Monday, October 29, 2012

How long will you go to jail or prison?

If you are accused of a crime, there is a chance that you will go to jail. Everyone wants to win their case and we’ve won more than our share of cases at trial or by dismissal. But there is sometimes the chance that you will have to go to jail. When you are considering a plea bargain or a trial strategy, you have to consider the possibility of jail time and how long you might have to go to jail or prison.

In Utah, judges have broad powers to decide how long you will go to jail if you are convicted. For example, if you are charged with a Class A misdemeanor, you can be sentenced to up to one year in jail. The judge does not usually have to send you to jail, but can sentence you to anything from 0 days in jail to 365.

But judges frequently refer to forms produced by the Utah Sentencing Commission when deciding on a sentence. Understanding those forms is essential to giving an accurate prediction of a jail sentence.

For serious crimes or when the judge wants extra input, the judge will request a Pre-Sentence Investigation(PSI) from Adult Probation and Parole (AP&P). AP&P uses the same forms to make a recommendation on a jail or prison sentence.

The forms are somewhat complicated, but I will give an example to illustrate how they are used. It is always best to consult an experienced attorney to make sure that a sentencing prediction is accurate.

Sentencing Example: Drug Possession

Mary Jane is accused of selling marijuana in a drug-free-zone (within 1,000 feet of a public park). She has been convicted twice before for possessing marijuana, but she successfully completed probation both times. She pleads guilty to distribution of marijuana, a third degree felony, which was reduced from a first degree felony based on the drug-free-zone and her previous marijuana convictions. Mary Jane has a good job working as a waitress at a diner. She doesn’t make much money, but she supports her kids on her own. She is a single mother. According to the sentencing guidelines, how long could Mary Jane serve in jail or prison?

The maximum sentence for a third degree felony like the one Mary Jane is accused of is a sentence of 0-5 years in the Utah State Prison. If she got that sentence, the judge would send Mary Jane to the prison and the Board of Pardons and Parolewould decide when she would get out at a parole hearing.

However, Mary Jane is very unlikely to be sentenced to prison. To predict her likely jail sentence, we start with the “GeneralMatrix” form. Mary Jane does not have any prior felony convictions. She has two prior misdemeanor convictions, but no juvenile convictions. She was previously on probation, but she never had any problems on probation. She has no violent history and no weapons were used in this offense.

Mary Jane scores three points on the criminal history matrix which places her in the lowest criminal history category.

Next we turn to the “Jail As a Condition of Probation” matrix form. Distribution of marijuana is a 3rd Other along the top row because it is a third degree felony and it does not involve violence to a person (which would make it more serious) or simple possession of a drug (which would make it less serious). The roman numerals in the left column represent the criminal history category for the defendant and in this case we’ve already determined that Mary Jane falls in the least serious “Criminal History Category I.” A person with the lowest criminal history category who is convicted of a third degree felony “other” offense isrecommended to serve 60 days in jail.

There are three color codes on the “Jail As a Condition of Probation” form. Dark, partially shaded, and light. In the dark-shaded parts of the form, the Sentencing Commission is recommending prison. That means that if a person is charged with certain serious crimes or has extensive criminal history, the Sentencing Commission recommends that judges sentence defendants to prison. Defendants whose sentencing matrix falls in the light areas can hope that no jail will be imposed or that they will get an alternative sentence like ankle monitor or more intensive supervised probation. The partially shaded areas represent the Sentencing Commission’s recommendation that those people at least serve jail time and that the judge should at least consider prison time.

It is also important to consider the “Aggravating and Mitigating Circumstances” form, but that form is the mostsubjective of all the forms. In almost every case, the probation officer, the prosecutor, and the defense attorney can reasonably disagree on the aggravating and mitigating factors.


Judges’ sentencing decisions vary from judge to judge, court to court, and county to county. They are not required to follow the sentencing guidelines and some rarely do. But some judges follow the guidelines religiously and it is important for defense attorneys to understand the matrices and how to use them.

How to Get A Lawyer


I knew a lawyer that would show up to court in jeans and a turtle-neck, plead his client guilty to whatever crime he happened to be charged with, collect his $5000 or $10,000 for the case, and move on to the next one.

Not once did I see him work out a great deal or fight the case at trial. All he did was show up, plead them guilty, and leave.

How to get a lawyer is one of the most common questions I get asked as a lawyer myself from friends and acquaintances. Before we dive into how to get a lawyer, let's talk about some ways how to NOT get a lawyer:

1. Yellow Pages: The phone book is a relic from the 80's. Tons of attorneys still advertise on there but very few of the cutting edge firms who stay on top of trends, and more importantly for their clients, on top of recent developments in law and business, advertise there. It only works for a few types of law and even those only if you spend an enormous sum of money. If you're facing a complex litigation matter or are charged with murder, you probably want to steer clear of the phone book. If you have a minor traffic offense or something else that doesn't really impact your life and you don't want to spend a lot of money on a lawyer, phone book might be okay. Although, even for that, I would still recommend searching the internet instead.

2. Fliers at the Jail: If you happen to commit a crime and have to be booked into jail, you may see fliers up for lawyers on some of the pin-up boards. Usually, these lawyers have some sort of deal worked out with someone somewhere that allows them to do this, or they literally just went into the jail and put it up themselves. Either way, that doesn't bode well for you. A good lawyer is never desperate: he will have a line of clients waiting for his services based on referrals. This just reeks of desperation.

3. Arrest Magazines: This is a growing unfortunate trend. People wondering how to get a lawyer often look at these magazines because they're available everywhere. The magazines basically take booking photos of people arrested, put them up on the internet for everyone to see, and then try and blackmail the defendant by sending them a letter saying we'll remove the booking photo for $100 or as much as $3000. If this happens to you, hire a lawyer right away and have them send a cease and desist letter to the magazine with a copy of a lawsuit (called a complaint) that the lawyer will file if the photo is not immediately removed. Unfortunately, the problem is that there will be dozens of other criminal magazines that do the same thing and you can't threaten them all. A small number of lawyers advertise in these magazines; anyone associated with these horrible publications is probably not who you want representing you in court.

4. TV and Billboards: I can't tell you how many awful advertisments for lawyers I've seen on TV and billboards. Again, it stinks of desperation. If you're on TV yelling about your services, you probably don't have that many clients. A sure sign that a lawyer is either not good or doesn't have much experience or is difficult to work with.


So now that we've talked about some of the ways not to get a lawyer, let's talk about how to get a lawyer in positive ways:

1. Internet: Internet is king. Any firm worth their salt should have a heavy presence online. If they don't, they probably aren't keeping up with the times and that spells bad news for you.

2. Referrals: The second best way to find a lawyer. The reason this was second and not first is that for a firm to rank number one on Google takes a lot of time, money and effort. They would have to be a successful firm to do so which means they probably have a long list of happy former clients. But cases vary from one to the next and your Great Aunt Jill might've gotten a good contract lawyer that does terrible for you. But, it's still a great way to find good lawyers despite the problems.

3. Online Reviews: My partner, Joshua Baron, has a perfect 10 out of 10 Avvo score. I haven't seen a single other lawyer that has that (though I'm sure there's a few). He received that score because he wins lots and lots of cases and publishes about them and is respected by his peers. Online reviews can really help you sort out who to go with. One thing to keep in mind though: sometimes, a lawyer can do an excellent job and the client still may go online and write a bad review about them. I once got a criminal case dismissed and my client gave me a bad review because it took me three months to do it and she wanted it done immediately. So take them with a grain of salt.


In the end, you're going to have to go with your gut and evaluate a lot of different lawyers. I recommend you speak to at least three different lawyers that specialize in your needed area. Ask a lot of questions like how many cases they have handled, how many victories they have, how many losses, and how quickly you could get in touch with them if you needed to.

After all is said and done, picking a good lawyer just comes down to how you interact with them. The number one factor people have stated is important to them when picking a lawyer is likability. The only way you'll know if you like them is to meet with them so make sure you put in a little bit of work before hiring. Otherwise, you might get the guy in the turtle-neck and pay $10,000 for something you could've done yourself.

Wednesday, October 24, 2012

Utah DUI and Your Driver License: The Saga Continues

In a previous post we talked about the Driver License Division taking away your license after you receive a DUI in Utah and what to do about it. 

Just to make it more difficult, they change the laws and rules every few years, sometimes every year, and many people don't know what to do after getting a DUI in order to keep their license. While you're busy hopping from one foot to the next, they suspend your license and make it much more difficult to keep your job, get to school, or shuffle your kids around. 

Here's a few additional tips and updates on DUI's and your license to try and prevent the DLD from suspending. If you haven't read our previous post on DUI's and your license, read that first here:


It's just amazing to me how many people do not request a driver license hearing after getting a DUI. An attorney can and should do it for you but it has to be done within 10 days. No exceptions. Not even if your grandma's in the hospital. Not if your dog's sick. Not even if the series finale of Breaking Bad is on and you just can't get down to the Driver License Division. You just have to do it. 

If you can't hire an attorney right away (and as I wrote in my previous post, everyone should hire a good DUI attorney right after receiving a DUI. Most firms offer extremely flexible payment plans so take advantage of them) then you will need to request it yourself. It's easy: just go down to your nearest Driver License Division Office and request a driver license hearing for your DUI. Many people choose to do it by mail. I wouldn't recommend this. Mail gets lost or misfiled and your driver license is too important to take that risk. Just go down there and do it or hire a good DUI attorney to do it for you. 


This should go without saying but many people do the DUI driver license hearing themselves and predictably lose their driver licenses. I wouldn't install my own plumbing system: you hire experts for that sort of thing. Same thing goes here. Your best shot is to have someone in the DUI hearing that knows what they're doing. 


Having a prior DUI is asking for you to lose your license. Even if you win the hearing, the DLD has been pulling some sneaky tricks lately. For example, lets say a good attorney gets your DUI dropped to reckless driving or impaired driving, which shouldn't suspend your license. Well if your current DUI is your second, it still suspends, even if you're not convicted of DUI but of something else! Also, even on a first DUI, if you have another alcohol related offense on your record, you may be required to get an ignition interlock device. When enter a deal on the DUI, the Driver License Division suspends your license indefinitely stating that you were required to have an interlock device and they won't give it back unless you get one installed and get them proof. The point is: if you got a DUI, the DLD wants to take your license and will do everything possible to take it from you. 


Many states have work exception licenses granted to people who receive DUI's. For example, Nevada allows you to drive to work after serving half of your 90 day suspension on a first DUI. Utah does have a work exception, but as one employee at the DLD told us, he has never seen it granted on a DUI. You have to get the DUI reduced to see if you even qualify and then you will have a hearing and be denied. I have never, in the over 1500 DUI cases I've handled as both a prosecutor and a DUI defense attorney, seen even one of these work exception licenses granted. Don't hold your breath if you think this is a way out of your suspension. A much better way is to hire a good DUI attorney and let them do their job. 


DUI's are unique crimes. You have a massive lobby group, Mothers Against Drunk Driving, who are shaping the laws to be less and less favorable to DUI offenders. The license is where they hit you the hardest. If your license is important to you, and especially if you have a special driving privlege license like a CDL, don't roll the dice just to save a few bucks on a DUI attorney. Hire one and let them deal with the headache.