Year: 2014

Child Pornography

Federal and state laws make it a crime to produce, possess, distribute, or sell pornographic materials that exploit or portray a minor (under the age of 18). Increasingly, child pornography laws are being utilized to punish use of computer technology and the Internet to obtain, share, and distribute pornographic material involving children, including images and films.

Federal laws addressing child pornography are:

18 U.S.C. § 2251– Sexual Exploitation of Children

  • (Production of child pornography)
  • 18 U.S.C. § 2251A– Selling and Buying of Children
  • 18 U.S.C. § 2252– Certain activities relating to material involving the sexual exploitation of minors (Possession, distribution and receipt of child pornography)
  • 18 U.S.C. § 2252A– Certain activities relating to material constituting or containing child pornography
  • 18 U.S.C. § 2260– Production of sexually explicit depictions of a minor for importation into the United States

First-time offenders found guilty of producing child pornography may be sentenced to fines and between 15 and 20 years in prison. Offenders may be prosecuted under federal, state, or both jurisdictions for any child pornography offense.

Utah’s Legal Definition of Sexual Exploitation of a Minor  U.C.A. Sec. 76-5b-103

(1) A person is guilty of sexual exploitation of a minor:

(a) when the person:

(i) knowingly produces, possesses, or possesses with intent to distribute child                                 pornography; or

(ii) intentionally distributes or views child pornography; or

(b) if the person is a minor’s parent or legal guardian and knowingly consents to or                        permits the minor to be sexually exploited as described in Subsection (1)(a).

(2) Sexual exploitation of a minor is a second degree felony.

(3) It is a separate offense under this section:

(a) for each minor depicted in the child pornography; and

(b) for each time the same minor is depicted in different child pornography.

(4) It is an affirmative defense to a charge of violating this section that no person under 18 years of age was actually depicted in the visual depiction or used in producing or advertising the visual depiction.

(5) In proving a violation of this section in relation to an identifiable minor, proof of the actual identity of the identifiable minor is not required.

(6) This section may not be construed to impose criminal or civil liability on:

(a) any entity or an employee, director, officer, or agent of an entity when acting within                the scope of employment, for the good faith performance of:

(i) reporting or data preservation duties required under any federal or state law; or

(ii) implementing a policy of attempting to prevent the presence of child pornography                   on any tangible or intangible property, or of detecting and reporting the presence                     of child pornography on the property; or

(b) any law enforcement officer acting within the scope of a criminal investigation.

Renumbered and Amended by Chapter 320, 2011 General Session

If you are aware that you may be accused of a sex crime, you should contact an experienced Utah criminal lawyer with the Law  Office of Stevens & Gailey to advise you even if you are not currently charged. Once a child porn possession or other sex crime investigation is underway, you need a lawyer to help prevent charges from being filed or to make sure you do not make missteps in dealing with law enforcement officers. You want to minimize the disruption to your every day life as you fight the charges in court.

We can assess the strength of the case against you, inform you of the consequences of a conviction. The simple accusation of a sex crime like child sex abuse or possession of child porn can destroy someone’s life even if the allegation does not end in a conviction.

It should be noted that if you are a witness in some cases, a Lawyer is advised, specifically if you are a witness who wants to claim spousal priviledge. If you believe you may incriminate yourself if you testify, you need an lawyer to advise you as to whether you may appropriately refuse to testify based on your Fifth Amendment rights.

Contact the lawyers with Stevens & Gailey, we are here to help you.

Can I Expunge My Juvenile Criminal Record?

Yes

Can I Expunge My Juvenile Criminal Record?

What happens to a youth offender’s juvenile court record when the youth becomes an adult?  The answer is complex and requires explanation:

Offenses committed by youth offenders are usually handled in juvenile court, in most cases criminal charges that occurred prior to the age of 21.

It is important to note that even as an adult the  juvenile court record does not simply disappear. Youth offenders who wish to have their juvenile court records removed must follow a complicated and exacting process.  Provided int the Utah Juvenile Court Act.

Pursuant to the Utah Juvenile Court Act, 78a-6-1105 however, not all offenses can be expunged. For example, a juvenile court record with an adjudication of aggravated murder or murder may not be expunged.  See. U.S.C. Sec. 78-6a-1105(5).

Can I Expunge My Juvenile Criminal Record?,/h2>

To qualify for expungement for juvenile offenses, a youth offender must meet certain criteria.   The offender is qualified to petition for expungement only if he or she is 18 years of age and at least one year has passed from the date the juvenile court terminated jurisdiction; or, if the youth was committed to a secure youth corrections facility, from the date of the youth’s release from the custody of the Division of Juvenile Justice Services. See Juvenile Court Act, 78a-6-1105.

A person petitioning for expungement of a juvenile court record must do the following:

  1.  Obtain a criminal history report from the Bureau of Criminal Identification and include the report with the petition.
  2.  The person must include in the petition agencies known or alleged to have documents related to the offense for which the person seeks expungement.
  3.  Send a copy of the petition to the county or district attorney, and a victim can request notice of such a petition.
  4.  It should be noted that a person may meet all of the above criteria and yet stillnotqualify for expungement. The petitioner must go before the court to demonstrate that expungement of his or her juvenile court record is appropriate.

See Juvenile Court Act, 78a-6-1105.

The court must determine whether the petitioner has been rehabilitated to the court’s satisfaction. The court takes into account:  (a) the petitioner’s response to programs and treatment, (b) behavior after adjudication, and (c) the nature and seriousness of the conduct.

The court may not grant the petition, if after the juvenile court terminates its jurisdiction or the person has been released from Juvenile Justice Services: (i) the petitioner has been convicted of a felony or a misdemeanor involving moral turpitude, or (ii) there is a felony or misdemeanor proceeding pending or being instituted against the person, or (iii) a judgment for restitution on the offense for which the expungement is sought remains unresolved.

If the court grants an expungement, the proceedings in the youth offender’s case are considered never to have happened.  See Juvenile Court Act, 78a-6-1105.

The process is complicated, and a youth offender may not qualify for expungement, or a court may deny the petition.  Contact and speak with our experienced attorneys with Stevens & Gailey, P.C. for a free consultation on how to proceed on your juvenile expungement.

Can I Expunge My Juvenile Criminal Record?

Cautions with Facebook

Cautions with Facebook

Cautions with Facebook

With the seeming omnipresence of Facebook sharing and the abundance of high-quality mobile phone cameras, it’s easier than ever for parents to choke the Internet with pictures.

Here are five reasons (including a few legal ones) that you may want to keep baby pics off your Facebook account:

Cautions with Facebook
Cautions with Facebook
  1.  Your baby pictures could be used/viewed as child pornography. In some rare instances, you may actually be accused of producing child pornography: That happened to a Utah couple after a photo lab worker reported pictures of the father kissing his naked baby to police. The charges were eventually dropped, but the couple was still deported following the incident.
  2.  Potential misappropriation for commercial purposes.Pictures of your children online can easily be copied and used for unwanted purposes that you may never know about. Immoral bloggers and website owners may find and use images of your cute baby for their own commercial gain without your permission.
  3.  The Internet rarely forgets.Although many websites, Facebook included, offer users the options of deleting old posts, sometimes it’s too late.  Even if you later decide to delete your baby’s pictures from Facebook, other users may have already saved or posted the image. The image may have also been cached or stored elsewhere without your knowledge.
  4.  Your baby pic could turn into a viral meme.A less likely, but no less regrettable, risk is that a particularly cute or funny picture of your child could become a meme — an image that spreads throughout the Internet via user posting. While for Internet aficionados this may be desirable, your child may not appreciate being Internet-famous for a baby photo later in life.
  5.  Overshare overload.Keeping baby pictures off of Facebook may not only be a good choice for you and your child, but it may also spare your friends and colleagues from baby picture overload.

Cautions with Facebook

Can My Case be Dismissed Because the Officer took Too Long?

Can My Case be Dismissed Because the Officer took Too Long?

A traffic stop should be reasonably short, but often drivers are subjected to what may seem like hours of detention. Sitting behind the wheel interminably with a cop’s spotlight pointed directly in your side view mirror, you may feel like something unlawful is going on.

A police officer may hold a driver during a traffic stop, unfortunately there is no ruling as to how many minutes or seconds is permissable.

Here are some of the principles that can determine how long is too long for a traffic stop:

You can not be Unreasonably Prolonged

The U.S. Supreme Court has never given a bright-line rule with regard to how long a traffic stop can last. However you must remember that a lawful stop can become unlawful “if it is prolonged beyond the time reasonably required to complete the initial mission,”  see Illinois v. Caballes in 2005.  This means that when a cop pulls you over for a traffic stop, the officer must have some reasonable suspicion that you’ve committed a traffic or criminal offense.

Once the stop is accomplished (i.e., your car is pulled over), then the officer must investigate the offense or issue a ticket for that offense within a reasonable timeframe.  For example, if you are caught failing to stay in one lane and get pulled over, a police officer may not detain you for longer than is reasonably necessary to investigate that traffic offense — unless there is new evidence of a crime that turns up during the stop. (i.e. the officer smells alcohol eminating from your vehichle.)

The Nevada Supreme Court found in 2013 that detaining a driver after issuing a traffic warning (in order to accomplish a drug sniff) was an unreasonably long detention.

Can My Case be Dismissed Because the Officer took Too Long?

If the Officer has Probable Cause he/she May Conduct More Investigation

While a detention under reasonable suspicion must be limited in time and scope to investigating or executing the offense initially observed, an officer may prolong a traffic stop if new evidence provides probable cause for arrest or search.

For example, if an officer stops a vehicle for running a red light, smells marijuana wafting from the driver’s seat, and sees signs of intoxication from the driver, then that may provide probable cause to search the driver for marijuana and/or perform field suubriety tests. And these investigation steps may prolong an ordinary traffic stop for a bit longer than usual.

These are just a few of the factors that courts may use to determine whether a traffic stop took too long. If you feel like you were kept unreasonably long at a traffic stop, contact our office for a free consultation today.

Can My Case be Dismissed Because the Officer took Too Long?

What Criminal Defense Attorneys Do

What Criminal Defense Attorneys Do?

What Everyone Else Thinks Criminal Defense Attorneys Do

We are “innocent until proven guilty.”  This certainly stands true in criminal defense.  The important thing to note is that many of our clients are innocent, and we are trying to help prove it.   Admittedly, some clients are guilty, and don’t attempt or desire to hide it.  Those client’s, however, aren’t trying to get away unscathed, they are trying to make amends and get on with their lives.  From a moral perspective, Stevens & Gailey, P.C. isn’t trying to litter the streets with criminals, but trying to get just and fair deals for our clients and not destroy their lives due to a mistake.

Why Criminal Defense Attorneys Do What They Do

Many of our clients believe cooperating with the police means they will get a better deal in the end.  It is imperative to know that sometimes people say things that will lead to their conviction or admit guilt, regardless of whether or not they are truly guilty.  Many people are intimidated into saying things that they don’t mean or aren’t true.  Often times, detectives will pretend to be your friends stating everything will be ok or easier if the individual just confess.  This is completely legal, by the way.  Other times, detectives will interrogate suspects and say what they feel is necessary to get them to admit guilt, regardless of whether or not the information they are feeding you is true.  This is also legal.

For me, from a moral perspective, we at Stevens & Gailey, P.C. are trying to help prevent confusion within the legal system.   When a client comes in and admits they are guilty, they aren’t asking our attorneys to get them off with no reprocussions; they are asking our attorneys to help them right their wrongs.  Many are aware of the reality that they will have to pay a fine, do community service, or in extreme cases, serve jail-time.  These clients, however, are very aware and have accepted the fact that this is the case, and our attorney’s don’t hide the probability of these outcomes.

The best way to defend yourself is to know your rights.  To know your rights, you have to understand the law.  The problem is that there is so much law – both federal and state –  that unless you’ve studied the law significantly, there is no way for you to truly understand it.   That is why our attorneys are here

Poaching in Utah Criminal Defense

As the Fall hunting season begins: hunters beware!

If asked most hunters would say Poaching is “to kill any animal when you had no right to”.

The common sense definition of poaching makes sense, unfortunately the Utah Code is not so cut and dry. Utah criminal law has variying degrees of mens rea or mental levels of culpability that can lead to a criminal conviction. They are as follows: 1) intentionally, 2) knowingly, 3) recklessly, and 4) negligently.  See (Utah Code § 76-2-101(1)(b)(i) ).

Poaching in Utah Criminal Defense
Poaching in Utah Criminal Defense

People generally tend to think that if they did not intend for something to happen, or did not mean for a specific result to occur, then they should not be found guilty. However, do not be fooled, Utah law, is not written in such a way.

Under the Wildlife Resources Code of Utah § 23-20-3 states, in part, that:

(1) Except as provided in this title or a rule, proclamation, or order of the Wildlife Board, a person may not:

(a) take protected wildlife or its parts;

(b) collect, import, possess, transport, propagate, store, donate, transfer, or export protected wildlife or its parts;

(c) take, possess, sell, purchase, barter, donate, or trade protected wildlife or its parts without having previously procured the necessary licenses, permits, tags, stamps, certificates of registration, authorizations, and receipts required in this title or a rule, proclamation, or order of the Wildlife Board;

(d) take protected wildlife with any weapon, ammunition, implement, tool, device, or any part of any of these not specifically authorized in this title or a rule, proclamation, or order of the Wildlife Board;

This statute is basically a catch all, and allows for prosecution even when a Utah hunter did not intentionally break the law. An individual can even be prosecuted under this section if they made an honest mistake as to their location (thinking they were on a different tract of land).

The statute is allowed to catch ‘honest mistakes’ because of paragraph (3)(b). The paragraph says: “does so with criminal negligence as defined in Subsection 76-2-103(4). § 76-2-103(4) says:

“With criminal negligence or is criminally negligent with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise in all the circumstances as viewed from the actor’s standpoint.”

A hunting example of criminal negligence would be if a hunter, who has a Utah hunting license, thought he was on land he could shoot the animal and was actually 5 feet off the land. Even though the hunter did not intend to take an animal illegally (poach), and had a license, he could be prosecuted under § 23-20-3.

Hunters, be careful. Know your location before you pull the trigger. Because, even though you have a license, and do not have the intent to take an animal unlawfully “It was an honest mistake”.  You could still be prosecuted for an honest mistake, or in the eyes of Utah law, criminal negligence.

Source: Utah State Legislature, “Title 23 Utah Criminal Code Chapter 20 Section 3,” accessed on Sept. 19, 2014