Utah Criminal Law
Identifying A “Good” Attorney
1) Do they let you know up front that they are not your attorney – they should.
2) Do they let you know that they will accept you as a Client as soon as:
i) they have an original copy of their “Client Retainer Letter”
signed by you, AND
ii) – THIS IS IMPORTANT – a specific amount of money from
you in their IOLTA (pronounced: eye-ohl-tah) (Interest Only
Lawyer’s Trust Account (it’s where the money is not their’s, but is kept in trust for the client’s betterment through the attorney’s work).
3) If they do not accept you as a client, do they give you a letter of declination – they should. If they do, then remember them to try to use them again. By far, only the “good” attorney’s issue such a letter.
4) Do they give you an “In-Take Form” to fill out, like at a medical doctor’s office? They should. And it should likely be kind of long.
5) Do they have employees, or individuals whom they can fire? They should, because a “good” attorney knows that he/she cannot and should not do all the work (can you imagine an attorney billing at their “normal rate” for making photocopies?).
Misdemeanors
– Punishable by incarceration of LESS than one year, and a fine (a point of profit for municipalities).
3 Kinds of UT misdemeanors
• Class “C” (76-3-104(1)(c)) – 0 to 3 months jail time (Fine up to $750 (76-3-301(1)(e))
• Class “B” (76-3-104(1)(b)) – 0 to 6 months jail time (Fine up to $1,000 (76-3- 301(1)(d))
• Class “A” (76-3-104(1)(a)) – 0 to 364 days jail time (Fine up to
$2,000 (76-3- 301(1)(c))
Felonies
– Punishable by ONE YEAR or MORE imprisonment, and a fine.
4 Kinds of UT felonies
• Third Degree (76-3-103(1)(d)) – (Fine up to $5,000 (76-3-301(1) (a))
• Second Degree (76-3-103(1)(c)) – (Fine up to $10,000 (76-3-
301(1)(b))
• First Degree (76-3-103(1)(b)) – (Fine up to $10,000 (76-3-301(1) (b))
• Capital Offense (76-3-103(1)(a)) – punishable by DEATH, and the constant threat of death for a potentially looooooong time!
– United States vs. Fields (10th Cir.)- Courts must have a Hearing of allegations of Defendant’s organic-brain-injury.
Infractions
– Punishable by NO incarceration, (Fine up to $750 (76-3-301(1)(e))).
*** BUT U.S. Supreme Court allows incarceration for an
infraction, so no teeth to this Utah law. [see Atwater vs. City of Lago Vista, 532 U.S. 318] (Woman driving pickup truck not wearing her seatbelt in TX, let her child unbuckle just long enough to pick up a toy on the floor. Law says driving without a seatbelt is not punishable by jail time – fine only. Facts established that Officer arrested and berated her FOR NO APPARENT REASON, and would not let her take her two little children to a friend’s home just two doors away. She was handcuffed, not buckled in the squad car, booked, mug-shot, and held in a holding cell until she posted $310 bail. According to the Supremes – not a problem, she broke the law, she could be arrested, booked, and jailed.
• Fine OR Compensatory Service (a.k.a. community service) (at Court’s discretion). Should always ask for “Compensatory”service, if fine is too burdensome to pay off quickly; this pays off the “fine” at a rate of $10/hour (76-3-301.7(4)).
Information on this website is Not Legal Advice.
Jails & Prisons
– Jails are municipal, Prisons are state or federal. (Privately owned/operated can be Jail and/or Prison.)
• County Jails – Holding area for persons arrested for a crime, or charged with a crime, or convicted of a non-felony offense.
– Jail (not attorney’s job, but sometimes . . .) MUST release a person who is NOT charged with an offense within
** If not timely released, attorney should call jail Supervisor, and that usually fixes it. If still not timely released, then fax to the jail a letter on letterhead threatening a civil lawsuit. If after that the person is not released, then write a “Writ of Habeas Corpus” and bring it to a Judge, and contact a “1983” attorney.
Rules of Evidence
Criminal Procedure (UT State)
Infractions
Misdemeanors
Felonies
Capital Offenses
Bonds – Ask it to be returned to the one who posted it, at the end of a Criminal case. If it was a third-party, that third party should be represented by someone other than the Defendant’s lawyer for the asking. If, however, the Defendant is adamant that it be returned to the third-party, then the Defense attorney may ask for it to be so returned and not applied to fees or fines of Defendant, but Defense attorney should have a waiver for Defendant to sign.
Experts
DLD (Driver License Division)
– After a Hearing, a Notice of suspension or of non-action is issued. Note: DLD dates this the work-day following the Hearing, but does not mail it out for 10+ days!?! They also refuse to fax or email the Notice.
– It takes much longer to get the Written Findings or an audio recording of a Hearing.
– No PIA on CDL (Commercial Driver’s License)
– Driving w/o insurance, but no accident, PIA= no 3year SR 22
Information on this website is Not Legal Advice.
Ethics
** Defense attorney, NEVER lie to the Court.
** Defense attorney has NO duty to disclose anything that is
adverse to Client’s interest, except Client’s knowingly speaking lies to the Court.
– Past DUI’s not noticed by Prosecutor or the Court, do not
disclose.
– PSR is seriously flawed, do not disclose to the Court.
i) If Court asks Defense attorney “Any corrections that should be made to the PSR?” Attorney should always respond, “I have nothing further to add.”
** Defense attorney NEVER receives instruments of a crime, nor does any employee of his office.
Information on this website is Not Legal Advice.
Federal Offenses
Federal Criminal Procedure
Federal Rules of Evidence
Juvenile Court
Sex Crimes
Probation Officer may notify Defendant’s school of sex offense. (78A-6-117(1)(c))
Small Claims Court
– SHOULD be strictly Civil matters.
– Criminal related issues should be dismissed or ignored by Judge.
DUI (Driving Under the Influence)
– Enhancement, for sentencing purposes, is based upon
convictions which occurred prior to the present sentencing. So, for example: Sally got a first DUI. Four days later she gets another DUI. Sally is sentenced for the “second” DUI first, so it is treated by the Court as a misdemeanor. A week later, at sentencing for her “first” DUI, it is now treated as a felony, because she already has a conviction, even if it was not charged as a felony. BUT, it is up to the Prosecutor to “catch” that Sally has been convicted of a DUI already in another court, which, when the sentencings are close together, is difficult to do.
– If Hospital believes Defendant cannot consent to a blood draw, then that is good evidence that Defendant was incapable of granting consent for a DUI blood draw.
Information on this website is Not Legal Advice.
Search & Seizure
Car
When: Practical Reality Legally
What Can They Search: Practical Reality Legally
Residence
When: Practical Reality Legally
What Can They Search: Practical Reality Legally
Person
When: Practical Reality Legally
What Can They Search: Practical Reality Legally
Phone
When: Practical Reality Legally
What Can They Search: Practical Reality Legally
Business
When: Practical Reality Legally
What Can They Search: Practical Reality Legally
Others
To be added…
Information on this website is Not Legal Advice.
Expungement
– 77-40-109(4) allows State to re-open sealed expunged records.
DLD (Driver License Division)
– After a Hearing, a Notice of suspension or of non-action is issued.
Note: DLD dates this the work-day following the Hearing, but does
not mail it out for 10+ days!?! They also refuse to fax or email the
Notice.
– It takes much longer to get the Written Findings or an audio
recording of a Hearing.
– No PIA on CDL (Commercial Driver’s Licence)
– Driving w/o insurance, but no accident, PIA= no 3year SR 22
Ethics
** Defense attorney, NEVER lie to the Court.
** Defense attorney has NO duty to disclose anything that is adverse to Client’s interest, except Client’s knowingly speaking lies to the Court.
– Past DUI’s not noticed by Prosecutor or the Court, do not disclose.
– PSR is seriously flawed, do not disclose to the Court.
i) If Court asks Defense attorney “Any corrections that should be made to the PSR?” Attorney should always respond, “I have nothing further to add.”
** Defense attorney NEVER receives instruments of a crime, nor does any employee of his office.
Information on this website is Not Legal Advice.