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What You Should Know About Distracted Driving in Utah

Distracted driving has gotten a lot of media attention recently because of fatalities resulting from people texting or talking on their phones while driving. State laws vary when it comes to distracted driving; in some states you cannot be ticketed for it without also committing some other offense, while in others it is a primary offense, and state penalties differ if you are convicted. Utah has the toughest distracted driving laws in the country; a recent accident that was attributed to distract driving killed two prominent scientists, so the state legislature was quick to respond.

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Steps to Take After Being Arrested for a DUI in Utah

Being arrested for DUI can be a scary experience, especially if you are generally a law-abiding citizen who has never been in legal trouble before. In Utah DUI cases, you are facing potential jail time and other serious legal consequences, as well as humiliation or embarrassment. Don’t panic, though—there is plenty you can do to help yourself following your arrest. Be prepared in advance in case you are ever arrested and need to follow this plan.

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Driving in Utah: What to Do When You’re Pulled Over

Police officers in Utah have the right to pull drivers over who they think are driving erratically or who they observe breaking traffic laws. However, police don’t have the right to demand answers to questions after pulling a driver over. As with any other police matter, drivers have the right to refuse to answer questions without an attorney present. It’s important to realize this and to be prepared in advance of a traffic stop so that you don’t accidentally incriminate yourself.

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Dealing with a Driver’s License Suspension in Utah

If you are arrested for DUI or commit other serious traffic violations, such as engaging in reckless driving, your driver’s license may be suspended. If your license is suspended, you cannot legally drive until it is reinstated. In Utah, there are serious penalties for driving on a suspended license, especially if you get a DUI in addition. Fortunately, there are some things you can do to help resolve the situation legally instead of driving without a valid license.

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Save Utah Expungements

This coming year, the Utah legislature may revise Utah’s expungement laws for the worse. The proposed changes in expungement law severely limit people’s ability to expunge convictions. I urge you to write or call your Utah representatives and tell them to kill this bill.

Proposed as the “Utah Expungement Act,” the bill’s stated goal is to help people expunge (which means to seal and effectively “erase”) old convictions by making the process  more “user friendly.” Yet certain provisions in the bill, if not amended or removed, will seriously undermine that worthy goal.

Expungement Fees

This bill increases the fees someone must pay to obtain an expungement. Currently, an expungement costs $145; $0 if you are ineligible. The proposed bill adds an application fee which has yet to be determined. With this addition,an expungement will probably cost upwards of $200. Also, most people cannot qualify to have the fees waived. Utah defines indigency in a way that people with even modest incomes have to pay.

Prosecutorial Discretion

The bill gives prosecutors the ability to restrict arrest record expungements.  Under the proposed changes, a person must obtain confirmation that the prosecuting attorney has declined to file charges before they can get an arrest expunged. This presents several problems:

  1. It gives prosecutors unreasonably wide latitude.  They can sit on an arrest for years and years and never formally decline to prosecute it. Also, for some crimes there is no statute of limitation. In theory, a prosecutor that believes a person is guilty of a crime but has no evidence to prove it can call that person a suspect for life. By refusing to “decline to file charges,” the prosecutor ensures that the arrest sits on a person’s record for years, potentially forever. 
  2. It requires some sort of affirmative statement from the prosecutor. Generally prosecutors have to charge someone with a crime, then at a later date dismiss the charges as “decline to prosecute.” Yet if no charges are ever filed is a declination written? Verbal? Is there a time limitation for the prosecutor to “decline”? Months? Years?  There should be a time limit.
  3. Who is the “prosecutor?” Often, crimes can be charged at a State or Federal level. If the District Attorney and the United States Attorney are both considering filing charges, do they both have to sign off?

Investigative Exception

The proposed bill is problematic regarding investigations because it is vague. It prevents a person from obtaining an expungement on if a crime is being investigated. More problems:

  1. What is “being investigated?” How would the Bureau of Criminal Investigation know? What if an investigation is confidential or unknown to the applicant?
  2. This gives unreasonably wide latitude to law enforcement. The police can simply say they are investigating someone to prevent them from expunging any blemish. In theory, a single police officer with a grudge, but no evidence, can prevent an expungement by claiming “ongoing investigation.” Think about a suspected or former gang members. If a person has left or is even trying to turn around his life by expunging an arrest record, law enforcement can prevent it merely by stating that the person is under investigation for suspected gang activity.

Although the most important, these concerns are just the tip of the iceberg.

People deserve a second chance. More importantly, people that have been wrongly arrested or accused deserve to have their first chance unblemished. Tell everyone you know about this bill and ask them to call or write their legislator and we can defeat this proposed law before it ever sees the light of day.

“It Took Me Longer To Get A Latte Than To Be Acquitted!”

The jury had just been given the case and my client and I walked across the street to get a drink and wait for the jury to deliberate. My client had been accused of assault, domestic violence, and we had just spent the day at trial in the Salt Lake City Justice Court.

My client had been wrongfully accused by her sister-in-law of assault. I had spent months preparing her case, carefully putting together strong evidence of her sister’s lies and motivation to have her charged and convicted. I had spoken with the prosecutor and told him that he did not have a strong case and that it seemed pretty evident to me that his “victim” was lying. Yet the prosecutor insisted he would go to trial.

My client turned down the City’s offer to plead guilty and pay a small fine. She refused to plead guilty to something she did not do and I was more than happy to stand up for her rights at trial.

At trial, I was able to show the jury the “victim’s” true colors and that she assaulted my client. I cross-examined her aggressively so that the jury could see how she reacted under pressure and when verbally confronted by another person. She was out of control, and even the judge had to reign her in.

Yet, still, the prosecutor did not move to dismiss the case. So we made our final arguments, and it was now up to the jury to decide.

Typically, a jury will deliberate for somewhere between 30 minutes and few hours. So it is a good idea to find a place close by where you can sit and wait for the jury to return its verdict. That way, you can get back to the courthouse quickly.

So we did; my client and I walked across the street to get a drink. She had ordered a latte, and I had just sat down for a cold Diet Coke when I got the call—the jury was back! I looked at my clock, and sure enough, it had only been 12 minutes! 12 minutes! That had to be some kind of record. I walked over to my client and told her we needed to head back to the courthouse. She hesitated and said, “well, I haven’t gotten my latte yet!”

In the end, the City’s case was so clearly wrong, that the jury only needed to minutes to decide to acquit my client. On the way out of court, she said to me, “It took me longer to get a latte than it did to be acquitted!”

“Yeah,” I said, “unfortunately prosecutors just don’t know when not to prosecute.” I am five for five in jury trials against those prosecutors. Maybe after this one they will take a more serious look at whether to pursue cases against people when they just don’t have the evidence of a crime.

Millions of people in this country are prosecuted for crimes they simply did not commit. But so many people take plea deals because they are afraid of the consequences if they lose at trial. And trial can be a scary place. People need lawyers who will prepare and execute a winning strategy at trial. A competent attorney can give a person the confidence they need to stand up for their innocence and assert their trial rights.


When Reasonableness is Unreasonable

Imagine that the police have searched your car, your computer, your purse, or your phone. Imagine that they have recorded your phone calls, your conversations, or your movements in public. Can they do that? What can you do about it? How do you defend yourself?

The U.S. Constitution guarantees its citizens will be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” This text is the basis for one of the most frequently contested areas of criminal law, whether a search of a person or place was reasonable or unreasonable. The nature of the language, that of reasonableness has a comforting quality–after all, cannot rational persons agree on appropriate standards?

Apparently not. What appears reasonable to the police rarely appears so to the suspect. Nor is there much agreement between the prosecutor and the defense attorney. Not to mention between the various attorneys and the judge, or between the trial judge and the appellate judge, and so on. To resolve these disputes, the U.S. Supreme Court has, through its decisions, created guidelines for application of the broad language of the constitution to real life situations. But how well are these guidelines understood and applied?

Not as well as one might hope. Orin S. Kerr, a professor of law at George Washington University, recently pointed out that U.S. Supreme Court Chief Justice John Roberts may not fully grasp his own court’s jurisprudence on the matter. (

A basic rule of when the police need a warrant before they may conduct a search is when the area to be searched is one in which an individual has “a reasonable expectation of privacy.” The origin of this phrase comes from a U.S. Supreme Court case in which Justice John M. Harlan wrote that the police were required to obtain a warrant to search any place in which “first . . . a person [has] exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’” (U.S. v. Katz, 389 U.S. 347, XX (1967)).

In two recent cases before the U.S. Supreme Court, during oral arguments, Chief Justice Roberts has asked questions about whether the place at issue is one where the general public might expect to have privacy, or whether it’s a place where it is reasonable for an individual to assume he has privacy. What Professor Kerr points out is that Chief Justice Roberts appears to be asking questions about a hypothetical reasonable person.

This is a narrow point, but it is an essential one. The hypothetical reasonable person has its origins in tort law, which generally applies an analysis of “how would a reasonably prudent person behave?” It is a purely objective analysis. This hypothetical reasonable person, however, is not the person that Justice Harlan describes in U.S. v. Katz. Justice Harlan is describing the individual who was subject to the search and their “actual (subjective) expectation of privacy.” This subjective analysis is then balanced against a more objective analysis about what society recognizes as reasonable.

If you or someone you love has been subject to a search or arrested by the police, it is essential that you have a criminal defense attorney who knows, understands and can apply the correct legal analysis to your particular circumstances. Part of your attorney’s job it to educate judges on areas of law where they lack expertise, even if they are the Chief Justice of the U.S. Supreme Court.

Innocent or Not Guilty- A Distinction with a Difference?

The question for the jury in a criminal trial is not a question of whether the defendant is guilty or innocent, it is a question of whether they are guilty or not guilty. Likewise, when a defendant is arraigned by a judge, the judge does not ask the defendant if they are innocent, they ask if they are not guilty. So, what is the difference between being innocent and not guilty?

We can determine this by examining how the courts approach guilt. Constitutionally, a defendant is given the presumption of innocence and the burden of proof is on the prosecution to prove that the defendant did what he or she is accused of, with the quantum of proof being beyond a reasonable doubt. Thus, what is at issue is not necessarily whether the defendant did what he or she has been accused of. The issue that criminal defense is more concerned with is whether the prosecution can prove the defendant did what he or she is accused of. If the prosecution cannot prove it, then the defendant is not guilty.

I refer to guilt as being in two types: actual guilt and legal guilt. Actual guilt means that you have actually done what you have been accused of doing. And legal guilt means that the prosecution has proved to the judge or jury, beyond a reasonable doubt, that you did what you have been accused of doing. Sometimes someone is actually guilty, but legally determined to be not guilty. And sometimes someone is actually not guilty but has been determined to be legally guilty. The system does not always work perfectly.

How does this happen? Police and prosecutors are not special—they are subject to the same limitations as everybody else. Sometimes they make mistakes. Sometimes they do their jobs poorly. Sometimes they lie. Sometimes they get an idea in their head and it drives the investigation, whether it’s any good or not.

This is why having a good criminal defense attorney is so important. If you are intimidated (or worse) by the police, if you are unsure of your rights, or if you are overwhelmed by the process, you can find yourself of being found guilty of something you did not do. Whether you are actually innocent, or simply not guilty, you need an experienced and knowledgeable defense attorney. You need someone to advise you through the process, to represent your interests in court, and make sure that neither the police or prosecutor are infringing on your constitutional right to a presumption of innocence, or any other important right.

False Confessions, a Real World Example

As a follow up to the previous post on false confessions, I wanted to discuss a case that I was involved in where all three of the false confession errors—misclassification, coercion and police provision of key details—occurred and resulted in a lengthy period in jail for an innocent man. This case demonstrates how easy it can be for police to get someone, especially someone who has not been in trouble with the law before, to assume that cooperation is in their best interest and end up admitting to things they haven’t done.

The case involved a murder in an affluent neighborhood. The case went unsolved for over a year, and there was tremendous pressure on the local law enforcement to resolve it. In their desperation, the police acted on a dubious lead and arrested a young man.

During his interrogation, the young man, unwisely, waived his right to remain silent, and his right to an attorney, and agreed to talk to the police (believing, as the innocent often do, that the truth would set him free). The police, acting against their own policy, did not turn on the recording device in their interrogation room until over 90 minutes into the session.

Before this point, however, they had misclassified their suspect. Because he was the only lead, they determined that he must be guilty. They ignored his explanations as to where he was and what he was doing on the day in question and failed to investigate evidence that would have tended to exonerate him.

They also coerced him. Because of the brutal nature of the crime, police assured him that he was going to be convicted and would receive the death penalty. His only hope to get a life sentence would be if he cooperated in their investigation.

Finally, during the course of the unrecorded 90 minutes of interrogation, they provided him with all of the details of the crime, including ones that had not been reported in the news. When the tape recorder finally came on, the young man, in tears, fearing for his life, agreed to everything that the police had suggested to him. Because there was no other evidence in the case, pointing to any particular suspect, this “confession” was the sole basis of the prosecution (the prosecution realized that the initial tip that lead police to the young man was so problematic that it would never be useful in court).

The young man spent over a year in jail awaiting trial. His defense counsel motioned the court to suppress his confession as obviously coerced. The judge agreed, and the charges against the young man were dismissed. The police and prosecution, however, refused to admit their error and made statements to the press declaring that the young man was still their prime suspect (charges were never refiled against him and the case remains unsolved).

You do not have to speak to the police. You have the right to remain silent and you should use it. You have the right to an attorney, and you should use it. A criminal defense attorney can help to protect you against these kind of unfair and coercive police techniques. You may be able to explain your situation, but you are always better off not taking any chances. Don’t let the police bully you about “lawyering up.” Those are your constitutional rights and you should never be afraid to use them.

False Confessions

A recent article from USA Today illustrates why your 5th Amendment right against self-incrimination is so essential. When the police interrogate a suspect, their goal is not to determine the truth about a given situation, it is to illicit incriminating statements that they can use against the suspect. The USA Today article shows just how easy it is for the police to get the wrong person to admit to a crime they didn’t commit.

It starts with the police making a predetermination about who they think is guilty, and then selectively directing their investigation to support that theory. The article sites a former police officer recounting his experiences in getting false confessions. He describes the experience as getting swept up in the speed and momentum of the investigation, that once it begins to take a particular direction, it can be hard to slow down or change tracks. The fixation on one suspect can become quite intense, and the result may be that conflicting evidence, and clues pointing to other perpetrators, can go unnoticed or be ignored.

The article also relies on the research of Steven Drizin, a law professor from Northwestern University, on the three most common errors in police interrogations that result in false confessions: misclassification, coercion, and providing suspects with key details of a crime.

The misclassification error occurs when police have predetermined the guilt of a suspect and this predetermination drives the course of the interrogation. Frequently, the decision that someone is guilty is only a guess.

The misclassification error may stand on its own, or may lead to the coercion error. This is when the police, either overtly or impliedly, threaten the suspect. They may tell the suspect that fessing up will lighten their sentence, which will otherwise be very harsh. They may tell the suspect horror stories about how bad prison life will be for them, and they can only avoid it by confessing.

The third error occurs when the police, knowingly or unknowingly, provide the suspect with a key detail of the crime—something only the perpetrator would know. When the suspect repeats this detail back to the police, they use it as evidence in support of their false hunch that the suspect is guilty.

How common is the false confession? According to law professor Brandon Garret, of the University of Virginia, of 250 cases he has reviewed of people exonerated by DNA evidence, 40 of the cases involved a false confession (and, incidentally, 38 of those forty involved an interrogation in which police disclosed a key detail to the suspect, who then repeated it back to the police).

Always remember, you have the right to remain silent. And you have the right to an attorney. If the police want to talk to you, make sure that you consult an attorney first, especially if you are at all unsure about how to proceed. Only a criminal defense attorney will protect your interests.