Syracuse University in New York was recently accused of violating its drug policy by ignoring positive drug tests and playing athletes that did have positive tests. The accusations arise out of the university's basketball program and stretch as far back as 2001. The Syracuse athletic program has refused to comment on the allegations, citing the ongoing NCAA investigation into the school. The school's Hall of Fame coach Jim Boeheim also refused to comment on the investigation.
]]> Another NCAA inquiry revealed that Baylor University also failed to report and act on positive marijuana tests for three of its players. The severe penalties against the school included probation, a ban on nonconference games for a half-season and a reduction in paid recruiting trips.Although students in these cases generally avoid criminal prosecution for marijuana use, some students are not so lucky. University of Georgia cornerback Branden Smith was recently arrested for marijuana possession. The arrest occurred during a traffic stop after officers allegedly found a "baseball-sized" package of marijuana on the backseat of the car. The passenger in the car was also arrested. It is unclear what disciplinary steps the university will take, if any, in connection with Smith's arrest.
Source: Yahoo Sports, "Sources: Syracuse basketball program repeatedly violated internal drug policy," Charles Robinson and Pat Forde, March 5, 2012; The Athens Red & Black, "UGA cornerback Branden Smith arrested in Alabama on marijuana possession charges," Polina Marinova, March 12, 2012
]]>The details of the November 2010 traffic stop and reprimand were admitted last week in court in connection with another case. The defense attorney in Tuesday's proceeding says that the officer also used unlawful search tactics in his client's case, which is a complaint that other attorneys have made against the former trooper. The trooper first gained prominence as the first female UHP trooper to make over 200 DUI arrests.
]]> The trooper testified in a case where the arrested driver alleges that the trooper lied about his back license plate light being out in order to stop him. The video of the arrest is unclear and the defense attorney in that case hopes to call the trooper's credibility into question by showing that she has a history of dishonesty and violating department policy in order to make arrests.The trooper admitted to leaving her microphone in her squad car so that her supervisors wouldn't know that she was going to make the driver take a breath test before she performed field sobriety tests. Field sobriety tests need to be performed before a breath test to determine whether there is sufficient cause for a breath test.
Although this is one of the clearest examples of an improper search in recent memory, there are many instances when the rights of drivers are violated during traffic stops. Many drivers are stopped for pretextual reasons and forced to undergo subjective and confusing sobriety tests.
Attorneys in some of the other 200 DUI cases involving the officer may also raise the trooper's record of reprimands to defend their clients.
Source: The Salt Lake Tribune, "Utah Highway Patrol trooper admits violating policies," Aaron Falk, March 27, 2012
]]>Authorities say that the rear window of the car was smashed and that there were multiple scratches and other damage to the car's paint job and windshield. The woman has been charged with criminal mischief in addition to burglary.
]]> Many people are surprised when they face burglary charges because the traditional image of a burglar is someone breaking into a house at night to commit theft. Under the Utah criminal code, a burglar is anyone who enters or remains unlawfully in a building with the intent of committing a crime such as a felony, assault, sexual battery or voyeurism.Burglaries of business are generally third degree felonies but burglaries of dwellings are second degree felonies. Third degree felonies can carry prison terms up to five years whereas second degree felonies can carry prison terms that range from one to 15 years.
Source: Salt Lake Tribune, "Furious ex allegedly trashes former boyfriend's ride," Janelle Stecklein, Mar. 30, 2012
]]>The trucker was charged with murder in Texas because that is where the body of the woman's 28-year-old husband was found. Both bodies were found in 1990, the year of the murders, but the husband's body wasn't indentified until 1992 and the wife's body was not identified until 2003. DNA evidence then linked the woman to items found at the time of the trucker's arrest.
]]> The trucker has been in prison since spring of 1990 when an Arizona state trooper discovered him torturing a woman in the sleeper car of his truck. The man has since been linked to several murders and authorities say that many unidentified victims may exist based on the items found in the man's truck.Based on a murder of a 14-year-old runaway in Illinois, the man is serving a life sentence without parole. If he were ever to get out of prison for his Illinois conviction, he would be sent immediately to a prison in Texas.
This case highlights the fact that there is no statute of limitations on murder. Many other crimes must be prosecuted within a certain amount of time, but serious crimes such as homicide can be charged whenever the prosecution feels that it has enough evidence.
Source: ABC News, "Trucker With Traveling Torture Chamber Admits to More Murders," Christina Ng, Mar. 30, 2012
]]>Authorities allege that the 20-year-old and three 19-year-old males went to the home the night before where a 36-year-old woman greeted them and gave them alcohol. The woman's 61-year-old mother was also in the home and reportedly gave the young men cocaine.
]]> According to the complaint, the women gave the men a variety of prescription medications and illicit drugs throughout the night. Two young teens were also home during the drug party according to the criminal complaint. A search of the home allegedly uncovered cocaine, marijuana, morphine, and other drugs and drug paraphernalia.The 36-year-old woman and her mother face a variety of drug related charges including drug possession, possession with intent to distribute, and child endangerment. The mother also faces a charge of felony possession of a firearm by a restricted person.
It is unclear how the women knew the young men or why the women allegedly hosted the men at their home. It is also unclear why the women would call authorities to their home without disposing of the illicit drugs first, or if the drugs belonged to the women.
Source: The Salt Lake Tribune, "Herriman mother and daughter charged in drug overdose death," Erin Alberty, Mar. 20, 2012
]]>"My parents were out of town and I just wanted to throw a party, you know?" the teen said in a recent interview. "Every teenager does that. I didn't expect it to get out of hand. I just wanted everybody to have a good time."
]]> The party got out of hand when almost 200 people descended upon the teen's small home. Many of the party crashers didn't know the host or her friends and several were allegedly affiliated with a gang. The teen says that fights started erupting between the party crashers. The host went to the home's front door to tell the troublemakers to leave when a man in his late teens or early 20's started shooting.The host was shot in the foot and several of her friends also sustained bullet wounds. The teen's parents first found out about the party and the shooting from the hospital, which the teen's mother calls "the worst call ever."
"I've told her numerous times, numerous times, 'Bullets don't have nobody's names on them," the teen's mother said, "They just hit whoever they want to hit. We have bullet holes in the window. Our house is a mess. There was blood in our house."
The teen's parents also found several backpacks with knives in them, indicating that several other armed assaults could have happened at the party. The teen said that the worst part about the ordeal is that others were injured and that her parents are deeply disappointed in her. The teen also said that the gang members who did the shooting must have been invited by "somebody" and urges those people to come forward.
Source: Deseret News, "Teen regrets throwing party while parents were away," Steve Fidel and Pat Reavy, Mar. 19, 2012
]]>It appears that a 16-year-old Clearfield girl wanted to copy the party in the Project X movie while her parents were out of town for the weekend. Unfortunately she succeeded in recreating the movie's chaotic party. Several people may face aggravated assault or attempted homicide charges as a result of this party.
]]> "These kids are trying to mimic these movies," a Clearfield police spokesman said. "It works in Hollywood 'so let us try.' You see the outcome and it's horrible."Authorities say that the 16-year-old host told friends to spread the word about the Project X party but did not expect that over 100 people would show up. People from neighboring towns and counties arrived, including a few adults.
Among the guests at the party were members of a gang. Chaos erupted at the party when rival gang members decided to show up and open fire on the crowd. Four people including the party host were shot, but none of the shooting victims had gang affiliations.
The party host was shot in the foot, one 19-year-old was shot in the throat, another 19-year-old was shot in the head, and a 21-year-old was shot in the back. It is unclear if anyone has been arrested in connection with the shooting or whether the party host will face any charges.
Source: Salt Lake Tribune, "Police said Utah teen tried to host 'Project X' party that ended in shooting," Janelle Stecklein, Mar. 20, 2012
]]>The courts punish purposeful crimes more severely than negligent crimes. The difference between first-degree murder (purposeful homicide) and manslaughter (reckless or negligent homicide) can be many years added to a prison sentence.
]]> The Model Penal Code, which is used in most states, defines four "mental states" in terms of intent. Jurors are asked to determine if the person acted in a manner that was purposeful, knowing, reckless or negligent. These are defined as:(A person might also be found to be blameless if there was no intent and no significant risk. This might be the finding in a case involving a truly accidental death.)
Does the average juror understand what each of those terms means? That is the question a group of law professors and psychology professors considered in a recent study entitled "Sorting Guilty Minds." Results from the research are both good and bad.
Even without being told the definition of each term, most jurors were able to distinguish between purposeful, negligent and blameless. But they could not reliably distinguish between knowing and reckless misconduct. The distinctions they made were arbitrary. And even when instructed on the differences between the two terms, the research subjects did no better. In fact, they often gave harsher punishment for reckless conduct than for knowing conduct.
The authors of the study say the inability to distinguish between knowing and reckless conduct suggests that reform is needed, perhaps in the form of improved jury instruction, a redefinition of the categories, or abandoning one of the categories entirely, especially in homicide cases.
Source: "Sorting Guilty Minds," November 14, 2011.
]]>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.
]]> Here is what that case (State v. Fox, 709 P.2d 316, 318-20) , which invoved Clive and Gary Fox, the Court said the following:"A conviction for possession of a controlled substance with intent to distribute requires proof of two elements: (1) that defendant knowingly and intentionally possessed a controlled substance, and (2) that defendant intended to distribute the controlled substance to another. U.C.A., 1953, § 58-37-8(1)(a)(ii).
"Actual physical possession presupposes knowing and intentional possession. However, actual physical possession is not necessary to convict a defendant of possession of a controlled substance. State v. Carlson, Utah, 635 P.2d 72, 74 (1981). A conviction may also be based on constructive possession. Id. In Carlson, we held that constructive possession exists "where the contraband is subject to [defendant's] dominion and control." Id. However, persons 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. Knowledge and ability to possess do not equal possession where there is no evidence of intent to make use of that knowledge and ability.
"To find that a defendant had constructive possession of a drug or other contraband, it is necessary to prove that there was a sufficient nexus between the accused and the drug to permit an inference that the accused had both the power and the intent to exercise dominion and control over the drug. See United States v. Cardenas, 748 F.2d 1015, 1019-20 (5th Cir.1984); United States v. Rackley, 742 F.2d 1266, 1272 (11th Cir.1984); United States v. Davis, 562 F.2d 681, 694 (1977) (Bazelon, C.J., dissenting in part, concurring in part).
"Whether a sufficient nexus between the accused and the drug exists depends upon the facts and circumstances of each case. State v. Anderton, Utah, 668 P.2d 1258, 1264 (1983). Ownership and/or occupancy of the premises upon which the drugs are found, although important factors, are not alone sufficient to establish constructive possession, especially when occupancy is not exclusive. United States v. Davis, 562 F.2d 681, 693 (D.C.Cir.1977). Some other factors which might combine to show a sufficient nexus between the accused and the drug are: incriminating statements made by the accused, Allen v. State, 158 Ga.App. 691, 282 S.E.2d 126, 127 (1981) (defendant told unnamed individual that defendant had $500 worth of marijuana); incriminating behavior of the accused, United States v. Garcia, 655 F.2d 59 (5th Cir.1981) (defendant nodded affirmatively when introduced as owner of cocaine, and remained with drug during negotiations); Francis v. State, Ala.App., 410 So.2d 469 (1982) (defendant slammed door in face of police and ran back into the house yelling, "throw it in the fire"); presence of drugs in a specific area over which the accused had control, such as a closet or drawer containing the accused's clothing or other personal effects, Walker v. United States, 489 F.2d 714, 715 (8th Cir.) (drugs found in closet containing defendant's clothing), cert. denied, 416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d 768 (1974); presence of drug paraphernalia among the accused's personal effects or in a place over which the accused has special control, United States v. James, 494 F.2d 1007, 1030-31 (D.C.Cir.) (drug paraphernalia found in a locked box in defendant's dresser), cert. denied sub nom., Jackson v. United States, 419 U.S. 1020, 95 S.Ct. 495, 42 L.Ed.2d 294 (1974); Petley v. United States, 427 F.2d 1101, 1106 (9th Cir.) (pipe containing marijuana residue found in defendant's duffel bag), cert. denied, 400 U.S. 827, 91 S.Ct. 55, 27 L.Ed.2d 57 (1970). In every case, the determination that someone has constructive possession of drugs is a factual determination which turns on the particular circumstances of the case. Among these circumstances must be facts which permit the inference that the accused intended to use the drugs as his or her own. A conviction for production of a controlled substance requires evidence that the accused knowingly and intentionally produced the controlled substance. U.C.A., 1953, § 58-37-8(1)(a)(i) (supp.1983); see State v. Echevarrieta, Utah, 621 P.2d 709, 712 (1980); and evidence of possession may be part of a circumstantial link in the necessary chain of evidence.
"The evidence as to Gary sufficiently supports his convictions for production of a controlled substance and possession of marijuana with an intent to distribute. Gary owned the property where the marijuana was found. Although he may not have had exclusive control or possession (in a practical non-legal sense) of the premises, his non-exclusive possession and control combined with other incriminating evidence to provide an adequate foundation for the convictions. State v. Anderton, Utah, 668 P.2d 1258, 1264 (1983). Gary owned the house. His occupancy and control was evidenced by the presence of his personal effects in the same room as marijuana, drug-related paraphernalia, and a book entitled Marijuana Grower's Guide. Another room also contained marijuana and drug paraphernalia. Because he was the owner and occupier of the property and because of the manner in which the greenhouses were constructed in proximity to the house, one being accessible only through the house, there is a reasonable inference that he not only knew of the greenhouses and their contents but also had the power and intent to exercise dominion and control over the marijuana located in them, and was responsible for growing the marijuana. Furthermore, there was sufficient evidence that he intended to distribute the marijuana. Where one possesses a controlled substance in a quantity too large for personal consumption, the trier of fact can infer that the possessor had an intent to distribute. State v. Anderton, Utah, 668 P.2d 1258, 1262 (1983). The police found approximately 2,850 mature marijuana plants growing on Gary's property, an amount of marijuana unquestionably too large for personal use.
On these facts the evidence was sufficient to sustain the conviction of Gary Fox of possession of a controlled substance with intent to distribute, and production of a controlled substance.
Because one of the greenhouses was attached to the house and was openly accessible from the kitchen, the trier of fact could reasonably find that Clive Fox knew that marijuana was being grown in the house. However, to prove that he had constructive possession of the marijuana, the evidence must also show that he had the power and intent to exercise dominion or control over the marijuana."
Here is the kicker:
"There is no evidence that Clive Fox had any intent to grow or to possess the marijuana in the greenhouses. While he may have had knowledge of the existence of marijuana on the premises, that is not the equivalent of constructive possession. Indeed, evidence supporting the theory of "constructive possession" must raise a reasonable inference that the defendant was engaged in a criminal enterprise and not simply a bystander. That is, the evidence in its totality must show that defendant's dominion or control over the area must have been such that he in fact intended to exercise dominion and control over the marijuana."
]]>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.
]]> This movement occurs whenever the eyes move from side to side. When a person is intoxicated, the jerking motion is magnified. Pennsylvannia v. Muniz, 496 U.S. 582, 585 FN 1 (1990). The same is true for Vertical Gaze Nystagmus (VGN). With VGN the officer looks for the jerking motion of the eyes as the suspect gazes up and down.How is the test performed? An officer performs the test by asking a suspect to hold his or her head still. Then the officer directs the person to follow the tip of the officer's pen (or other object) with the person's eyes. The officer looks for three clues in each eye.
First, lack of smooth pursuit. This means that the eyes shake as they move from side to side. This shaking movement of the eye is much more noticeable when a person is impaired.
Second, distinct nystagmus at maximum deviation. When the person's eyes are as far as possible to one side, the officer looks for distinct and sustained jerking movements of the eye. An officer should observe a person's eye at maximum deviation for a minimum of four seconds. Nat'l Highway Traffic Safety Admin., Horizontal Gaze Nystagmus: The Science & The Law, http://www.nhtsa.gov/people/injury/enforce/ nystagmus/ hgntxt.html (last visited Oct. 17, 2011).
Third, the officer looks for onset of nystagmus prior to 45-degrees. This means that before the eyes reach a 45-degree angle while gazing towards the side, the officer looks to see if the eyes have begun jerking.
The officer performing the HGN test should look for each clue individually in both eyes. An officer may observe a total of six clues-three in each eye. Utah Prosecution Council (2007).
The higher a person's blood alcohol concentration (BAC), the greater the likelihood the officer will observe these clues. According to research, the appearance of four or more clues indicate that the person's BAC is greater than 0.10. The test is 77% accurate when four or more of the clues appear. This test is effective because nystagmus is involuntary and unnoticeable by the DUI suspect. Therefore, a person cannot deceive the test. Id.
The attorneys at the Affordable Legal Advocates are experienced DUI defense lawyers. They have handled numerous DUI cases in Utah and understand the correct protocol that every police officer should follow for administering field sobriety tests. Give us a call.
]]>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.
]]> Why doesn't my Fifth Amendment right against self-incrimination apply to FSTs? In Utah, and the rest of the country, your Fifth Amendment right against self-incrimination does not apply because evidence obtained from FSTs is non-testimonial. The Fifth Amendment only applies to testimonial or communicative evidence, not physical evidence. "Evidence which is testimonial or communicative is that which reveals the subjective knowledge or thought processes of the subject." State v. Theriault, 696 P.2d 718 (App. 1984).When an officer administers FSTs, the officer obtains evidence based off of his or her observations of the suspect's performance. The officer does not force the suspect to make any self-incriminating statements. The Supreme Court of the United States ruled that physical observations made by an officer during FSTs are physical evidence and not testimonial. Pennsylvannia v. Muniz, 496 U.S. 582 (1990). These observations include speech patterns and muscle coordination. In addition, any incriminating statements a suspect makes while performing field sobriety tests do not require Miranda warnings because such statements are considered voluntary. This is because the responses are not elicited from custodial police interrogation. Utah Prosecution Council (2007).
What about my right against self-incrimination under the Utah Constitution? The Utah State Constitution contains a section that protects an individual's right against self-incrimination. Article I § 12 states: "The accused shall not be compelled to give evidence against himself..." Although this section is phrased differently than the Fifth Amendment of the Constitution of the United States, the Utah Supreme Court has interpreted it as offering the same level of protection as the United States Constitution. Id.
Facing criminal charges in Utah can be a stressful and terrifying experience. However, you do not have to endure it alone. The Utah defense attorneys at the Affordable Legal Advocates will fight for your rights.
]]>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).
]]> Basically, according to the Utah DUI implied consent law, you consent to submit to a blood, breath, urine or saliva test by merely driving a vehicle on a Utah roadway. Typically, the police cannot conduct a search or take breath/body fluid samples from you without a warrant or your permission. Under Utah's implied consent law, you consent (give your permission) to be tested when you operate a vehicle in the state of Utah. Once an officer suspects that you may be under the influence he can ask you to submit to one or more tests. Blood, urine and oral fluids tests are usually performed at a hospital ordetention center. More commonly, an officer will use a breath-testing device to administer a breath test during a traffic stop.
Under the Utah implied consent law, there are penalties for refusing to submit to chemical tests. It does not matter whether the driver politely refuses or angrily asserts his Fourth Amendment rights. The purpose behind the law is to discourage a suspected DUI motorist from refusing to submit to a chemical test that would reveal his or her blood alcohol content (BAC). In Utah, the officer (not the driver) chooses the method of testing. "A person who has been requested under this section to submit to a chemical test or tests of the person's breath, blood, or urine, or oral fluids may not select the test or tests to be administered." (Utah Code Annotated 41-6a-520).
In Utah, a person may still be penalized under the implied consent law for refusing to cooperate with a chemical test if they submit to one form of testing, but refuse another. "If a peace officer requests more than one test, refusal by a person to take one or more requested tests, even though the person does submit to any other requested test or tests, is refusal under this [law]." (Utah Code Annotated 41-6a-520).
For example, suppose an officer suspects you of DUI and requests a breath and urine sample. Under the
Utah code if you agree to the breath test, but refuse the urine sample you can still be penalized under the implied consent law for refusing to submit to the urine test. Penalties for refusing to submit to a chemical test or tests under the implied consent law may include "revocation of the person's license to operate a motor vehicle, a five or 10 year prohibition of driving with any measurable or detectable amount of alcohol in the person's body depending on the person's prior driving history, and a three year
prohibition of driving without an ignition interlock device." (Utah Code Annotated
41-6a-524).
Simply put, (1) In Utah, the state can suspend your driver's license for 18 months for a first refusal to test and 24 months for a second refusal, (2) you may be forced to pay for, install and use an ignition interlock device, and (3) you could be arrested while driving with any amount of alcohol in your system-whether or not you are impaired. In addition, your refusal to submit to a chemical test may be used as evidence against you in any civil or criminal case arising out of your operation of the vehicle in the time leading up to your arrest. The bottom line is that you should never refuse to submit to a breath, urine, blood or saliva test requested by an officer under Utah's implied consent law because the penalty for refusing to do so is harsh. AAs
Also, as a result of the new legislation your license could be suspended for 36 months if you refuse a breath test and have a previous DUI on your record. Also, If you are under 21 and you refuse to be tested, your license could be suspended for 18 months or until you are 21, whichever is longer.
When stopped by a cop, you have a right to remain silent, but must provide the officer with your driver's license and proof of insurance, and you don't have to submit to a field sobriety test. Also,
you do not have to submit to the portable breath test (PBT) prior to being arrested, but you must take the breath test after you're arrested to avoid a license suspension.
And, of course, your car may be impounded. Utah law prohibits anyone under the age of 21 from drinking even single drop of alcohol, and their car can be impounded even if they are a .01. The owner of a vehicle impounded under the "Not A Drop" law is subject to the same procedure as other "DUI" impounds.
Furthermore, if you are accused of DUI be sure to hire a DUI lawyer from Greg Smith and Associates, who will fight for you and 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)
]]> What do FSTs test? FSTs are used to test the divided attention of the person being evaluated for DUI. Divided attention is the capacity of an individual to perform more than one task at a time. When a driver is impaired his capacity to divide his attention is reduced. Driving is all about multi-tasking. In addition to operating the vehicle (gas, break, turn signals, etc.) a driver has to be able to read traffic signs and be aware of other vehicles. "Field sobriety tests assess divided attention by requiring the person to complete both physical and mental tasks simultaneously, thereby testing a person's ability to divide attention between two or more tasks." Utah Prosecution Council, Driving Under the Influence Prosecution Manual, § 8.1.How accurate are FSTs? Field Sobriety Tests were standardized and have been regularly used since 1977. The National Highway Traffic Safety Administration (NHTSA) and the Southern California Research Institute (SCRI) tested the effectiveness of FSTs in detecting impaired driving. Officers look for errors or cues while a DUI suspect performs the tests. The more errors or cues in a test, the more accurately an officer can assess the impairment of a driver. Studies have shown that a certain combination of errors and cues during FSTs will accurately predict when a person has a blood alcohol concentration of 0.08 or higher. Utah Prosecution Council, Driving Under the Influence Prosecution Manual, § 8.2.
What types of FSTs are there? Law enforcement officers in Utah use a variety of field sobriety tests when investigating DUI. A person suspected of DUI in Utah may be asked to perform the one-leg stand test, the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, the finger-to-nose test, the finger count test, and the Rhomberg modified test.
I will explain each one of these field sobriety tests in detail in future blog posts. For now, drive safely and remember to call Greg Smith and Associates when you need a quality Utah DUI attorney.
]]>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.
]]> You see, according to the Court, back in 2002, Mr. Mitrano was a patent attorney, and was also a licensed engineer. So, he clearly had a ton of schooling behind him, and that can sometimes go a person's head. However, divorce law and criminal law are very different from patent law. Sadly, we often see non-criminal-defense lawyers representing people in court on criminal matters, which we feel can be a huge mistake.The bottom line is this: having a patent law attorney handle a divorce or criminal matter would be like a roofer trying to the job of an electrician. And in this case, Mr. Mitrano simply did not understand the legal wiring, and he really got burned.
As we understood the case, he was ordered by a New Hampshire court to pay weekly child support for his three kids in the amount of approximately $1,400 per week, plus $300 per week toward past medical expenses (over $80,000 per year).
Arguably, Mr. Mitrano wrongly thought (or simply arrogantly brainwashed himself into thinking) that the New Hampshire court simply did not have subject matter jurisdiction, so he could essentially ignore the order. According to the court, up until 2008 he had allegedly not paid any of it (nearly half a million dollars).
Now, just because Mr. Mitrano allegedly owed so much, don't think this can't happen to your loved one. After all, even being past due on a few thousand dollars can be very troublesome in a federal court. Typically, these cases are brought in state courts, but eventually, the feds can get involved, and this lawyer was convicted by a jury of willful failure to pay child support, and he was sentenced to a whopping 24 months in federal prison.
The Court of Appeals upheld the conviction, and said that there was sufficient evidence that he was able to pay and willfully refused to do so. The Court said, "It is not a crime to fail to comply with the statute based on a good faith misunderstanding of its requirements. [However,] mere disagreement with the law, however, is not a defense." Because court after court had told Mr. Mitrano he was wrong (four state courts, and two federal ones), the Court of Appeals felt Mr. Mitrano, a trained lawyer, certainly should have known his arguments were losers, and he should have paid the child support, according to the terms of the New Hampshire order.
Mitrano did not testify at trial. His belief came into evidence through his wife's, Kelly's, testimony. She testified that "[h]e always said he didn't have to pay, that this order is void as a matter of law, and no one agreed with him, but he always said it's void as a matter of law. He didn't say he couldn't pay. He said he doesn't have to pay."
He was wrong, and now he is paying a very severe penalty.
If you are past due on child support, call us immediately, and always pay something, never pay nothing. Frankly, we feel that Mr. Mitrano probably really ticked off the prosecutors in this case, so this may have been a case where they felt they needed to show him that the system was in control, not him. A client will often say, "I want a real bulldog defending me, and I don't want to take any deal! I want a complete dismissal!" Well, Mr. Mitrano acted like a bulldog, and look where he ended up - the pound for human beings. A smart, effective lawyer is better than bulldog any day. When you can win, you should fight like hell. But, when the facts are against you, your attorney needs to help you repent like heavens, so you can avoid getting locked up. The law Mr. Mitrano was convicted on was 18 U.S.C. 228(a)(3).
]]>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 3rd 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."
]]> It turns out that not everyone who has been charged with criminal nonsupport in Utah has agreed with this law. For example, in the Utah court case, State v. Johnson (79 P.3d 419) a man living in Utah failed to comply with an Alaska court's child support order and, as a result, was found guilty of criminal nonsupport by a Utah district court.The defendant appealed the district court's ruling and attempted to dismiss the case, arguing that Utah court's should not be able to exercise jurisdiction over someone who has violated an Alaska court order while living in Utah. However, the appellate court disagreed with the defendant and, in so doing, cited to Utah Code Ann. § 76-1-201 which states that Utah has jurisdiction to prosecute criminal offenses that are either committed "wholly or partly within Utah". The court held that the defendant's failure to act when he stopped paying child support constituted a criminal offense committed within the state of Utah. Therefore, the district court's ruling was upheld and the defendant's criminal charges were enforced.
There is hope for those defendants who are charged with this crime. An affirmative defense is available for defendants who are unable to provide support. However, section 76 makes it clear that "[v]oluntary unemployment or underemployment by the defendant does not give rise to that defense."
By Greg Smith and Brett Skidmore
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