Month: February 2015

Should I Get a Criminal Defense Attorney?

Should I Get a Criminal Defense Attorney?

We are asked this question a lot.   The answer is yes.  The reason why people may ask the question in the first place is they may not fully understand the full repercussions of what they are facing:

  1. You can go to jail on even a minor offense.

Judges can and do impose jail time for speeding. A simple speeding moving violation can land you in jail. You have to realize that a lot of what your penalty is going to be is determined by the judge. They’re given great flexibility within a wide framework. Even if you have a minor offense, the judge can send you to jail if they feel it’s necessary.

Much of the time, a great criminal defense attorney can prevent this.

  1. The law does not take into account “collateral consequences.”

An example: let’s say you love hunting. You get charged with even a minor disorderly conduct that is domestic violence related and you walk in without an attorney and plead guilty. You are now not allowed to purchase or own firearms. If you are found in possession, it is a felony and technically a federal offense that can be investigated by the FBI and prosecuted by the United States Attorney’s Office (which does happen).

Or, let’s say you get a minor misdemeanor marijuana conviction and the court just imposes a fine. You think it’s your lucky day. Well what no one told you is that your driver license is now suspended for six months.

There’s thousands of little things like this that a good, experienced criminal defense attorney can warn you about or avert all together. Don’t leave your future to chance.

Should I Get a Criminal Defense Attorney?

  1. Things can stay on your record for the rest of your life.

Not everything can come off your record. For example, if you plead to multiple offenses at the same time, even if they are minor offenses, you may not qualify for expungement and you will be stuck with those offenses on your record for the rest of your life.

In this economy, it’s difficult enough getting and keeping a job. The last thing you need are your potential employers pulling up criminal offenses.

  1. Even a minor violation of probation can land you in jail for months.

Sometimes, prosecutors give what seems like a great deal to people that are unrepresented. But then they make the probation so strict that it’s nearly impossible to stick to. The person violates the probation, and then the judge can impose whatever punishment up to the maximum they feel like. Even on minor offenses, I’ve seen judges impose months in jail for a violation of probation. The only way to prevent something like that: have someone on your side that knows how to prevent it.

Answer to the Question.

Just as you would not be in an emergency room asking the doctor why you need a doctor, when you’re facing criminal charges, you should not be in the court room asking why you need a criminal defense attorney.  Contact and talk to one of our attorneys today, we offer free consultations, we have the experience and the desire to help you.  You will be grateful you did.

Should I Get a Criminal Defense Attorney?

Were you in possession of the Drug?

Were you in possession of the Drug?

What happens if I am a passenger in the car and the driver my ex-boyfriend has marijuana in the car and on his person.  Can I be charged?

Drug possession is not a blanket charge, and can be broken down in a few different ways. The two main categories drug charges can be placed into are as follows: actual possession, and constructive possession. What’s the difference, and should you care?

You Can Be Charged with Possession… Even if There Are No Drugs on Your Person

You don’t actually need to have any drugs on your physical person in order to be charged with drug possession in the state of Utah.  All that matters is that the prosecutor can prove that you had both the means and the intention to control drugs (or drug paraphernalia), such as keeping drugs nearby while waiting to make a sale.  This is “constructive possession,” as opposed to a suspect allegedly having drugs on their person or in their bag or purse, which is “actual possession.”

Were you in possession of the Drug?

Because constructive possession is more intangible and abstract in nature than actual physical possession, the courts consider factors such as whether or not you made any incriminating statements (which reinforces the idea that it’s best not to speak with police until you’ve consulted a defense attorney, do not ever believe that you can talk your way out of a criminal charge just because you are honest and the office was nice to you), The Court must take into consideration: whether you have a record of drug charges, how near you were physically located to the area in which the contraband was located, and whether you were acting suspiciously (showing signs of drug intoxication, e.g. aggressive or erratic behavior).

State v. Cardona-Gueton: Proving a “Sufficient Nexus”

Suspicious circumstances alone are not sufficient to prove that you are truly guilty of constructive possession.  As with other crimes, the prosecuting attorney must be able to prove beyond a reasonable doubt that you, as the defendant, were exercising control over the drugs in question.   The Utah Court of Appeals in 2012 has ruled the following:

“Constructive possession must be proven by a sufficient nexus between the defendant and the drugs to permit a factual inference that the defendant had the power and the intent to exercise control over the drugs.”

Were you in possession of the Drug?

In Cardona-Gueton the court found that the Defendant did not have drugs on his person, but the link between his ownership of the money, the bicycle, and the presence of the contraband inside, combined with the fact that he had been witnessed behaving suspiciously by the police, ultimately added up to prove constructive possession. This would be the “sufficient nexus.”

Possible Defenses Against Constructive Possession Charges in Utah

As intent is also a key factor in proving guilt, it must also be established that you planned to “exercise control” over the contraband in question.  If were not in a position where you could have exercised control — perhaps because you weren’t even present when the drugs were left in a certain room or vehicle, or because you can’t identify a substance and didn’t even know what it was, or perhaps because you’re a single employee at a vast business with hundreds of people filtering in and out of the building — that may be able to help bolster your defense.  In this way, the complexity of proving constructive possession can sometimes work in the defendant’s favor.

In terms of the potential penalties, it doesn’t make much difference whether you are convicted of actual or constructive possession.  In either case, you would be facing the same amount of jail time and restitution.  Factors which can make sentencing worse, which are known as aggravating factors, include selling drugs in a school zone, committing child endangerment, weapons possession or having a history of prior offenses.  As the amount of drug increases, the penalties become harsher, and a misdemeanor could even become a felony.

If you’ve been charged with constructive or actual possession in Utah, you need an aggressive criminal defense lawyer who can fight for you.  To set up a free and private case evaluation, our attorneys today.

Can I Appeal?

Generally

Simply put an appeal is a review by a higher court of a lower court’s or agency’s final, sentence, judgment or decree.  In most cases an appeal is not a new trial, and no new evidence will be accepted. The only information the appellate court will consider on appeal is: 1) the written or recorded transcript of the hearing or trial, 2) any items offered as evidence at the hearing or trial, 3) the documents in the court or agency file or 4) the written briefs filed in the appeal.

The exception to the above rule is when you want to appeal the sentence you just received at justice court for a criminal or traffic offense.

An appeal of a justice court sentence goes to the district court, and results in a trial or hearing de novo. De novo means the matter is tried all over again, that you receive a new trial. This is different from other appeal procedures, in which the appellate court does not hear evidence. It is important to note you only have 30 days to file “A Notice of Appeal”  with the justice court after the judge made his/her sentence against you.  If you do not file within that small window of time, you have waived your right to an appeal of the judges sentence.  The procedures for a justice court appeal in a criminal matter are more fully layed out in Utah Rule of Criminal Procedure 38 and Utah Code Section 78A-7-118

An interesting concept about Justice Court Criminal appeals is that the Judge in the District Court can not increase a sentence above what was ordered at the Justice Level.  This is to not sway people from filing criminal appeals in Justice Court.