Friday, June 8, 2018

Drive It Like You Stole It

One of the most serious consequences of a DUI conviction is the drivers license suspension.  Typically a DUI based suspension will last 120 days. During those four months the DUI recipient cannot drive. There are no exceptions for work, school, or other worthwhile activities. 

For my clients who live and work in the city, where public transportation is available, and Ubers and Lyfts are abundant, the four month suspension is an irritation that can be managed. My rural clients, however, who commute to work, don’t have it so easy. If car pooling is not an option they often impose on family members to drive them around. When that is not an option, some lose their jobs. 

When faced with possible job loss, some clients make the poor decision to drive in spite of their suspension. This is a bad idea on many levels. First, it is a crime, a class B misdemeanor, if the same severity as the DUI, punishable by up to six months of jail. Second, if caught, their drivers license will be suspended for an additional year for each time they are caught, even if they are not convicted of the new offense. It is far better to not drive on the suspended license. Those who reject this advice had better drive the speed limit, have their vehicle registered, and make sure their vehicle has no equipment issues. 

Some say “drive it like you stole it” is slang for driving reckless and fast. I disagree. When you drive a vehicle in violation of the law, whether because it is stolen, or the driver’s license is suspended, drawing attention to the vehicle is the last thing you want to do. Looking over you shoulder is no way to live. If you could wait 16 years to drive, you can wait 4 months.

Tuesday, May 22, 2018

Utah's New DUI Blood Alcohol Law

The  final countdown has begun.  On December 30, 2018, ironically the day  before New Years Eve, Utah will become the only state to classify  driving under the influence of alcohol (DUI) as beginning at a .05%  blood alcohol content (BAC).  It will be the lowest BAC to get a DUI in  the country.
Many erroneously believe that the  .05% BAC for DUI's in Utah is already in effect.  That's because the  Utah legislature passed the law changing the BAC from .08% to .05% for a  presumptive DUI way back in 2017.  If the legislature passed the law,  and it is a good idea, some wonder why Utah would wait almost two years  to put the law into effect.

Utah DUIThe Utah Department of Public Safety (DPS) has begun an  education campaign promoting the upcoming change.  That campaign advises  that between 2006 and 2015 there were 23 fatal crashes in Utah  involving a BAC between a .05 and a.07, thus justifying the downward  departure from the .08% BAC national standard.  DPS also reminds us that  in the 1990's Utah was the first in the nation to lower the BAC  presumptive DUI from the national norm of .10% to a .08% BAC, and Utah  is leading the charge again.
Utah is not the  first in the world to change the DUI presumptive level to a .05%.   European nations beat Utah to that honor, and to their credit, they saw  an 8-12% reduction in DUI related fatalities after the change.  A  similar reduction was seen in the United States when the presumptive DUI  level was reduced from .10% BAC to .08% BAC.
The  bottom line is that a person who drinks alcohol is going to have to  drink a lot less if they want to legally drive.  DPS's suggestion is  that if you drink, don't drive, though that is not the law . . . yet.   Because everyone's metabolism is different, getting to a .05% BAC could  result from one to four alcoholic beverages within a two hour period.  A  person may not even be feeling the effects of the alcohol and still be  at a .05%.  
This upcoming New Years Eve, if  you drink, please do so responsibly.  Have a sober designated driver, or  call a Lyft, Uber, or taxi when are done celebrating.  If you do decide  to drive after drinking, you will likely be doing so in violation of  Utah's new law.  Law enforcement will be out in force that night hosting  their own celebration of the new law that makes their jobs easier.  If  you encounter one of them, be polite, do the best you can in the field  sobriety tests, and call Ed Jones,an expert DUI lawyer as soon as possible. or

Thursday, January 28, 2016

DUI Metabolite vs. DUI Alcohol

There are two kinds of DUI's in Utah, one 
involving alcohol, and the other involving drugs.  
Although many of the consequences for each are 
the same, the two crimes are very different.

The first, and most common type of driving under the influence is a DUI
involving alcohol.  This crime occurs whenever a person sits in the driver's
seat of a car, has access to the keys, and is under the influence of alcohol,
or has a blood alcohol content of a .08% or higher.  Under those conditions,
that person is guilty of a DUI alcohol in Utah.  Under Utah law, a person
charged with a DUI involving alcohol is not eligible to have a "plea in abeyance"
resolution where, after taking a class and paying a fee, the case can be
dismissed after a year.  Instead, if a person is guilty, they have to enter a plea,
and have the conviction on their record for ten years.  A DUI charge can be
plead down to what is called "alcohol impaired driving" but it still is considered
a DUI for 10 years. The benefit of impaired driving is that it doesn't mandate a
driver's license suspension or require a mandatory installation of the ignition
interlock device to start your car if convicted.  

On the other hand, if a person sits in the driver's seat of a car, and has access
to the keys, is alcohol free, but has the metabolite of a controlled substance or
drug in their system, then they are guilty of a DUI metabolite.  The tricky thing
about that charge is that the person does not have to be impaired by the drug to
be guilty.  Indeed, a person could legally consume marijuana in California or
Colorado, and then, two or three weeks later, drive through Utah, and if the
inactive metabolite of THC from the marijuana is still in their system, they are
guilty of DUI metabolite.  Metabolite can stay in your system for up to 30 days.
It is a strict liability crime.  No field sobriety tests are necessary.  Just a urine or
blood test to prove the metabolite is present.  That's the bad news.  The good
news is that a DUI metabolite charge is eligible for a plea in abeyance plea
bargain that could result in the charge being dismissed.  Also, with a DUI
metabolite plea in abeyance, there is no requirement for a driver's license
suspension, if it was not already suspended by Drivers License Division
administratively, and it does not require the installation of an ignition interlock

As you can see, DUIs are complicated. If you are charged with either type of
DUI, contact me for a free 30 minute initial consultation. (435)654-9529

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 (435) 654-9527.

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.
(435) 654-9527

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.
(435) 654-9529 

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.
(435) 654-9529