5 Big Lies About DUIs in Utah

Screen Shot 2013-12-05 at 8.02.05 AMMany people, including judges and attorneys, have the wrong perspective about DUIs in Utah. A lack of knowledge in the area of DUI can have dire consequences to a citizen without realizing it.  The Big Lies are:

  1. A DUI is a “simple charge.”  I hear it all the time.  “Should I just go in and plead guilty?”  Without knowing it, doing so puts your job, your license, your living situation, your gun rights, and your normal ordinary life at risk.  A DUI prevents you from having a concealed weapons permit, can prevent you from having many jobs and security clearances, will suspend your license, and can cause problems with renting an apartment.  In this competitive job market, a DUI on your record in Utah, can be the difference of not getting a job.
  2. A DUI is just like any other Criminal Charge.  A DUI in Utah is one of the most complex areas of law.  Different rules apply in a DUI a case than in a run of the mill criminal case.  For example, you have no right to talk with an attorney before you are asked and then forced (with a warrant) to take a chemical test.  You are not given Miranda warnings until the end of the investigation, after you have given evidence against yourself such as field sobriety tests and chemical tests.  Third, in no other area of the law can you be convicted of a crime without committing the crime at that time.  Utah DUI law says you can be under the limit when you drove, but a subsequent test that shows you were above a .08 at the time of the test can still get you charged and convicted of DUI.  Further, a DUI cannot be expunged off your criminal record for 10 years.
  3. You Must be Guilty of a DUI if you were charged.  Police officers are human and make mistakes.  They are driven by incentives, promotions, glory, etc. just like everyone else.  It is not uncommon for me to have a client be arrested for a DUI and have a chemical test that shows absolutely nothing in the body that would impair them.  The field tests are not science, they are only indicators.  Many people fail field tests for different reasons than being drunk or impaired by drugs.  The reality, an officer can see clues of impairment in any person that is put through field sobriety tests.
  4. You cannot win a DUI Case.  This is the biggest lie I have heard.  Every case is unique and different.  I’m not saying every case will be won.  However, with an experienced Utah DUI Attorney, your chances of winning your case increases greatly.  Even the worst circumstances in a case can be overcome by good investigation and a well trained DUI Attorney.
  5. DUI is a Minor Offense.  A DUI in Utah is no minor offense.  It used to be viewed as a little more serious than a traffic offense.  Now, it has more serious consequences than many felony charges.  First, a DUI has minimum mandatory sentencing.  Hardly any other crimes in the Utah statutes have minimum mandatory sentencing.  Second, a DUI cannot be expunged for 10 years.  Most felonies can be expunged after 7 years, class A misdemeanors 5 years, and other class B misdemeanors 4 years.  Further, a DUI is permanently on your driver license record.  While you can expunge a DUI in Utah after 10 years off your criminal record, it never gets expunged from your driving record.  A DUI may have a perception of being a minor offense, but in reality, it can be more serious than many felonies.

 

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Posted in Consequences of Utah DUI

Ogden DUI Attorney

IMG_6480I opened my law practice shortly after graduating law school in 1998.  There was no big firm dreams for me.  I did not want to work for someone else.  My dream was to help those in need who could not help themselves.  My dream was to be that down to earth lawyer that a client could contact without much effort, to be the lawyer the client could rely on to give good legal advise, and to be the lawyer that would fight even the toughest cases.

I grew up in Ogden and that is why I became an Ogden DUI Attorney.  Why DUI?  DUI is one of those status crimes that everyone hates, politicians campaign on, and special groups fight for tougher laws and punishments.  It was where my rights, your rights, and the rights all citizens begin to wither away.  Many people I meet tell me “I won’t ever need you, I do not drink.”  Many of those people I later see in my office accused of something they didn’t do, something they did just one time, or something they did many times.  Many people get accused of DUI unsuspectingly.  I’m talking about prescription drugs.  Many people think that because they have a prescription, they cannot be charged with a DUI.  Utah law is very specific.  A person cannot be impaired to the degree they cannot drive their car safely.  So, if you have a prescription drug in your system, and the officer thinks you are too impaired to drive safely, you can and will be charged with DUI.  As a DUI attorney in Ogden, I see this all the time.  It is hard sometimes when a person comes to see me for a consultation, and I have to tell them this is just not going to get dismissed because they have a prescription.  I have to tell them, this is why you will need a lawyer to fight for them.  As an Ogden DUI Attorney, I’m proud to represent people in my community in these charges.  Last month, a man came into my office in Ogden and asked me, “Do you love your job?”.  I looked him straight in the eye and said “YES.”  I love the law.  I love helping people.  A deceased lawyer in Texas, Stuart Kindard had the motto “Protecting the Lord’s children who have fallen short of perfection from the wrath of those who believe they have attained it.”  It’s one of my favorites.  It is an honor for me to be an Ogden DUI Attorney to represent people in the entire State of Utah against DUI.  I love helping good people in bad situations.

Posted in Hiring an Attorney

Driver License Suspensions for Minors who get a DUI in Utah

 I was presenting to UACDL attorneys on Drivers License Suspensions.  An area that became real confusing is the area of minors who get a DUI.  The reason this gets so confusing is because there are administrative based suspensions and then there are conviction based suspensions.

Utah code 53-3-223 (7)(a)(ii)  provides that a person under 21 years of age is suspended administratively for a period of six months 30 days after arrest.  If it is a second offense, the suspension period is two years or until the person is 21 years old, whichever is longer.  This all happens before the person goes to court.

Here is where the confusion sets in.

After the Drivers License Division suspends on an administrative action, then the person goes to Court and pleads or is convicted of a DUI.  Utah Code 41-6a-509 provides the following:

19 years old to 21 years old:  Suspension is for a period of one year.

19 years old to 21 years old second offense:  two years or until 21, whichever is longer.

Under 19 years old:  Suspension is until 21 years old.

Under 19 years old second offense:  revoke the person’s license until 21 years old.

The next tricky part is that a Court reporting the conviction can reduce the time frames to 6 months if the person completes several items:  screening, assessment, treatment, educational substance abuse, no other motor vehicle convictions, complied with all terms of probation, and a sworn statement of no alcohol consumption.

So in summary, the Drivers License Division will take the initial action for 6 months.  If the person is convicted of DUI, then there is an additional 6 month added.  The additional 6 months may be reduced by the Court back to the original 6 months if the person complies with the above terms.

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DUI Attorney vs. a Criminal Defense Attorney

 The question has come up twice this month from two different sources.  I was asked, "What is the difference between a DUI Attorney and a Criminal Defense Attorney."  The simple, but circular answer is all DUI attorneys are criminal defense attorneys, but not all criminal defense attorneys are DUI Attorneys.  The differences is the specialty of the attorney.  Similar, all brain surgeons are doctors, but not all doctors are brain surgeons.

This is important when looking for an attorney that you trust to help you with you your case.  Because I specialize in DUI Defense, I have become one of the most sought after attorneys when someone is charged with that crime.  Yes I am expensive.  Like a brain surgeon in his specialty, I have become skilled in what I do.  My clients tend to agree looking at my avvo.com page.  The people I have represented know that when I go into surgery, so to speak, I’m coming out to save a life.

Sometimes people make the mistake of thinking they should save their money and hire just a criminal defense attorney.  You would not go to a general practitioner doctor to operate on a tumor in your head.  Why would you do anything different when it comes to your job, your life, your family, and your driving abilities.  It is important if you are charged with a DUI to seek out a DUI attorney that will operate with the care and skill required to give you the best possible chance of succeeding in your case.   

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When can the Prosecution Appeal a Ruling in a Utah DUI case?

 Under the Utah Code, a prosecutor can appeal decisions from a Justice Court Judge to the District Court under certain circumstances.

 Utah Code 78A-7-118 states:…

(5) The prosecutor is entitled to a hearing de novo in the district court on:

(a) a final judgment of dismissal;

(b) an order arresting judgment;

(c) an order terminating the prosecution because of a finding of double jeopardy

or denial of a speedy trial;

(d) a judgment holding invalid any part of a statute or ordinance;

(e) a pretrial order excluding evidence, when the prosecutor certifies that

exclusion of that evidence prevents continued prosecution of an infraction or class C

misdemeanor;

(f) a pretrial order excluding evidence, when the prosecutor certifies that

exclusion of that evidence impairs continued prosecution of a class B misdemeanor; or

(g) an order granting a motion to withdraw a plea of guilty or no contest.

The certification means nothing as a consequence.  Even if the prosecution loses, they can continue the prosecution even though the certify that their case is impaired by the exclusion of evidence. 

Here is an example of this.  I have been defending a man over the past year and a half.  The justice court judge ruled that the breath test procedures were not followed and that my client had acid reflux disease that clearly brings the breath test result into question.  The judge ruled the breath test evidence to be excluded.  Once the justice court judge made that ruling, the prosecution was able to delay prosecution while the ruling was appealed to the District Court.  The District Court affirmed the ruling.  The prosecutor chose to still prosecute the case without the breath test with the theory that my client was too impaired to drive safely.  In spite of the officer’s descriptions of my client weaving, making wide turns, slow and slurred speech, total failure on the field tests, and balance problems, the jury rendered the correct decision based on the lack of evidence.  What the prosecution cannot do is appeal the jury’s verdict of Not Guilty.  The case ends there. There is no provision for the government to appeal a jury’s verdict of Not Guilty.

Allowing appeals from the prosecution was instituted in the last couple of years.  It is now becoming common place and the District Courts and Justice Courts are becoming bogged down with cases being delayed by the appeals process.  The problem is that the prosecution can do nothing on the case in the justice court, lose the battle, but then win the war at the District Court with surprise witnesses and evidence.

Troyer and its progeny (Utah Appellate Court Cases) regulated prosecution abuse of appealing everything without consequence.  Troyer required the prosecution to dismiss the case with prejudice before the appeal.  If the prosecution won the appeal, the prosecution could proceed on.  If the prosecution lost the appeal, the case was over.  Statutorily, however, the legislature has made an attempt with the requirement that the case be dismissed with prejudice prior to the prosecutions’ appeal.  The problem is that there are two different statutes that allow appeal.  One is for Justice Court, the other is for District Court appeals to the Utah appellate courts.  They are not the same and have caused confusion.

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Utah DUI and Concealed Weapons Permit

Many people do not understand the hidden consequences of a DUI.  One such hidden consequence is the denial of obtaining a concealed weapons permit.  If a citizen already has a weapons permit, it will be revoked.  In fact, the code says you cannot have a permit or your permit can be revoked or suspended if you have had any crime involving drugs, alcohol, or a domestic violence charge.  Utah Code 53-3-704(2)(a) states:

(2) (a) The bureau may deny, suspend, or revoke a concealed firearm permit if the applicant or permit holder:
(i) has been or is convicted of a felony;
(ii) has been or is convicted of a crime of violence;
(iii) has been or is convicted of an offense involving the use of alcohol;
(iv) has been or is convicted of an offense involving the unlawful use of narcotics
or other controlled substances;
(v) has been or is convicted of an offense involving moral turpitude; (vi) has been or is convicted of an offense involving domestic violence; (vii) has been or is adjudicated by a state or federal court as mentally incompetent, unless the adjudication has been withdrawn or reversed; and
(viii) is not qualified to purchase and possess a firearm pursuant to Section
76-10-503 and federal law. 

 

 

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Court Ordered Ignition Interlock Device

 A man’s DUI charge was reduced to Impaired Driving.  Impaired driving will prevent loss of license or reduce a license suspension on a first offense (if the person did not refuse a chemical test).  An ignition interlock device is not normally required either.  However, if a person pleads to an impaired driving, and as part of the plea agreement, he has to install the device on his car for a period of time, then the person’s license is suspended until the device is installed on the vehicle.  No matter how fast the ignition interlock is installed, the person still has to pay a reinstatement fee (currently $30) to the Drivers License Division.  Oddly enough, even if the license was never suspended because the person had the installation done before the suspension occurred, the person still has to pay the reinstatement fee ($30), even though there was nothing to reinstate.  Sounds like another way to generate revenue without justification.

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Can an officer Breath Test me for no reason?

 An officer pulls you over for speeding.  He asks for your license, insurance, and registration.  He goes back to his car and discovers, after a computer check, the license is flagged as an "alcohol restricted driver" because you have a prior DUI or alcohol violation.  The officer has no reason to believe that you have been drinking other than the flag on the license.  Because of the "scarlet letter" on your license, he decides that he is going to see if you have consumed alcohol.  He gets out and sticks a preliminary breath tester in your mouth.  Can he do this based on the sole reason your license is flagged?

I fought this battle last month in Salt Lake.  The officer admitted he smelled no alcohol, saw no signs of impairment, and the only reason for the PBT test was because of the flag on the license.  The judge ruled that the officer went beyond the scope of the initial detention and had no reason to expand the search and scope of the detention by given the driver a PBT test.

This behavior is becoming more common with police officers.  They are not allowed to go on a fishing expedition.  Contact a good DUI attorney if this happens to you.

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What will happen to me at Sentencing for a Utah DUI?

 Every case is different, every prosecutor is different, and every judge is different.  However, Utah has developed the "Utah DUI Sentencing Matrix" as a guide for judges in sentencing a DUI defendant.  Most judges will follow pretty close to the guidelines with minor exceptions.  Driver license suspensions are rarely ordered by the court because the Driver License Division will administratively take care of the suspensions, alcohol restrictions, and ignition interlock issues.  This can be a pitfall for defendants and attorneys that do not understand this action by the Driver License Division.  Often times, people will call me and say "the Court never said anything about suspending my license or an ignition interlock device."  The problem is that the Court leaves that up to the Driver License Division.  In fact, I have heard Courts try to advise people of these consequences and advise in error.

The other thing the matrix is not clear on is that your total fine will be comprised of the fine, a surcharge, and a court security fee.  

The 2012 Matrix is found here.

Or press here.www.utahduilawblog.com/uploads/file/2012 DUI Sentencing Matrix.pdf

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Utah Alcohol Restricted Driver

A person who is convicted of being in violation of the alcohol restricted driver law will have their license revoked for a period of one year.  This is in accordance with Utah Code 53-3-220(1)(a)(xv).  If you are convicted of this law under Utah Code 41-6a-530, it is a class B misdemeanor, just like an original DUI.  The prosecution can prove the violation by a chemical test, evidence other than a chemical test, or a combination of a chemical tests and other evidence.  For example, the prosecution can present evidence of field sobriety tests, characteristics, odors, etc.

To become an alcohol restricted driver, under Utah Code 41-6a-529, the driver has had any of the following happen:

Within the last two years the driver was convicted of a DUI, a combination alcohol and reckless driving, impaired driving.  These are the basics but there is a laundry list of actions that qualify for alcohol restricted driving.  For the most part, the restriction is a two years.  However, the alcohol restriction is life time if the driver has been convicted of a felony DUI if the felony was after July 2005.

The Department of public safety has an outline of this law here. 

Read more ›

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