Wednesday, October 30, 2013

Can I get a Plea in Abeyance for a DUI?

In order to motivate first time offenders to change their ways, Utah lawmakers have provided what is called a "Plea in Abeyance" to motivate life change, and help a person keep their record clean.  How it works is that a person guilty of a crime admits that they did it by entering a plea of no contest or guilty, but instead of being sentenced within a few weeks, the sentencing is put off for six months, or nine months, or a year, or a year an a half, or longer.  During this period of time, the conviction for the crime is incomplete.  What's more, if you behave yourself during that period of time and fly beneath the radar, at the end of the agreed upon time, you are allowed to withdraw, or take back your plea, as if you never entered it, and all charges are dismissed!

The Utah Code of Judicial Administration, section 4-704, makes it so.  In that rule, court clerks are given authority to accept a plea in abeyance for traffic offenses, and prosecutors are given the ability to negotiate pleas in abeyance for other offenses.  Those charged with offenses, including felonies, can take advantage of this law, and keep their record clean.

Although some plea in abeyances only require that you don't commit new offenses, most require more effort on the part of the person making the deal.  For example, in a traffic offense related plea in abeyance, the person who entered a plea needs to take and complete traffic school to earn the dismissal at the end of the abeyance period.  Those charged with drug offenses may have to attend a year and a half or more of a drug court, or participate in other counseling.  If it is a domestic violence charge, anger management classes may be required.  There may even be a community service component to the agreement.  The State is not collecting a fine, but you can be sure they will collect a "plea in abeyance fee" for the administrative costs of the plea in abeyance, that just happens to be exactly what the fine would have been had it been a complete conviction.  As you can see, there are strings attached, and all kinds of conditions can be negotiated that need to be completed in order to get that much desired dismissal.

If a person does not fully comply with the terms of the plea in abeyance agreement, then sentencing occurs, the conviction is final, and there is no right to a trial.  Prosecutors like this part because it makes for an easy conviction.  If a person absconds or flees the State, no problem, the conviction and sentencing can occur in their absence.  Jail time can be ordered, and the judge has all the options he or she would have had without the plea in abeyance agreement.

Unfortunately not all crimes are eligible for a plea in abeyance.  For example, you cannot get a plea in abeyance for a DUI.  It has been legislatively excluded.  Senate Bill 20 (SB20) passed in 2004, used to allow plea in abeyances for Class B misdemeanors, but not for Class A or Felony DUI's.  That law was later change, and now the State of Utah has a total ban on DUI plea in abeyances.  Therefore, if you get a DUI conviction, it will be on your record for ten years minimum.

Even if you get your charge reduced to a reckless driving, or some other driving offense that is plea in abeyance eligible, you may not be out of the woods.  Utah Drivers License Division takes actions against commercial drivers licenses in some driving offense plea in abeyance situations, and will suspend the commercial drivers license, even if the charges are later dismissed.  As such, if you are a commercial driver, make sure you know what you are doing before entering a plea in abeyance.

Because of the various risks and benefits to a plea in abeyance, it is a good idea to consult with a lawyer before jumping into such an arrangement.  In fact, it is always a good idea to have a lawyer on board when facing criminal charges.  First, a lawyer can help negotiate a plea in abeyance when it otherwise may not have been offered.  Second, a lawyer can help negotiate the terms so that a person isn't set up for failure.  Third, a lawyer can steer a client away from a deal that may be too good to be true if the consequences trying to be avoided, like license suspension, will happen with a plea in abeyance, and can help negotiate a better deal to obtain the desired outcome.  Finally, a lawyer can follow up with the court to make sure charges get dismissed.

I have assisted many clients in obtaining plea in abeyance resolutions.  I have also helped clients get the promised dismissals when the court and prosecution haven't followed up on the deal.  I have also helped clients charged with DUI to avoid a DUI conviction by other creative means because of the prohibition on DUI plea in abeyances.  If you are faced with a DUI or other driving related charge, and want to know if a plea in abeyance is possible, or if it will be good for you, give me a call.

Monday, May 20, 2013

The Intoxilyzer

In the past, someone arrested for driving under the influence of alcohol (DUI) used to be given a choice of three tests to verify the amount of alcohol in their system: a blood, breath, or urine test.  Since then, urine tests have been found to be unreliable for concentration amounts.  Blood tests are invasive and involve a needle.  Because of this, a breath test has been the preferred choice by law enforcement and the accused.

To take a breath test, a person blows into a machine, called an intoxilyzer, and the machine figures out how much alcohol is in their blood.  If the result is a .08% blood alcohol content (BAC) or higher, then the person is deemed intoxicated and not safe to operate a vehicle.  A result lower than a .08% infers that the person may be safe to drive, but that can be challenged by the person's driving pattern and other factors.

An intoxilyzer is a machine, and is subject to problems, like any other machine.  Sometimes the results are not accurate, the machine may need calibration, and there is an expected variation in results.  Also, the operator must be trained and certified, and needs to keep the certification current.  There are also rules governing an observation period prior to administering the test to make sure that there is no alcohol in the test subjects mouth from burping or regurgitation that could effect the validity of the test.

If you have been arrested for DUI, and had to take a breath test, this fact will be explored in both the Drivers License Hearing and the prosecution of the criminal DUI charges.  I have successfully represented clients in challenging the validity of the intoxilyzer test results based on the problems with the technology, the failure of  a police officer to follow the mandatory protocols, and the failure of the officer to keep his certification current.  As a result, I have been able to help my client's keep their drivers licenses, and avoid criminal convictions.

Thursday, May 9, 2013

Public Defender vs. Private Attorney

Should I hire a private lawyer or just go with a public defender?  What's the difference between the two?  What advantage would a private attorney give me over a public defender?   These are important questions to ask yourself when charged with a crime.  Naturally you would want the best representation possible.  But is it worth paying thousands of dollars to a private attorney when a public defender is free?

To begin with, let's define the two.  In Utah, counties and cities open a bidding process to fill the position of Public Defender.  Bids come in from various attorneys with different levels of experience and expertise.  The Public Defender contract is usually given to the lowest bid, sometimes with no regard for experience.  Once the public defender is selected he or she is inundated with cases, appointed by the court, for defendants who qualify for free representation.  The case load is always very large, and very limited of time is given to each case because of the volume of cases.

Public defenders work with the city and county prosecutors to resolve each case as quickly as possible.  Because of the huge demand on the public defenders, defendants do not always get the best representation or defense in their cases.  I have heard many defendants upset and frustrated that their public defender has no time to return phone calls, refuse to prepare a suppression  motion, do a preliminary hearing, or take their case to trial, because they don' have the time.

A Private Attorney is a lawyer who is hired by a defendant to represent them in court.  Private attorney's have much small case loads, thus they have more time to work on a case, interview witnesses, investigate and meet with the client, even return phone calls.

Hiring a private attorney allows you to shop around, get referrals, research which lawyer has experience in criminal law, and which one is a general attorney, knowing a little bit about a lot of different areas.  Most private attorneys will allow you to come into their office for a free initial consultation.  This way, you can find out how experienced the attorney is, his or her feelings about your case, and the fee you would be charged.

The saying "You get what you pay for" is often very true when hiring an attorney.  The more experience, the better the representation and defense.  If you are charged with a crime, give me a call.  You don't want to chance your future with anyone else.

Friday, May 3, 2013

When Can a Police Officer Pull You Over?

A police officer cannot pull over anyone without a reason.  There has to be what is called "probable cause" that a crime is occurring to justify a stop and contact.  Officers can also make contact with a citizen to perform a welfare check, if they are concerned that a person is in danger.

Typical reasons why a vehicle is stopped include traffic violations like speeding, failure to signal for two seconds before turning or changing lanes, reckless driving, running a red light, failure to wear a seat belt, crossing the fog line, and driving with a cracked windshield.  Officers also will stop a car if a license check reveals that the registration is not current or the insurance is expired.  In DUI investigations, one or more of these traffic violations will usually be observed.  Other non-criminal reasons for stopping for a welfare check or DUI suspicion would include driving too slow for traffic conditions, or weaving inside the lane.

There are times where the officer does not see any traffic violation, but a concerned citizen calls 9-1-1 to report erratic driving.  Under these circumstances, an officer can stop a vehicle based on the citizen complaint.

To avoid being pulled over by the police, I highly recommend keeping your license, registration and insurance up to date, and keep all of your vehicle's parts in good working order, including your windshield.  If you are stopped by an officer, and the reason why is not clear, keep on eye on the officer to see if he or she walks around your vehicle prior to making contact (looking for a reason to justify the stop.)  If cited or arrested, make sure you let your attorney know as much detail as possible about the stop as an illegal stop can result in the case being dismissed.

I had a client who was pulled over for no reason.  The officer later told him that he was stopped because the license plate light was out.  The officer then investigated further and arrested my client for charges unrelated to the reason given for the stop.  (i.e. DUI, drug possession, etc.)  I filed a motion to suppress the evidence because my client was adamant that his license plate light was working.  At the hearing, my client's friend, who had been a passenger in the car the night it was pulled over, testified and showed the judge a picture of the lit license plate that he took with his cell phone at the scene.  I requested a suppression hearing based on the illegal stop.  As a result, the judge ruled that the stop by the officer was illegal, without probable cause, and threw out all of the evidence obtained after the stop.  The case was dismissed much to the frustration of the Officer.

If you feel that you were stopped without probable cause, call me to evaluate your case.

Wednesday, May 1, 2013

Utah DUI:Driving Under the Influence . . . Without Driving?

I used to practice criminal defense law in California.  In California, in order to be guilty of the crime "Driving Under the Influence" the accused had to actually drive, the vehicle had to move, if only an inch, while the driver sat in in the driver's seat.

In Utah, a DUI is actually a DSUI "Drivers Seat Under the Influence."  Utah Code section 41-6a-501 outlines how a DUI is committed.  In that section it reads:  "A person may not operate or be in actual physical control of a vehicle in this state if the person . . . has a blood or breath concentration of .08 grams or greater . . . [or] is under the influence of alcohol, [or] any drug . . ."

The Utah Supreme Court has ruled that "actual physical control" in that statute prohibits an intoxicated driver from entering the vehicle.  Garcia v. Schwendiman, 645 P.2d 651, 654 (Utah 1982).  In deciding whether a driver is in control, the Utah Court of Appeal has ruled that a judge or jury can consider the following factors:

1. if the person in the drivers seat is asleep;
2. the position of the vehicle;
3. whether the motor is running;
4. if the person is in the drivers seat;
5. if the person is the only person in the vehicle;
6. whether the person in the vehicle has the keys;
7. could the person start the vehicle;
8. how the car got to where it was;
9. whether the person drove it there.

Richfield City v. Walker, 790 P.2d 87 (Utah Ct. App. 1990).  Notice from that list that only one factor involved whether the person actually drove the vehicle.  Just sitting in the car with the keys is enough to convict someone of DUI if they are intoxicated.  Indeed, the Utah Supreme Court has found that an intoxicated motorist, asleep at the wheel in an inoperable truck, was in actual physical control of the vehicle and was therefore guilty of DUI.

I have represented individuals in Utah who were arrested for DUI when no one saw them drive.  One of my clients was arrested as he was entering his car, another was arrested in her home, and had her car towed from her driveway, because police heard that she had driven while intoxicated,  other clients have been arrested while sitting in the drivers seat waiting for a taxi or family member to pick them up because they knew they were too intoxicated or too drunk to drive.  Fortunately, I have been able to help these clients build a good defense, based on common sense, and they have been able to avoid DUI convictions.  Still, based on the way the law in Utah has been written and interpreted, facing a DUI in Utah without an attorney can lead to expensive, life changing results.

Tuesday, April 30, 2013

DUI Convictions and the Suspended Drivers License

Of all the consequences that come with a DUI conviction, the harshest consequence of all is the drivers license suspension.  If you are convicted of a DUI, your driving privilege will be suspended for at least one year.  This suspension can impact your entire life, and may dramatically change your ability to go to work and go to school.  There are no exceptions.

If you live and work in a place with public transportation, or your work and/or school is close to where you live, this may be a minor inconvenience.  I have had clients who live in rural areas, but who commute to the city for work, and as a result of a suspension, they lose their jobs.

There are ways around the license suspension, but they are fact specific to each case.  For example, on a first time DUI, I have been able to negotiate an alcohol impaired driving charge instead of the full DUI.  Drivers License Division doesn't suspend a license for a first time alcohol impaired driving.  A second alcohol impaired driving, however, will result in a suspension, so if you are lucky enough to dodge a suspension the first time, learn your lesson. 

If you are being charged with a DUI, call me.  I will work hard to protect your driving privileges.

Thursday, April 25, 2013

How Will a DUI Conviction Effect My Record?

  Many of my clients are anxious to know how a DUI will effect them, and for how long. The concern is that a DUI conviction: limits your ability to drive, impact your employment opportunities, effects insurance rates, carries with it a social stigma, gives you a criminal record, and acts as a prior for future DUI's .

 In Utah, a DUI conviction will stay on your record for 10 years. A second DUI within that 10 years period dramatically increases the penalties you face if convicted again, and a third DUI within the 10 year period is a felony, punishable by up to 5 years in the State Prison.

Once ten years have passed, you will be eligible to expunge your DUI conviction, and it will no longer be used as a prior conviction. This ten year waiting period for expungement is the longest for any type of crime in Utah. For example, felonies can be expunged after seven years, and some misdemeanors can be expunged after three years, but any alcohol related driving offense must wait the full ten years.

I have been successful in negotiating with prosecutors to reduce a DUI charge to an alcohol impaired driving charge or even a non-alcohol related reckless driving, under certain circumstances. A reduction to straight reckless driving is not always possible, depending on the fact of the case, but when it happens, it reduces the time the conviction is on a client's record by more than half. A reduction to alcohol impaired driving can help you keep your drivers license, and lessen the impact on your insurance, but it acts as a prior conviction for future DUI charges, and cannot be expunged until after the ten year waiting period.

 If you want to avoid having a DUI on your record for ten years, call me to schedule an appointment. I will review the facts of the case and see what if any negotiations can be done to reduce your conviction. The best advice I have is not to drink and drive.