Month: April 2015

Possessing Drugs Does Not Necessarily Mean Your Guilty of Possession

Possessing Drugs Does Not Necessarily Mean Your Guilty of Possession

Just because you may be found in possession of cocaine, marijuana, or another drug, does not necessarily mean that you are guilty of possession of a controlled substance.  Before you plead guilty contact our office, and speak with one of our attorneys today for a free consulation, 801-641-2933 and find out if the State can even convict you (the case against you may have to be dismissed). The State must prove that you intended to use the drugs as your own.

For example, a parent may find drugs in a child’s room, and pick them up.  The parent clearly has them in their hands, but is he/she innocent? Let’s assume he/she has no intent to control them for their illegal purpose.  The police seize drugs of of people every day, yet they don’t get charged with illegal drug possession, why? This is a difficult concept, but the Utah Supreme Court has done a great job breaking this down in State v. Fox, 709 P.2d 316.

In Fox, the Court said that a conviction for possession of a controlled substance with intent to distribute requires proof of two elements:

(I) that the defendant knowingly and intentionally possessed a controlled substance; and

(II) that defendant intended to distribute the controlled substance to another.

The Court noted that “actual physical possession is not necessary to convict a defendant of possession of a controlled substance.” In other words, if a drug dealer intends to sell the drugs that he has in his basement, he still “constructively possesses” those drugs even if he’s in another country on vacation. Why? Because he still has control over the drugs.

It is important to distinguish that a person “who might know of the whereabouts of illicit drugs and who might even have access to them, but who have no intent to obtain and use the drugs can not be convicted of possession of a controlled substance.”

The Court further stated that “knowledge and ability to possess do not equal possession where there is no evidence of intent to make use of that knowledge and ability.”  Many defendants do not know this, and they simply plead guilty.

In essence under Fox, in order to find that a defendant had constructive possession of a drug or other contraband, it is necessary to prove a link with the defendant and the drug to permit a reasonable belief that the defendant had:

  1. A) thepower; and
  2. B) theintentto exercise dominion and control over the drug.

Finally, in order to proceed against you, the State must convince a judge that they have some basis to presume you had both the power and the intent to exercise dominion and control over the drug. IT CAN NOT SIMPLY BE ASSUMED.

Courts will look to other things, to look at intent for example:

1) Did you admit the drugs were yours, or make other “incriminating statements”?

2) When the cops showed up did you run to hide the drugs, or engage in other “incriminating behavior”?

3) Were the drugs found in a specific area over which you had exclusive control like in your bedroom (in your closet or drawer containing your personal clothing or other personal effects).

4) Was there a presence of drug paraphernalia among your personal belongings?

In every case, whether a person has constructive possession of drugs is “a factual determination” which depends on the facts of each case. For an analysis of the specific facts of your case, call us today for your free consultation.

DUI’s and the Suspension of Your License

DUI’s and the Suspension of Your License

In addition to receiving fines, jail time, community service, and other penalties, Utah drivers who are arrested for Driving Under the Influence will also temporarily lose their driver’s license.  A license suspension can be the start of a downward sprial for people who live and work in Utah, especially those who rely on their cars to commute to work, get to school, or bring their children to daycare.  So how can you restore your suspended Utah driver’s license after being charged with drunk driving. Dui attorney utahDui attorneysDui utah

How Long Does Utah’s DUI License Suspension Last?

The answer to this question really depends on the nature of the underlying offense.  Factors like: the total number of intoxicated driving offenses; whether you refused a breathalyzer test; and your age at the time of the incident can all impact the length of your license suspension. Utah criminal defense attorney

A minor driver whose cases involved underage drinking are subject to Utah’s zero tolerance “Not a Drop” law, which prohibits minors from driving with any trace of alcohol in their system — even with a BAC well under 0.08%, the normal threshold for making DUI arrests. The threshold is also lower for commercial drivers, such as professional truckers: just 0.04%, or half the standard level. Drunk driving defense

DUI’s and the Suspension of Your License

Currently the suspension periods by number of offense are as follows:

  • First Offense— 120 days
  • Second Offense— 2 years
  • Third Offense— 2 years

If you were a minor, your suspension period is based on (1) your specific age, and (2) whether the arrest was made on a “Not a Drop” basis (i.e. zero tolerance), or a standard or “Per Se” basis (i.e. BAC of 0.08% or higher).

  • Under 19
    • Per Se — 2 years
    • Not a Drop — 1 year
  • 19 to 20 
    • Per Se — 6 months
    • Not a Drop — 6 months

How can you restore your license?

Be forewarned that your license will be automatically suspended unless you act. Dui lawyers salt lake city

Your first step is to request theDLD hearing.  You must do this within 10 days of being arrested — including weekends, holidays, and so forth — or your legal recourse will be severely limited.  While not impossible, it is extremely difficult to successfully obtain a hearing if you miss the 10-day deadline.  Making sure you meet the deadline will keep the legal process that much smoother, faster, and more efficient for you. Criminal defense attorney ogden utahCriminal defense attorney salt lake city

To request a hearing, fill out the Hearing Request Form supplied by the Utah Department of Public Safety (Driver License Division).  This is a short, one-page form which asks for simple information likeyour license number, your SSN, the county where you were arrested, and the name of your legal counsel.Remember to fax the completed form to the Driver License Division at (801) 964-4499. Dui lawyers in salt lake city

At the hearing, an Administrative Law Judge or “ALJ” will hear your case and determine whether a license suspension would be appropriate, which only underscores the importance of having aggressive legal representation.  Other people who may be present at the hearing include your lawyer, and your arresting officer (though he or she may be “present” via phone). Criminal defense attorney ogden utah

Keep in mind that the hearing is a civil matter, and is completely separate from the criminal component of your case.  If you are later found not guilty, or the criminal drunk driving charges are dismissed, your license can be restored faster.  Lawyers in salt lake city

If you’ve been charged with drunk or drugged driving in Utah, or if you’re facing penalties due to refusing to submit to a breathalyzer test, the experienced attorneys at Stevens & Gailey, P.C.will fight your charges and help get your driving privileges restored.  To set up a private and free case evaluation, call our law office today.

DUI’s and the Suspension of Your License