Actual Physical Control When You Aren’t Driving

Actual Physical Control of a Vehicle You Aren’t Driving

In State v. Cook, 2017 UT App 8, the court addressed a DUI involving a four wheeler and whether the defendant, who wasn’t driving the four wheeler, was in actual physical control of the vehicle. In that case, a police officer noticed an ATV driving at high speed on a snow-covered road. The officer observed three people on the ATV: a ten-year-old in the front, Elizabeth Victoria Cook in the middle, and an eighteen-year-old in the back. Cook was holding a beer can in one hand and the handlebars of the ATV with her other hand. The officer pulled the ATV over, but he noticed that the beer can disappeared. He found the beer can in the snow, which was opened and half-consumed. The officer also found another beer in Cook’s pocket.

Actual physical control of a vehicle you're not driving.

In the Cook case the court found the defendant was in actual physical control of a four wheeler even though she wasn’t driving it.

Cook was arrested and taken to the Iron County Jail where she underwent sobriety tests and a chemical breath test. She failed the tests and had a breath alcohol concentration of .119 grams. Pursuant to Utah Code Ann. § 41-6a-502(1)(a), a person may not operate or be in actual physical control of a vehicle if a test reveals that a person has a blood or breath alcohol concentration of .08 grams or greater. Therefore, Cook was charged with driving under the influence of alcohol with a passenger under the age of sixteen. She was convicted and sentenced after a bench trial.

Cook made three arguments on appeal: (1) she was not in “actual physical control” of the ATV because the child was driving, (2) the trial court erroneously admitted the results of her breathalyzer test, and (3) her trial counsel rendered constitutionally ineffective assistance.

The Utah Court of Appeals first looked to whether Cook was in actual physical control of the vehicle by examining the totality of the circumstances. A person does not have to actually move, or attempt to move, a vehicle in order to have actual physical control. The person only has to have the apparent ability to start and move the vehicle. Thus, a person doesn’t have to operate, or attempt to operate, a vehicle before he or she may be found to be in actual physical control. The child testified that Cook assisted in steering the ATV by guiding the child’s shoulders, and that Cook helped the child steer because the child almost crashed. Cook’s conduct therefore qualified as actual physical control over the vehicle even if the child was driving.

The court then looked at Cook’s second contention that the trial court erroneously admitted the breathalyzer test results, and she argued that the officer did not administer the test properly. Cook said that the requirement for a fifteen-minute observation period was not met because the officer used his phone to start the observation period and used the breathalyzer to mark the end of it, insinuating that the two separate devices may not have been synchronized. However, the administering officer’s trial testimony dispelled this argument, as he testified that the machine was working properly, he properly administered the test, and he observed more than the requisite waiting period as marked by the breathalyzer.

Lastly, the court concluded that Cook’s trial counsel was not ineffective by failing to more thoroughly develop the motion to suppress. In order to establish ineffective assistance of counsel, a defendant must demonstrate both that counsel’s performance was deficient and that counsel’s deficient performance was prejudicial. The court concluded that a more fully developed motion to suppress would not have succeeded because the admissibility requirements regarding the breathalyzer results were satisfied. Therefore, the judgment was affirmed.

DUI Enhancement and State v. Jimenez

In 2003, Jimenez-Wiss pleaded guilty in justice court to her first DUI offense, a class B misdemeanor. She pleaded guilty again in justice court in 2008 to her second DUI offense, which resulted in a suspended fifty-day jail sentence. She did not pursue a direct appeal in either case. In 2012, she was arrested for a third DUI offense after sideswiping a moving vehicle. After this collision, she failed field sobriety tests and had a blood alcohol content of .33 grams of alcohol per deciliter of blood. Since she had two prior DUI convictions within the last ten years, the State charged her with a third degree felony based on a DUI Enhancement.

DUI EnhancementJimenez-Wiss moved to strike the felony enhancement, arguing that her 2008 DUI conviction was obtained in violation of her right to counsel. She argued that the Plea Document demonstrated that she had not waived her right to have counsel present when she entered her guilty plea. On the first page of the form, she did not check whether she was represented by an attorney, whether she believed that she qualified for a court appointed attorney, or whether she wanted to waive her right to counsel. She also did not sign after the sections regarding waiver of counsel. On the next page, Jimenez-Wiss initialed next to the language explaining her right to counsel as well as next to each of the other enumerated rights. But she did not describe any reason for waiving her right to counsel, identify her counsel, or make any other indication that she was selecting one option over another. On the last two pages of the Plea Document, she checked the box indicating a guilty plea but did not provide any facts regarding the elements.

The district court agreed with Jimenez-Wiss that the missing signature on the first page of the Plea Document constituted some evidence that she did not waive her right to counsel knowingly and intelligently, thereby shifting the burden to the State to prove by a preponderance of the evidence that she had done so. It also reasoned that, since she had a Bachelor’s degree, she understood the Plea Document and knew that entering a guilty plea would waive her rights. The court also said that her final signature at the end of the document indicated an acceptance of the entire document. Therefore, the district court used her 2008 guilty plea as a prior offense for enhancement purposes, making her 2012 DUI offense a third degree felony. She eventually pleaded guilty to the third degree felony offense, reserving the right to challenge the district court’s enhancement ruling on appeal.

Appeal

On appeal, this court reviewed the district court’s factual findings of enhancement for clear error and its legal conclusions for correctness. A prior conviction may not be used to enhance a criminal charge if that conviction was obtained in violation of the defendant’s right to counsel. This court explained that there were aspects of the Plea Document that gave rise to an inference that Jimenez-Wiss did not waive her right to counsel. The document provided three opportunities to specifically affirm that she waived her right to counsel, but she availed herself of none of those opportunities. The Utah Supreme Court has held that, “considering the strong presumption against waiver and the fundamental nature of the right to counsel, any doubts must be resolved in favor of the defendant.” State v. Pedockie, 137 P.3d 716, 725 (Utah 2006). The Plea Document was ambiguous as to her intentions with respect to counsel, and her failure to clearly express a waiver of her right to counsel raised doubt about her intentions. This court concluded that under Pedockie, it must resolve that doubt against waiver and decide that the State failed to meet its burden and the enhancement did not stand. This court vacated Jimenez-Wiss’s conviction on the 2012 charge and remanded this matter for further proceedings.

The Single Larceny Rule As Applied to Aggravated Robbery

Multiple Aggravated Robbery Counts May Be Combined Under the Single Larceny Rule

Single larceny rule and aggravated robbery.

Under the single larceny rule multiple thefts in the same criminal episode may be consolidated into one charge.

Three friends drove together to a cell phone store where they entered the store but did not lock the car doors. Bell was someone inside the store, but when he left he began checking cars in the parking lot for unlocked doors. He ended up inside of the three friends’ car, which led the three friends to run outside of the store to try to get Bell out of their car. Bell pointed his knife at the friends to keep them away. Eventually, Bell grabbed the purse that was on the floor of the passenger seat and started running. The three friends, store manager, and bystanders gave chase and were able to get the purse back, but Bell then grabbed the rental keys for another car that were inside of the friends’ car as well as some credit cards and took off again. The driver of a nearby car bumped Bell with his car and told him to drop the stolen items. Bell threw the items into some bushes, kept running, and was arrested by the police.

Bell told the police that he was on methamphetamine and had not slept for three days. He began vomiting at the police station, so he was sent to the hospital. He later stated that he could not remember any of the events that took place in the parking lot of the cell phone store. He was convicted of and sentenced for three crimes: aggravated robbery of the car, aggravated robbery of the purse, and brandishing a dangerous weapon in a fight or quarrel. On appeal, Bell challenged the first two convictions, which are both first degree felonies.

Bell contended that his trial counsel performed ineffectively by not seeking merger of the two aggravated robbery counts under the single larceny rule. This rule has evolved to limit charging discretion in the context of aggregating or separating theft counts based on their dollar values for the purpose of maximizing criminal liability. If the taking constitutes a single act, then there is one offense and the multiple ownership of the property taken is immaterial. In other words, if there is one intention, one general impulse, and one plan, even though there’s a series of transactions, there is only one offense.

What the Court of Appeals Did

The court explained that Bell completed the robbery when he attempted to take the car from the owner’s immediate presence by means of force or fear. Therefore, he robbed both the car and its contents, including the purse. A thief who steals a car may later remove its contents and decide to keep or discard an item. This court did not see a conceivable tactical basis for not seeking merger in the trial court. The State’s argument that defense counsel did not perform deficiently was that the merger motion would have been futile. Failing to file a futile motion does not constitute ineffective assistance of counsel. Thus, this court looked at whether a merger motion would have been futile or would have been granted.

In conclusion, the two aggravated robbery convictions had to be merged because Bell committed one aggravated robbery rather than two, as he could not be prosecuted once for stealing the purse with the car and a second time for stealing the purse from the car. Because a motion to merge would have been successful, not futile, and making the motion would have been risk-free, counsel performed ineffectively by not making it. Bell’s conviction of aggravated robbery in connection with the car was affirmed, and his conviction of aggravated robbery in connection with the purse was vacated.

What is Consensual Sex in Utah?

Consensual Sex Is Defined by Utah Statute

What is not consensual sex under Utah law?

Utah law defines what is not consensual sex, which definition goes far beyond the attack on the remote running path.

Whether sex is consensual has been the topic of many a court case. One party stating it was not consensual sex, the other party having the opposite perception. The issue of consensual sex has come up over the years so much in both civil and criminal cases that the Utah legislature found it important enough to actually define instances that do not constitute consensual sex. These examples have been codified in the Utah Code. They include:

  • When the victim actually uses words or conduct which express a lack of consent.
  • When the defendant used physical force or violence to overcome the victim.
  • When the defendant overcomes the victim through concealment or the element of surprise. This is an interesting one. The statute does not explain more than this so in terms of how it is different from using force or violence is a little confusing. How would one use “concealment” or the “element of surprise” to have sex with someone without also using force or violence?
  • When the defendant coerces the victim to submit to having sex because the defendant threatens to retaliate against the victim in the immediate future.
  • Sex with an unconscious person or with a person who is not aware it is happening or with a person who can’t physically resist.
  • Sex with a person who has a mental defect who can’t really judge as to the nature of what’s going on.
  • When the person submits because he or she thinks the other person is his or her spouse. It would be interesting to see how someone could pull this off.
  • Administering a substance without the victim’s knowledge such as drugs and alcohol which will impair the individual to a degree that makes him or her incapable of controlling his actions.
  • The victim was a minor and the defendant was a parent, stepparent, adoptive parent or legal guardian or was otherwise in a position of special trust to the victim.
  • The defendant is under 18 but more than 3 years older than the victim and the victim is 14 or older and the defendant entices or coerces the victim submit.
  • The defendant is a health care professional or a religious counselor and the act is provided as part of the diagnosis, counseling or treatment and the victim believes it was necessary as part of the treatment.

First Degree Felony Charges When No Consensual Sex Involved

When a prosecutor is alleging that there was no consensual sex involved in a situation he will almost almost bring first degree felony charges against the defendant, which if convicted, will generally carry mandatory prison time including life in prison and mandatory lifetime sex offender registration.

Three Paths to DUI

Driving Under the Influence or DUI is one of the most complicated areas of Utah Criminal Code. There are multiple offenses and multiple elements for each offense making for a confusing statutory system and that doesn’t even include all the statutes that are specific to DUI related penalties. The elements of a crime are the facts that a prosecutor has to prove to convict an individual of a certain criminal offense. When it comes to DUI there are three different sets of elements or three different ways an individual could be convicted for driving drunk.

DUI is a complicated area of the law, and that is why it is so important to hire an attorney.

DUI is a complicated area of the law, and that is why it is so important to hire an attorney.

 Three Ways to Conviction

The first thing a prosecutor has to prove to convict an individual for DUI that must be proved in every DUI case is that the individual was operating or in actual physical control of a vehicle. Once that is covered then there are three other elements to the offense but only one has to be proven for a conviction. The first way an individual could be convicted is if a subsequent test shows that the individual has a blood alcohol concentration (BAC) of .08 or higher. Subsequent meaning subsequent to the driving. The second way is if the person is under the influence of alcohol or an illegal substance to a degree that renders them incapable of safely operating a vehicle. Under this prong it doesn’t matter that the individual didn’t have a blood or breath test that came back at .08 or higher. Finally, the third way is similar to the first but instead of subsequent it is .08 or higher at the time the vehicle was operated. This prong allows for prosecution when the test is taken after the driving and comes back lower than .08 but the argument is that it was higher at the time the individual was driving.

Hire an Attorney Today

DUIs are very common in our society but they are not very well understood. This means you should get sound legal advice before you go to court on your DUI case. Call or email us today to find out how we could help you.

Working with the Prosecutor in Criminal Matters

lawyers in a courtroom

In criminal cases prosecutors have a lot of power, so its important to know how to work with them.

The criminal justice system is quite complex but the basic idea is that an attorney for the state, the prosecutors, brings charges against individuals that are believed to have violated the law as it is set out by the legislature in the Utah Code. What that means is that the whole process of criminal charges lies in the hands of the prosecutor and they have the power to aggressively pursue charges or dismiss them altogether. If the prosecutor decides to move forward with the prosecution then ultimately the power in the case is transferred to the judge or jury who is deciding guilt and then to the judge for sentencing if found guilty.

Prosecutor Negotiations

Because Prosecutors are the first line of opposition so to speak in any criminal matter it is very important to understand how a case can be made worse or better based on the prosecutor and the negotiation process with the prosecutor. In every criminal case the basic incentive structure is the same for the parties regardless of the actual individuals involved. The prosecutor wants a conviction at the lowest cost available, meaning least amount of time and money spent on the case. The defense attorney and defendant want the lowest charge possible and the least oppressive consequences, often at the lowest cost as well. In many cases these incentives align and a compromise can be reached where the prosecutor agrees to reduce or dismiss charges, stipulate to sentencing recommendations, or forego future prosecution in exchange for the defendant’s guilty plea.

However, in other situations no deal can be reached and it is important to note that the prosecutor is under no obligation to offer individuals a plea agreement, and depending on the prosecutor that is a scary amount of power especially if they want to be unreasonable or difficult to to work with.

Finding the Right Defense Attorney

The prosecutor negotiation process is vital to any criminal defense and because of that it is very important to get a defense attorney that will fight hard for you. At St. George Criminal Defense Lawyer we know the prosecutors and we have experience working with them meaning we know what to expect and we know what things work. Call or email us today to find out how we can help you in your case.

 

Problems with Restitution

If your thinking about taking a plea agreement, and a high restitution award is part of the agreement, you should be fully aware of Restitutionhow this could potentially come back to bite you. Many individuals agree to high restitution claims in exchange for little or no jail time. But what they don’t realize at the time, is they may end up in jail or prison any ways if they fail to make court ordered payments or fail to pay off the restitution by a certain date. Understanding all of the details surrounding a restitution award is essential. Before you agree to any restitution as part of a plea agreement, we suggest you fully consider the following.

Don’t Agree to What You Can’t Pay

First, anyone taking a plea agreement where restitution is part of the deal should only agree to an amount they can realistically pay back within a shorter period of time. Failing to pay restitution can mean your case and your probation period stay open for years. If you are unable to pay the restitution amount you may never successfully close your case and you might end up in jail or prison. A good rule of thumb is to only agree to a restitution amount which you could realistically pay off within the time of your probation. For instance, if you are sentenced to probation of 18 months and ordered to pay restitution in the amount of $18,000.00, you realistically need to be able to pay $1,000 per month for the length of your probation. If you can’t do it, try to negotiate another resolution.

Negotiate Specific Terms Upfront

Often a person will agree on a restitution amount but will not attempt to negotiate any of the other details of the repayment making it easy for a prosecutor or judge to later make it an issue when you start only paying X amount of dollars each month. Negotiate the repayment terms upfront, not just the amount. Often when you agree to an amount set forth by the prosecution, you can get a little bit more flexibility on the other repayment terms.

Review with an Attorney

Before you agree to any amount of restitution, make sure you review your case with a St. George Criminal Defense Attorney. Also, if you are served with an order to show cause for failing to make court ordered restitution, you should hire a lawyer asap. More information on restitution in the state of Utah can be found here. Or you can pick up the phone and get a free consultation with a member of out team today.

A Cooperation Agreement Is Not the Equivalent of Probation

What is a Cooperation Agreement?

cooperation agreement

The Utah Court of Appeals found that a violation of a cooperation agreement is different from a probation violation.

In criminal cases prosecutors will often charge a notable defendant with count after count of felonies in order to persuade that defendant to help the state get to bigger fish. They threaten the smaller fish with a lifetime of imprisonment in order to give him the necessary encouragement to turn on his companions in crime. Prosecutors then present a “friendly” alternative to the unfortunate defendant in the form of a cooperation agreement. The cooperation agreement will promise the defendant something in his favor, such as staying a prison sentence, in exchange for receiving the defendant’s help to catch other individuals committing crimes, usually individuals higher up in a criminal enterprise. The cooperation agreement sets forth in writing very specific terms and a provision that the defendant must comply with all of the terms of the arrangement in order to receive the benefit of not going to prison, jail, or avoiding other consequences.

The Terrazas Case

Recently the Utah Court of Appeals addressed the standard that should be applied when determining if a cooperation agreement has been violated. In State vs. Terrazas, the defendant had been charged with a number of felonies and misdemeanors in different cases.  It came to be known that the defendant had some involvement with the Ogden Trece gang. They worked out a cooperation agreement with Terrazas that if provided information that would allow the state to prosecute three identified high-ranking members of the Ogden Trece gang that his prison sentences would be stayed. He had pleaded guilty to a number of different felonies and misdemeanors and the judge stayed the prison sentences because he had entered into the cooperation agreement.

Terrazas began to comply with the cooperation agreement by doing controlled buys with members of the Trece gang, but over time he became lackadaisical in his compliance. Additionally he started selling controlled substances outside of the terms of the cooperation agreement. Eventually the police had enough of his noncopmliance and allowed Terrazas to get arrested for selling meth. At a sentence review hearing the state argued that Terrazas violated the cooperation agreement and so his original sentence should be imposed.  The district court agreed and imposed the original prison sentence.

On appeal Terrazas argued that the same standard for a probation violation should apply to his case for determining whether he violated his cooperation agreement. The Utah Court of Appeals found that the standard applied in a probation violation hearing does not apply to a cooperation agreement.

How Double Jeopardy Works

Under the Fifth Amendment to the U.S. Constitution, a defendant may not be retried for the same offense once jeopardy has attached. Many people have a fundamental understanding that they can only be tried for the same offense once. If your acquitted by a jury, the state does not get to refile charges and take another bite at the apple. However, there are questions which arise regarding what constitutes the same offense and when does jeopardy attach. Anyone who has seen the movie Fracture with Ryan Gosling and Anthony Hopkins understand there are some exceptions to the general jeopardy rule that can land a person acquitted of a crime back in a court room.

When Jeopardy Attaches

Jeopardy attaches when a jury is worn in; when a witness is sworn in if  it is a bench trial; and upon commencement of the proceedings if a juvenile matter. Jeopardy does not attach in civil proceedings except that juvenile proceedings are often considered civil.

Exceptions to Double Jeopardy

Even if a person has been tried, there are a few exceptions in which that person may be retried. The first is a hung jury. If the first trial ends in a hung jury, meaning the jury cannot decide after meaningful deliberation, the defendant can be retried. Another exceptions involves a manifest necessity. If the court finds it is necessary to abort the original trial or the trail is terminated at the behest of the defendant, there may be another trial. Under some circumstances the state may seek a retrial if the defendant won on an appeal. Finally, charges may be reinstated when a defendant breaches his/her plea bargain.

Same Offense

In determining whether two offenses are the same, consider the following general principles: First, two crimes are the same offense unless each crime requires proof of an additional element. Second, multiple punishments are permissible if there was a legislative intent to have cumulative punishments. Third, attachment of jeopardy for a greater offense bars retrial for lesser included offenses. And finally, jeopardy does not bar a subsequent civil action.

Separate Sovereigns

Generally speaking, the state and the feds can charge an individual for the same conduct without a double jeopardy issue. This means you could be charged in federal court and in state court for charges arising out of the same conduct.

Your Right to Counsel

Most people realize one of their fundamental constitutional rights under the U.S. Constitution includes a right to an attorney when charged with a crime. What some people may not realize is when such a right takes effect. This does not mean in most cases you are required to have a lawyer. A defendant can always represent them self, even at trial, so long as the defendant knowingly and intelligently waives his/her right to counsel. With that being said, it is certainly recommended to have representation and to understand when and how your right to a lawyer may arise. This article describes when your right to counsel applies, and when it does not.

Right to Counsel Prior to Trial

Your rights to an attorney can apply long before your case ever goes to trial. In fact, the majority of criminal cases never go to trial, but you still are entitled to a criminal defense lawyer during the following pre trial stages of your case:

  1. Custodial police interrogation. If you are taken in for questioning by the police, you have the right to have an attorney present during questioning.
  2. Post charges interrogation. If you have been charged and the police want to question you, you have the right to a lawyer.
  3. Preliminary Hearings. You have the right to a lawyer for any preliminary hearings to determine probable cause to prosecute.
  4. Arraignment. At the time you enter a plea of guilty or not guilty, you have the right to counsel.
  5. Post Charge Lineup. If you have already been charged and the police want you to do a post charge lineup, you have the right to have your defense lawyer present.

Right to Counsel at Trial

Many people believe they have a right to a court appointed attorney or public defender if their case goes to trial. This is not necessarily the case. In fact, you only have the right to an attorney at trial if incarceration is actually imposed as a result of your sentence. This means a judge may choose not to appoint an attorney for you in a case involving lower level offenses that carry no real risk of jail time.

Right to Counsel Post Trial

You have a right to counsel after trial for all sentencing hearings and also for appeals as a matter of right, and appeals of guilty or nolo contendere. Your right to counsel does not extend to post trial matters involving discretionary appeals, post conviction proceedings such as habeas corpus hearings, and parole or probation violations.

Should I hire a Lawyer?

There is no question a defendant charged with a crime is better off with an effective criminal defense lawyer that without. Statistics show better outcomes for represented defendants as a whole. May people wonder when they should retain counsel. The simple answer is this, as soon as you have any reason to suspect you may be charged with a crime. Do not want until you are actually arrested or charged. If you are being investigated by the police, you should have representation as soon as possible, especially before giving a statement otherwise cooperating in the investigation.