Lesser Included Offense – Plea Bargain Option or Backup Charge to Ensure a Conviction

When someone is charged with a crime such as a felony, that charge is often accompanied by a lesser included offense of that greater crime.

Lesser included offense

Photo by: winnifredxoxo

Photo by: winnifredxoxo

A lesser included offense is a crime wherein the elements, or specific aspects needed to prove guilt of that crime are included within the greater crime being charged. In order for a lesser included offense to be valid, it must be impossible for the greater crime to be committed unless the lesser offense is as well. For instance, a class A misdemeanor assault would be the lesser included offense for third degree felony assault as it is impossible for someone to use “force or means likely to produce death or serious bodily injury to another” if they never caused any “substantial bodily injury”.

Use in traffic violations

Lesser included offenses come up frequently with traffic violations. An example would be if a person is arrested for reckless driving and exceeding the maximum speed limit by up to 25 mph. The first being a class B misdemeanor (greater offense), while the latter is a mere infraction (lesser included offense). Utah Code defines reckless driving as someone who “operates a vehicle in a willful or wanton disregard for the safety of persons or property”. Exceeding the speed limit in certain areas of circumstances can also fall under the same definition, but without a criminal charge attached.

One or the other

Photo by: Kyle Pearce

Photo by: Kyle Pearce

When a lesser included offense accompanies a greater offense, often the defendant cannot be convicted of both charges. Such would be the case with voluntary manslaughter and murder. If the defendant was found guilty it would be for either one or the other; not both. This can also apply to drug charges. Someone can be arrested for possession and possession with intent to distribute yet if the intent to distribute charge sticks the simple possession charge is void as it is already encompassed within the greater charge.

Lesser related offense

There are some lesser charges that are related in nature, yet not included in more severe crime. These are known as lesser related offenses. Possession is a lesser related offense to distribution and often goes hand in hand, yet possession is NOT a lesser included offense of distribution. Someone can be a middle man in a deal, never having the illegal drugs in their possession, and face distribution charges without the possession charges. If they did possess the drugs and sold them, then the possession charge would be a lesser related offense.

Use in plea bargains

Photo by: Karen Neoh

Photo by: Karen Neoh

A lesser included offense can be beneficial in defense cases as it can give the defendant an option to plead guilty to a lighter crime and have the more serious charge dropped. This is sometimes the case when there is proof beyond a reasonable doubt that the defendant is guilty of the lesser crime but the defense may not want to risk the chance of the defendant being found guilty of the higher crime, so they accept the lesser offense in exchange for dropping the greater one.

Prosecution’s use of lesser charges

The defendant isn’t the only one that has the potential to benefit from lesser included offenses. The prosecution will often add a lesser included offense to ensure that the defendant will be found guilty of something. This backup charge helps the prosecution ensure a conviction when they may doubt whether or not the more serious charge would stick. Since they can be used for or against the defendant, it is always wise to consult with an experienced criminal defense attorney to help guide you through the court proceedings and know when to accept or fight lesser included offenses.

Suspended Driver’s License Following Marijuana Charges

Utah residents can expect to have their driver’s license suspended following a DUI, yet they may be surprised when they lose their license following marijuana charges which were not acquired when behind the wheel.

DUI

Photo by: Nate Steiner

Photo by: Nate Steiner

Anyone who is found guilty for a DUI in Utah which includes driving with any measurable amount of a drug in their system can face anywhere from two days up to six months in jail and have their license suspended for:
• 120 days for individuals 21 years of age or older,
• One year or until age 21 for individuals who are 19 or 20 years old, or
• Until age 21 for individuals under age 19.
A driver’s license may be revoked if there are previous arrests for the same charges.

Utah Controlled Substances Act

A DUI isn’t the only marijuana charge that can end in a driver’s license being suspended. In Utah, cultivating, distributing, or even simple possession of marijuana or drug paraphernalia may result in a driver’s license being suspended for six months. Even a failed attempt to possess marijuana can result in the same suspension.

Safeguard your license after a marijuana charge

License Suspension after Marijuana Charges

Photo by: Kat

Losing a license can make it difficult or nearly impossible for some Utah residents to attend school or make it to they place of employment. Anyone facing marijuana charges should consult with a criminal defense attorney regarding protecting their driving rights. An experienced attorney can help an individual keep their driver’s license whether through helping to prove no fault or through a plea in abeyance, which may end in a fine but no driver’s license suspension.

Leave Medical Marijuana Home When Visiting Utah

Those planning on visiting Utah should expect to leave their medical marijuana at home to avoid criminal charges. Fortunately, there are changes upon the horizon, but as for now, marijuana in any form is still not legal to bring here.

Marijuana RX

medical marijuana

Photo by: Neeta Lind

Last week, 21 year old John Arthur Hernandez visiting from California was arrested in St. George Utah after he brought drugs including medical marijuana into the state. The marijuana was in a prescription bottle approved for Hernandez by a doctor from California, but regrettably Utah does not yet authorize the possession or use of marijuana, even with a valid prescription from another state.

Utah working on legalizing medical marijuana

For those living in or visiting Utah who are suffering from chronic pain or illnesses, legalized medical marijuana looks to be in the near future for the beehive state. Two different bills to make medical marijuana lawful recently passed the Utah State Senate and are now on their way to the Utah House of Representatives. Due to the enormous amount of opposition thus far, SB 73, the bill allowing more of the plant than just the CBD oil, had to be adjusted. That bill now restricts medical marijuana use to only those with chronic ailments such as aids and cancer. Additionally, the medical marijuana is not allowed in a cigarette form; only edible versions and extracts.

Schedule classification

Along with the bills to legalize marijuana, there was also a resolution to reclassify marijuana to a Schedule II drug. Currently the United States Controlled Substances Act classifies marijuana as a Schedule I, the same classification as heroin and cocaine. With the abundance of legal changes likely to take place regarding marijuana, those living in or visiting Utah may not realize that strict criminal penalties are still present. For more information on penalties and legal counsel regarding possession of marijuana either for medical or recreation use, contact a criminal defense attorney.