64 Utahns arrested for DUI over Halloween weekend

According to local reports, Utah highway patrol arrested 64 individuals for driving while under the influence or "DUI" this weekend. http://www.sltrib.com/sltrib/news/52813381-78/utah-arrests-patrol-troopers.html.csp

The penalties for this action can be severe and range between a class B misdemeanor and a 3rd degree felony. http://le.utah.gov/~code/TITLE41/htm/41_06a050300.htm Your insurance will also likely take a huge hike as a result of a conviction.

Field sobriety tests and even breathalyzer tests are not perfect. If you have been charged, you need aggressive and competent legal help. Contact Avery Burdsal & Fale for help today.    

Utah's Purcahse, Possession, Consumption of Alcohol by a Minor Statute

Utah’s Revamped Law Dealing with Unlawful Purchase, Possession, Consumption of Alcohol by a Minor

            I became intrigued by the legal process after witnessing one of my buddies be charged with the unlawful purchase, possession, consumption of alcohol by a minor. My friend was at a party in Cedar City Utah where alcohol was being consumed by some. The police raided the party. My friend, who was under the age of 21 at the time, had not consumed any alcohol, and he was confident that he would be treated fairly. He was wrong. Although some of the individuals who were not drinking alcohol were given breathalyzer tests and let go, a police officer took objection to my friend and issued him a citation without giving him a chance to blow. (This same police officer later lied in court, but that’s another story.)

           

            Utah has recently revamped its “Unlawful purchase, possession, consumption by minor” statute. It is now codified in Utah Code Ann. § 32B-4-409.  This article will briefly discuss this new code and its application.

The New Unlawful Purchase, Possession, Consumption By Minor Code

 Under the new code, it is unlawful for a minor to:

     (a) purchase an alcoholic product;
     (b) attempt to purchase an alcoholic product;
     (c) solicit another person to purchase an alcoholic product;
     (d) possess an alcoholic product;
     (e) consume an alcoholic product; or
     (f) have measurable blood, breath, or urine alcohol concentration in the minor's body.

            There are a few notable points under the purchase, possession, consumption of alcohol by a minor statute. For instance, A “minor” for the purposes of the unlawful purchase, possession, or consumption statute is anyone under the age of 21 (not 18). UtahCode Ann. § 32B-4-409(5)(a).

A trickier point is when is a minor in “possession” of alcohol. Possession can be shown as actual physical possession (i.e., the alcohol is in the minor’s hands) or “constructive possession.” To show constructive possession of alcohol by a minor, the State would have to show some sort of connection between the alcohol and the minor to permit an inference that the minor had both the power and the intent to exercise dominion and control over the alcohol. There must be some facts which show the minor intended to illegally use the alcohol as his or her own. State v. Layman, 985 P.2d 311 ¶12 (Utah 1999). Also, depending on the circumstances of where the minor is located will determine whether this test can be met. For instance, just living in a house where marijuana was grown was not sufficient to establish constructive possession of marijuana. State v. Fox, 709 P.2d 316 (Utah 1985).

The final tricky issue with this statute is whether having a measurable amount of alcohol is sufficient to get a conviction. For instance, blowing a .01 or less is technically a violation of the purchase, possession, consumption by a minor statute. In my experience, many police officers understand that having a trace amount of alcohol can be explainable other than through the consumption (for instance, kissing someone who has been drinking alcohol may leave a measurable amount of alcohol on your breath). Accordingly, some police officers will not issue citations even though you are technically in violation of the statute.  

Penalties for violating the purchase, possession, consumption by minor statute

            Okay, so how bad can it get for drinking a little alcohol? Pretty bad. Firstly, violating the purchase, possession, consumption by minor statute is a class B misdemeanor. A class B misdemeanor is punishable up to six months in county jail and a fine up to $1,000.00. http://www.utcourts.gov/howto/criminallaw/penalties.asp#Misdemeanors. I have rarely seen jail time ordered in a first offense, just a monetary penalty that ranges in the $400.00 - $600.00 range.

            Probably a more significant punishement for violating this statute is the implications on your driving privileges. Upon a conviction, the minor’s driver’s license shall be suspended for one year. You may also now get to pay for extremely expensive automotive insurance (alcohol related insurance).

Conclusion

            My friend originally tried to fight his purchase, possession, consumption of alcohol by minor charge on his own. However, it was not until an attorney stood up to the state that my friend was cleared and the case ultimately dismissed. You need a good criminal defense attorney fighting for you too. 

Tongans Found Guilty of RICO.

            Six Utahans accused of being members of the Tongan Crip Gang (“TCG”) were recently found guilty of being part of a racketeering conspiracy. Although the basis of these charges were robberies dating back to 2003, the robberies were not the issue; the charge was that these accused individuals had engaged in Rackateer-Influenced and Corrupt Organizations (“RICO”), or in other words, “the crime of being a criminal”.  

            RICO was passed in 1970 as a tool for attacking organized crime syndicates seeping into legitimate business (think mobsters taking over the waterfront). However, few RICO prosecutions have dealt with this sort of activity. As one scholar notes, “instead, prosecutors have seized on the virtually unlimited sweep of the language of RICO to bring a wide variety of different prosecutions in the form of RICO indictments.” http://www.ipsn.org/court_cases/rico-crime_of_being_a_criminal.htm

            The basic underpinnings for this expansive use is the definitional hurdles of RICO. What is “organized crime” and what is a “gang” are difficult to define. Utah defines a “criminal street gang” as “an organization, association in fact, or group of three or more persons, whether operated formally or informally; (a) that is currently in operation, (b) that has one of its primary activities the commission of one or more predicate gang crimes; (c) that has as a group, an identifying name or identifying sign or symbol, or both; and (d) whose members, acting individually or in concern with other members, engage in or have engaged in a pattern of criminal gang activity.” Utah Code Ann. § 76-9-802 http://le.utah.gov/~code/TITLE76/htm/76_09_080200.htm.  Reading through this definition, I can only conclude that my Boy Scout troop growing up was most likely a criminal gang.

            It is unfortunate that people can be charged with RICO and face stiff penalties for associating with their friends. As the father of one of the accused individuals stated, “There is no such thing as gang to us. It just means people getting together to have fun.” http://www.deseretnews.com/article/705392059/Verdict-reached-in-RICO-trial-involving-Tongan-Crip-Gang-members.html

            Defending the accused is an important job, as is protecting the accused constitutional rights to assemble. If you are ever accused of RICO, you need to immediately find a good attorney whom you can trust.      

Is Your Criminal Defense Lawyer Effective?

            In almost every criminal conviction that is appealed, the criminal defendant claims that his or her trial lawyer was ineffective.  However, these claims are rarely upheld.

            In Johnson v. State, for instance, Mr. Johnson appealed his conviction for murder. In the criminal proceeding, Mr. Johnson’s attorney did not call a DNA expert. He also did not object to the prosecutor’s closing argument. Finally, he did not assert marital privilege to Mr. Johnson’s wife's daming testimony. (see http://statecasefiles.justia.com/documents/utah/court-of-appeals-published/johnson060107.pdf?1316644072.) These are all really bad mistakes. Despite these short comings, the Utah Court of Appeals upheld Mr. Johnson’s conviction.

            To prevail on a claim that a criminal defense attorney rendered ineffective assistance of counsel, a defendant has to show (1) that the counsel’s performance was objectively deficient, and (2) that a reasonable probability exits that but for the deficient conduct the criminal defendant would have received a more favorable result. Unfortunately, there is a “strong presumption that the trial lawyer rendered adequate assistance.” State v. Clark, 2004 UT 25, ¶6.

            So here’s the takeaway: if you are charged with a crime, your criminal defense attorney better do a good job the first time around. How do you know if your criminal defense attorney will do a good job? Here are some factors to consider:

1. Does your criminal defense lawyer care about you? If you do not feel like your criminal defense attorney cares about you, find a new one. 
2. Does your criminal defense attorney call you back promptly, respond to your questions, visit you if you are incarcerated, and otherwise keep you updated on the status of your case? Criminal defense attorneys that fail to communicate do not care. Yes lawyers are busy, but you should expect a return call from your lawyer within 24 hours.
3. Has your criminal defense attorney been recommended to you? You can find a good criminal defense attorney in the yellowpages or online, but talk to your friends first. A good criminal defense attorney is hard to find.
4. Is your criminal defense attorney experienced in your type of criminal case? There is a big difference between a criminal charge of securities fraud and retail theft. Ask your criminal defense attorney how many cases similar to yours he or she has handled.
5. Does your criminal defense attorney have a good relationship with the prosecutors? Many criminal defendants think a big-mouthed lawyer is the best. In my opinion, however, the best criminal defense attorneys are not the loudest. Rather, the best have a developed and professional relationship with the prosecutors that they can use to your advantage. There is a time for lawyer chest beating, but it should be the exception not the rule.  

             This is certainly not a comprehensive list, but it should point you in the right direction. Your future is in the hands of your criminal defense attorney. If you would like to speak with an attorney at Avery Burdsal & Fale about your criminal defense needs, contact us at 801-788-4122 or visit us on the web at http://www.abflegal.com/.