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.

Interfering with Arresting Officer | Resisting Arrest

The charge of interfering with an arresting officer, or resisting arrest, is an all too common charge in Utah that is often not justified. While many police officers do a great job of managing their conduct with suspects, some rotten apples are quick to lose their temper and make unwarranted demands on individuals who may not have broken the law or done anything wrong. Many of us have dealt with law enforcement agents who demand information or action from you when they have no legal authority to do so. Sometimes, even just questioning a police officer following a traffic stop about why you were pulled over etc., can result in an unwarranted interference charge or related offense. This is not right and our law firm works hard to defend individuals caught up in charges due only to an overzealous or unprofessional policeman.

The Dos and Don’ts

It may seem obvious but you should never engage a police officer physically. Doing so will surely result in assault charges and more. You should also avoid arguing with a police officer as it will almost never help your case. Even if you are in the right, and you surely might be, if an officer is not listening to your side of the story, do not argue such a way as to further agitate the problem. You will have your day in court so if the police are operating outside of their authority or are engaged in misconduct, you need to trust that such evidence will come to light.

Charged with Resisting Arrest in Utah

In order to be convicted of interfering with an arresting officer, the prosecution must prove you knew or should have known by exercise of reasonable care that a police officer is seeking to effect a lawful arrest or detention of you or another individual, and  you interfered by (1) us of force or any weapon; (2) refusal to perform any act required by lawful order necessary to effect the arrest; or (3) you somehow otherwise impeded the arrest. If you are charged with interference or resisting arrest in Utah, call and speak to a St. George Criminal Defense Attorney in our office right away. As you advocate we will obtain all the evidence in your case to help prove your innocence or help to get the best outcome possible. We understand your right to question authority and see many cases where there simply wasn’t conduct sufficient to justify the charge.

How Can A Prosecutor Prove I was Driving Impaired by Prescription Drugs?

Presence of the Drug does not Equal Impairment

At first glance, the question that constitutes the title of this post may seem like a question with a simple answer, but it’s not.  When one really looks at the question in the context of a driving under the influence of prescription drugs case in Southern Utah, one quickly realizes that it becomes a complex issue.

First, you have to look at the law in Utah as it is today as it relates to driving under the influence of prescribed pharmaceuticals, which is much more narrow than driving under the influence of alcohol.  With alcohol, all the prosecutor has to show that the blood alcohol content of the driver was .08 or greater.  With pharmaceuticals, if you have a prescription a prosecutor must prove beyond a reasonable doubt that you were under the influence of that drug “to a degree that renders [you] incapable of safely operating a vehicle.”

In order to prove such impairment the prosecutor must first establish that the drug was in the person’s system.  This is accomplished through blood work which will show either positive or negative for a pharmaceutical drug.  The problem with blood work, however, is that it cannot show how much of the drug was in the blood system at the time of driving or at the time of the test.  Even if it could show how much of the drug was in the defendant’s system, that does not necessarily show that the person was impaired as a result of the drug; it merely proves that the drug was in the body.

Prosecutors argue that mere presence, coupled with how a person performs on field sobriety tests, the defendant’s behavior, and driving pattern is enough for a jury to conclude that the drugs caused the impairment.  That reasoning, however, does not flow logically, because there could be a million other reasons for the defendant’s behavior, driving pattern, and performance on field sobriety tests.  For example, people take prescribed drugs because they have something wrong with them.  The cause of the illness can often times be the cause of the defendant’s behavior.  Diabetes, neuropathy, sleep disorders, and other physical disabilities can all cause was can be perceived as “impaired driving.”

In these types of cases defendants and their attorneys have to present their case in a way that forces the jury to understand the inability of the prosecutor to prove impairment.  That’s what we do.  Call us for more information.

What to Expect When Charged in St. George

If you have been charged with a crime in St. George Utah, there are a number of things to expect. If you are charged with a more serious crime such as any felony, you will most likely be arrested and booked into the Washington County Jail. A bail amount will be set and you will have a an initial appearance before a judge usually within a day or two. If the crime is not as serious, a lower level misdemeanor such as retail theft for instance, you may not be booked at all. Rather, the officer involved may decide to simply write you out a citation and you are expecting to contact the court for your first court date within a certain period of time. However, even if you are only being charged with a misdemeanor, if the charge involved any violence, such as an assault, domestic violence, etc., you will most likely be arrested and booked in jail. Almost all DUIs result in an arrest and booking.

After You are Released

Once you are able to bail out, you should consult with a St. George Criminal Defense Attorney as soon as possible before taking any further steps in defense of your case. Depending on your charges, your next court date may be an arraignment or something else. Either way, you need help from an attorney as early as possible in the case to prevent any further problems.

Plea Agreements

Most cases are resolved by plea agreements at some point before the case gets close to a trial. Indeed, the vast majority of cases are resolved after your defense lawyer is able to reach an acceptable plea agreement thereby mitigating your risks of trial.

Patience is Key

Often the criminal justice system moves slowly so patience can be key to getting the best resolution possible. Be prepared for a month plus long process not a week process. If you have been charged, we can assess your particular set of facts and give you legal opinion on what to expect. Contact us as soon as possible.

Lewdness Involving a Child in Southern Utah

What is Lewdness?

Lewdness is when a person exposes his genitalia or other privates areas, masturbates, or commits some kind of sexual act in the presence of another knowing that such actions will likely cause affront or alarm to the other person.  For example, simply “mooning” someone, as so many juvenile-minded people do, is considered lewdness and is a class B misdemeanor.

What is Lewdness Involving a Child?

Although both are sex crimes, lewdness involving a child is different from regular lewdness in a couple of respects.

  • First, and most obvious, regular lewdness does not involve children under the age of 14 years old, whereas lewdness involving a child is lewdness committed in the presence of a child under 14 years old.
  • Second, regular lewdness must be committed in a public place, whereas lewdness involving a child can be committed in a public or a private place.
  • Third, if the lewd act is exposing one’s private areas, the person who commits the lewdness does not have to know that his actions would cause affront or alarm  to the child if the the act is committed in a public place.  If the defendant exposes his private areas in a private place then the defendant had to have known or should have known that his act would cause the child affront or alarm or he had to have done it with the intent to arouse or gratify his own sexual desires or that of the child.
  • Fourth, for lewd acts such as masturbation and sexual intercourse or sodomy the actor does not have to have cause affront or alarm to the child.  Committing the act is enough.
  • Fifth, lewdness with a child is committed by causing the child to expose his private areas with intent to arouse or gratify either the defendant’s or the child’s sexual desires.
  • Finally, lewdness with a child is a class A misdemeanor unless it is a repeat offense or the defendant was a sex offender at the time the acts were committed, then it is a felony.

Charges With Lewdness Involving a Child?

If so, contact St George Criminal Defense Lawyer for a free consultation at 435.215.1101.  Our defense attorneys are experienced with sex crimes throughout Southern Utah. We’d be happy to talk to you about your case and assess your defenses and likelihood of success in defending against such claims.

What to Expect Following an Alcohol Ticket in St. George

Like most of the rest of the state Utah, St. George, Cedar City, and all of Southern Utah in general are tough on prosecuting underage drinking. Alcohol sales and consumption have risen steadily in Utah over the past several years so it is no big surprise more teenagers are finding themselves in trouble for alcohol related crimes be that consumption or DUI. If you have been issued an alcohol ticket, the penalties can be severe. Hiring a Criminal Defense Attorney in St. George can help to ensure you are treated fairly in the process and your rights are protected. The first step in successfully defending a Minor Consumption of Alcohol charge or related offense, is to understand what you are up against. Consider the following:

First, if this is your first offense, you could be facing a driver’s license suspension, court fines, and possibly be required to take an educational series. If it is a second or subsequent offense, the penalties go up from there. Second, it is important to note that it is illegal for a minor to no only consume but to possess alcohol as well. Not only that, it is also illegal under the same statute to purchase or even attempt to purchase alcohol if you you are a minor, that is under the age of 21. Where younger people often get into trouble without thinking they are doing anything wrong, is where they are charged for possessing alcohol simply because it was in their vehicle, in their room, or maybe in their home. Additionally, attempting to purchase can result in a charge. If you, as a person under the age, walk into a gas station and try to purchase alcohol, you could be charged. It gets even worse if you are using a fake idea.

Many times we see college aged individuals being charged with these types of crimes. It is no big secret that many college kids like to to consume alcohol and party. With 2 major colleges in the Southern Utah area, we see a lot of alcohol tickets handed out each year. Whether you are a student at Southern Utah University or Dixie State, we can help and understand you have a lot on the line at this pinnacle in your life.

Defense for Minor Consumption Charges

A St. George Criminal Defense Lawyer in our office can help if you are facing an alcohol ticket and are worried about losing your license or otherwise suffering tough penalties. These types of charges can carry long term consequences so it is advised to have legal counsel rather than attempting to resolved the case on your own. Call and get a free assessment of your facts over the phone with an experienced attorney at our firm today. There is not pressure for you to sign up and we can at least point you in the right direction.

Marijuana Field Raided in Iron County

Authorities raided a huge marijuana field this week in Iron County located about 30 minutes from the Right Hand Canyon Road in Cedar Canyon. Last week, Utah Highway Patrol stopped a vehicle and received a tip about the marijuana fields. The tip turned out to be good and over 1800 plants were discovered on a steep hill just a short hike from a road going up the canyon. Many people go up and down Cedar Canyon every year so it is always surprising when marijuana grows are discovered in this area. This is not the first field to be found recently by law enforcement in Southern Utah. Some fields have been linked to Mexican drug cartels so it can be dangerous to stumble upon these field. Law enforcement estimated the fields had been growing for about 2 years or so and would soon be ready to harvest.

Marijuana Fields in Southern Utah

Several marijuana fields have been busted in Southern Utah in recent years. With marijuana becoming legal in a few states this past year, it remains to be seen whether these types of operations will continue or if growers will move to friendlier states. Southern Utah seems to be a prime area for growing the crop since surrounding mountains offer secluded forests and climates that seem to work surprisingly well for this cash crop. Washington County, Iron County, and Kane County have all seen multiple marijuana fields emerge in recent years. Individuals found in these areas have been charged with harsh charges including federal production and conspiracy charges which carry the potential for many years in federal prison.

Southern Utah Drug Defense Lawyer

If you are charged with marijuana related offenses in St. George, Cedar City, or the surrounding areas, you should speak with a Southern Utah Drug Defense Lawyer as soon as possible to discuss your defense and ensure your constitutionally protected rights are not infringed by sometimes over zealous law enforcement.

St. George Law Enforcement Uses Technology to Get Thief

On Wednesday night a car was broken into and an iPad and a wallet were stolen. Once the theft was realized the police were called but no suspects were initially identified. However, with the help of the victim police were able to monitor purchases on the stolen credit cards and find out where the alleged thief was making purchases. After the retail locations were identified surveillance footage was obtained that led to a positive ID and later to an arrest of a 20 year old St. George man who is now facing theft charges.

Theft is a broad category of the law but depending on the value of the items stole the defendant could be facing anywhere from a class B misdemeanor to a felony charge. If convicted part of the defendant’s sentencing will almost certainly included restitution to the victim, which includes repairs to damaged property as well as the value of any unreturned property.