Monday, August 1, 2011

Marijuana Crimes in Utah

Marijuana may not seem like a big deal nowadays. With California, and then Colorado, legalizing it for medicinal purposes, the stigma once associated with marijuana use has faded away to a certain extent. If you are charged with a marijuana crime in Utah, though, that stigma is still there. Marijuana charges in Utah are some of the toughest (if not THE toughest) in the nation. A testable amount of marijuana in a baggie is punishable by up to six months in jail, thousands of dollars in fines, and a six month suspension of your driver license.

If facing Marijuana charges in Utah, here's a few things to keep in mind:

1. The severity of your charge, and hence the potential sentence, is based on weight

Busted with an ounce of weed or less? Class B misdemeanor (unless you have prior convictions for marijuana or other narcotic use). Busted with a few bricks? Possible 1st degree felony and punishable by life in prison. That's right, that's not a typo: you could get life in prison just for possessing marijuana. Utah law states that possessing above a certain amount of marijuana leads to the reasonable conclusion that you meant to distribute it. Basically, the government thinks anyone with a lot of marijuana is going to sell it and charges you accordingly. The container is also weighed so if you packed the marijuana in heavy plastic or metal, better hire a good drug crimes attorney quickly.

2. Drug free zones enhance the charges

Where are the drug free zones? Almost everywhere. In Salt Lake County you can't go more than a block without being in a drug free zone. Schools, gyms, community centers, nonprofits, shopping malls, playgrounds, the list goes on and on. If you are stopped near any of these your misdemeanor marijuana charges just might have become felonies. Unfortuantely, some police officers use these to their advantage and will follow you until you are in a drug free zone before pulling you over just to get the enhancement.

3. The Driver License Division hates you

There is hardly a more frustration organization to work with than the DMV/DLD. They want, seemingly very badly, to suspend your driver license if you have a marijuana charge. There are deals that can be worked out such as diversions and pleas in abeyance that do not count as a conviction, which is what the DLD needs in order to suspend your license. A growing trend in Utah marijuana cases has been the DLD suspending licenses even though they don't have a conviction. Several times, I've had to get a court order and take it down to the Driver License Division to get my client's driver license back because the DLD unlawfully suspended it. It is a pain, they suspend it for long periods of time, and they occasionally due it unlawfully. A good Utah marijuana attorney is worth the money just so you don't have to be the one to deal with your driver license issues.

4. Prosecutors like to look tough on crime by being harsh on drug cases

Sadly, getting convictions with long jail/prison sentences is an easy way for a fresh young prosecutor to make his mark at his office. Big drug busts and the ensuing court proceedings often make it into newspapers and the prosecutors are even less likely to make a deal. Marijuana is an easy target because many city governments and counties in Utah want to seem like they are fighting the growing trend of marijuana becoming acceptable in society. This makes it much more difficult to work out good deals on marijuana cases.

5. Judges seem tough on crime by giving long sentences on drug cases

This is even worse than prosecutors going extra hard on marijuana cases. Judges now know that long sentences make the papers and put them in a good light with the powers that be and the general public. "Judge sentences drug dealer to life in prison," is a headline most judges crave. Even on things such as magic mushrooms and marijuana. It's a growing trend that, sadly, is filling our jails and prisons with mild marijuana users rather than the hardened violent criminals that should be there.

6. Bottom line

The bottom line is everyone in government is looking to be harsher and harsher on marijuana users in Utah. Don't let them push you around and talk you into pleading guilty! Eventually, at least in this attorney's humble opinion, marijuana will be legal everywhere, even Utah. Until then, if you are busted, call an experienced drug crimes attorney today and fight it.

Tuesday, July 5, 2011

Utah DUI Penalties

You've gotten a DUI in Utah and you've heard horror stories and conflicting information about what can happen to you. A friend of your cousin's said you can get five years in prison. Your neighbor told you his roommate got a DUI in Salt Lake City and only got a fine.

So what's the truth about DUI penalties in Utah? Here's some quick facts:


By far, this is my clients' top priority and the number one question they have about it is: how much jail or prison time am I facing? The answer is a resounding: it depends.

On a first DUI you are technically facing six months in jail but if you pled guilty you would possibly only get the minimum mandatory of two days unless you had aggravating circumstances like a high BAC, an accident, you were a jerk to the cop, the prosecutor doesn't like you etc. On a second DUI the minimum mandatory goes up to ten days. On a third, you're now facing five years in prison with a minimum mandatory of 62.5 days. The "minimum" though set by law, varies by judge and prosecutor though so be careful. Some clients that I have tried to go it alone first and ended up getting far in excess of the minimums. When a prosecutor knows you're at their mercy, they can do whatever they want. Best not to go without representation and let that happen. And yes, I have seen first time DUI's get nearly the maximum in jail (it was a bad case though where they hit another car and disabled the other driver).


How much are you going to pay? A lot. Let me emphasize that: A LOT. DUI's are major money-makers for cities, counties and states. A single DUI in Utah, with the impound fees, license reinstatement fees, fines, attorney fees, treatment class fines, etc., could run, in total, somewhere between $5000-$20,000. The court fines are just the tip of the iceberg. A good attorney can help minimize these costs, but not get rid of them entirely. Expect to pay something.


Courts love recommending lots of treatment, even though the studies suggest they have little impact on DUI offenders. Regardless, treatment will probably be part of any deal you negotiate. It can run anywhere from 4 hours of classes to 50 hours of classes depending on the treatment provider chosen. Speak with a good DUI attorney about what treatment providers are good, or get other recommendations from people you may know. You may find reviews of treatment providers online and you can research them there as well. One thing to keep in mind: many treatment providers have you pay for an assessment to determine if you need treatment and then provide the treatment too. Clearly a conflict. Government agencies usually are better on this but BE CAREFUL. Treatment costs can easily skyrocket.


The suspension rules are complex and too broad a topic for a section in a blog post. You need to research them or hire an attorney (sorry to keep saying that but it's just such good advice!) and figure out which sections of the administrative rules and Utah Code apply to your case. Your license could be suspended for as little as four months or as long as three years. This is very fact specific to your case and you need some research or to consult someone knowledgeable to figure out where you fall.


You may not want your work to find out that you have a DUI. There's going to be documents filed, possibly subpoenas sent, phone calls made etc. This is something you need to be wary of if it's important to you. To be honest, the court doesn't care if you get fired over this so you're the only one that can prevent it. Getting a P.O. Box as your official address may not be a bad idea if you don't want people in the home finding out either.


Sadly, this is something that can rarely be prevented. You're going to have lots of them. More if you have a good attorney, less if you have a bad one and they plead you guilty the first chance they get (unless there is a specific reason for doing so and there sometimes is). You're going to miss work, children's birthdays, soccer games etc. You just have to work with your attorney to schedule these the best way possible.


You may feel bad on a moral level that you committed a crime and feel that you deserve punishment. Put that out of your head right now! The prosecutor's job is to prove crimes, not make you feel bad. We all make mistakes. I have defended doctors, lawyers, politicians, Church leaders and on and on. We're human. The point is to get the best possible outcome for you, learn from the experience, and make sure it doesn't happen again. Don't beat yourself up over it if you have a DUI.


There's going to be more associated with a DUI in Utah, like ignition interlock devices, becoming an alcohol restricted driver, having your vehicle towed, having the stigma of the charge on your record etc. Frankly, there's so much that entire books have been written on DUI's. The best thing you can do is hire a good DUI attorney and begin the process as soon as possible.
By Yossof Sharifi Google

Utah DUI's and Your Driver License

So you've gotten a DUI in Utah. It's not something you normally do and now you're worried about the consequences. Aside from going to jail, what's your top priority right now? It should be keeping your driver license.

Can you imagine not being able to drive for anywhere from four months to three years? I certainly can't. Some of my clients have even told me they would be willing to go to jail if they could keep their driver licenses!

Utah is one of the strictest state's when it comes to suspending driver licenses after a DUI. You need every advantage you can get.

Here are some tips on how to keep your driver license after you get a DUI in Utah:

Hire an Attorney

I know, I know, it sounds self-serving for an attorney to say "hire an attorney." But think about it: some attorneys, myself included, do hundreds of DUI's. That means hundreds of driver license hearings to try and keep our clients' licenses. It's just common sense that the more something is practiced the better you'll be at it. The fact is, these hearings are complex and the rules are rigid. Miss one deadline, send a fax to the wrong place, call the wrong number, and your license is suspended. There are a lot of bad attorneys out there that won't do anything for you, so if you are going to hire an attorney, make sure they've done plenty of DUI's and have received at least some training in conducting DUI defense in Utah. DUI's are not like other criminal cases because of the technicalities and science involved. Law school doesn't prepare one to handle these. Your attorney should have additional training.

Request a Hearing with the Driver License Division

You MUST MUST MUST, request a hearing within ten days of receiving your DUI in Utah. That includes weekends, holidays, emergencies, hospitalizations, whatever. If you miss the ten day deadline, there's almost nothing that can be done. You can request a review for a late hearing, but these are rarely granted. I had one client who only spoke Spanish and the officer informed him of the hearing in English. He, obviously, missed the ten day deadline and hired us later to handle the case. The Driver License Division still would not give him a new hearing, even though he was never really given notice of the hearing. We had to appeal it all the way to the Third District Court and take the case away from the Driver License Division before anything was done. Remember, you can fax or take down your hearing request to the Driver License Division in person, but do not miss that ten day deadline. I recommend you go the day after and just get it done.

Get All the Reports

You're entitled to the DUI reports, blood, breath and urine results, intoxilyzer checklists and printouts, and just about everything else that is going to be introduced at the hearing. Make sure you get these early on from the Driver License Division.

Pick Your Issues

Attack every little irrelevant piece of information at the hearing and the hearing officer will tune you out at best and tell you to cut it out and move on at worst. Pick the best issues to attack and stick to them. Don't let the officer get away with statements like, "And then I performed the field sobriety tests and he failed." Make him describe what training he's received in performing the FST's, how many times he's performed them, and how he performed them on the night in question. Remember, the standard is so low at a hearing, you need something very wrong with the case to win. Do your homework and remember that DUI police officers are only human; they do make mistakes.


If you lose the hearing, you will receive a notice in a couple of weeks letting you know the date your driver license is officially suspended. For a first DUI offense the suspension is 120 days. A second DUI is two years. You have the right to request a review of your suspension in writing to the Driver License Division. If they send a letter to you informing you that they are upholding the suspension, you can then appeal to the local district court and place the case in front of a judge instead of a hearing officer. Of course, for DUI's in Utah, the Attorney General's Office takes over at this point and the prosecutor they have handle the driver license hearings is an expert at them. She's also pleasant and a good person, but talented and aggressive so be careful. If you lose the appeal, you can try and take it up to the Utah Court of Appeals and the Utah Supreme Court, but there would have to be something seriously wrong for them to consider it.
By Yossof Sharifi Google Photo: Mclovin: From the movie Superbad

Facebook Catches Crooks - Policing 2.0

The cops are catching on to the social media revolution and criminals might not like what they find.

In Ogden, Utah, a kidnapping suspect kept updating his Facebook profile after the police shut off power to the motel building where he was hiding. One friend told the suspect on Facebook that SWAT was staging in bushes nearby and told him to keep low. Police are thinking about charging the friend for helping the kidnapper.

In Indiana, it took police less than 30 minutes to find a suspected counterfeiter on Facebook. Police posted surveillance video of the woman they were looking for. A man saw the post and sent a message saying that he knew the woman. Less than thirty minutes later, police were questioning her about the counterfeit money. She has since been cleared of the charges.

Finally, Canadians in Victoria kept police updated on Twitter of criminal activities that they were witnessing. Police got messages about plans to vandalize a stretch of one street and responded to the area before anything could get out of hand. Police got specific tips about people drinking illegally in certain areas and responded to arrest. "At one point traffic was so heavy that VicPD, with 2,000 followers on Twitter, was trending as a national conversation."

Be careful what you tweet and what you put on Facebook. The police may be watching.

Monday, July 4, 2011

Belated Update: Strauss-Kahn Freed After "Victim" Lies

On July 1, Dominique Strauss-Kahn was released from house arrest. As I posted previously, this was a result of major credibility problems with the government's main witness who was also the alleged victim. This appears to be a major weakness in the government case, but they do not have any plans to immediately drop the charges against Strauss-Kahn.

Saturday, July 2, 2011

John Adams: A Great Criminal Defense Attorney

One of my favorite criminal defense lawyers is John Adams. On this 4th of July weekend, I think it is appropriate to remember what great men the founding fathers were.

John Adams was practicing law near boston when the "Boston Massacre" happened. The Lynn Ranch blog sets the scene:

"On March 5, 1770, six years before the formal break from England, an unruly mob gathered in front of Boston's Customs House. After pelting British troops with snowballs and rocks, the crowd surged forward; the troops fired into the mob, killing five people. From the colonial viewpoint, this was the 'Boston Massacre.' As far as the British were concerned, it was a riot. Both views are credible."

12 of the soldiers were charged with murder. The court could not find a lawyer who would defend the soldiers. The case was deeply unpopular. Adams, who had political aspirations, believed that if he took the case, his reputation would be permanently damaged. But he thought it was more important that the men get a fair trial than for him to be able to run for office.

"Under Adams' skillful defense, six of the soldiers were acquitted. Two who had fired directly into the crowd were charged with murder, but were convicted only of manslaughter. Adams was paid eighteen guineas by the British soldiers, or about the cost of a pair of shoes. Beyond the fee, Adams wanted to prove to the world that American justice was balanced and fair."

People frequently ask me, "How can you be a criminal defense lawyer? How can you defend guilty people?" I like to think that in my small way, I am following in John Adams footsteps. Like him, I believe that our justice system requires skillful advocates on both sides. I can't change the facts of my clients' cases, but I can make sure that they don't get convicted of a crime unless the prosecutors do their job.

As we celebrate our country's independence, I am grateful that we live in a land where we are governed by the rule of law. I am grateful that John Adams and the other architects of the Constitution built a procedure that protects the innocent as well as the guilty.

Friday, July 1, 2011

Profile of Attorney General Candidate Sean Reyes

Utah Attorney General Mark Shurtleff says he won't run for Attorney General again. Is that decision final? Who knows. Mr. Shurtleff is not above changing his mind on important decisions. However, as an incumbent who won nearly 70% of the general election votes in 2008, he was the odds-on favorite to win again.

State Senator John Valentine, Deputy Attorney General John Swallow, and Sean Reyes have been mentioned as possible candidates for the post on the Republican side.

Mr. Reyes attended a lunch meeting in downtown Salt Lake that I was at on Wednsday, so I thought I would take a quick look at his candidacy.

Why Sean Reyes?
Mr. Reyes' platform is generic, but it hits all of the right notes. He is conservative. He wants to protect families.

But what makes Sean look like a serious contender is his organizational head start. It is very early to be campaigning for Utah AG. The general election won't be until November of 2012 and the Republican nominating convention will probably be in May of 2012. So, by starting so early, Sean is looking at a 17-month campaign.

Sean was the only candidate for AG who had a booth at the State GOP organizing convention last month. He has formed a PAC called Freedom Defense and he seems to be aggressively and energetically campaigning. He has also collected dozens of endorsements already.

Sean was until recently a lawyer at a large prestigious law firm in Salt Lake. He went to law school at Berkley and played volleyball there as well. Unfortunately, he doesn't appear to have a deep criminal law background. But that is obviously not all that the Attorney General is involved with.

I found Sean to be very personable when I met him. He has a lot of energy and seems excited about the race. He is facing a marathon and an enormous challenge launching his state-wide race.

"Victim" in High-Profile Case "Repeatedly Lied"

Dominique Strauss-Kahn was practically the next president of France until he was accused of sexually assaulting a maid at a New York hotel. Now law enforcement officials are telling the New York Times that the maid has "repeatedly lied" since her initial report last month and that "prosecutors do not believe much of what [she] has told them about the circumstances or herself."

This dramatic reversal shows why it is so important for reporters and for all of us to remember that a person accused of a crime is innocent until proven guilty. Anyone can accuse anyone of anything. But only the trial process gives both sides an opportunity to present their cases.

Thursday, June 30, 2011

Pros and Cons of Diversion Agreements

Last month Harold Lyman, a man charged with stealing American Indian artifacts, agreed to a diversion with the U.S. Attorney's Office in Utah.

In a diversion agreement, the prosecutor agrees to dismiss criminal charges against a defendant and the defendant agrees to probation conditions. If the defendant complies with the conditions, the prosecutor has to dismiss the charges and, legally, the case is treated "as if the charge had never been filed."

Diversions are similar to pleas in abeyance in that the charges are eventually dismissed. However, the defendant has to plead guilty or no contest to enter a plea in abeyance. The defendant never pleads guilty as part of a diversion.

Diversions used to be very common in Utah. However, prosecutors have begun to feel that diversions are too generous to the defendant and can make it difficult to prosecute the case if the defendant violates the terms of the diversion agreement. Prosecutors now prefer pleas in abeyance because the charges are still dismissed, but the prosecutor can ask the court to convict defendants who violate the terms of their plea in abeyance agreements without going through a trial because the defendant has already plead guilty.

The conditions of Mr. Lyman's diversion agreement were that (1) he have no new violations of the law, and (2) that he stay away from Indian lands. He did not even have to pay a fine or take any classes.

Wednesday, June 29, 2011

Are Tasers Torture Tools or Legitimate Law Enforcement?

In 2007, the United Nations Committee against torture declared that the Taser most often used by police causes "so much pain that use of it 'constituted a form of torture.'"

However, proponents of the use of Tasers as an alternative to more deadly force claim that "99.75% of the time suspects have no significant injury as a result of the device being used."

About a year ago, I was involved in a pro bono case involving a man in my neighborhood with severe mental problems. Eyewitnesses told me that Deputy Sheriffs from the Davis County Sheriffs Office pulled this man over for a minor traffic violation. The man was confused and scared and overwhelmed. Instead of pulling over, he drove the short distance to his father's house looking for help. There the Sheriffs, believing that he was noncompliant, ordered him out of his car.

Their lights were flashing, they were yelling, and there were a number of deputies surrounding him. The young man's father was there and repeatedly asked the deputies to let him talk to his son so that he could explain what was happening. They refused and eventually tased the man.

A little bit over a year ago, I mentioned this incident to a Sheriff's Deputy and asked him what he thought. He responded that the public doesn't realize that law enforcement believes that Tasers are very safe and that they are low on the "escalation scale" because they pose little risk to the suspect and keep the officer out of danger because he doesn't have to be close to the suspect.

I understand that law enforcement officers have difficult, dangerous jobs and that they are looking for ways to keep us and themselves safer. But I wonder if they have fully considered the risks involved in electrocuting people. Tragic deaths have been associated with Taser use. Should Tasers be used as often as they are?

Do we know enough about the risks involved in Taser incidents? According to Professor Jared Strote, an ER doctor and professor at the University of Washington, we don't know enough about Tasers. "There has been very little good research done, and by good I mean conclusive, about the potential health effects of Tasers."

In two separate incidents, Utah Highway Patrol Officers have been accused of using their tasers in non-violent situations. Once, during a DUI when a driver refused to submit to tests without speaking to a lawyer, and once when a different driver refused to sign a traffic ticket.

Like Amnesty International, I am concerned that "Tasers are being used as tools of routine force rather than as weapons of last resort."

What are your thoughts? Are police using Tasers correctly? Are they instruments of torture that should never be used? Or are they good tools that are sometimes used incorrectly by poorly trained officers?

Wednesday, June 22, 2011

Man Robs Bank to Get Healthcare in Prison

The criminal justice system has long been a primary care provider for the mentally ill. A new case from North Carolina suggests that jails may become primary health care providers for people with other medical problems as well.

James Richard Verone tried to rob a bank in Gastonia, North Carolina so that he could get foot and back surgery and a diagnosis for a protrusion from his chest.

He took a cab down New Hope Road and picked a bank at random — RBC Bank.

Verone didn’t want to scare anyone. He executed the robbery the most passive way he knew how.

He handed the teller a note demanding one dollar, and medical attention.

“I didn’t have any fears,” said Verone. “I told the teller that I would sit over here and wait for police.”

Unfortunately, Orin Kerr, a writer at the Volokh Conspiracy, isn’t sure that Verone committed a crime.

Theft requires intent to permanently deprive another of property. But it’s not clear that Verone had any intent to permanently deprive the bank of its money. If I understand the facts, he just wanted to do what was necessary to be arrested, without any actual intent to deprive others of their stuff (thus the $1 request). Verone wants people to know why he committed his act, so they know he’s not a bad guy. But I think his reason shows that he lacked the intent that the crime requires; if I’m right about that, Verone is actually not guilty of the crime charged.

Hopefully, Verone won’t have to rob another bank to get his surgeries.

In 2000, the last year for which nation-wide data is available, over 100,000 prisoners were receiving psychotropic medications and over 17,000 prisoners had to be under 24-hour mental health care. Our country’s jails and prisons are taking a bigger and bigger share of the mental and physical healthcare burden.

Monday, June 20, 2011

When Do Kids Get Miranda Warnings?

Last week the United States Supreme Court held that police must consider a child's age when they decide whether to give the famous Miranda warning.

Miranda Rights
Since 1966, the United States Supreme Court has required law enforcement to inform suspects that they have the right to remain silent. If police question suspects without giving the Miranda warning, or if police ask questions after suspects tell police that they do not want to speak, the police cannot use the information that they learn during the confession in court.

However, police only have to read suspects the Miranda warning if the suspect is "in custody" or in a "custodial situation." To determine whether a suspect is in custody, the court must consider whether "a reasonable person [would] have felt he or she was at liberty to terminate the interrogation and leave."

J. D. B. v. North Carolina
The Supreme Court's new case holds that police must consider the age of the suspect when deciding whether the suspect is in custody. Younger people may feel that they have to stay and answer police questions in situations where adults might feel free to leave. The suspect in this case was a young child who was questioned at school without a parent present.

J. D. B. may force police to start giving the Miranda warning to all minors before questioning them. While the dissent argued that the new rule "will be hard for the police to follow, and it will
be hard for judges to apply." I have more confidence in our police and judges. Any step to give more protection to young criminal suspects is a good thing as far as I am concerned.

Saturday, June 18, 2011

Utah Woman Freed After 17 Years in Prison

Debra Brown was released from prison last month after 17 years behind bars. She had been convicted by a jury of killing her 72-year old neighbor in 1994. In May, 2nd District Court Judge Michael DiReda ruled that she was innocent of the crime after hearing new witnesses testify.

During her 1994 trial, prosecutors pointed out that Ms. Brown did not have an alibi for the morning of November 6, 1993, the time when her "victim" supposedly died. Judge DiReda heard from new witnesses who saw the man alive that morning. Ms. Brown had alibis for the rest of her time, so she couldn't have killed him.

As I discussed in a previous post, the Post-Conviction Remedies Act provides for money damages in addition to the opportunity for a prisoner to gain her freedom. Judge DiReda awarded Ms. Brown $570,780.

Unfortunately, Attorney General Mark Shurtleff has decided to appeal Ms. Brown's case. He had previously tweeted, "We won't appeal," but his office has now filed a notice to appeal.

Wednesday, June 15, 2011

Utah DUI Checkpoints

Many people in Utah have faced a DUI checkpoint at some time or other. They are in essence a place where law enforcement know that a certain number of people at a certain time will be DUI. The checks are conducted on holidays primarily throughout the night and into early morning. DUI's most frequently occur between 10pm, when people have had a few drinks before heading to a bar or club, and until 3 am, when the bars and clubs have closed and people are heading home. Don't be surprised to see a checkpoint set up near you between those times.

What the officers are looking for are signs of impairment displayed through driving pattern; something called "cues" in their training. For example, are you swerving from one lane to the next? Are you bumping into the curb? Following too closely to the vehicle in front of you? Speeding? These are all cues that officers take into account. But once the stop is made they are looking for signs of alcohol or drug consumption such as an odor of alcoholic beverage or marijuana. That's when they will ask you to step out of the vehicle and begin the DUI investigation with the field sobriety tests.

The DUI checkpoints have to be conducted in a certain manner. For example, every third car may be randomly stopped and checked. However, this is not always the case. The police are human and they go with their guts like everyone else. Do you have dreadlocks and drive a jeep? You better bet they are going to stop you and see if they can smell marijuana or alcohol. Are you a soccer mom type with your kid in the backseat? You'll probably pass by.

A good DUI attorney will try and secure any video from the checkpoint and go through it to ensure that the stops are actually random. If they are not, the issue may be brought up in court and a legal brief, called a motion, may be filed and argued in front of the judge. If the motion is successful, it could result in the evidence being thrown out of court and the case dismissed.

Many police and prosecution agencies list reasons as to why checkpoints are in use. The reasons they list are all noble: such as reducing DUI related deaths and injuries etc. And though there is certainly some of that involved, don't be fooled into believing their motives are completely pure. DUI's are big business for every city and county in the nation. California Watch wrote a great investigative piece about exactly how much money cities pull in when they hold a DUI checkpoint which you can read here. Sadly, there's millions of dollars in it for the government and I fear that we may be seeing more checkpoints in Utah, not to stop DUI's, but because our cities and counties have budget shortfalls and these are quick and easy ways to raise revenue.

Regardless, if you have been charged with DUI from a DUI checkpoint in Utah, make sure to do your research and hire a good DUI attorney. It could mean the difference between getting your case dismissed and getting convicted.

Thursday, June 9, 2011

Field Sobriety Tests in Utah DUI Cases

A DUI in Utah is not like a DUI in California. Utah has some severe penalties, most notably that you cannot receive a temporary driver license for work or school if your driver license is suspended based on the DUI. Also, there are minimum mandatory jail sentences on DUI's ranging from 2 days to 62.5 days depending on the type of DUI.

Because they are serious offenses in Utah, if you are charged with a DUI, your attorney must attack every facet of the case. No stone must be left unturned. One of the areas your DUI attorney must look at are the Field Sobriety Tests.

The FST's

There are three standardized field sobriety tests used in most jurisdictions: the horizontal gaze nystagmus, the nine-step walk and turn, and the one leg stand.

The horizontal gaze nystagmus is the officer causing the eye to track in a certain direction so that he can observe an involuntary jerking in the eye. They check smooth pursuit from right to left, sustained nystagmus at maximum deviation, and onset of nystagmus prior to a 45 degree angle.

The problem with the nystagmus test is that there are a whole host of other causes of nystagmus. Aspirin, caffeine, exposure to cigarette smoke just to name a few. Studies have also shown that a certain percentage of the population is born with naturally occurring nystagmus.

In the nine-step walk and turn, the subject is to walk down a line, turn and walk back. Easy enough, right? Wrong. These tests are not about walking in a straight line, they are about following instructions. The one leg stand is similar as the subject is told to stand on one leg and count to thirty. However, the officer couldn't care less whether you do it well, he's looking for very minute clues. Were your feet more than half an inch apart? Did your arms go above six inches? Did you turn to the left instead of the right? These are the type of details that determine whether you pass or fail the field sobriety tests.

The FST's are not science. They are subjective tests used by law enforcement to make arrests. You do have good DUI police officers who are out there making the best decisions they can with the tools they have, but these tests produce too many false positives to be relied on in criminal cases.

Hire a good DUI attorney if facing a DUI and make sure they fight the accuracy of these tests. Many cases have been won by exposing the subjectivity in these tests.