Salt Lake City Criminal Law Blog

We often get asked if a person can be convicted for drug possession if they were merely near the illegal drugs that were found. For example, let's assume three friends are in a car, Joe, Cindy and Parker. They get pulled over for "swerving". The officer claims he smells marijuana (because of his superbionic nose), and so he searches the car. Under the passenger seat, he finds some marijuana. Joe was driving, Cindy was in the front passenger seat, and Parker was asleep in the back seat.

One person recently said this me: "Hey, I understand I am guilty no matter what, right? After all, we are in Utah!"

However, there is much more to it than that, and the Utah Supreme Court has made it clear that simply being near illegal drugs when they are found is NOT enough to support of conviction of guilt.

There are several types of field sobriety tests (FSTs) used by law enforcement officers while investigating DUI in Utah. Being arrested for DUI can be a very unnerving experience. If you are charged with DUI in Utah, be sure to hire an experienced Utah DUI lawyer who will fight to protect your rights. The attorneys at Greg Smith and Associates are seasoned Utah criminal defense lawyers who will work to obtain the best possible resolution of your case.

One of the most commonly used FSTs is the Horizontal and Vertical Gaze Nystagmus (HGN) test. Nystagmus is involuntary jerking of the eyes. Utah Prosecution Council, Driving Under the Influence Prosecution Manual (2007), http://www. sentencing.utah.gov/ProsecutionManual/chapter8.pdf.

In a previous posting, I wrote about the definition, history and accuracy of field sobriety tests. Now, I would like to discuss the implications of FSTs on your constitutional rights. Remember, if you are ever charged with a DUI or other crime in Utah, it is important that you hire an effective Utah defense attorney to protect your rights such as one from Greg Smith and Associates. With over 20 years of criminal defense experience in Utah, we have the experience and knowledge to aggressively fight for you.

Does the Fifth Amendment apply to FSTs? No, you cannot invoke your Fifth Amendment right against compelled self-incrimination if asked to perform FSTs by a law enforcement officer. Utah Prosecution Council, Driving Under the Influence Prosecution Manual (2007), http://www.sentencing.utah.gov/ProsecutionManual/chapter8.pdf.

Assume you are pulled over by a cop, and you are stone cold SOBER. The cop asks you to take a breath test. You feel he is just trying to hassle you. You are outraged, so you refuse. The sad part about this is you could lose your license for 18 months for that refusal.

Most states have some form of an implied consent law on the books. If you are ever pulled over and suspected of DUI, you should know the law so you can best protect your rights. If you are charged with DUI it's also important that you get an excellent, affordable DUI lawyer such as one from Greg Smith and Associates.

So, what is implied consent? In Utah, the implied consent law states that "[a] person operating a motor vehicle in this state is considered to have given the person's consent to a chemical test or tests of the person's breath, blood, urine, or oral fluids for the purposes of determining whether the person was operating" a vehicle under the influence of alcohol or drugs. (Utah Code Annotated 41-6a-520).

If you have ever been suspected of driving under the influence (DUI) in Utah, then you have probably had to perform Standardized Field Sobriety Tests (FSTs). If not, then it is likely that you have seen others performing FSTs on the side of the road. Remember, if you are facing charges for DUI in Utah it is important that you get an effective and affordable DUI lawyer to represent you and protect your rights.

What are FSTs? A typical DUI investigation in Utah involves FSTs and a chemical test. In an earlier blog I talked about Implied Consent and chemical tests (blood, breath, urine and saliva samples). According to the Utah Prosecution Council's Driving Under the Influence Prosecution Manual, FSTs "are the tools to aid officers in determining whether a person is impaired by the consumption of alcohol or drugs." (§ 8.1)

Short answer: As the case below shows (United States v. Mitrano, First Circuit), you can actually be sent to a federal prison for years. So, if you are past due on your child support obligation in Utah, please call Greg Smith and Associates immediately (801-651-1512). They are highly skilled in the areas of child support law and criminal law.

Sometimes even a very "well educated person" can simply outsmart himself when it comes to criminal law matters. For example, just because a person is a lawyer that does not mean they are qualified to step into all legal areas as Mr. Mitrano had to learn the hard way.

By Greg Smith and Brett Skidmore

Most people may be aware of the fact that stiff penalties await those who fail to stay current on their child support obligations in the state of Utah, such as wage garnishments and/or driver's license suspension. However, few may realize that even more serious consequences can result from the failure to remain in compliance with a child support order.

According to the Utah Criminal Code section 76-7-201, a person may be charged with "criminal nonsupport" if he or she "knowingly fails to provide for the support of . . . [a] child, or children when any one of them: a) is in needy circumstances; or b) would be in needy circumstances but for support received from a source other than the defendant's behalf."

Section 76 provides that criminal nonsupport is a class A misdemeanor - which is not something to be taken lightly. However, an individual may be charged with a 3^rd degree felony if he or she "has been convicted one or more times of nonsupport, whether in this state, or any other state, or any court of the United states; committed the offense while residing outside of Utah; or commits the crime of nonsupport in each of 18 individual months within any 24-month period, or the total arrearage is in excess of $10,000."

We often hear our clients say, "The cops and the prosecutor can't prove the drugs were mine!" And many times they are 100% right, and the case will either get dismissed entirely, reduced, or the jury will find them to be not guilty.

After all, simply being near illegal drugs such as marijuana, meth, cocaine, ecstasy, heroine, etc. in Utah is not a crime. However, there is much more to it than that, and sometimes a person will get convicted for just being at the wrong place at the wrong time.

And Prosecutors can be all over the board in Utah when it comes to how they view such allegations of illegal drug possession and/or intent to distribute. For example, a prosecutor in Salt Lake may not handle the case the way a prosecutor from Ogden, Provo, Moab, Vernal, St. George, or Logan may. If the case gets turned over the feds, the matter instantly becomes a whole lot worse. That is why it is essential to hire an experienced defense team, which is very family with these types of illegal drug possession allegations, and how to properly defend against them such as Greg Smith and Associates, a criminal defense firm.