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.

www.edjoneslaw.com
(435) 654-9529 

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.

www.edjoneslaw.com
(435) 654-9529 

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.

www.edjoneslaw.com
(435) 654-9529 

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.

www.edjoneslaw.com
(435) 654-9529 

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.

www.edjoneslaw.com
(435) 654-9529 

There is No Way Around the Ignition Interlock Device!

The ignition interlock device is a clever invention that, once installed on a vehicle, must be blown into before the vehicle will start. If the device detects any alcohol it will prevent the vehicle from operating. It effectively works as a foolproof intoxilyzer for would be under the influence drivers.

Having an ignition interlock device on your vehicle is expensive. Once installed, the device is monitored from a remote location by a company who reports directly to the courts. If the device detects alcohol, they know. If the device is removed so that the vehicle can be operated, they know. If either of the these scenario occur, the monitoring company immediately notifies the court, and the driver is now facing an order to show cause and a violation of his or her probation terms.

Due to the expense and life intrusion caused by the ignition interlock device, judges used to have discretion to order its installation on repeat offenders, or first time drunk drivers with high blood alcohol results. This has all changed. Utah law now requires everyone convicted of a DUI to install the ignition interlock device, whether ordered by the court or not.

If you are over 21 years old and are convicted of your first DUI, you have to have an ignition interlock device installed for eighteen months. If you pick up your first DUI and you are under 21 years old, you get to keep the interlock device on your vehicles for three years. If you violate your ignition interlock device rules, you must keep it for three more years (and your license gets revoked for a year). If you pick up a subsequent DUI, three more years. If you refuse a chemical test during a DUI investigation, you get the three years of ignition interlock on your car. Finally, if you are convicted of a felony DUI, you get to have the device on your vehicles for six years - unless you killed someone, then its ten years.

The best way to avoid the expense and inconvenience of the ignition interlock device is to avoid driving with a measurable amount of alcohol in your system. If you do have to install the device, however, the best way to get rid of it is to either sell all your vehicles and not drive, or comply with the terms, and never drive while intoxicated.

www.edjoneslaw.com 
(435) 654-9529

DUI Charges and DLD Hearings

When you are facing charges after a DUI arrest, you first need to worry about the DLD hearing. At the DLD hearing, a hearing officer determines whether you can keep your driver's license, even before you are convicted of DUI. In fact, you could lose your license at the hearing, and later be acquitted of the DUI.

At a DLD hearing, the hearing officer will hear testimony from the officer who arrested you to determine whether you should lose your license, based on his or her determination of whether there was evidence that you were driving under the influence. This is a critical stage in a DUI case and one that many overlook.

Once you have been arrested for driving under the influence, you only have a limited time to request a hearing. Many people do not read the small print in their citation, and miss the deadline. If you do not request a hearing, your license may be suspended without you ever getting a chance to challenge the grounds for the suspension.

Hiring a lawyer to assist you with the DLD hearing is an important first step in your defense. Not only can the attorney ensure you don't miss your deadline, and that you get your hearing, the lawyer can also cross examine the officer, and get a feeling for what his testimony would be if your case went to trial. Because county attorneys and district attorneys do not attend these hearings, this gives your attorney an advantage at your DUI trial, and further allows your lawyer to impeach the officer with any testimony that is inconsistent from the hearing.

Another important reason to request a hearing is that it is your best opportunity to keep your drivers license pending the outcome of your DUI case. The DLD hearing officer is the one who subpoenas the officer. If the officer is busy and doesn't show up, then the hearing officer will rule in your favor, and you get to keep your license pending the outcome of your DUI case.

www.edjoneslaw.com 
(435) 654-9529