3 stop, the cops are detaining you. You are not free to leave.

If an officer tells you that you are not free to leave, the officer should be able to tell you why you are being detained. If the cop starts asking you questions, the only questions you are obligated to answer are questions about your name, address, and explanation of your actions. You do not have to answer questions that could incriminate you. If you are being questioned by a police officer, simply ask for an attorney and the questioning should stop. At your next available opportunity, you should contact an attorney to assist you through the investigation.

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.

Posted in Constitutional Rights, Dealing with Police | No Comments »

Utah Legal Definition: Disorderly Conduct

Nov

Jesse, on the topic of Utah Law, Utah Legal Definition

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.

Posted in Utah Law, Utah Legal Definition | No Comments »

Hung Jury in Utah

Nov

Jesse, on the topic of Legal Process

All verdicts in a criminal case must be unanimous. So what happens when the members of a jury do not agree? This is called a “hung jury” and the judge will declare a mistrial. The court will then order a new trial.

Many defense attorneys believe that this is the best thing next to an acquittal. The advantage to this verdict is that the defense has a “do over” and can treat the first trial as practice.

Posted in Legal Process | No Comments »

Utah’s Breast Feeding Law

Oct

Jesse, on the topic of Utah Law

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.

Posted in Utah Law | No Comments »

Question: Can I change my attorney?

Oct

Jesse, on the topic of Hiring a Lawyer, Question

Photo: country_boy_shane

Q: I hired an attorney that I thought was going to help me, but now I’m not so sure. In fact, I don’t like my attorney and want to get a different attorney. Can I do that, or am I stuck with my bad attorney? If I can change attorneys, what should I do?

You have an absolute right to choose your attorney. If you don’t like your current attorney, you can fire him and hire a new one. To fire your attorney, simply call them and say, “I no longer need your services.” Then follow up by sending him a letter saying the same thing. You can include the reasons you are firing him in your letter. As long as you don’t have an outstanding bill with your attorney, you have the right to your file that is in the attorney’s possession.

That said, you should really ask yourself why you are firing your attorney. Is it because they don’t communicate? This is solvable if you send your attorney a non-threatening letter expressing your feelings. Usually, the attorney will call you to respond (especially if you ask them to).

If you are a week away from trial, it probably isn’t in your best interest to fire your attorney. Your new attorney will probably charge you to get up to speed on your case and won’t be as familiar with the case as your first attorney. If your case is still at the beginning and you don’t like your attorney, then you can probably fire your attorney without any hardship to you.

In order to not get into a situation where you might not like your attorney, do your homework before hiring them. Ensure that you will get along with them, that you trust them, and that you think they can handle your case competently.

Posted in Hiring a Lawyer, Question | No Comments »

Utah Legal Definition: Assault

Oct

Jesse, on the topic of Utah Legal Definition

Assault in Utah is attempting to do injure to another person, making a threat to another person and immediately showing that you can back up your threat (usually showing a weapon), or actually injuring another person. This statute is broad so that it can encompass almost anytime a person tries to injure another person. Simple assault is a Class B misdemeanor. It can become a Class A Misdemeanor if the victim is actually injured or the victim is pregnant.

An simple assault becomes an aggravated assault in Utah if the person intentionally causes injury or uses a dangerous weapon.

Utah Code § 76-5-102: Assault
(1) Assault is: (a) an attempt, with unlawful force or violence, to do bodily injury to another; (b) a threat, accompanied by a show of immediate force or violence, to do bodily injury to another; or (c) an act, committed with unlawful force or violence, that causes bodily injury to another or creates a substantial risk of bodily injury to another.

Utah Code § 76-5-103: Aggravated assault
(1) A person commits aggravated assault if he commits assault as defined in Section 76-5-102 and he: (a) intentionally causes serious bodily injury to another; or (b) under circumstances not amounting to a violation of Subsection (1)(a), uses a dangerous weapon … or other means or force likely to produce death or serious bodily injury.

Posted in Utah Legal Definition | No Comments »

Self Representation vs. Hiring a Utah Attorney

Oct

Jesse, on the topic of Constitutional Rights, Legal Process

The Utah Constitution gives every Utah citizen the right to represent themselves in court. (”A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, full right to be heard according to law. Judicial Canon III b 8). It is called pro se representation. But should you take advantage of that right?

Defendant will represent themselves for various reasons:
•   Defendant doesn’t want a lawyer.
•   Defendant doesn’t want to hire a lawyer.
•   Defendant thinks it will be fun to act like a lawyer.
•   Defendant can hire a lawyer, but the crime is so small that they don’t want to pay for a lawyer
•   Defendant watches television shows with lawyers and thinks being a lawyer is easy.
•   Defendant thinks he knows the rules of the court.
•   Defendant is in jail and wants to write her own appeal to the Supreme Court.

Generally, it is a good idea to hire a lawyer. After all, it is a lawyer’s job to know how to navigate the court system. All lawyers go to law school for three years to learn how to be a lawyer, so reading a book on how to represent yourself in court is not a good idea if you’re going up against a prosecutor with years of experience.

However, there are some instances where a person wouldn’t need a lawyer. If someone is charged with a small crime, like a traffic ticket, it might not make sense to hire a lawyer. But if a person is charged with a DUI, they definitely need a lawyer.

To decide whether to hire an lawyer or not, the first thing you should do is find out the maximum punishment for the crime you are charged with. If the punishment is a $50 fine, you probably don’t need an lawyer. But if the punishment is $1,000 and up to six months in jail, you need an lawyer to help you.

A lawyers will know the rules of evidence, how to address everyone in the courtroom, and will know the rules of the court. A judge doesn’t have to explain things to a lawyer as she would with someone representing themselves. Although you may ultimately choose to represent yourself, judges can sometimes be more tolerant with pro se litigants than with lawyers. But that tolerance will only go so far–the judge will know that one party knows the law and the other party thinks they know the law.

Posted in Constitutional Rights, Legal Process | No Comments »

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