Category: American Fork

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.

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?

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?

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

New Filing Deadlines for Divorces

There are a few basic rules you should know and keep in mind when calculating deadlines, as the Utah rules have changed as of May 1, 2014.

When to Start?

First, you should know when the time period begins, ie. what day will you count as day “one.”  The Utah Rules of Civil Procedure Rule 6 states “exclude the day of the event that triggers the period.”  For example, if you were to file a Complaint on Monday, you would begin counting on Tuesday, if you are served with a Complaint on Wednesday you should start counting on Thursday.

What about Weekends & Holidays?

When you are counting the days you should count every day, including Saturdays, Sundays and legal holidays.  This is a new this year.  Prior to this change, for some deadlines weekends were not included – THIS IS NO LONGER TRUE.

Additionally, if the time period ends on a weekend or legal holiday, move your deadline to the next day that is not a weekend or legal holiday.  For example, if you were counting 21 days after being served and the 21st day was on a Sunday, the deadline would actually be Monday.

Most of the time, the deadline to file something is midnight for electronic filing or mailing (postage stamp), but if you are not filing electronically and are filing by hand then you must file by the time the clerk’s office is scheduled to close.

What about Delayed Mail?

If you receive any pleadings by regular mail under Rule 5(b)(1)(A)(iv) then 3 more days are added to the end of your deadline for your time to respond.   If you send a pleading by mail, remember that the other side will be adding 3 days to the end of their deadline. For example, if you received a motion that is to be heard before a judge in the mail, then you have 14 days plus 3 more days before your response would be due.

Does it matter whether I am in front of a Judge or a Commissioner?

Pursuant to the new rules, deadlines for Judges and for Commissioners are different.  You must find out from the court – “Who will be sitting at the hearing?” If the court does not know – assume it is the judge, OR look to the Utah Rules of Civil Procedure Rule 7Rules 26 and 26.1, or Rule 101 to determine whether a judge or commissioner will be hearing the pleadings.

If the pleading is going to be heard by a judge, then you count forward, as described above. For example, if you file a Motion for Summary Judgment to  be heard by the Judge on Monday.  The opposing side will have 14 days to respond under Rule 7, and counting forward 14 days this would be a Monday also, unless it’s a holiday (then move to Tuesday). If the opposing party fails to file a response by Monday, 14 days later, then the response would be untimely.  Most of the time, you will be counting forward – Complaints and Petitions are considered before the judge.

However, commissioners count days for deadlines backwards.  In other words, ONLY WHEN A HEARING HAS BEEN SCHEDULED can you know the deadlines.  For example, if you file a Motion for Temporary Orders, you should also call the commissioner’s clerk to set a hearing so there will be a deadline for the opposing party to respond.  If the hearing is set for Friday the 25th of July, Rule 101 says that for commissioners, the due date for the opposing party to respond is 7 days in advance of that hearing. So, do not count the Friday of the hearing; begin Thursday as day “one” and count backward 7 days. In this case, that would be midnight the 18th of July, also a Friday. Note, that if the date you land on when counting is a holiday, you move in the SAME DIRECTION you were counting to the next non-weekend, non-holiday day. In this case if Friday the 18th were a holiday, the due date is now July 17th for the other party’s response – NOT Monday the 21st.

If you have any questions please feel free to contact or schdule a consultation with one of our attorneys.

Can Police Lie?

We’ve all seen or heard the rumor: if you ask a police officer if they are a police officer, they have to tell you. Nothing could be further from the truth. The reality is, police can, and often do, lie. They can lie about being undercover. They can also lie about anything.

Why Can Police Lie? Efficiency. After all, a police officer wouldn’t be able to do their job very well if they had to just recite actual facts to suspects. For example, let’s assume there are two suspects who are arrested on suspicion of drug trafficking. And, let’s also assume they were actually transporting illicit substances, but the police don’t have any concrete evidence. So, they tell one suspect that his cohort just sold him up the river, confessed to everything, maybe even some extra stuff too just to get them to deny some crimes but admit to other crimes, and that person in turn admits to everything. In an instant, an otherwise evidence-less case is looking significantly stronger. Put simply: the easiest and best way for police to get real, concrete evidence is to manufacture a story and sell it to a suspect.

What Can Police Lie About? Almost anything. A better way to put it is more like they can lie about nearly anything related to the crime, and some things that are not closely related to the crime to a certain degree, depending on the facts and circumstances of the specific case. However, that’s a lot to remember. The take away here is the police can lie about practically anything. Here are some common scenarios where a lie from a police officer tends to dupe those who don’t know better. 1. False Confessions: As mentioned above, it’s pretty common for cops to mince words and put one person against another. They expect emotions to run high, and for the other person to automatically implicate the other, and in doing so, implicate themselves. It sounds ludicrous, but it works surprisingly well. 2. Better Sentence: Cops may also insist that by cooperating a suspect will get a better sentence or may not even wind up being charged at all. Let’s clear up some air about that – the police probably know better than to promise a better sentence, because they have been trained to know that would be illegal (more about that later on). More importantly, the police have absolutely no power to charge anyone (that’s up the district attorney), and they certainly have no final say in what sentence someone receives (that’s up to the judge). The police simply enforce the law and make arrests when the law is broken, and believe me, they are good at that. 3. Other Suspects: It is not uncommon for law enforcement to insist that a person who is a suspect is not the only suspect, or not a suspect at all, and that this conversation is simply to help them figure out the whereabouts of the “real bad guys.” Again, police enforce the law and arrest people, and someone who is being interrogated or questioned by the police wouldn’t be unless they were at least suspected of one thing or another. 4. “Off the Record”: First of all, this may not technically be a lie because there is no “record.” A record isn’t exactly officially created until the questioning is done under oath. Which, even if a police officer turns off a tape recorder and video camera, is absolutely what they will do after they are arrested and they are called in to testify at the defendant’s preliminary hearing: give statements under oath. Are There Any Limits? Fortunately, yes. Unfortunately, they are vague and narrow. Without getting into the legal definitions of how far is too far, the main consideration is whether or not a lie or series of lies was coercive. In other words, if a police officer makes definitive assurances, or anything leaning towards beneficial treatment or situations unrelated to the crime itself, the lie may have gone too far and the confession will be no good.

If I’m Innocent, I Have Nothing to Worry About. Right? This perhaps the biggest lie of all. Innocent people wind up confessing to things they did not do all the time. Moreover, even if an innocent person doesn’t confess to a crime, it’s remarkably easy to implicate yourself, even if you are completely without fault. For example, a tall man fits a description of a bank robber, is arrested and questioned, and because he knows he is innocent, he tells the truth and admits to being in the bank, near the time of the robbery. He doesn’t need to admit to committing the crime to have already established more than enough probable cause – with perfectly innocent, legal behavior – to charge him. His situation starts to look worse if he starts to answer questions about his financial troubles, all in the name of being innocent and wanting to cooperate. Remember – memory is not 100%. It isn’t uncommon for a blue shirt one day to become a yellow shirt another day; if someone is completely innocent buys into a law enforcement lie about “being innocent means nothing to hide” or “off the record, help us out with other suspects,” gives some information, and is later called in for more questioning or to testify and gives different statements, that innocent person is looking a lot like a guilty suspect.

What’s the Right Thing to Do? Always tell the truth, even if the cops don’t. Ultimately, the specific “right thing to do” depends on many, many more factors than lying cops. However, at the end of the day, being honest is never a quality that makes a person look bad. But in addition to telling the truth, it’s important for people to know their rights. It’s not against the law or being uncooperative to politely tell a police officer that their questions feel accusatory, irrelevant, or are just uncomfortable. From there, it’s usually best practice for a person being questioned to ask if they are a suspect and under arrest. Depending on the answer to those questions, we shouldn’t be afraid to tell law enforcement that if they are going to ask anymore questions, or make anymore statements (truthful or not) they will have to do so to a lawyer.

Remember if an officer has asked you to come and meet with him to talk we at Stevens & Gailey, P.C. will be there during the interview to protect your rights.  Just give us a call.