Sexual Solicitation Sting in Southern Utah

Utah Criminal Defense Blog, on the topic of  Crimes, Punishment, Utah Crime News, Utah Legal Definition
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Sexual solicitation sting southern Utah

Photo: Sascha Kohlmann

Sexual solicitation was the name of the game in St. George, Utah, this past Friday, June 27. Nine men were arrested and charged with soliciting a prostitute after being snared in a sting operation.

These were not the Girls They were Looking For.

According to a release from the St. George Police Department, the operation began with the placement of ads on various websites. Men who answered the ads were contacted by an undercover officer. In each case, there was a discussion about an exchange of sex for money, whether it occurred over the phone or in person.

The nine men who were arrested ranged in age from 24 to 63. While most of them came from Washington or Iron counties, one of the men was from Heber City. All nine were charged with sexual solicitation of a prostitute and booked into Purgatory Correctional Facility.

Sexual Solicitation: If you offer, you might have to pay.

According to the Utah Legal Code 76-10-1313, a person is guilty of sexual solicitation when the person does any of the following:

  • Offers or agrees to commit any sexual activity with another person for a fee
  • Pays, offers or agrees to pay another person to commit any sexual activity
  • Offers to perform for money such activities as exposure of generally considered “private areas,” touching of said areas, or masturbation.
  • Offers to pay for those other activities

The first offense of sexual solicitation is a class B misdemeanor, punishable by up to six months in jail and a fine of up to $1000. Anyone convicted a second or subsequent time is guilty of a class A misdemeanor, punishable by up to one year in jail and a fine of up to $2,500.

If you have been charged with sexual solicitation, make sure to contact an experienced and trusted criminal defense attorney who can inform you of your rights and act as your advocate in court.

Attorneys May Check Jurors Facebook, Twitter and Social Media Accounts. However, Attorneys May Not Facebook Friend Request a Juror During Trial

Utah Criminal Defense Blog, on the topic of  Constitutional Rights, Legal Process, Utah Court
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Social Media and Jury Selection

Photo: Birger King

Most average citizens are aware of the fact that when putting together a jury, lawyers will ask questions that gauge the opinions and beliefs of potential jurors. However, something that may come as a surprise is that the American Bar Association (ABA) recently announced that researching a potential juror’s social media activity is an ethical practice in jury selection.

Standard Operating Procedure for Jury Selection

When it comes to jury selection, practices vary from state to state and the numbers will depend on the type of crime. A civil case may have as few as six jurors, while more serious criminal cases generally require twelve jurors. Alternate jurors are sometimes selected just in case a juror becomes ill during the trial. They hear the same evidence and arguments as the other jurors but won’t participate in deliberations unless they are needed as a replacement.

Before being officially selected, the judge will give potential jurors an idea of the type of case to be tried and ask if there is any reason they cannot serve. The judge or lawyers will then ask questions to determine if the potential jurors might be biased in regards to the case, such as being related to one of the parties involved in the case, having preconceived opinions in regards to the basis of the lawsuit, or having already cast judgment based on news items relating to the case.

Social Media Searches: Not Just for Potential Employers Anymore

The rapidly growing world of social media is having widespread impact on how the rest of society functions. In the past few years, several studies have been released stating that more and more employers are performing Google and social media searches of potential applicants before deciding whether to hire (or in some cases, continue to employ) certain people. Now those same searches are being used for jury selection.

Previous to April of this year, the issue of whether or not this practice was ethical was undecided. Some judges have permitted lawyers to perform these types of searches while others have refused to allow it. Technology has already found its way into the field of jury selection, with multiple apps designed specifically to help lawyers organize and filter potential juror information. However, some companies have started offering software that searches social media to create juror profiles.

At least two states have already addressed the issue of online searches. Missouri has a website tracking lawsuits in the state, and the Missouri Supreme Court requires attorneys to use that website to search the litigation history of potential jurors. In 2013, the Oregon State Bar published an opinion stating that lawyers could use publicly available social media information for jury selection so long as they didn’t actively “friend” or “follow” the potential juror.

With all the varying opinions, the ABA’s Standing Committee on Ethics and Professional Responsibility took on the issue approximately two years ago, and on April 24, they released Formal Opinion 466 stating that information gathered passively through social media and other searches was considered ethical research.

What Exactly is Formal Opinion 466?

To understand Formal Opinion 466 and how it relates to jury selection, it is important to first understand that the ABA has a group of Model Rules of Professional Conduct. These binding rules form the basis for governing conduct among lawyers in every state (excepting California which follows a different format in their rules) and the District of Columbia. Formal opinions are interpretations based on those model rules.

Formal Opinion 466 is based on Model Rule 3.5 and states that a lawyer may review a potential (or current) juror’s postings and comments on websites or social media sites in regards to jury selection providing it doesn’t violate Model Rule 3.5 subsection (b) prohibiting ex parte communication with jurors. Formal Opinion 466 addresses such conduct on three levels:

  • The practice is ethical if the research is “passive” (i.e.- the information is available without an access request such as a Facebook “friend request”) and is done without the juror’s knowledge. If done in this manner, it is considered a “mere act of observing.”
  • Requesting access to a potential juror’s social media account is considered an “active” review and a violation of ex parte communication.
  • If a potential juror is notified via the social media site or website that a passive search has been performed, it is not a violation of Model Rule 3.5(b) because it constitutes communication from the electronic entity and not the lawyer.

The Song Remains the Same

While technology and social media is changing how the world operates, the same basic rules of humanity apply. People are judged by their words and actions. In this modern world, those words and actions are much more public.

A harsh criticism of an employer that used to be exchanged over drinks with a colleague is now potentially dangerous Facebook fodder (if your boss sees it), and many choose to ignore the old adage about not discussing politics or religion in polite company, especially when there’s no one else actually in the room but you and your computer.

Unfortunately, whether it’s completely accurate or not, you are who the internet says you are, and you will be judged by the online comments you make and the pictures you post. If that’s a problem for you, perhaps it’s better to just turn off the computer and carry on the conversations over the fence like they used to be.

Unknown Driver Sought After Leaving the Scene of Accident

Utah Criminal Defense Blog, on the topic of  Crimes, Punishment, Utah Law, Utah Legal Definition
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Driver sought after leaving the scene

Photo: Garrett

A hit-and-run on Thursday, June 19, left three people injured. As of this past weekend, police are still looking for the driver who has been accused of leaving the scene of the accident.

A Bad Situation but Thankfully not Fatal

On Thursday afternoon, Lisa Rowley was driving with her friend, Heather Dutson, and her two nieces. As she was getting ready to exit I-215 South onto Redwood Road, Dutson noticed a black SUV coming into their lane. She tried to warn Rowley, but it was too late at that point.

The SUV clipped the driver’s side of Rowley’s vehicle, sending the car into a spin across five lanes of traffic. The car came to a stop when it hit a barrier. One of the girls, 10-year-old Kendra Harvey, was able to get out and help her younger sister, Makayla, out of the vehicle.

Kendra Harvey was the only one who wasn’t taken to the hospital. Rowley tore tendons and ligaments in her wrist and neck. Dutson ended up with a sprained arm and knee. Makayla Harvey spent the night at Primary Children’s Hospital as the result of an injury she sustained to her leg. However, the injuries weren’t the thing that upset the women the most, but rather the fact that the driver felt like leaving the scene was the best course of action.

Law enforcement officials are still seeking the driver of the black SUV, which they say probably has damage on the passenger side. They hope the driver of the vehicle will do the right thing by turning him/herself in to authorities.

Definition and Penalty for Leaving the Scene of a Crime

According to Utah Code 41-6a-401, if the driver of a vehicle is involved in an accident that causes injury or death to a person or damage to another vehicle or property, it is their responsibility to immediately stop the vehicle as close as to the scene of the accident as possible without obstructing traffic. They must exchange all pertinent information with the operator of the other vehicle, and if injury has been sustained or the damage appears to exceed $1000, they must contact law enforcement.

If a person is accused of leaving the scene, they can be charged with a class A misdemeanor, which could potentially result in a prison sentence up to one year and fine not less than $750 if the accident results in injury or death.

If you have been accused of leaving the scene of a crime, make sure to talk with a trusted and experience criminal defense attorney.

DUI Arrest for Utah RSL player Sebastian Velasquez Raises Concerns

Utah Criminal Defense Blog, on the topic of  Alcohol in Utah, Crimes, DUI in Utah, Punishment
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Sebastian Velasquez DUI Arrest

Photo: John Fischer

With the 2014 FIFA World Cup in full swing in Brazil, the game of soccer has taken center stage in sports news and is the topic of water cooler discussions among fans and non-fans alike. However, given his DUI arrest on May 19, Real Salt Lake (RSL) midfielder Sebastian Velasquez may have other things on his mind as well, and concerns are being raised in regards to the incident.

Details of the DUI Arrest

According to the Salt Lake County Sheriff’s Office, early morning on Monday May 19, Sebastian Velasquez, 23, was pulled over driving 84 mph in a 65 mph zone of I-15 near 2700 South. The trooper on the scene reported that Velasquez had a distinct odor of alcohol on his breath. After failing a field sobriety test, he was given a breathalyzer test which registered 0.199, more than twice the legal limit of 0.08.

Velasquez was booked into the Salt Lake County Jail at 5:18 a.m. and formally charged with a DUI class B misdemeanor and a class C misdemeanor for speeding on May 27. An arraignment for June 2 was cancelled when Velasquez’s attorney entered a notice of appearance and a plea of not guilty.

Standard DUI Arrest Penalties

According to Utah Code 41-6a-505, the penalty for driving under the influence of alcohol involves several things if it is a first conviction. This may include:

  • a minimum 48 hour jail sentence
  • compensatory-service work program or home confinement of not fewer than 48 hours
  • minimum $700 fine
  • court mandated participation in an assessment
  • participation in an educational series or substance abuse treatment
  • probation if there is evidence of a blood alcohol level of 0.16 or higher

Concerns Specific to the Velasquez Case

This is not Sebastian Velasquez’s first run-in with alcohol abuse. In a candid discussion with students at North Davis Junior High in Layton, Utah, in January of 2014, Velasquez admitted to using drugs and alcohol after dropping out of school as a way to escape his problems. Even though he told those students that he realized his poor behavior wasn’t getting him anywhere–especially closer to his dream of becoming a professional soccer player–it seems he hasn’t entirely left that behavior behind.

Even though RSL general manager Garth Lagerwey has been quoted as saying they are following the protocol for situations such as these and Velasquez is already back on the field, there are still some issues that can’t be ignored. The first of which is the fact that this is a team which has away games in Canada.

Canada’s Tough Stance Regarding a DUI Arrest

Many tourists to Canada have been surprised when they attempted to cross the border with their passport in hand only to be turned away because of a prior DUI arrest.

The fact is that Canada takes a much harsher stance when it comes to drunk driving, and border officers may choose to send you packing if you try to enter the country with a conviction. It doesn’t matter if you aren’t driving when you attempt to cross or even if you don’t plan on driving at all. It has been reported that tourists wanting to take a ferry to Victoria for one day walking tours are regularly turned away for having a DUI arrest.

In order to enter Canada with a previous conviction, you have two choices. You can apply for a Temporary Resident Permit which is issued for a limited period of time. However, these permits are primarily intended for a specific purpose in traveling, of which simply “going on vacation” is not generally included. If five years has passed since the completion of your sentence for the DUI, including any fines, service or probation, you can petition the Canadian Immigration Authorities for a “Criminal Rehabilitation” permit.

When it comes to familiar faces such as Sebastian Velasquez, the rules still apply. Even former U.S. President George W. Bush had to apply for a waiver to enter Canada as a result of a 1976 offense in Maine. Fortunately for Velasquez, the Temporary Resident Permit can potentially be valid for multiple visits up to three years.

A Question of Public Perception

Perhaps of greater concern is the age old discussion of what we expect from our public figures. Whether it’s regarding a movie star, politician, musician or sports figure, many people would say that these public figures should hold themselves to a higher standard, especially when they are viewed in high esteem in the eyes of the youth.

Others would say that these figures aren’t superhuman just because they are more in the public eye. In fact, the pressures of such positions are often attributed as being one of the antecedents to criminal behavior. In the case of Velasquez, who has confessed to his own struggles with substance abuse and tried to lead youth down a smarter road, perhaps he deserves some lenience. This path of forgiveness and moving forward seems to be the one being taken by the management of the RSL club.

A pretrial conference for Velasquez’s case has been scheduled for Monday, August 20 in Salt Lake City Justice Court.

Utah Public Enemy No. 1 Arrested for Weapons Violation and Theft

Utah Criminal Defense Blog, on the topic of  Crimes, Criminal Defense Misc, Utah Crime News
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Utah Public Enemy No. 1 Arrested Weapons Violation

Photo: Robert Nelson

On Sunday night, Utah Highway Patrol officers arrested Jamie Ralph Hamlin, 34, on charges of a weapons violation and theft. This arrest occurred just three days after Hamlin was named Utah Public Enemy No. 1.

Vehicle Pursuit Becomes a Foot Chase

At approximately 8 p.m. Sunday, a Utah Highway Patrol trooper attempted to stop a car around the area of 600 North and 1000 West. After the vehicle fled, the officer pursued and quickly locating the abandoned vehicle.

Residents in the area were able to give descriptions of the occupants of the vehicle and point the trooper in the direction they escaped. A foot pursuit ensued, and the trooper caught one of the men matching the witnesses’ description. Even though the apprehended man gave a false name, he was later identified as Hamlin. He was arrested for outstanding warrants for a weapons violation and theft.

Is a Weapons Violation Enough to be Named Public Enemy No. 1?

The usage of the term “public enemy” was popularized in the early 1930s by Frank J. Loesch of the Chicago Crime Commission. According to Loesch, the term was applied to such organized crime gangsters as Al Capone in order to keep a constant light shining on them, even if they weren’t actively wanted by the law. The title was later used by the FBI to describe actual fugitives from justice. Some of these included Bonnie and Clyde, John Dillinger and Baby Face Nelson. The term became synonymous with “fugitive” or “notorious gangster.”

While Jamie Hamlin might not be any Al Capone or Machine Gun Kelly, he has a long history with the law. Hamlin is already a convicted felon, with previous arrests for aggravated assault, drugs, and resisting arrest, as well as convictions for theft and other weapons violations. He is also a member of a violent street gang. All of these things combined to crown him with the title.

Unfortunately, this crown comes with a pair of handcuffs.

It’s not just Public Enemy No. 1

There are several reasons one might be charged with a weapons violation, from possession of a dangerous weapon to discharging said weapon or altering it. Charges may range from a misdemeanor to a felony.

If you or someone you know has been charged with a weapons violation or any other crime, make sure you know your rights. Contact an experienced, professional criminal defense attorney as soon as possible.

Legislative Prayer Faces Off with the Establishment Clause

Utah Criminal Defense Blog, on the topic of  Constitutional Rights, Legal Process
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Legislative Prayer vs. Establishment Clause

Photo: Harley Pebley

A recent United States Supreme Court decision regarding whether a particular case of legislative prayer violated the Establishment Clause of the First Amendment of the United States Constitution will set a precedent that concerns many citizens. However, most Utah leaders were pleased with the decision.

The Most Recent Challenge

Town of Greece v. Galloway is certainly not the first case to question the Establishment Clause of the First Amendment. However, given that it is the third Establishment Clause case that has come in front of the Supreme Court under Chief Justice John G. Roberts, all three resulting in 5-4 decisions rejecting the challenge, it seems to be a sign of things to come.

In Town of Greece v. Galloway, the issue arose as to the constitutionality of a suburb of Rochester, N.Y., opening its town board meetings with a prayer. From 1999-2007, the town of Greece had invited exclusively Christian ministers to lead the prayers, and most of the content was explicitly Christian theology, some even referring the sacrifice of Jesus Christ on the cross and the path to redemption.

When this practice was questioned, the Town Board invited clergy members from other religions to offer the prayer for four months, but for the 18 months following that brief period, the practice reverted strictly to Christian clergy members. A lawsuit was brought claiming a violation of the Establishment Clause of the First Amendment, but the federal district court ruled in favor of the Town of Greece. The 2nd U.S. Circuit Court of Appeals reversed this decision, citing the explicit Christian content by exclusively Christian clergy and the fact that the audience was asked to bow their heads and join in reciting the prayer, “Our Father.” In a 5-4 decision, the United States Supreme Court reversed the decision of the 2nd Circuit.

What is the Establishment Clause?

The Establishment Clause is the first pronouncement of the First Amendment of the United States Constitution, and it prohibits the government from making any law “respecting an establishment of religion.” Several things are prohibited by the Establishment Clause. In addition to forbidding the government from establishing an official religion, it also prohibits government actions that appear to favor one religion over another. This includes the preference of “religion” over “non-religion” or vice-versa.

The difficulty with the Establishment Clause has been trying to determine how much it tolerates. Even though some government action implying a set of religious beliefs is often accepted by the general public (and in some cases, encouraged or almost unavoidable), certain actions seem to be a flagrant violation. The trouble arises when attempting to determine where the line should be drawn, and with a United States Supreme Court that seems to favor more religious presence in government, that line seems to be moving farther to the Right.

The Opinions of the Supreme Court

The five justices who claimed the Town of Greece had not violated the Establishment Clause were Chief Justice John G. Roberts Jr., and Justices Samuel A. Alito Jr., Anthony M. Kennedy, Antonin Scalia and Clarence Thomas. The plurality opinion emphasized a long history of clergy-delivered prayers before legislative sessions.

Justice Thomas’ concurring opinion stated that he believed the Establishment Clause was meant solely for the federal government and shouldn’t apply to state and local government. Justice Scalia joined Thomas in stating that only legal coercion [forcing people to participate in the religious practices or face a legal penalty] would constitute a violation.

On the dissenting side were Justices Elena Kagan, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor. For their part, they felt the Town of Greece violated the idea of religious equality in their overwhelming practice of solely Christian theology. Justice Kagan stated “…our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian.”

In response to Justices Thomas and Scalia, Kagan stated that people were indeed required to go the town board meetings to address certain issues. Regarding the fact that audience members were requested to participate in the prayers, Kagan cited retired Justice Sandra Day O’Connor’s belief that the Establishment Clause was there so no one would feel like an outsider–or insider for that matter–to his/her own government.

The View Back Home

In Utah, the opinion among political and religious leaders was mostly in agreement with the decision of the Supreme Court. Given the fact that one area where the Supreme Court looks the other way in regards to the Establishment Clause is allowing school districts to design student schedules to accommodate extra-curricular religious studies (such as LDS Seminary classes), it wasn’t a surprise that LDS Church spokesman Cody Craynor expressed their pleasure with the decision. However, they were joined in that sentiment by the Catholic Diocese of Salt Lake City.

Rabbi Benny Zippel of the Chabad Lubavitch of Utah was also quoted as saying, “Our Founding Fathers of the United States of America were devout leaders who, in no way, shape or form, wanted to exclude the awareness of God from our midst.”

Others to voice their support included Governor Gary Herbert, Utah Senate President Wayne Niederhauser, Representative Jason Chaffetz (R-Utah), and Senator Orrin Hatch (R-Utah).

One of the groups to express dissent was Atheists of Utah. Several civil rights attorneys also voiced concerns regarding minority group representation in Utah. Other groups which do not pray before meetings say they don’t plan on changing course. The Salt Lake City Council starts each meeting with their “prayer of the republic,” the Pledge of Allegiance. While the Pledge has seen its own share of controversy, City Council Vice Chair Luke Garrott stated, “We’ve just found that [prayer] becomes more of a distraction and more divisive, and it really gets in the way of us doing business.”

Layton Man Arrested on Suspicion of Aggravated Arson

Utah Criminal Defense Blog, on the topic of  Crimes, Utah Crime News, Utah Legal Definition
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Utah Man Arrested for Aggravated Arson

Photo: Ada Be

A man in Layton, Utah, was arrested over the weekend on suspicion of aggravated arson after he was found in front of an abandoned burning house. The cause of the fire remains unknown, and the question is whether or not it was truly aggravated arson.

Like a Moth to the Flame

Howard Treft, 61, was booked into Davis County Jail on Saturday, June 7. According to neighbor Tyler Lamarr, Treft had been working with him on a sprinkler system when they noticed the fire. Lamarr evacuated his own family and then called the fire department.

Treft is a former owner of the house which is now considered abandoned. However, according to South Davis Metro Fire Chief Jeff Bassett, Treft had been occasionally staying in the house. This was confirmed by neighbor Lamarr. In addition, Treft was previously investigated for a suspicious fire at the same location in 2011.

When police and fire crews arrived on Saturday, Treft had second-degree burns on his arms and head and was reportedly trying to extinguish the fire with a garden house. When all was said and done, it took 25 firefighters almost two hours to put out a fire big enough to damage nearby homes. After being treated for his burns at Lakeview Hospital, Treft was booked for suspicion of aggravated arson and intoxication.

But is it “Aggravated Arson”?

According to Utah Code, arson is defined as damage caused “by means of fire or explosives unlawfully and intentionally.” As far as Treft’s case is concerned, the suspicion arises not only from the fact that he had previously been under investigation but also because power and gas had been shut down to the house.

The primary difference between arson and aggravated arson arises when the safety of people is involved. According to the Utah Code, this damage extends to “any structure or vehicle when any person not a participant in the offense is in the structure or vehicle.” Even though there was no one in the abandoned home at the time of the offense, the fact that neighboring homes were damaged as a result potentially elevates the charge to aggravated arson, a first degree felony. While it was apparently caused “unlawfully” if Treft wasn’t supposed to be on the property, the question arises of whether it is also “intentionally.”

The law can be a tricky arena. These are not waters to navigate alone. If you or someone you know has been charged with aggravated arson or any other charge, it’s in your best interest to contact an experienced criminal defense attorney.

eWarrant System Challenged in Utah Supreme Court

Utah Criminal Defense Blog, on the topic of  Constitutional Rights, Criminal Appeals, Legal Process, Utah Court
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eWarrant System Challenged

Photo: Patrick Fitzgerald

In April 2014, the Utah eWarrant system was challenged in an appeal to a 2012 district court decision. After pleading guilty to negligent automobile homicide and driving under the influence of alcohol, Gabriel Gutierrez-Perez was sentenced to up to 16 years in prison, but in April, he appealed the district court’s denial of his motion to suppress evidence.

A Night of Drinking Leads to the Death of a Paramedic

On May 21, 2011, Gabriel Gutierrez-Perez spent the evening drinking with friends, both at home and then later at a downtown night club. After attempting to sleep it off on a friend’s couch, he got behind the wheel at 6 a.m. on May 22, a decision that he is most certainly regretting.

After failing to stop at a red light, Gutierrez-Perez caused a multi-vehicle accident that left several people injured and resulted in the death of Utah paramedic, Jonathan Bowers. He fled the scene but was quickly apprehended. Both on the scene and while being transported to the hospital, he admitted that he had been drinking throughout the night prior.

The eWarrant System in Question

The eWarrant system allows officers to electronically apply for a search warrant from a remote location. A judge reviews the information, approves or denies the warrant and then can electronically send it back to the officer to be served.

In the incident in question, the investigating officer applied for an eWarrant to draw Gutierrez-Perez’s blood and obtain the results. In his appeal to the Utah Supreme Court, Gutierrez-Perez maintained that the affidavit portion of the application was not supported by an “oath or affirmation,” thereby making in unconstitutional both by the United States and Utah constitutions.

Gutierrez-Perez moved to suppress the evidence obtained by these warrants based on three arguments. First, he stated that the precedence for a valid oath or affirmation had been established in an earlier court case (Mickelsen vs. Craigco, Inc.) and the affirmation in this case does not comply. Second, because the eWarrant application uses language from Utah Code section 78B-5-705, entitled “Unsworn declaration in lieu of affidavit,” the officer’s statement must be considered as an “unsworn declaration” and not an affirmation. Finally, Gutierrez-Perez argued that it doesn’t count as an affirmation because the application doesn’t explicitly state that the affiant [person who swears to an affidavit] may be subject to prosecution for perjury for making a false statement.

A Lesson in History

The Utah Supreme Court reviewed these arguments and was not persuaded. Ultimately they held up the district court’s denial of Gutierrez-Perez’s motion to suppress the evidence. To support this decision, they looked to history in regards to Gutierrez-Perez’s three arguments.

In his first argument, Gutierrez-Perez stated Mickelsen vs. Craigco, Inc. set the standard that an oath or affirmation “must be signed by affiant in the presence of a notary or other person authorized to take oaths” and “the latter must affix a proper jurat [certificate on an affidavit].”  The State did not dispute these two points. However, they rejected the argument on the grounds that the cited case dealt with setting requirements for a valid verification and thus didn’t extend to Gutierrez-Perez’s case.

For the second argument, the State delved into the history of the Fourth Amendment, going back all the way to British common law to decide whether or not the officer’s statement in question was an “unsworn declaration” or “affirmation” simply based on similar wording. When it came to the Framers of the Constitution of the United States, the State claims they didn’t recognize an affirmation as requiring a particular wording.

Since the officer was required to declare as part of the eWarrant application that his statement was “true and correct” and acknowledge that he was subject to “criminal penalty of the State of Utah,” the State found this compliant with the original understanding of an “affirmation,” thereby passing constitutional muster.

Finally, in regards to Gutierrez-Perez’s argument that the criminal penalty for making a false statement on the eWarrant was insufficient to impress the solemnity of the occasion on the affiant, the State again referred to history. While it is true that those testifying under affirmation historically were subject to prosecution for perjury for making false statements, it wasn’t until the 1800s that the crime was considered a felony in most states.

In the eWarrant system application, the penalties for making a false statement are found in either the Unsworn Declaration statute (a class B misdemeanor punishable by up to six months’ imprisonment) or the “false statement” statute (Utah’s version of perjury, a second degree felony punishable by one to fifteen years’ imprisonment). The State believed the misdemeanor threat of “up to six months,” with potential for felony punishment, was sufficient to impress the solemnity of the occasion upon the affiant. In addition, since the legislature could possibly change the penalty associated with the false statement statute to something less than a felony, Gutierrez-Perez’s argument that false statements should be punishable as felonies would render the warrant system impracticable.

While Gabriel Gutierrez-Perez didn’t win his fight against the Utah eWarrant system, it doesn’t make the system infallible. If you believe that you have a case involving how evidence was obtained via the eWarrant or standard warrant system, contact a trusted and experienced criminal defense attorney and make sure you know your rights.

Can Extreme Sports Providers be Sued for Wrongful Death?

Utah Criminal Defense Blog, on the topic of  Criminal Defense Misc, Utah Law
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Tough Mudder Brings Wrongful Death Suit

Photo: The 621st Contingency Response Wing

With many people considering Utah an extreme sport playground, accidents are going to be inevitable. However, when accidents become fatal, does a litigant have a wrongful death case?

A Popular Sport with Inherent Risks

While the challenges may be getting more extreme, finding ways to push one’s endurance and the boundaries of what is concerned dangerous or risky has been around since the days of the Roman Empire. These days, whether it’s heli-skiing, mountain biking, bungee jumping or snowmobiling, people are still seeking to stretch the limits.

One popular version of this that has sprung up across the United States is obstacle course racing, but these aren’t the potato-in-the-spoon or three-legged races from your youth. Just the names of the three most popular of these events–Tough Mudder, Spartan Race, and Warrior Dash–should tell you as much.

The Tough Mudder’s First Death

In 2013, the Tough Mudder, an event which has seen over a half million participants since its inception (including an annual event in Utah) and raised more than three million dollars for the Wounded Warrior Project, saw its first death.

Avishek Sengupta didn’t finish the Mid-Atlantic Tough Mudder race, but it wasn’t exhaustion. After jumping off the 12-foot tall “Walk the Plank” obstacle into a pool of muddy water along with a horde of other racers, Sengupta didn’t re-emerge. After being pulled out by a rescue diver, he died the next day.

But is it “Wrongful Death”?

In April of 2014, Sengupta’s mother filed a wrongful death suit against the organizers of the Tough Mudder. While other extreme sport related lawsuits have been successful for the plaintiffs, it remains to be seen if Ms. Sengupta will have the same luck.

In most states, the provider of an activity with “inherent risk” is protected from liability when a waiver has been signed by the participant. In Utah, with the exception of minors, an individual may contract away their legal rights providing the language of the waiver is “clear and unequivocal.” They must understand what rights they are waiving in exchange for being provided the activity.

This can be shaky ground to tread with extreme sports. If you are a sports provider, make sure you know all of the laws regarding your waiver. If you involved in a wrongful death or other lawsuit and you believe your waiver was “clear and unequivocal,” make sure to contact an experienced criminal defense attorney.

Heroin Use Rises in Utah; Governor Attempts Remedy

Utah Criminal Defense Blog, on the topic of  Drugs in Utah
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Utah Heroin Use Rises

Photo: Todd Huffman

Heroin use in Utah appears to be on the rise, a disturbing fact that everyone from politicians to police officers are trying to reconcile in their own ways. With resulting deaths also increasing, Governor Gary Herbert recently gave his approval to two laws that attempt to address the problem. The question is, will they help?

The Numbers don’t Lie

Recent statistics have brought the issue of heroin use to the forefront. According to the Utah Department of Human Services, figures for drug treatment admission show that the use of heroin is seven times that of twenty years ago. The drug that accounted for two percent of all drug admissions in 1993 totaled approximately fifteen percent of admissions in 2013.

[Note: These figures only represent substance abuse admission paid for with public funds. They do not include patients who paid for treatment either personally or through private insurance.]

Unfortunately, the only number that has dropped is the average age of addicts. Users between the ages of 18-23 now make up approximately 1 in 5 admissions for treatment.

Heroin Use: Not Just for “Druggies” Anymore

According to many law enforcement officers, heroin use has spread from dark alleyways and dirty bathrooms to almost every facet of Utah life, and it’s not as easy to spot an addict as many believe. Treatment and arrest statistics show that they might be men or women, fathers or mothers, business men or athletes. Even missionaries have been caught in the clutches of the drug.

This fact was especially pronounced in a recent large-scale bust at the beginning of May. Eleven alleged drug dealers were arrested, and large amounts of heroin, cash and vehicles were seized. In addition, forty more arrests were made of customers who didn’t know about the bust and were trying to contact the dealers.

Eighty percent of the arrested customers were from Utah County. Salt Lake City Police officers report that many arrests made in the city are from Utah County addicts who either can’t or don’t want to buy heroin in their own “backyard,” so they are willing to drive the 100 mile round trip to get it.

However, many of them are staying right at home. In fact, the Utah County Major Crimes task force has already surpassed their goal for the year to seize 10 pounds of heroin by 1,200 percent. Currently they are at 136 pounds.

If Happy Valley isn’t immune, the rest of the state could be in trouble.

A Sign of a Bigger Problem

Many professionals agree that one reason people end up struggling with heroin is because they start with something much more commonplace. Very often prescription pills–usually pain killers–lead to heroin use when the patient finds him/herself addicted and unable to either afford or obtain medications such as OxyContin or morphine.

It can be a domino affect. An injury can not only lead to the use of prescription pain killers, but it can also cause external factors which lead to stress in the user. Sometimes income is lost as a result of a long-term injury. Personal relationships can also be strained. All of these factors multiply, and the user has another reason to use heroin instead of dealing with their problems.

Gordon Bruin from the Utah County Department of Drug and Alcohol Prevention and Treatment has 25 years of experience counseling addicts. He explained that heroin affects the part of the brain that is wired to avoid pain and suffering, something that most of the addicts he has treated seem to possess. Bruin–among others–believes that users need to get to the root of why they are hooked on the drug in the first place before it’s too late.

Governor Herbert Takes Action

In addition to growing usage, the most recently available data shows heroin-related deaths hit a 12-year high in 2012. In a report from the Utah Department of Health, 446 Utahns died from heroin use from 2008-2012.

These deaths are the part of the problem Governor Gary Herbert recently attempted to address when he approved two bits of legislation.

Herbert and the state of Utah have joined eighteen other states and the District of Columbia in enacting a form of 911 drug immunity law. These types of laws generally will provide immunity from low level offenses such as drug possession or use when a person calls 911 or seeks assistance for a drug overdose either for themselves or others.

The other law excludes people from liability if they are acting in good faith and give Naloxone to a person experiencing a opiate-related overdose.

As the latter law is so specific, most experts are looking to the 911 immunity legislation to help the problem. The key will be education. Washington was one of the first states to pass such legislation in 2008 and results of a University of Washington study are still being evaluated. However, one clear figure was that only about one-third of opiate users surveyed reported that they knew about the immunity (almost ninety percent said they would be more likely to call 911 as a result). Law enforcement officials need to be aware as well. The study has reported that to-date, no negative consequences have been reported. Only time will tell if Utah will see positive results from this new legislation.

Seeking Help for Heroin Use

If you are struggling with heroin addiction, there are several numbers you can contact.

Salt Lake County: 801-468-2009

Utah County: 801-851-7128

Davis County: 801-773-7060

If you are in legal trouble as a result of your heroin use, make sure you contact an experienced and professional criminal defense attorney.