Does Double Jeopardy Attach When the Underlying Court Lacked Jurisdiction?

If a Justice Court Lacked Subject Matter Jurisdiction does Double Jeopardy Apply on a Refiling?

Double jeopardy and subject matter jurisdiction

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.

Capable of Causing Death or Serious Bodily Injury

Using A Dangerous Weapon In A Crime

Even a car can be a dangerous weapon.

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.

Summary of State v. Rivera, 2016 UT App 202

State v. Rivera – Appealing a Sentence from a Plea Agreement

Rivera shows how appellate courts deal with appeals from plea agreements.

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.

Criminal Forfeiture Under Federal Law

What Exactly is Forfeiture?

Federal forfeiture law can be complex and ambiguous.

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 (4th Cir. 2014); United States v. Hampton, 732 F.3d 687, 692 (6th 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 (5th 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 (10th 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.

Utah’s Prescription Drug Database Used Less by Police

Utah’s Controlled Substance Database Program

One fear of many Utah doctors is that patients will go to multiple doctors to obtain multiple prescriptions for the same drug.  The prescription drugs can then be abused or be sold illegally to other people.  To fight against this “doctor shopping,” the Utah State Legislature in 1995 created the Controlled Substance Database (CSD) Program and assigned the Division of Occupational and Professional Licensing (DOPL) to maintain the database.  The CSD requires doctors and pharmacies to record drugs prescribed to any individual receiving a prescription.  This allows doctors and pharmacies to check the CSD to see if people are receiving multiple prescriptions for the same drugs.  This helps to cut down on the doctor shopping problem and helps people to avoid being charged with distribution or possession of a controlled substance crime.

Police Abuse of the CSD

The problem with the CSD was that it was easily accessible by police officers.  Whenever someone was being investigated for a drug crime police officers would often use the database to access the personal information of the investigated individual to help bolster their suspicion of a drug offense.  This information would often be used to obtain the probable cause needed to obtain a search warrant or an arrest warrant.

It became routine for police officers to check the CSD.  A legislative audit of police use of the CSD revealed police officers accessed the database on several occasions when there was no justifiable reason to access the information.  Because of the potential violation of people’s privacy, a law was passed this year that required police and prosecutors to first obtain a warrant to access information from the CSD.  Before the new law, police accessed the database on average 238 times a month.  After the new law went into effect police only accessed the CSD 12 times a month.  The law obviously cut down on the use of the CSD because police are no longer given unfettered access.  The restriction for access is a good thing and it helps ensure people’s medical information is kept private.

Fight Your Drug Charges

If you are being charged with distribution or possession of a controlled substance in the Provo/Orem area contact a Criminal Defense Provo lawyer today.  Our lawyers can help determine if evidence was obtained illegally against you and help you fight your drug charges.  If evidence against you was obtained illegally, it may be possible to have the evidence thrown out.  Call 801.900.3371 to speak with a criminal defense lawyer today.

The Ever Accompanying Paraphernalia Charge

Marijuana Pipe

An Example of Drug Paraphernalia

Almost anyone who has been charged with a drug charge or has sat in a courtroom for a couple minutes has most likely heard the word paraphernalia. Possession of Drug Paraphernalia is a very common charge that accompanies almost any charge for Possession of a Controlled Substance, however it is a fairly vague offense that most people don’t understand.

What is Paraphernalia?

Paraphernalia is colloquially used as a catch all term to describe general items of equipment in relation to a certain subject. When it comes to drug paraphernalia, the legislature has written a very lengthy definition that covers almost anything you can think of. Ultimately, what paraphernalia means as it pertains to drug crimes is any item that is used by an individual to help use the drug, i.e. smoke, ingest, consume, etc…. Or any item used to help grow, produce, or distribute the drug. Obviously, the most common item that fits this definition is a pipe used for smoking marijuana.

Dealing with Paraphernalia Charges

If you have been charged with Possession of a Controlled Substance or Possession of Paraphernalia then you should first contact a criminal defense attorney at Provo Criminal Defense to help you with your case. Paraphernalia is not the most serious charge on the books but it can have some negative effects on your future as any drug offense can. Call or email us today to find out more about what we can do for you in your case.

Driver’s License Suspension for Minors in Utah

Penalties for Substance Abuse Violations by Minors

For those people under the age of 21 in Utah, the law treats substance abuse particularly hard.  Alcohol consumption for those over 21 years of age is legal but for those under 21 it is not.  This should not be a surprise to anyone.  Throughout the United States alcohol consumption is illegal for those under 21 years of age.  What some people do not realize is that there are negative consequences that result in a alcohol violation by a minor besides possible fines and jail time.  Utah law allows one’s driver’s license to be suspended for up to a year for the unlawful purchase, consumption, or possession of alcohol by a minor on a first offense.  On a second violation of an alcohol offense, a minor’s driver’s license can be suspended for 2 years.  A court can reduce the amount of time a minor’s license is suspended under certain circumstances.  For those minors facing an alcohol violation, it is important to contact a criminal defense lawyer in Provo to find out how their licenses can avoid suspension.

Drug Violations in Utah and Driver’s Licenses

In addition to suspending a minor’s license for an alcohol ticket, a minor’s license will also be suspended for a marijuana possession, other drug possession such as heroine, or possession of drug paraphernalia.  It may not make sense for someone’s driver’s license to be suspended if it was not motor vehicle related but the Utah State legislature seems to believe it will help dissuade minors to not use drugs, especially marijuana.  The problem with the law is that most people do not know their license will be affected by a drug violation.

Until recently, Utah courts were required to suspend the driver’s license of minors if they violated a drug possession or paraphernalia law.  The law was recently amended in the 2015 legislative session and it went into effect in May 2015.  The new law now allows courts to treat drug possession or paraphernalia violations similar to alcohol violations.  Utah courts, including Utah juvenile courts, can reduce or eliminate the suspension of a minor’s driver’s license under certain criteria.  A minor facing a drug possession or paraphernalia charge should contact a criminal defense lawyer in Provo immediately to find out if his or her driving privileges can be saved.

A Provo Criminal Defense Attorney May Be Able to Save Your License

If you are a minor and facing an alcohol or drug violation, contact an attorney from Provo criminal defense.  A Provo criminal defense attorney can give you a free consultation over the phone and let you know if your driver’s license can be saved.  Call 801-800-8246 to speak with an attorney today.


Endangerment of a Child or Vulnerable Adult in Utah

As marijuana becomes more widely accepted in the United States and Utah, more and more people are using it in an open atmosphere.  In Colorado people celebrate marijuana use in large, outdoor parties.  However, individuals who use any type of controlled substance in the Provo area should beware.  Not only can a person be charged with the actual possession of a controlled substance, such as marijuana, but individuals can also be charged with endangerment of a child or adult if the controlled substances are around a child or vulnerable adult.

Utah Law Regarding Child and Adult Endangerment

A person can be convicted in Utah for endangerment of a child or vulnerable adult if a person essentially has a controlled substance or chemical substance in front of a child or vulnerable adult.  Controlled substances include most illegal drugs, such as marijuana, but also includes prescription drugs such as adderall.  A chemical substance is a substance used to make a controlled substance and it also includes the by products resulting from the manufacture of a controlled substance.  This law primarily addresses meth production.

Utah law states that if a person exposes a child or vulnerable adult to a controlled substance it is endangerment.  Exposed means the child or adult is able to access or view an unlawfully possessed controlled substance or chemical substance.  Or, it can mean that the child or adult has the reasonable capacity to access drug paraphernalia.  Finally it could mean the child or adult is able to smell an odor produced during or as result of the manufacture or production of a controlled substance.

Speak with a Provo Criminal Defense Lawyer Today

The child and vulnerable adult endangerment law is written so broadly it that it is easy for it to apply to many people with a substance abuse problem.  This makes it all the more important for someone facing these charges to hire a criminal defense lawyer.  There is an affirmative defense to the charge of endangerment of a child or vulnerable adult.  The defense rests primarily on whether the controlled substance was obtained lawfully.  Without a defense too many people would be charged with endangerment.  If you have been charged with endangerment of a child or vulnerable adult please contact a Provo criminal defense lawyer today.  Our attorneys will be able to help you understand if you have a defense.  Contact a lawyer today by calling 801-800-8246.

When Must a Vehicle Display a USDOT Number?

The Federal Motor Carrier Safety Regulations

What is a commercial motor vehicle.

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.

More Teens Facing Charges Instead of School Discipline

A recent article posted in the Wall Street Journal described an interesting trend on teenage discipline. The writer discusses juvenile Juvenile Chargescriminal proceedings and how schools and parents are turning more to the criminal justice system to discipline teenagers rather then relying on the school or parents themselves. This trend is true here in Utah as well, or at least it seems to be. We have seen countless cases in the past few years where we wondered why a teenager was charged at all or why the teenager wasn’t simply just disciplined by the school. It use to be parents and schools handled most disciplinary actions with teenagers. In past years, few juvenile criminal charges were filed. That is no longer the case. In today’s world, there are more juvenile criminal charges filed than ever before. This is especially true if there is any issue of violence involved. It use to be a school ground fight would result in discipline by the school, maybe the kids were suspended for a day or two. The parents would be notified and the punishment the children received at home was usually sufficient to get the point across. We definitely live in a different world today.

Juvenile Charges in Utah County

Almost every week we receive phone calls from parents in Utah with children facing juvenile charges in Utah County and the parents can’t believe the potential consequences. Utah County prosecutors are not going as easy on kids these days. In the past we have defended teenagers and children in all types of cases including assault, theft, alcohol issues, drugs, sexual offenses, and more. Recently it seems we have been getting more calls than ever. While some juvenile cases are no doubt justified, I would suggest at least half of the cases we see could and probably should have been resolved without the police becoming involved. More parents need to take responsibility for their own children and work with other parents to resolved conflicts.

The Juvenile Process

In some cases, we have been successful in having charges dismissed or resolved outside of the court system. For kids who find themselves getting kicked through court, they should be represented by an attorney with knowledge of the juvenile process. The court system for kids is similar to that of adults with a few notable exceptions. First, parents get to participate in the case and be present with the children through the proceedings. Second, punishments are often different and not as severe (although in some cases like marijuana charges the penalties seem typically worse than what adults receive). Third, the juvenile probation system works much differently than adult probation. There are several other key difference so if your child is charged with a crime, call and speak with a Provo Juvenile Defense Attorney at our firm right away. More information on the juvenile court process can be found here, we look forward to helping.