Some of my favorite childhood and adolescence memories involve hunting expeditions with my kin. I also look forward to making new memories every October in the mountains of northeastern Utah. Unfortunately, some Utah hunters lose the privilege to hunt because of unwise decisions, and even honest mistakes.
The Utah Code allows for the suspension of a hunter’s rights if he is convicted in a court of law for violating a Wildlife code or rule (Utah Code § 23-19-9). The frustrating thing about the statute is that it actually allows for a hunter’s rights to be taken before they are convicted.
Defense attorneys love it when a prosecutor offers a plea in abeyance. A plea in abeyance is defined in Utah Code § 77-2a-1(1):
” “Plea in abeyance” means an order by a court, upon motion of the prosecution and the defendant, accepting a plea of guilty or of no contest from the defendant but not, at that time, entering judgment of conviction against him nor imposing sentence upon him on condition that he comply with specific conditions as set forth in a plea in abeyance agreement.”
The statute is written very well, and is very clear-a plea in abeyance is not a conviction. However, § 23-19-9, despite listing “is convicted of” as a requirement, allows the Wildlife Board to suspend a hunter’s hunting privileges if he enters a plea in abeyance, and arguably, even if a diversion is given.
Utah Code § 23-19-9(4)(b)(ii) reads:
“a plea of guilty or no contest to an offense punishable as a class A misdemeanor, which plea is held in abeyance pursuant to a plea in abeyance agreement;”
Despite the clear definition of a plea in abeyance that the Utah Code provides the Wildlife Board may take hunting privileges even if the hunter is not convicted of a crime.
Utah Code of Criminal Procedure §77-1-4 is very clear and makes the taking of hunting privileges without a conviction even more troubling. The statute says:
“No person shall be punished for a public offense until convicted in a court having jurisdiction.”
When § 23-19-9 is read in the light of §§ 77-2a-1(1) and 77-1-4 it seems very difficult to reconcile it with long standing Utah law.
Hunters, if you are charged with a Wildlife crime, unless the charges are dismissed without a plea in abeyance agreement, there is a chance that you may lose your hunting privileges even though you were never convicted of the crime in a court of law.
Are you scratching your head? If so, you are not alone.
Kyler Ovard and Greg Smith of Greg Smith and Associates.