Greg Smith and Associates, Criminal Defense Attorneys

Salt Lake City (Murray) - Orem - Richfield
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Utah Criminal Defense & Civil Law Blog


FSLA Tip Credit and Minimum Wage for Servers

Why the boss can't take money out of your check that is not for normal taxes and withholdings.

If you're a server at a restaurant, you need to know about the so-call "tip Credit" of Section 3(m) of the FLSA. That law allows an employer to take a tip credit toward its minimum wage obligation for your pay, which is equal to the difference between the required cash wage (which must be at least $2.13) and the federal minimum wage.

Tags: wages



Actual Physical Control & DUI

So, you're too impaired to drive, and you know; therefore, you are merely sitting in your car (the key is not even in the ignition). A cop walks up to you and says, "Hi, are you okay?" And you say, "Yep, and I am being very responsible, too! You see I've had a few beers, so I am not driving, aren't you proud of me?" The cop the smiles and says, "Step out of your car, please."

He then cites you for a DUI because your "BAC" is .16, twice the legal limit.

Tags: dui, drunk driving, criminal defense



Mandatory Arrest Laws and Domestic Violence

Older Americans remember the good old days when you would not be arrested for something unless the police actually had "probable cause" for making an arrest. After all, most people are horrified by the thought of being handcuffed, frisked, put in a police car, escorted to jail, posting bail, and waiting several hours to get out. However, the "rules" have changed, and many of our clients feel they can be arrested for sneezing wrong.

( ... )

Based on a recent report, about half the states in America have mandatory arrest provisions in domestic violence cases. While no rational person condones illegal violence towards others, many of our clients feel the new mandatory arrest laws are the cause of countless frivolous and inappropriate arrests. The current legal trend requires (or at least strongly pressures) police officers to make an arrest first and ask questions later no matter the consequences.

Tags: criminal defense, domestic violence, violent crimes



Midwife Jailed. Licensing is National Trend.

For centuries, it was noble to be a midwife (help mothers give birth out of a hospital). Today, you can go to jail for being one. Licensing midwives is now the national trend.

In fact, a midwife was recently sentenced to six months in jail for manslaughter (negligent homicide) because while helping a mother give birth to twins, one of the babies was born purple, and and had a hard time breathing.

Tags: criminal defense, manslaughter, professionals



Should I just pay the traffic ticket?

Most people who get their first speeding ticket don't know what their options are, and unfortunately in Utah, you cannot simply "get rid of a ticket" by paying some small sum; further, in Utah traffic matters are often infractions or crimes.

More often than not, people who call us think that they have to pay the ticket and that there is no choice. This is not the case in many cases, and we suggest you fight everything (in order words, typically, there is a deal to be had!).

Tags: traffic stops, criminal defense



Utah Has the Toughest DUI Law in the United States with a .05 Limit

It's official: Utah now has the toughest DUI law in the United States. Utah Governor Gary Herbert has signed a new DUI law that lowers the maximum blood alcohol limit to .05 percent. The former limit was .08. The law also applies to those that are carrying dangerous weapons. So, you do have the right to bear arms in Utah, but if you are above .05 and driving that right is now severely limited.

Tags: dui, drunk driving, criminal defense



Why Doesn't Everybody Mediate?

Simple: either 1) they don't understand the legal system, and how lawyers are trained; or 2) they truly feel their case is so strong that they don't have to (they will either get the case dismissed so that there will be no trial, or they will simply wipe out their opponent at trial); or 3) the other side utterly refuses to mediate.

So, let me break those down.

Tags: mediation & arbitration, civil litigation



Help! Can A Judgment Against Me Be Undone? — Motion to Set Aside / Vacate / Undo Judgment

We often get calls that go something like this: Hi, I just had a guy come to my door that gave me a document that says order to show cause (or motion for supplemental proceedings), and I guess I was supposed to answer something, but I didn't know about it (or I forgot about it), and now I have a judgment (or a decree) against me. Can you guys help me?

The answer is often yes, but you must move quickly.

Tags: civil litigation



Should You Represent Yourself On A Criminal Matter?

VIDEO: "Watch and listen whether it's a good idea to represent yourself on a criminal matter. Beware of things such as upsetting the prosecutor and being charged with witness tampering. Remember, the legal system is often not intuitive. If something is simple, you may save the cost of an attorney, but always beware of the pitfalls . . ."

Tags: criminal defense



What The Fair Labor Standards Act Does Not Require

The United States Department of Labor (as of December 19, 2015) posted what the United States Fair Labor Standards Act does not require. It is important to know what the "DOL" says because their opinions are usually followed by the nation's judges, especially in federal court. According to the DOL the following things are typically worked out between the employer and the employee (or if there is a union or agent, their representative):

Tags: wages



Thank God for Proof Beyond a Reasonable Doubt!

Could you imagine if the Judge instructed your jury that they could merely flip a coin to determine whether you were guilty of innocent? Sadly, some trials have been determined that way, and many of my clients feel that’s sort of how "bench trials" go (when a judge, not a jury hears the case).

We need to treasure the "proof beyond a reasonable doubt" standard. Sadly, many people today lose their licenses (driver’s, business, etc.) on the concept that the State need only show "material" or "substantial" evidence that you’re at fault. The idea is that since you’re not going to jail, nor paying a big fine, the standard of proof should be very low. Yet, the Founding Fathers did not set up such agencies, and they took their rights very seriously. Agencies can take away your "privileges" so long as they feel there is some evidence that they can point to. It’s a shame. Fortunately, you can appeal their decisions to the District Courts, which, in my opinion, have much better trained judges.

Tags: criminal defense



What Happens When a Person is Accused of a Felony?

We are constantly being asked about the criminal process. So, this blog will briefly review what happens when a person is accused of a felony – starting from the arrest.

1. Arrest and Booking

After the police have gathered their evidence (which is not always thoroughly done), often the accused person is arrested, taken to jail, booked, then released. One good thing about being arrested is that it sends a message that the accused must take the matter very seriously. At times, a cop will "just issue a citation," which falsely leads the accused into thinking the crime must not be that serious. So, they just go to court and plead guilty, thinking by doing that, they "will be done with it." That sort of thinking is very misguided! When you plead guilty, you are not done with it, you are now married to it!

Tags: criminal defense



Medical Marijuana possession is still a federal crime in all 50 states

In Colorado, Brandon Coats claimed Dish Network violated the law by canning him because of his use of medical marijuana, which took place at home and during nonworking hours – after all, he had a medical marijuana card, and his health was very frail. He argued he was fired for doing something totally legal.

For years, many people have been screaming that marijuana is the only thing that gives them relief, and even some common over-the-counter medications can be worse on the body than marijuana. In June of this year, the Colorado Supreme Court sided with Dish Network–because technically possessing marijuana is still a federal crime in all 50 states (Controlled Substances Act, 21 U.S.C. § 844(a). So the Colorado Court, as a matter of law, got this right. Laws simply need to be changed.

Tags: marijuana possession



4 Tips for Defense Against a Utah Criminal Mischief Domestic Violence Case

Been charged with criminal mischief? Well, you're certainly not alone. And often, that charge is domestic violence ("DV") related. When we get these cases, it's typically a husband or father who's accused of kicking a door, punching a wall, or slapping a table; however, women and kids get charged with this, too – just far less frequently. Don't panic. Such cases are often beatable.

If you're facing a criminal mischief case, remember that just because you were angry when the incident took place, that certainly does not mean the prosecutor can prove his case, even if you scratched, damaged or totally busted something (like a door you may have kicked down).

Tags: domestic violence



But I Just Stumbled Upon It! How Can That Be Theft?

So, you and a buddy are just chit chatting while walking down a street, and lo and behold! you stumble upon a $50 bill. You know it's not yours, but hey, it's your lucky day! So, you pocket the money, then happily skip down to a nearby restaurant and splurge, spending it all. Then you post the whole lucky day experience on Facebook.

Or, could it have been your unlucky day? Jack finds out about all of this by reading your Facebook post. He confronts you and says, "Hey, I accidentally dropped that bill while I walking with my girlfriend, Jane, and counting my money. We both looked for it, but could not find it. I can easily prove this. You should have put up some sort of lost and found sign. You should have used some reasonable effort to get the money to its rightful owner, me, but you didn't! I'm calling the police because you are a thief!"

Tags: theft

Do Utah Employees Deserve Overtime Pay? The Fair Labor Standards Act

Let’s assume you (a lowly employee) are in the middle of a trial, and it’s little old you against your former, and very mighty employer (who’s worth millions). He’s represented by a very well known downtown law firm – and must be paying them over $400 an hour. (Your lawyer’s just a small-time "west side guy.")

His lawyers keep telling the jury that you are not entitled to any backpay for overtime because you were an "exempt" employee. In other words, by law your job was not the type that got paid overtime. They say you were an "outside salesman," so you were not entitled to any overtime (or even minimum wage for that matter).

Tags: wages



Marijuana possession in Utah can cause you to lose your driver's license in another state

Many argue that smoking marijuana is bad for your lungs, among other things, and such arguments have caused many Utah legislators to feel that smoking marijuana should remain illegal in the Beehive State. In fact, CBS News recently reported that “smoking marijuana irritates the airways, triggers cough and phlegm production, and could be especially dangerous for asthmatics.” In the same news story, they also reported that research has also shown that "marijuana may have beneficial effects on pain control, appetite, mood, and management of other chronic symptoms." (CBS News Article)

But sadly, in Utah, apparently only the negative side effects seem to influence the legislators. I recently had a client tell me he smoked marijuana for his depression because it has fewer adverse health consequences than legal prescriptions have, and costs less money, too. (I've heard the same arguments for heroine). Call us at 801-651-1512 for more information.

Whatever you think about marijuana, keep this in mind: if you get caught with marijuana in Utah, you could lose your driver's license for six months on a first offense! And, not all prosecutors in Utah will give you a “plea in abeyance,” so that your license is saved. Keep in mind, even in states where smoking marijuana is legal, they are likely to honor Utah's driver's license suspension. This is because of what is known as the “The Driver License Compact.” That is an interstate agreement to share information about license suspensions and traffic violations, and forward them to the home state of the offender! Its so-called motto is “One Driver, One License, One Record.” In other words, if you are not from Utah, your home state may honor what Utah does, even if it would not have been a violation in your own state. (For example, U.C.A. 1953 § 53-3-601 to 53-3-607.)

Tags: marijuana, drug possession



How Illegally Obtained Evidence Becomes Legal, Attenuation and Inevitable Discovery

Let’s assume Frank was illegally detained by the police. And, as a result the police came across evidence that shows Frank committed a felony. The the bewilderment of many of our clients, the evidence may still be admissible if it is "sufficiently removed" from the illegal search by an exception to the rule known as "suppression of evidence." That exception is called "attenuation." The word attenuation comes from Latin, and means a "lessening." Sometimes the rule of "inevitable discovery" may also apply.

In the famous attenuation case of Wong Sun v. United States, the defendant was illegally seized by the cops, but, many days after being let go, the defendant returned – by his own freewill and choice - to the police station and confessed. The United States’ Supreme Court ruled that under those circumstances, the confession was so "attenuated" from the illegal arrest, it should be admissible in court. In other words, the Court essentially said, "Look, the confession was so distant from the illegal arrest that it makes no sense to toss it out." So, it’s like something stationary that you see in the rear view mirror of your car. In other words, the more you drive, the smaller things become, and ultimately, you can’t see them at all (they lessen to the point that they seem to disappear).

Tags: evidence, admission of evidence



Top 5 Mistakes Defendants Make in a Domestic Violence Case

Failing to demand a jury trial. Okay, this should be a no-brainer because it’s much harder for a prosecutor to convince many jurors – in Utah, that’s up to twelve! – unanimously of your guilt than for him to convince a single judge. Remember: the domestic violence judge may be a former prosecutor, and may socialize with the very prosecutor, "victim advocate," and police officers that are involved with your domestic violence case (especially in small towns). Judges certainly don’t want to be viewed as "soft on domestic violence crimes." There’s a reason why the Founding Fathers of this great nation died for your right to a trial by jury. Know how to demand a jury, and do so!

Failing to teach the jury what "proof beyond a reasonable doubt" means. This is absolutely critical – as critical as demanding the jury trial itself! And in my opinion, this is the SINGLE MOST OVERLOOKED thing by criminal defense attorneys. So, insist that your attorney clearly and methodically explain to the jury how this level of proof is very different from all the lower levels of proof such as clear and convincing, preponderance, material and substantial, etc.). Your lawyer should let the jury know that a "not guilty verdict" does not mean they have found you to be "innocent." It simply means that the State has not convinced them that you are guilty "by proof beyond a reasonable doubt." I personally like to use the Court’s whiteboard and show all the levels of proof, and I naturally place proof beyond a reasonable doubt at the top and "wild guess" at the bottom. I make sure the jury understands that a trial is not a mere guessing game, and "I’m not sure" means "not guilty." If the prosecutor uses the words "it’s reasonable to assume," have your lawyer POUNCE on that. After all, we aren’t interested in what is "reasonable," we are interested in what has been "proven beyond a reasonable doubt!"

Tags: domestic violence, violent crimes



Can a person be not guilty of illegal drug possession even though he’s found with illegal drugs?

People often mistakenly think they are automatically guilty of possession of cocaine, marijuana, or another drug, simply because they are "found with them." However, such is not always the case. So, before you plead guilty for a scenario such as this, call Greg Smith and associates now at 801-651-1512, so you can find out if the State can even convict you (the case against you may have to be dismissed). The State must prove that you intended to use the drugs as your own.

For example, a mother may find drugs in a child’s room, and pick them up. She clearly has them in her hands, but is she innocent? Let’s assume he has no intent to dominate and control them for their illegal purpose. Cops seize drugs off people every day, yet they don’t get charged with illegal drug possession, why? This is a difficult concept, but the Utah Supreme Court has done a great job breaking this down in State v. Fox, 709 P.2d 316.

Tags: drug possession, constructive possession



An altercation in a doorway becomes first degree felony burglary assault

Marcy, the wife of a landlord, calls up Tony, one of their tenants, to remind Tony his rent is past due. Tony is fed up with Marcy’s phone calls, and thinks he should not have to pay rent at all because the apartment’s heating has not been working properly.

Tony and Marcy raise their voices at each other, and finally, Tony calls Marcy a "stuck up bitch" that lives in an "ivory tower." He also tells her she can "drop dead," and he’s not going to pay her any "damned rent" until the f***ing heater is fixed. He also tells her that she’s married to a slumlord.

Tags: assault, criminal law, burglary



Protect your reputation, defend against rape charges

Few charges are as devastating to a person's reputation as charges for sex crimes. People are often quick to side with an alleged victim and punish a person before that person has even been convicted. Not only do rape and sexual assault charges have strict sentences, they can result in years and years of police scrutiny if a person is placed on the sex offender registry. Registration can limit a person's employment, housing and social opportunities.

Our firm understands these devastating effects of these punishments. We also know just how hard it can be for a person to change his or her reputation once they have been convicted as a sex offender. Therefore, it is important to potentially avoid conviction altogether through the use of an aggressive criminal defense.

Continue reading Protect your reputation, defend against rape charges

Tags: Rape, Sexual Assault



What is drug trafficking?

In a recent blog post, this blog discussed the Controlled Substances Act. In that post, we explained that the federal government had broken down the types of drugs into schedules which dictated the seriousness of drug possession charges. Utah residents should know that these schedules are not the only factor that goes into determining the type of drug charges that a person can face. The amount of drugs that people are found with and their intent can also play a role in whether people face charges for drug possession or drug trafficking charges.

Many may wonder -- what exactly is drug trafficking? Drug trafficking occurs when people sell or distribute controlled substances. These drug crimes occur when people have large quantities of the illegal drugs listed in the Controlled Substances Act. In these cases, people often intend to distribute the drugs they have in their possession instead of just having them for their own personal use.

Continue reading What is drug trafficking?

Tags: Drug Crimes, Drug Possession, Drug Trafficking



Focus on DUI charges with our help

When people think of driving under the influence, they likely think about driving after having too much alcohol to drink. The image of an irresponsible adult leaving a bar or party may come to mind. However, DUIs are often more complicated than that. Sometimes, people have taken prescription medication and end up facing charges. Or, even some over-the-counter medications can cause issues. Suddenly, these individuals face very serious penalties without even realizing what they have done wrong.

In Utah, if a person is intoxicated it doesn't matter if the person had taken illegal drugs, used alcohol or was taking prescription drugs -- the penalties are the same. This can come as a huge shock to those facing charges for prescription drug use. These people can be good law abiding citizens that never intended to harm anyone or put others at risk.

Continue reading Focus on DUI charges with our help

Tags: DUI, Evidence



How long is a person on the sex offender registry in Utah?

Those accused of sex crimes in Utah may be worried about the sex offender registry. The sex offender registry requires those convicted of certain sex crimes to register themselves. This registry contains information about the person and the person's criminal history and releases that information to the public.

Additionally, those on the registry have restricted freedom. If you are on Utah's sex offender registry, then you can live, work or socialize. In particular, if you have been convicted of a sex crime against a child, you are not allowed to visit a park or playground that is open to the public, any primary or secondary school, preschools or daycares or public swimming pools. There are also certain requirements about how often you must update information on the registry.

Continue reading How long is a person on the sex offender registry in Utah?

Tags: Rape, Sexual Assault, Sexual Battery



Factors that contribute to aggravated murder in Utah

People may not realize just how important criminal classifications are. People may think all felonies are treated alike, or that misdemeanors are all the same. However, the specific charges can make a really big difference when it comes to penalties. In Utah, the most serious penalty a person can be sentenced to is the death penalty. The death penalty is an available option for prosecutors to pursue if a person is charged with aggravated murder.

Under section 46-5-202 of the Utah criminal code, a person can be charged with aggravated murder in a number of circumstances. If a death occurs and these other circumstances are present, the person could also face the death penalty. These circumstances include various sexual crimes including rape, forcible sexual abuse, forcible sodomy or object rape. A murder that occurs during the commission of other crimes including arson, robbery, kidnapping or burglary is also considered aggravated murder.

Continue reading Factors that contribute to aggravated murder in Utah

Tags: Homicide, Murder, Rape



Marijuana possession can be a big deal

Many people don't see marijuana use as all that big of a problem. Many people just consider it to be a harmless recreational drug. However, despite the social acceptance of the drug, it is still illegal under the Utah and federal criminal codes. Therefore, people can face serious penalties for marijuana possession.

In fact, people can face charges for drug possession in a variety of situations. In other words, people don't just have to be caught using the drug to be convicted on these types of drug charges. Police have charged people after finding trace amounts of marijuana in a bag, for example. Or, people can face criminal charges if police find them with a friend's marijuana. In many cases, police aren't looking at intent, just possession. In some cases, police will intentionally bring higher charges -- such as possession with intent to sell -- in order to get people to plead guilty to lesser charges.

Continue reading Marijuana possession can be a big deal

Tags: Drug Possession, Marijuana Possession



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Greg Smith and Associates, Criminal Law Attorneys, located in Salt Lake City (SLC), also represents clients from communities such as Provo, Orem, Ogden, Park City, Sandy, Draper, West Valley City, Bountiful, Murray, West Jordan, Taylorsville, Farmington, Alta, Bluffdale, Cottonwood Heights, Draper, Herriman, Holladay, Midvale, Murray, Riverton, Sandy, South Jordan, South Salt Lake, Taylorsville, West Jordan, West Valley City and Richfield; and counties including Salt Lake County, Sevier County and Davis County, Utah.

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