Double jeopardy applies only if the underlying court had subject matter jurisdiction.

Ian Summerhays allegedly violated a protective order by contacting his ex-wife through a text message. The prosecutor charged the two counts of violating a protective order as class B misdemeanors. Mr. Summerhays pleaded guilty to one of the counts and started his ten-day jail sentence. He appealed his conviction to the district court and argued that the justice court lacked jurisdiction to adjudicate the charged offenses. Mr. Summerhays argued that violation of a protective order is classified by statute as a class A misdemeanor, and justice courts have no jurisdiction to consider any criminal charge above a class B misdemeanor. The district court agreed and thus vacated his conviction, dismissed the case, and released him from jail.

South Jordan City filed a new information against Mr. Summerhays, and they correctly charged the violations as class A misdemeanors and filed the case in district court. Mr. Summerhays moved to dismiss the charges and argued that the Double Jeopardy Clause prevents him from being twice put in jeopardy of punishment for the same crime. However, the district court ruled that jeopardy did not attach in the justice court since the justice court did not have subject matter jurisdiction in the original action. Mr. Summerhays then took an interlocutory appeal to the Utah Court of Appeals.

The Fifth Amendment to the United States Constitution says that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” On appeal, the question was whether jeopardy attached during Mr. Summerhays’ initial prosecution in justice court. If jeopardy did attach, then the question was whether the city was barred from refiling the charges against him in district court. Thus, the court looked at when and in what circumstances jeopardy attaches to a defendant.

The court discussed that when a criminal defendant was never tried by a court of competent jurisdiction, retrial is appropriate and does not violate the Fifth Amendment. That means Mr. Summerhays was never in jeopardy because the justice court lacked jurisdiction over the offenses charged, since the charges were beyond the scope of the justice court. In conclusion, the Double Jeopardy Clause affords Mr. Summerhays no protection against retrial, but he is entitled to credit for time served on any sentence should he be convicted.

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Some things are obviously dangerous weapons, but anything can be considered a dangerous weapon.

Matthew Mackin took his ex-girlfriend’s purse believing it contained evidence of her drug use, past thefts, and current plan to steal a motor home. Mackin drove away with her purse with the intention of bringing the evidence to the police, but the ex-girlfriend dove into the passenger side window of the car. Mackin accelerated while the two were fighting over the purse and the ex-girlfriend was hanging halfway out the window. At trial, the jury found Mackin guilty of, among other things, aggravated robbery. The Supreme Court of Utah looked at whether the trial court erred when it failed to reduce his conviction from aggravated robbery to robbery. The court will reverse the jury’s verdict only when the evidence is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he or she was convicted.

Utah Code § 76-6-302(1) says that “[a] person commits aggravated robbery if in the course of committing [a] robbery, he (a) uses or threatens to use a dangerous weapon as defined in Section 76-1-601; (b) causes serious bodily injury upon another; or (c) takes or attempts to take an operable motor vehicle.” Section 76-1-601 defines a “dangerous weapon” as “any item capable of causing death or serious bodily injury” or “a facsimile or representation of the item, if” the actor “leads the victim to reasonably believe the item is likely to cause death or serious bodily injury” or “represents to the victim… that he is in control of such an item.” The statute also provides that the use of a dangerous weapon in the course of committing a robbery includes the immediate flight after the commission of a robbery.

The court concluded that sufficient evidence supported the jury’s finding that Mackin used his car as a deadly weapon. The court began with the statute’s plain language and discussed that a defendant must not only use a dangerous weapon but must use it in a way that is capable of causing death or serious bodily injury. Any object used in a way that is capable of causing death or serious bodily injury is a “dangerous weapon” for purposes of aggravated robbery. In other words, if there was evidence before the jury that Mackin (1) drove the car (2) in the commission of or in the flight from the robbery (3) in a manner capable of causing death or serious bodily injury, then the court should affirm. Mackin drove the vehicle while his ex-girlfriend was hanging out of it and while they were fighting. The evidence supported a reasonable inference that the vehicle was capable of causing serious bodily injury or death. Therefore, Mackin committed an aggravated robbery.

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The 2016 Rivera case involved an appeal from a sentence that resulted from a plea agreement.

Lauren Ailee Maison Rivera committed financial fraud against her then-best friend (Victim), opening several credit cards in Victim’s name using Victim’s personal and financial information. Rivera had other charges pending against her, so she entered into a global resolution of all charges by pleading guilty with a mental illness to one count of forgery and three counts of identity fraud (third degree felonies). The trial court sentenced her to four prison terms of up to five years, and she appealed.

Victim became aware of what Rivera was doing when Victim received notice from a debt collector that she had failed to pay her credit card bill when due and that it was being sent to collections. She eventually contacted the police when she deduced that Rivera had obtained at least five credit cards in Victim’s name. Rivera was charged with several counts of identity fraud and forgery in this case as well as two others.

Rivera had bipolar disorder, but was competent to stand trial. A year later, Rivera agreed to a plea deal in which all but the three counts of identity fraud and one count of forgery were dropped in exchange for her plea of guilty with a mental illness to those charges. The trial court requested that a presentence investigation report (PSI) be prepared before sentencing, which was scheduled for two months later. The court sentenced her to zero to five years at the Utah State Prison on each of the four counts but rejected the call for consecutive sentences. Four months later, Rivera filed a copy of her PSI with her handwritten annotations and corrections, and the trial court submitted the corrected PSI before her first Board hearing. Rivera filed a motion to correct her sentence based on Utah Code section 77-16a-104, and the court denied it.

First, the court determined that the trial court did not abuse its discretion when it refused to grant Rivera a ten-day continuance to address the claimed inaccuracies in the PSI. Rivera noted that there is a statutory requirement that a defendant “shall” be given the PSI at least three working days prior to sentencing. Thus, she claimed that the trial court abused its discretion when it refused to grant a ten-day continuance as authorized under the same section. The court concluded that even though the three-day requirement exists, it still affirmed the trial court’s refusal to grant the requested continuance because the word ‘shall’ directs the department of corrections, not the trial court.

Next, the court concluded that her argument that her prison sentence was excessive was inadequately briefed. It was not enough to tell this court that the trial court failed to consider all the legally relevant factors and imposed an excessive sentence. The court explains that this bare statement shifted the burden of research and argument to this court, and constitutes inadequate briefing of the issue.

Lastly, the court held that Rivera invited any error that resulted from her insistence that the court afford her a hearing under Section 77-16a-104. She claimed that the trial court failed to conduct a hearing to determine whether she currently suffered from a mental illness. However, her argument failed due to invited error. Rivera invited error because she argued below that Utah Code section 77-16a-104 applied, which describes the procedure to follow upon entry of a verdict of guilty with a mental illness. That was the provision the trial court considered and on which it ruled. Then Rivera raised, for the first time on appeal, the argument that she should instead have been afforded a mental health hearing under Utah Code section 77-16a-103, which describes the procedure for acceptance of a guilty plea with mental illness. In conclusion, Rivera was not allowed to be heard to complain that the trial court should instead have considered a different provision that was not called to its attention after already inviting the trial court’s attention to one provision. This court affirmed the judgment.

The post Summary of State v. Rivera, 2016 UT App 202 appeared first on Provo Criminal Defense Lawyer | Utah DUI Attorney.

Forfeiture is a way for the US government to take money obtained through illegal means.

Criminal forfeiture is governed by Federal Rule of Criminal Procedure 32.2, which says the first step in the forfeiture process is notice.  In order to enter a judgment of forfeiture following a finding of guilt, the United States must first have notified the defendant in the indictment of its intent to seek forfeiture.  A common forfeiture statute used by the government is 18 U.S.C. § 982. Forfeiture is calculated on the basis of the total proceeds of a crime, not the percentage of those proceeds remaining in the defendant’s possession at the time of the sentencing hearing.  United States v. Blackman, 746 F.3d 137, 143-44 (4^th Cir. 2014); United States v. Hampton, 732 F.3d 687, 692 (6^th Cir. 2013).  18 U.S.C. § 982 expressly subjects forfeiture of any property that constitutes or is derived from proceeds the person obtained directly or indirectly, as the result of such violation.  Funds that are acquired through a fraudulent scheme become proceeds once the perpetrators gain control over them regardless of receiving the benefit of the funds.  United States v. Emor, 850 F. Supp. 2d 176, 217 (D.D.C. 2012).  In a criminal forfeiture proceeding under § 982, an individual “obtains proceeds indirectly through a corporation when the individual so extensively controls, or dominates, the corporation and its assets that money paid to the corporation was effectively under the control of the individual.”  United States v. Cothran, 302 F.3d 279, 288-89 (5^th Cir. 2002).  Factors that the Cothran court determined are likely relevant to this question include “the individual’s ownership interest; the level of control he exercised over the company; his authority to direct the disposition of corporate assets and the degree to which he exercised that authority; and the use of corporate assets for his personal expenses.”  Id.

The key to whether property is forfeitable is whether it is “involved in” or “traceable to” the offense.  18 U.S.C. § 982(a)(1).  Property that is involved in an offense “includes the money or other property being laundered, any commissions or fees paid to the launderer, and any property used to facilitate the laundering offense.”  United States v. Bornfield, 145 F.3d 1123, 1135 (10^th Cir. 1998).  Simply pooling or commingling tainted and untainted funds in an account does not make all contents of the account subject to forfeiture.  Id.  It is proper to forfeit legitimate and illegitimate funds that are in an account together as long as the government shows that the “defendant pooled the funds to facilitate, i.e., disguise the nature and source of, his scheme.”  Id.  On the other hand, property traceable to is property where the gaining is attributable to the money laundering scheme rather than from money obtained from untainted sources; thus, proof that the proceeds enabled the defendant to obtain the property is adequate to warrant forfeiture as property traceable to the offense.  Id.

It seems unlikely that a court will bring down the forfeiture amount in a criminal forfeiture proceeding. § 981(a)(2)(C) of the civil forfeiture provision entails a deduction from forfeiture of “any portion of the fraudulent loan that was repaid at no loss to the victim, whereas the criminal forfeiture provision, § 982(a)(2)(A), requires forfeiture of the entire amount of the fraudulent loan, regardless of whether it was repaid.”  United States v. Annabi, 746 F.3d 83, 85 (2d Cir. 2014).  The Annabi court confirmed that § 982(a) of the criminal forfeiture statute does not permit a defendant to offset loan proceeds that have been repaid, and it held that the District Court did not err by ordering forfeiture of the full amount of the loans fraudulently obtained in connection with two of the counts, totaling $580,100, regardless of whether the defendant repaid any portion of those loans.  Id.  

Who Has the Burden of Proof to Establish that Forfeiture Applies?

At sentencing, the burden of proof is on the government in regard to the base offense level and any enhancing factors. The burden of proof is on the defendant for any mitigating factors.  United States v. Howard, 894 F.2d 1085, 1090 (9th Cir. 1990).  Therefore, the government should bear the burden of proof when it seeks to raise the offense level, and the defendant bears the burden of proof when he or she seeks to lower the offense level.  Id.  In other words, even though the government has the burden of proving the amount of loss, the defendant has the burden of proving that they are entitled to a credit against the loss amount.  United States v. Exec. Recycling, Inc., 953 F. Supp. 2d 1138, 1152 (D. Colo. 2013).

After the court determines the applicable definition of “proceeds”, it must consider whether the United States has “met its burden of establishing the amount of the criminal forfeiture money judgment by preponderance of the evidence.”  United States v. Bader, 678 F.3d 858, 893 (10th Cir. 2012).  The government has the burden of proving its right to forfeiture of property by a preponderance of the evidence.  21 U.S.C. § 853(d); 18 U.S.C. § 982(b)(1); United States v. Emor, 850 F. Supp. 2d 176, 201 (D.D.C. 2012); United States v. Bornfield, 145 F.3d 1123, 1134 (10th Cir. 1998).  Criminal forfeiture is a sanction against the defendant rather than a judgment against the property itself.  United States v. Hampton, 732 F.3d 687, 692 (6th Cir. 2013).  The United States does not need to prove that the defendant actually has the forfeited proceeds in his possession at the time of the conviction because the sanction follows the defendant as part of the penalty.  Id.  Another point to consider is that the government need only establish that the forfeited assets have the requisite nexus, Fed. R. Crim. P. 32.2(b)(1), to that scheme, conspiracy, or enterprise where the conviction is for “executing a scheme, engaging in a conspiracy, or conducting a racketeering enterprise.”  United States v. Emor, 850 F. Supp. 2d 176, 217 (D.D.C. 2012).

Can A Criminal Defendant Get an Offset?

In United States v. Joel, the United States filed Motions for Forfeiture Money Judgments in the amount of $1,848,000 against the defendants.  After the defendants opposed the amount of the forfeiture, the United States agreed to reduce the request by $230,000, to $1,618,000.   United States v. Joel, No. 8:11-CR-89-T-23TGW, 2012 U.S. Dist. LEXIS 89327, at *1 (M.D. Fla. June 4, 2012).  The defendants were charged in a thirteen-count indictment alleging conspiracy to commit wire and mail fraud, substantive counts of mail and wire fraud, and making false statements on a loan application, in violation of 18 U.S.C. 1014, 1341, 1343, and 1349.  Id.  This was a scheme to induce lenders to fund loans for the purchase of properties. Defendants argued that, pursuant to 18 U.S.C. 981(a)(2)(C), they are entitled to a deduction from the forfeiture for loans that were repaid without any financial loss to the victim, stating that at least one of the fraudulently obtained properties was resold for a profit and, therefore, the proceeds of that fraudulent loan should not be included in the forfeiture money judgment.  Defendants asserted that their judgment should be reduced by $230,000, because the loan for the purchase of the property was repaid without any financial loss. The United States agreed to reduce the requested forfeiture judgment amount by $230,000 because the property was sold without financial loss, but they disputed that any further reduction is appropriate, arguing inconsistently that §981’s set-off provision does not apply to criminal forfeitures.  The court concluded that a close review of the statutes shows that §981’s set-off provision does not apply.  §981(a)(1)(C) authorizes the United States to seek criminal forfeiture under §2461(c) for general mail and wire fraud offenses, but the provisions of §981 do not otherwise apply, as §2461(c) directs that the procedures in §853 govern the criminal forfeiture.

One of the defendants in Joel argued that any money forfeiture judgment would violate the Excessive Fines Clause of the Eighth Amendment.  The Eighth Amendment to the Constitution provides that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  The Joel court concluded that the United States correctly responded that the money judgment cannot be considered grossly disproportionate to the harm the defendants’ crimes caused, because it “represents exactly the fruits of their conspiracy”.   United States v. Joel, No. 8:11-CR-89-T-23TGW, 2012 U.S. Dist. LEXIS 89327, at *21 (M.D. Fla. June 4, 2012).  Thus, the Eighth Amendment contention is meritless; forfeiture violates the Excessive Fines Clause only if it is grossly disproportional to the gravity of a defendant’s offense.”  Id.  

Another possibility for lowering a forfeiture amount could be by obtaining an expert like the defendants did in Executive Recycling to assist the court with its loss calculations.  United States v. Exec. Recycling, Inc., 953 F. Supp. 2d 1138, 1142 (D. Colo. 2013).  Defendants are entitled to an offset for the value of the legitimate services they provided to the Victims.  Id. at 1155.  The purpose of this Expert Report was to identify the services rendered by Executive Recycling to each of the customers and to “isolate the services that specifically relate to the obsolete CRT monitors, as opposed to the handling and destruction of hard drives and other computer equipment and peripheral equipment.”  Id. at 1138.  Conducting a loss calculation under the Sentencing Guidelines measures the magnitude of the crime at the time it was committed.  United States v. Schild, 269 F.3d 1198, 1201 (10th Cir. 2001).  When the loss amount is disputed, the Government has the “burden of establishing the amount of loss (or a reasonable estimate thereof) associated with that conduct by a preponderance of the evidence.”  United States v. Peterson, 312 F.3d 1300, 1302 (10th Cir. 2002).  The Court only needs to make a reasonable estimate of the loss; it is not required to calculate the loss with specificity.  United States v. Masek, 588 F.3d 1283, 1287 (10th Cir. 2009).

When conducting the loss calculation, an important aspect to consider is which customers’ payments to the defendant should be included. In Executive Recycling, the Presentence Investigation Reports show losses incurred by seven customers, but the defendants object to the inclusion of two of the customers because they were not convicted on any offense specifically involving these customers.  Id. at 1144.  The court concluded that the government did not meet its burden of showing that the defendants’ dealings with one of the two customers “included false or fraudulent pretenses, representations, or promises that were material.”  Id. at 1147.  The court did not consider the amounts paid to defendants by that customer as relevant conduct in its loss calculation because the government did not meet its burden of showing that the defendant’s conduct towards that customer violated any state or federal statute.  Id.

The Executive Recycling court did not offset the amount of loss by the money the victims paid to the defendants for anything to do with removal and handling of the CRT monitors because the manner in which the defendants disposed of the CRT monitors was so contrary to the way the Victims wanted the CRT monitors handled that those services had no value to the Victims.  United States v. Exec. Recycling, Inc., 953 F. Supp. 2d 1138, 1151-52 (D. Colo. 2013). Other than the CRT handling and disposal, the defendants provided the services which the victims contracted for in the manner anticipated by the parties’ agreements.  Id.  Therefore, the Court found that the defendants were “entitled to an offset for the fair market value of the legitimate services they provided, which includes all services except for the CRT removal, handling, and disposal.”  Id.

Defendants argued that they were only convicted of certain fraudulent transactions, not a wide-ranging scheme to defraud, and they argued there is no evidence that they acquired anywhere near $2,533,762.51 as a result of these illegal transactions.  United States v. Exec. Recycling, Inc., 953 F. Supp. 2d 1138, 1158-59 (D. Colo. 2013).  The Court found that the government did not meet its burden of showing by a preponderance of the evidence that the amount paid to the defendants by four of the customers was “acquired through illegal transactions” and that those monies are not proceeds subject to forfeiture.  18 U.S.C. § 981(a)(2)(B).  In order to find that Defendants’ actions towards a particular customer were criminal, the Court must find that the misrepresentations were material to that customer.

The court discusses how many of the cases cited by the government involved a defendant who pled guilty to one narrow offense but doing this it meant that he admitted an entire business model was fraudulent.  Other cases involve convictions on broad fraudulent schemes in which all monies obtained by the defendant are proceeds of the scheme.  Defendants in Executive Recycling were convicted on only a portion of the fraud counts which shows that the jury found that certain business dealings were criminal while others were not.  The Court cannot conclude that all of the monies the defendants received were proceeds of the illegal activity. Because the United States bears the burden of establishing the amount of proceeds traceable to the criminal conduct, the “lack of evidence on this point is to its detriment and the Court cannot conclude that any portion of the payments from the overseas brokers are proceeds of the fraud convictions.” United States v. Exec. Recycling, Inc., 953 F. Supp. 2d 1138, 1160 (D. Colo. 2013).  In sum, the government did not meet its burden of showing that the defendants’ conduct towards any of the other customers was criminal, so the court did not consider those customers as relevant conduct.  Id. at 1161.

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The FMCSA requires only those commercial motor vehicles that are transporting passengers or property in interstate commerce to have a USDOT number.

Utah Administrative Code R909-1-2 has adopted the Federal Motor Carrier Safety Regulations and permits the Utah Department of Public Safety to enforce those federal regulations.

There is one particular federal regulation that the Utah Highway Patrol loves to enforce, but the problem is that in most instances they are enforcing the law against those to whom it does not apply. Rule 390.21 requires all “commercial motor vehicles” to display a USDOT number. In order to know which vehicles must display that number, however, we should look to the definitions found in the FMCSR.

First, Rule 390.5 sets forth the applicable definitions. A “commercial motor vehicle” has the following meaning: any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle—
(1) Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of 4,536 kg (10,001 pounds) or more, whichever is greater; or
(2) Is designed or used to transport more than 8 passengers (including the driver) for compensation; or
(3) Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or
(4) Is used in transporting material found by the Secretary of Transportation to be hazardous…

The Utah highway patrol usually stops with subsection one. They believe that if a vehicle weighs more than 10k pounds that that is all that’s needed.  That is where they are mistaken. If you look at the first part of the definition before getting into the subsections it specifically states that a CMV is one that is used on a highway in interstate commerce, which term is also defined by the regulations.

Interstate commerce means trade, traffic, or transportation in the United States—
(1) Between a place in a State and a place outside of such State (including a place outside of the United States);
(2) Between two places in a State through another State or a place outside of the United States; or
(3) Between two places in a State as part of trade, traffic, or transportation originating or terminating outside the State or the United States.

UHP simply ignores this requirement, probably because they would have a very hard time pulling a vehicle over because how could they possibly know whether a vehicle is traveling in interstate commerce unless they are sitting at the border.

Driver’s of commercial vehicles should not permit UHP to get away with this. If you get pulled over and cited for not having a USDOT number and you weren’t traveling in interstate commerce, don’t pay the fine and fight the charge. UHP needs to be held accountable for these illegal stops.

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Every plea in abeyance last for a definite period of time.

Recently the Utah Supreme Court addressed the issue of a how a prosecutor proves a violation of a plea in abeyance agreement in the case Layton City v. Stevenson.  A plea in abeyance agreement is an agreement between the prosecutor and a criminal defendant wherein the defendant typically agrees to not violate the law for a specific period of time, pay a fee, and other conditions, and in exchange the prosecutor agrees to dismiss the case at the end of the specified time period.  This is advantageous to criminal defendants because if the successfully completed it will not become a conviction on a criminal record.

In the Stevenson case, the defendant had entered into a plea in abeyance agreement with Layton City wherein he entered a no contest plea to patronizing a prostitute. The term of his abeyance agreement was 18 months during which time he was could have no violations of the law other than minor traffic violations, pay a $400 fee, and submit to HIV testing. if he did not comply with the terms of the agreement the court could terminate the agreement.

Six months after he entered his plea in abeyance he was charged in Sunset City with soliciting a prostitute but he was able to get a diversion in that case. A diversion is an agreement between the defendant and the prosecutor which does not require that the defendant enter a plea. Instead the case is dismissed without any plea after the defendant fulfills agreed upon conditions.

The district court held an evidentiary hearing wherein evidence was presented that Stevenson offered rent relief to his female tenant in exchange for sex.  Stevenson denied the allegation.  It was a he-said she-said case and the court found that there were merely allegations of misconduct and what was required was proof of a conviction.  Consequently, the district court dismissed the case with prejudice. The Court of Appeals reversed the district court’s decision and found that the prosecution does not have to present evidence of a conviction to show a violation of a plea in abeyance agreement.

The Utah Supreme Court agreed with the Court of Appeals in this regard but went further in its opinion finding also that the appropriate standard of proof in such cases is “preponderance of evidence” rather than “beyond a reasonable doubt” as applies in the initial criminal prosecution. The reason for this is because proving a violation of a plea in abeyance agreement is akin to proving a violation of probation for a defendant who has been convicted of a crime.  In conjunction with this finding the court also found that just like a probation violation case there is no presumption of innocence in a violation of plea in abeyance case.

The Utah Supreme Court remanded the case to the district court to determine whether the prosecutor could satisfy the preponderance of evidence standard.

This case does not help criminal defendants. The standard of proof is so low and now that the prosecutor only has to show a violation of the law and not a conviction of the law these cases are going to be too easy for prosecutors.

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The Utah Supreme Court just decided State v. Trotter, which relieves lawyers of the responsibility of notifying a client that a conviction could carry with it a requirement to register as a sex offender.  In Trotter the defendant had sex with a couple of minor girls between the ages of 14 and 16 when he was 20 years old.  His attorney was able to negotiate a plead deal to reduce the charges to a class A misdemeanor, but as a result of his plea he was required to register as a sex offender. He hired a new attorney and he filed a motion to withdraw Trotter’s guilty plea on grounds that Trotter’s plea was not “knowing and voluntary” because he was not notified of the sex offender registration requirements.  Trotter’s lawyer argued that having to register as a sex offender is a “direct consequence” of his guilty plea as opposed to a “collateral consequence,” and therefore, the court and Trotter’s first attorney should have notified him of that consequence.  A defendant’s plea can only be “knowing and voluntary” if he was aware of all direct consequences of his plea.

The Utah Supreme Court analyzed whether the registration requirement is collateral or direct and noted that “a consequence is collateral if it is unrelated to the length and nature of the sentence imposed on the basis of the plea.”  Under this definition the court found that the registration requirement is collateral because the court has nothing to do with it.  It is a civil remedy that is imposed by statute and which cannot be removed by the court in the criminal case.  It is much like a DUI defendant who loses his driver’s license after he is convicted of DUI because the Driver’s License Division takes it away.

The court also considered whether the registration requirement falls under the same exception as deportation.  The United States Supreme Court has ruled that courts must notify criminal defendants that a guilty plea could affect their immigration status. The Utah Supremes did not agree that registration as a sex offender and deportation are akin, finding that deportation is much more serious of a consequence, and therefore, unique in its exception.

Even though we aren’t constitutionally required to notify our clients of collateral consequences, we make every effort to make them aware of as many collateral consequences as possible.

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“Book and release” is the term used for when a person charged with a crime checks in at the jail.  The jail records the defendant’s personal information and assigned the defendant what is known as an offense tracking number (OTN).  The OTN is the method used by law enforcement and the courts to track the defendant’s status in his case.

The book and release process is not very involved.  The defendant checks in at the jail and a deputy sheriff records the defendants information and takes his fingerprints.  The deputy sheriff gives the defendant some paperwork which he is then required to turn in to the court to prove that he booked into the jail.

That’s about it.  It isn’t a big deal and just about every criminal defendant in Utah County is required to go through the process.

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In State v. Applegate, 2008 UT 63, the Utah Supreme Court addressed this very issue.  In that case the defendant had been driving a car with Colorado license plates and an officer had observed her driving this car for approximately five months.  The officer pulled her on grounds that the vehicle should have been registered in Utah within 60 days.  After pulling her over he developed reasonable suspicion that she was impaired.  He conducted field sobriety tests and arrested her for driving under the influence.  A subsequent chemical test revealed that she had meth in her system.  Marijuana was found in her vehicle.

She challenged the search by arguing that the officer did not have reasonable suspicion because she was not the owner of the vehicle, and therefore, she was not in violation of not having registered the vehicle in Utah.  Since she wasn’t violating any traffic laws, the stop was illegal.  The Utah Supreme Court did not agree.  The officer was not required “to rule out innocent conduct prior to the stop.  Instead, he was only required to reasonably suspect that [the driver] was violating any one of the multitude of applicable traffic… regulations.”  Because the officer suspected that the driver was violating the law, that was enough.  So basically, law enforcement doesn’t even have to be right, they just have to have a hunch that someone is violating a law.

Perhaps you have been arrested as a result of a traffic stop.  Call our criminal defense lawyers for more information about whether the officer involved in your case had the requisite reasonable suspicion to stop your vehicle.

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The legal term for poaching is “wanton destruction of wildlife” and the offense can range between a minor misdemeanor and a serious felony.  Whether it is a felony or misdemeanor all depends on the value, as proscribed by statute, of the protected wildlife that was captured, injured, or destroyed.  Basically if the aggregate value of the protected wildlife is $500 or more, it is a felony; more than $250 but less than $500, a class A misdemeanor; $250 and less, a class B misdemeanor.  Likewise, if it is a trophy animal, it is an automatic felony.

Values of Protected Wildlife

The value of trophy animals are: $30,000 for bighorn, desert, or rocky mountain sheep; $8,000 for deer; $8,000 for elk; $6,000 for moose or mountain goats; $6,000 for bison; and $2,000 for pronghorn antelope.

For non-trophy animals the values are

• $1,000 for bison, bighorn sheeps, rocky mountain goats, moose, bears, peregrine falcons, bald eagles, and endangered species;
• $750 for elk and threatened species;
• $500 for cougars, golden eagles, river otters, and gila monsters;
• $400 for pronghorns and deer;
• $350 for bobcats;
• $100 for swans, sandhill cranes, turkey, pelican, loon, egrets, herons, raptors, Utah milk snake, and Utah mountain king snakes;
• $10-$25 for different types of fish; and
• $15 for game birds.

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