Utah Criminal Law

Marijuana Crimes in Utah

2011-08-01T15:06:00.000-07:00

Marijuana may not seem like a big deal nowadays. With California, and then Colorado, legalizing it for medicinal purposes, the stigma once associated with marijuana use has faded away to a certain extent. If you are charged with a marijuana crime in Utah, though, that stigma is still there. Marijuana charges in Utah are some of the toughest (if not THE toughest) in the nation. A testable amount of marijuana in a baggie is punishable by up to six months in jail, thousands of dollars in fines, and a six month suspension of your driver license.

If facing Marijuana charges in Utah, here's a few things to keep in mind:

1. The severity of your charge, and hence the potential sentence, is based on weight

Busted with an ounce of weed or less? Class B misdemeanor (unless you have prior convictions for marijuana or other narcotic use). Busted with a few bricks? Possible 1st degree felony and punishable by life in prison. That's right, that's not a typo: you could get life in prison just for possessing marijuana. Utah law states that possessing above a certain amount of marijuana leads to the reasonable conclusion that you meant to distribute it. Basically, the government thinks anyone with a lot of marijuana is going to sell it and charges you accordingly. The container is also weighed so if you packed the marijuana in heavy plastic or metal, better hire a good drug crimes attorney quickly.

2. Drug free zones enhance the charges

Where are the drug free zones? Almost everywhere. In Salt Lake County you can't go more than a block without being in a drug free zone. Schools, gyms, community centers, nonprofits, shopping malls, playgrounds, the list goes on and on. If you are stopped near any of these your misdemeanor marijuana charges just might have become felonies. Unfortuantely, some police officers use these to their advantage and will follow you until you are in a drug free zone before pulling you over just to get the enhancement.

3. The Driver License Division hates you

There is hardly a more frustration organization to work with than the DMV/DLD. They want, seemingly very badly, to suspend your driver license if you have a marijuana charge. There are deals that can be worked out such as diversions and pleas in abeyance that do not count as a conviction, which is what the DLD needs in order to suspend your license. A growing trend in Utah marijuana cases has been the DLD suspending licenses even though they don't have a conviction. Several times, I've had to get a court order and take it down to the Driver License Division to get my client's driver license back because the DLD unlawfully suspended it. It is a pain, they suspend it for long periods of time, and they occasionally due it unlawfully. A good Utah marijuana attorney is worth the money just so you don't have to be the one to deal with your driver license issues.

4. Prosecutors like to look tough on crime by being harsh on drug cases

Sadly, getting convictions with long jail/prison sentences is an easy way for a fresh young prosecutor to make his mark at his office. Big drug busts and the ensuing court proceedings often make it into newspapers and the prosecutors are even less likely to make a deal. Marijuana is an easy target because many city governments and counties in Utah want to seem like they are fighting the growing trend of marijuana becoming acceptable in society. This makes it much more difficult to work out good deals on marijuana cases.

5. Judges seem tough on crime by giving long sentences on drug cases

This is even worse than prosecutors going extra hard on marijuana cases. Judges now know that long sentences make the papers and put them in a good light with the powers that be and the general public. "Judge sentences drug dealer to life in prison," is a headline most judges crave. Even on things such as magic mushrooms and marijuana. It's a growing trend that, sadly, is filling our jails and prisons with mild marijuana users rather than the hardened violent criminals that should be there.

6. Bottom line

The bottom line is everyone in government is looking to be harsher and harsher on marijuana users in Utah. Don't let them push you around and talk you into pleading guilty! Eventually, at least in this attorney's humble opinion, marijuana will be legal everywhere, even Utah. Until then, if you are busted, call an experienced drug crimes attorney today and fight it.

Utah DUI Penalties

2011-07-05T15:54:00.000-07:00

You've gotten a DUI in Utah and you've heard horror stories and conflicting information about what can happen to you. A friend of your cousin's said you can get five years in prison. Your neighbor told you his roommate got a DUI in Salt Lake City and only got a fine.

So what's the truth about DUI penalties in Utah? Here's some quick facts:

JAIL/PRISON

By far, this is my clients' top priority and the number one question they have about it is: how much jail or prison time am I facing? The answer is a resounding: it depends.

On a first DUI you are technically facing six months in jail but if you pled guilty you would possibly only get the minimum mandatory of two days unless you had aggravating circumstances like a high BAC, an accident, you were a jerk to the cop, the prosecutor doesn't like you etc. On a second DUI the minimum mandatory goes up to ten days. On a third, you're now facing five years in prison with a minimum mandatory of 62.5 days. The "minimum" though set by law, varies by judge and prosecutor though so be careful. Some clients that I have tried to go it alone first and ended up getting far in excess of the minimums. When a prosecutor knows you're at their mercy, they can do whatever they want. Best not to go without representation and let that happen. And yes, I have seen first time DUI's get nearly the maximum in jail (it was a bad case though where they hit another car and disabled the other driver).

FINES

How much are you going to pay? A lot. Let me emphasize that: A LOT. DUI's are major money-makers for cities, counties and states. A single DUI in Utah, with the impound fees, license reinstatement fees, fines, attorney fees, treatment class fines, etc., could run, in total, somewhere between $5000-$20,000. The court fines are just the tip of the iceberg. A good attorney can help minimize these costs, but not get rid of them entirely. Expect to pay something.

TREATMENT

Courts love recommending lots of treatment, even though the studies suggest they have little impact on DUI offenders. Regardless, treatment will probably be part of any deal you negotiate. It can run anywhere from 4 hours of classes to 50 hours of classes depending on the treatment provider chosen. Speak with a good DUI attorney about what treatment providers are good, or get other recommendations from people you may know. You may find reviews of treatment providers online and you can research them there as well. One thing to keep in mind: many treatment providers have you pay for an assessment to determine if you need treatment and then provide the treatment too. Clearly a conflict. Government agencies usually are better on this but BE CAREFUL. Treatment costs can easily skyrocket.

DRIVER LICENSE

The suspension rules are complex and too broad a topic for a section in a blog post. You need to research them or hire an attorney (sorry to keep saying that but it's just such good advice!) and figure out which sections of the administrative rules and Utah Code apply to your case. Your license could be suspended for as little as four months or as long as three years. This is very fact specific to your case and you need some research or to consult someone knowledgeable to figure out where you fall.

WORK

You may not want your work to find out that you have a DUI. There's going to be documents filed, possibly subpoenas sent, phone calls made etc. This is something you need to be wary of if it's important to you. To be honest, the court doesn't care if you get fired over this so you're the only one that can prevent it. Getting a P.O. Box as your official address may not be a bad idea if you don't want people in the home finding out either.

COURT APPEARANCES

Sadly, this is something that can rarely be prevented. You're going to have lots of them. More if you have a good attorney, less if you have a bad one and they plead you guilty the first chance they get (unless there is a specific reason for doing so and there sometimes is). You're going to miss work, children's birthdays, soccer games etc. You just have to work with your attorney to schedule these the best way possible.

MORAL IMPLICATIONS

You may feel bad on a moral level that you committed a crime and feel that you deserve punishment. Put that out of your head right now! The prosecutor's job is to prove crimes, not make you feel bad. We all make mistakes. I have defended doctors, lawyers, politicians, Church leaders and on and on. We're human. The point is to get the best possible outcome for you, learn from the experience, and make sure it doesn't happen again. Don't beat yourself up over it if you have a DUI.

OTHER PENALTIES FOR A DUI IN UTAH

There's going to be more associated with a DUI in Utah, like ignition interlock devices, becoming an alcohol restricted driver, having your vehicle towed, having the stigma of the charge on your record etc. Frankly, there's so much that entire books have been written on DUI's. The best thing you can do is hire a good DUI attorney and begin the process as soon as possible.

Utah DUI's and Your Driver License

2011-07-05T12:24:00.000-07:00

So you've gotten a DUI in Utah. It's not something you normally do and now you're worried about the consequences. Aside from going to jail, what's your top priority right now? It should be keeping your driver license.

Can you imagine not being able to drive for anywhere from four months to three years? I certainly can't. Some of my clients have even told me they would be willing to go to jail if they could keep their driver licenses!

Utah is one of the strictest state's when it comes to suspending driver licenses after a DUI. You need every advantage you can get.

Here are some tips on how to keep your driver license after you get a DUI in Utah:

Hire an Attorney

I know, I know, it sounds self-serving for an attorney to say "hire an attorney." But think about it: some attorneys, myself included, do hundreds of DUI's. That means hundreds of driver license hearings to try and keep our clients' licenses. It's just common sense that the more something is practiced the better you'll be at it. The fact is, these hearings are complex and the rules are rigid. Miss one deadline, send a fax to the wrong place, call the wrong number, and your license is suspended. There are a lot of bad attorneys out there that won't do anything for you, so if you are going to hire an attorney, make sure they've done plenty of DUI's and have received at least some training in conducting DUI defense in Utah. DUI's are not like other criminal cases because of the technicalities and science involved. Law school doesn't prepare one to handle these. Your attorney should have additional training.

Request a Hearing with the Driver License Division

You MUST MUST MUST, request a hearing within ten days of receiving your DUI in Utah. That includes weekends, holidays, emergencies, hospitalizations, whatever. If you miss the ten day deadline, there's almost nothing that can be done. You can request a review for a late hearing, but these are rarely granted. I had one client who only spoke Spanish and the officer informed him of the hearing in English. He, obviously, missed the ten day deadline and hired us later to handle the case. The Driver License Division still would not give him a new hearing, even though he was never really given notice of the hearing. We had to appeal it all the way to the Third District Court and take the case away from the Driver License Division before anything was done. Remember, you can fax or take down your hearing request to the Driver License Division in person, but do not miss that ten day deadline. I recommend you go the day after and just get it done.

Get All the Reports

You're entitled to the DUI reports, blood, breath and urine results, intoxilyzer checklists and printouts, and just about everything else that is going to be introduced at the hearing. Make sure you get these early on from the Driver License Division.

Pick Your Issues

Attack every little irrelevant piece of information at the hearing and the hearing officer will tune you out at best and tell you to cut it out and move on at worst. Pick the best issues to attack and stick to them. Don't let the officer get away with statements like, "And then I performed the field sobriety tests and he failed." Make him describe what training he's received in performing the FST's, how many times he's performed them, and how he performed them on the night in question. Remember, the standard is so low at a hearing, you need something very wrong with the case to win. Do your homework and remember that DUI police officers are only human; they do make mistakes.

Appeal

If you lose the hearing, you will receive a notice in a couple of weeks letting you know the date your driver license is officially suspended. For a first DUI offense the suspension is 120 days. A second DUI is two years. You have the right to request a review of your suspension in writing to the Driver License Division. If they send a letter to you informing you that they are upholding the suspension, you can then appeal to the local district court and place the case in front of a judge instead of a hearing officer. Of course, for DUI's in Utah, the Attorney General's Office takes over at this point and the prosecutor they have handle the driver license hearings is an expert at them. She's also pleasant and a good person, but talented and aggressive so be careful. If you lose the appeal, you can try and take it up to the Utah Court of Appeals and the Utah Supreme Court, but there would have to be something seriously wrong for them to consider it.

Photo: Mclovin: From the movie Superbad

Facebook Catches Crooks - Policing 2.0

2011-07-05T06:27:00.000-07:00

The cops are catching on to the social media revolution and criminals might not like what they find.

In Ogden, Utah, a kidnapping suspect kept updating his Facebook profile after the police shut off power to the motel building where he was hiding. One friend told the suspect on Facebook that SWAT was staging in bushes nearby and told him to keep low. Police are thinking about charging the friend for helping the kidnapper.

In Indiana, it took police less than 30 minutes to find a suspected counterfeiter on Facebook. Police posted surveillance video of the woman they were looking for. A man saw the post and sent a message saying that he knew the woman. Less than thirty minutes later, police were questioning her about the counterfeit money. She has since been cleared of the charges.

Finally, Canadians in Victoria kept police updated on Twitter of criminal activities that they were witnessing. Police got messages about plans to vandalize a stretch of one street and responded to the area before anything could get out of hand. Police got specific tips about people drinking illegally in certain areas and responded to arrest. "At one point traffic was so heavy that VicPD, with 2,000 followers on Twitter, was trending as a national conversation."

Be careful what you tweet and what you put on Facebook. The police may be watching.

Belated Update: Strauss-Kahn Freed After "Victim" Lies

2011-07-04T12:15:00.000-07:00

On July 1, Dominique Strauss-Kahn was released from house arrest. As I posted previously, this was a result of major credibility problems with the government's main witness who was also the alleged victim. This appears to be a major weakness in the government case, but they do not have any plans to immediately drop the charges against Strauss-Kahn.

John Adams: A Great Criminal Defense Attorney

2011-07-02T09:11:00.000-07:00

One of my favorite criminal defense lawyers is John Adams. On this 4th of July weekend, I think it is appropriate to remember what great men the founding fathers were.

John Adams was practicing law near boston when the "Boston Massacre" happened. The Lynn Ranch blog sets the scene:

"On March 5, 1770, six years before the formal break from England, an unruly mob gathered in front of Boston's Customs House. After pelting British troops with snowballs and rocks, the crowd surged forward; the troops fired into the mob, killing five people. From the colonial viewpoint, this was the 'Boston Massacre.' As far as the British were concerned, it was a riot. Both views are credible."

12 of the soldiers were charged with murder. The court could not find a lawyer who would defend the soldiers. The case was deeply unpopular. Adams, who had political aspirations, believed that if he took the case, his reputation would be permanently damaged. But he thought it was more important that the men get a fair trial than for him to be able to run for office.

"Under Adams' skillful defense, six of the soldiers were acquitted. Two who had fired directly into the crowd were charged with murder, but were convicted only of manslaughter. Adams was paid eighteen guineas by the British soldiers, or about the cost of a pair of shoes. Beyond the fee, Adams wanted to prove to the world that American justice was balanced and fair."

People frequently ask me, "How can you be a criminal defense lawyer? How can you defend guilty people?" I like to think that in my small way, I am following in John Adams footsteps. Like him, I believe that our justice system requires skillful advocates on both sides. I can't change the facts of my clients' cases, but I can make sure that they don't get convicted of a crime unless the prosecutors do their job.

As we celebrate our country's independence, I am grateful that we live in a land where we are governed by the rule of law. I am grateful that John Adams and the other architects of the Constitution built a procedure that protects the innocent as well as the guilty.

Profile of Attorney General Candidate Sean Reyes

2011-07-01T05:35:00.000-07:00

Utah Attorney General Mark Shurtleff says he won't run for Attorney General again. Is that decision final? Who knows. Mr. Shurtleff is not above changing his mind on important decisions. However, as an incumbent who won nearly 70% of the general election votes in 2008, he was the odds-on favorite to win again.

State Senator John Valentine, Deputy Attorney General John Swallow, and Sean Reyes have been mentioned as possible candidates for the post on the Republican side.

Mr. Reyes attended a lunch meeting in downtown Salt Lake that I was at on Wednsday, so I thought I would take a quick look at his candidacy.

Why Sean Reyes?

Mr. Reyes' platform is generic, but it hits all of the right notes. He is conservative. He wants to protect families.

But what makes Sean look like a serious contender is his organizational head start. It is very early to be campaigning for Utah AG. The general election won't be until November of 2012 and the Republican nominating convention will probably be in May of 2012. So, by starting so early, Sean is looking at a 17-month campaign.

Sean was the only candidate for AG who had a booth at the State GOP organizing convention last month. He has formed a PAC called Freedom Defense and he seems to be aggressively and energetically campaigning. He has also collected dozens of endorsements already.

Background

Sean was until recently a lawyer at a large prestigious law firm in Salt Lake. He went to law school at Berkley and played volleyball there as well. Unfortunately, he doesn't appear to have a deep criminal law background. But that is obviously not all that the Attorney General is involved with.

I found Sean to be very personable when I met him. He has a lot of energy and seems excited about the race. He is facing a marathon and an enormous challenge launching his state-wide race.

"Victim" in High-Profile Case "Repeatedly Lied"

2011-07-01T05:18:00.000-07:00

Dominique Strauss-Kahn was practically the next president of France until he was accused of sexually assaulting a maid at a New York hotel. Now law enforcement officials are telling the New York Times that the maid has "repeatedly lied" since her initial report last month and that "prosecutors do not believe much of what [she] has told them about the circumstances or herself."

This dramatic reversal shows why it is so important for reporters and for all of us to remember that a person accused of a crime is innocent until proven guilty. Anyone can accuse anyone of anything. But only the trial process gives both sides an opportunity to present their cases.

Pros and Cons of Diversion Agreements

2011-06-30T06:04:00.000-07:00

Last month Harold Lyman, a man charged with stealing American Indian artifacts, agreed to a diversion with the U.S. Attorney's Office in Utah.

In a diversion agreement, the prosecutor agrees to dismiss criminal charges against a defendant and the defendant agrees to probation conditions. If the defendant complies with the conditions, the prosecutor has to dismiss the charges and, legally, the case is treated "as if the charge had never been filed."

Diversions are similar to pleas in abeyance in that the charges are eventually dismissed. However, the defendant has to plead guilty or no contest to enter a plea in abeyance. The defendant never pleads guilty as part of a diversion.

Diversions used to be very common in Utah. However, prosecutors have begun to feel that diversions are too generous to the defendant and can make it difficult to prosecute the case if the defendant violates the terms of the diversion agreement. Prosecutors now prefer pleas in abeyance because the charges are still dismissed, but the prosecutor can ask the court to convict defendants who violate the terms of their plea in abeyance agreements without going through a trial because the defendant has already plead guilty.

The conditions of Mr. Lyman's diversion agreement were that (1) he have no new violations of the law, and (2) that he stay away from Indian lands. He did not even have to pay a fine or take any classes.

Are Tasers Torture Tools or Legitimate Law Enforcement?

2011-06-29T20:37:00.001-07:00

In 2007, the United Nations Committee against torture declared that the Taser most often used by police causes "so much pain that use of it 'constituted a form of torture.'"

However, proponents of the use of Tasers as an alternative to more deadly force claim that "99.75% of the time suspects have no significant injury as a result of the device being used."

About a year ago, I was involved in a pro bono case involving a man in my neighborhood with severe mental problems. Eyewitnesses told me that Deputy Sheriffs from the Davis County Sheriffs Office pulled this man over for a minor traffic violation. The man was confused and scared and overwhelmed. Instead of pulling over, he drove the short distance to his father's house looking for help. There the Sheriffs, believing that he was noncompliant, ordered him out of his car.

Their lights were flashing, they were yelling, and there were a number of deputies surrounding him. The young man's father was there and repeatedly asked the deputies to let him talk to his son so that he could explain what was happening. They refused and eventually tased the man.

A little bit over a year ago, I mentioned this incident to a Sheriff's Deputy and asked him what he thought. He responded that the public doesn't realize that law enforcement believes that Tasers are very safe and that they are low on the "escalation scale" because they pose little risk to the suspect and keep the officer out of danger because he doesn't have to be close to the suspect.

I understand that law enforcement officers have difficult, dangerous jobs and that they are looking for ways to keep us and themselves safer. But I wonder if they have fully considered the risks involved in electrocuting people. Tragic deaths have been associated with Taser use. Should Tasers be used as often as they are?

Do we know enough about the risks involved in Taser incidents? According to Professor Jared Strote, an ER doctor and professor at the University of Washington, we don't know enough about Tasers. "There has been very little good research done, and by good I mean conclusive, about the potential health effects of Tasers."

In two separate incidents, Utah Highway Patrol Officers have been accused of using their tasers in non-violent situations. Once, during a DUI when a driver refused to submit to tests without speaking to a lawyer, and once when a different driver refused to sign a traffic ticket.

Like Amnesty International, I am concerned that "Tasers are being used as tools of routine force rather than as weapons of last resort."

What are your thoughts? Are police using Tasers correctly? Are they instruments of torture that should never be used? Or are they good tools that are sometimes used incorrectly by poorly trained officers?

Man Robs Bank to Get Healthcare in Prison

2011-06-22T08:26:00.000-07:00

The criminal justice system has long been a primary care provider for the mentally ill. A new case from North Carolina suggests that jails may become primary health care providers for people with other medical problems as well.

James Richard Verone tried to rob a bank in Gastonia, North Carolina so that he could get foot and back surgery and a diagnosis for a protrusion from his chest.

He took a cab down New Hope Road and picked a bank at random — RBC Bank.

Verone didn’t want to scare anyone. He executed the robbery the most passive way he knew how.

He handed the teller a note demanding one dollar, and medical attention.

“I didn’t have any fears,” said Verone. “I told the teller that I would sit over here and wait for police.”

Unfortunately, Orin Kerr, a writer at the Volokh Conspiracy, isn’t sure that Verone committed a crime.

Theft requires intent to permanently deprive another of property. But it’s not clear that Verone had any intent to permanently deprive the bank of its money. If I understand the facts, he just wanted to do what was necessary to be arrested, without any actual intent to deprive others of their stuff (thus the $1 request). Verone wants people to know why he committed his act, so they know he’s not a bad guy. But I think his reason shows that he lacked the intent that the crime requires; if I’m right about that, Verone is actually not guilty of the crime charged.

Hopefully, Verone won’t have to rob another bank to get his surgeries.

In 2000, the last year for which nation-wide data is available, over 100,000 prisoners were receiving psychotropic medications and over 17,000 prisoners had to be under 24-hour mental health care. Our country’s jails and prisons are taking a bigger and bigger share of the mental and physical healthcare burden.

When Do Kids Get Miranda Warnings?

2011-06-20T11:13:00.000-07:00

Last week the United States Supreme Court held that police must consider a child's age when they decide whether to give the famous Miranda warning.

Miranda Rights

Since 1966, the United States Supreme Court has required law enforcement to inform suspects that they have the right to remain silent. If police question suspects without giving the Miranda warning, or if police ask questions after suspects tell police that they do not want to speak, the police cannot use the information that they learn during the confession in court.

However, police only have to read suspects the Miranda warning if the suspect is "in custody" or in a "custodial situation." To determine whether a suspect is in custody, the court must consider whether "a reasonable person [would] have felt he or she was at liberty to terminate the interrogation and leave."

J. D. B. v. North Carolina

The Supreme Court's new case holds that police must consider the age of the suspect when deciding whether the suspect is in custody. Younger people may feel that they have to stay and answer police questions in situations where adults might feel free to leave. The suspect in this case was a young child who was questioned at school without a parent present.

J. D. B. may force police to start giving the Miranda warning to all minors before questioning them. While the dissent argued that the new rule "will be hard for the police to follow, and it will

be hard for judges to apply." I have more confidence in our police and judges. Any step to give more protection to young criminal suspects is a good thing as far as I am concerned.

Utah Woman Freed After 17 Years in Prison

2011-06-18T16:50:00.000-07:00

Debra Brown was released from prison last month after 17 years behind bars. She had been convicted by a jury of killing her 72-year old neighbor in 1994. In May, 2nd District Court Judge Michael DiReda ruled that she was innocent of the crime after hearing new witnesses testify.

During her 1994 trial, prosecutors pointed out that Ms. Brown did not have an alibi for the morning of November 6, 1993, the time when her "victim" supposedly died. Judge DiReda heard from new witnesses who saw the man alive that morning. Ms. Brown had alibis for the rest of her time, so she couldn't have killed him.

As I discussed in a previous post, the Post-Conviction Remedies Act provides for money damages in addition to the opportunity for a prisoner to gain her freedom. Judge DiReda awarded Ms. Brown $570,780.

Unfortunately, Attorney General Mark Shurtleff has decided to appeal Ms. Brown's case. He had previously tweeted, "We won't appeal," but his office has now filed a notice to appeal.

Utah DUI Checkpoints

2011-06-15T13:31:00.000-07:00

Many people in Utah have faced a DUI checkpoint at some time or other. They are in essence a place where law enforcement know that a certain number of people at a certain time will be DUI. The checks are conducted on holidays primarily throughout the night and into early morning. DUI's most frequently occur between 10pm, when people have had a few drinks before heading to a bar or club, and until 3 am, when the bars and clubs have closed and people are heading home. Don't be surprised to see a checkpoint set up near you between those times.

What the officers are looking for are signs of impairment displayed through driving pattern; something called "cues" in their training. For example, are you swerving from one lane to the next? Are you bumping into the curb? Following too closely to the vehicle in front of you? Speeding? These are all cues that officers take into account. But once the stop is made they are looking for signs of alcohol or drug consumption such as an odor of alcoholic beverage or marijuana. That's when they will ask you to step out of the vehicle and begin the DUI investigation with the field sobriety tests.

The DUI checkpoints have to be conducted in a certain manner. For example, every third car may be randomly stopped and checked. However, this is not always the case. The police are human and they go with their guts like everyone else. Do you have dreadlocks and drive a jeep? You better bet they are going to stop you and see if they can smell marijuana or alcohol. Are you a soccer mom type with your kid in the backseat? You'll probably pass by.

A good DUI attorney will try and secure any video from the checkpoint and go through it to ensure that the stops are actually random. If they are not, the issue may be brought up in court and a legal brief, called a motion, may be filed and argued in front of the judge. If the motion is successful, it could result in the evidence being thrown out of court and the case dismissed.

Many police and prosecution agencies list reasons as to why checkpoints are in use. The reasons they list are all noble: such as reducing DUI related deaths and injuries etc. And though there is certainly some of that involved, don't be fooled into believing their motives are completely pure. DUI's are big business for every city and county in the nation. California Watch wrote a great investigative piece about exactly how much money cities pull in when they hold a DUI checkpoint which you can read here. Sadly, there's millions of dollars in it for the government and I fear that we may be seeing more checkpoints in Utah, not to stop DUI's, but because our cities and counties have budget shortfalls and these are quick and easy ways to raise revenue.

Regardless, if you have been charged with DUI from a DUI checkpoint in Utah, make sure to do your research and hire a good DUI attorney. It could mean the difference between getting your case dismissed and getting convicted.

Field Sobriety Tests in Utah DUI Cases

2011-06-09T10:07:00.000-07:00

A DUI in Utah is not like a DUI in California. Utah has some severe penalties, most notably that you cannot receive a temporary driver license for work or school if your driver license is suspended based on the DUI. Also, there are minimum mandatory jail sentences on DUI's ranging from 2 days to 62.5 days depending on the type of DUI.

Because they are serious offenses in Utah, if you are charged with a DUI, your attorney must attack every facet of the case. No stone must be left unturned. One of the areas your DUI attorney must look at are the Field Sobriety Tests.

The FST's

There are three standardized field sobriety tests used in most jurisdictions: the horizontal gaze nystagmus, the nine-step walk and turn, and the one leg stand.

The horizontal gaze nystagmus is the officer causing the eye to track in a certain direction so that he can observe an involuntary jerking in the eye. They check smooth pursuit from right to left, sustained nystagmus at maximum deviation, and onset of nystagmus prior to a 45 degree angle.

The problem with the nystagmus test is that there are a whole host of other causes of nystagmus. Aspirin, caffeine, exposure to cigarette smoke just to name a few. Studies have also shown that a certain percentage of the population is born with naturally occurring nystagmus.

In the nine-step walk and turn, the subject is to walk down a line, turn and walk back. Easy enough, right? Wrong. These tests are not about walking in a straight line, they are about following instructions. The one leg stand is similar as the subject is told to stand on one leg and count to thirty. However, the officer couldn't care less whether you do it well, he's looking for very minute clues. Were your feet more than half an inch apart? Did your arms go above six inches? Did you turn to the left instead of the right? These are the type of details that determine whether you pass or fail the field sobriety tests.

The FST's are not science. They are subjective tests used by law enforcement to make arrests. You do have good DUI police officers who are out there making the best decisions they can with the tools they have, but these tests produce too many false positives to be relied on in criminal cases.

Hire a good DUI attorney if facing a DUI and make sure they fight the accuracy of these tests. Many cases have been won by exposing the subjectivity in these tests.

Follow Up: State Won't Release Killpack Video

2010-02-12T10:41:00.000-08:00

As I previously noted, the State was refusing to turn over video of then-Senator Sheldon Killpack's DUI arrest.

The Salt Lake Tribune reports today that

The State Records Committee decided Thursday that dash-cam video of former Utah State Senator Sheldon Killpack's arrest for allegedly driving drunk, as well as a Utah Highway Patrol report of the incident, are public records.

However, it may take up to 30 days to turn the records over.

Are Breath Testing Machines Reliable?

2010-02-12T08:00:00.000-08:00

One of the linch-pins of DUI enforcement in Utah is a machine called the Intoxilyzer. The latest version is called the Intoxilyzer 8000 and is manufactured by a company called CMI, Inc.

Unfortunately, we don't know if the Intoxilyzer 8000 works. In my experience and based on my research, CMI has never allowed independent researchers to test the machine to verify that it accurately measures breath alcohol levels or that those breath alcohol levels correlate to blood alcohol levels. CMI refuses to sell the machine to anyone but law enforcement agencies and will not even supply information about its software.

California DUI attorney Lawrence Taylor writes on his blog that "In the one case where the manufacturer (Draeger) obeyed a court order — from the New Jersey Supreme Court — the machine involved (AlcoTest 7110) was found to use antiquated software that failed to meet even the most basic governmental and industrial standards."

So, does the Intoxilyzer 8000 work? We don't know. But people are being convicted and often jailed based on a machine that has never been externally verified and may have inaccurate software.

State Won't Release Killpack Video

2010-01-22T07:05:00.000-08:00

ABC4 is reporting that the State has refused the media's request for the video of the DUI arrest of Sheldon Killpack. This could result in a court battle.

Sim Gill Running for DA

2010-01-21T10:22:00.000-08:00

As I cross-posted on my new political blog, Utah Capitol Dome, a story today in the Deseret News, Sim Gill announced today that he will be running to be the Salt Lake County District Attorney. In the story, Gill is quoted as saying that he will work to restore public confidence in the District Attorney’s Office.

Mr. Gill is a democrat and is seeking his party’s nomination to run against the current District Attorney, republican Lohra Miller. Greg Skordas, a former member of the Salt Lake County District Attorney’s Office, has already announced his intention to seek the democratic nomination as well.

Sim Gill was my boss when I worked as a Salt Lake City prosecutor for over a year. While I don’t know Mr. Skordas or Ms. Miller personally, and I cannot judge very well their qualifications to be DA, I believe that Mr. Gill would be an excellent District Attorney. While I worked with him, I found him to be an extremely ethical, professional leader. He has the vision to see that in many cases, traditional incarceration is neither cost effective nor a good way to prevent the repetition of criminal behavior. His initiative has brought mental health and drug courts to Salt Lake County and he plans to expand those programs.

Illegal Automobile Search Results in Evidence Being Thrown Out

2010-01-15T06:39:00.000-08:00

When the police stop a car for a traffic violation, they have to let the car go once they reasonably finish the original stop.

According to the Salt Lake Tribune, federal judge Clark Waddoups excluded evidence found after an illegal search of an automobile because the police officer continued to question the driver after the traffic stop had concluded.

The driver's attorney, Benjamin McMurray, argued that "no reasonable person would have felt free to drive away from an officer who continued an interrogation despite having repeatedly been refused."

The United States Constitution protects against unreasonable warrantless searches. The driver in this case may have been guilty of speeding, but that did not entitle the police officer to search his car.

I have seen numerous cases, both as a prosecutor and as a defense attorney, in which a police officer improperly extended a traffic stop and asked for consent to search a car. Usually, the officer needs either a warrant to search or the driver needs to give consent to search the car if the search is going to be legal. If the driver does not give consent it is often difficult for the officer to legally search.

Are Eyewitnesses Reliable?

2010-01-11T13:59:00.000-08:00

An article in Scientific American questions the reliability of eyewitness identification. One of the major reasons that we should question eyewitness identification is that the process of recalling memories is more like reconstructing an event than replaying a video recorder.

"The uncritical acceptance of eyewitness accounts may stem from a popular misconception of how memory works. Many people believe that human memory works like a video recorder: the mind records events and then, on cue, plays back an exact replica of them. On the contrary, psychologists have found that memories are reconstructed rather than played back each time we recall them. The act of remembering, says eminent memory researcher and psychologist Elizabeth F. Loftus of the University of California, Irvine, is 'more akin to putting puzzle pieces together than retrieving a video recording.' Even questioning by a lawyer can alter the witness’s testimony because fragments of the memory may unknowingly be combined with information provided by the questioner, leading to inaccurate recall."

Our faith in eyewitness identification has important consequences. According to the Innocence Project, eyewitness misidentification plays a role in over 75% of wrongful convictions.

Historically, most judges in Utah and throughout the country have prevented attorneys from presenting scientific evidence of problems with eyewitness identification to juries. However, last month, the Utah Supreme Court ruled that criminal defendants should have the opportunity to call experts to testify regarding this important research. A story in the Salt Lake Tribune regarding the case can be found here and the Court's opinion, State v. Clopten, can be found here.

Man Freed After Prosecutor Refuses to Turn Over Evidence

2010-01-06T10:12:00.000-08:00

You can't defend yourself against criminal charges unless the police and the prosecution tell you what you've been charged with and provide you with the evidence that you need to prepare your defense.

The Federal and the Utah Rules of Criminal Procedure require prosecutors to turn over evidence that is relevant to the defense's case preparation. But, the St. George Attorney's office refused to turn over the information they used to obtain a search warrant and information about a confidential informant after they had been requested under the Government Records Access Management Act.

The case was a federal prosecution, but the St. George attorney's office refused to comply with court orders that required them to turn the information over. Judge Dee Benson of the Utah Federal District Court permanently dismissed gun and drug charges that had been pending against Donald Gregory Edwards.

A Salt Lake Tribune story on the ruling can be found here.

"Experts" Execute Man in Texas

2009-12-28T07:59:00.000-08:00

We cannot blindly trust a prosecutor's or a police officer's claims of certainty or expertise. A moving essay in the New Yorker suggests that a man in Texas may have been executed for a crime he did not commit based on the testimony of experts who did not know what they were talking about.

Cameron Todd Willingham was executed in Texas for burining his own house down and, in the process, killing his three children. Willingham was found guilty at a jury trial based in large part on the testimony of arson investigators who claimed to be experts in determining the cause of fires. They testified that the burn patterns clearly pointed to arson and that they were confident that Willingham started the fire in an attempt to kill his children.

The trouble is that the methods these supposed experts used to make these determinations are totally unscientific and unreliable. Dr. Gerald Hurst, who received a Ph.D. in chemistry from Cambridge University, reviewed the evidence pointing to arson in Willingham's case and concluded that the fire was accidental. It was not caused by arson. As David Grann writes in the New Yorker, "Hurst concluded that there was no evidence of arson, and that a man who had already lost his three children and spent twelve years in jail was about to be executed based on 'junk science.'"

Hurst's scathing report and extensive research strongly suggested that the State of Texas was close to killing an innocent man. But that did not stop the executioner. Willingham was put to death on February 17, 2004. He protested his innocence to the end.

Innocent Man Freed after 35 Years in Prison

2009-12-17T13:01:00.000-08:00

James Bain has spent 35 years in prison after being convicted of some horrible crimes: rape, kidnapping, and breaking and entering. Today, according to the Deseret News, Mr. Bain was released by a Florida Judge.

35 years ago, a jury rejected Mr. Bain's alibi defense and believed the testimony of eye witnesses. Fortunately, DNA evidence was able to prove that Mr. Bain did not commit the crime for which he was imprisoned.

The Florida Innocence Project helped file motions on Mr. Bain's behalf. He had been trying to get DNA tests done on the evidence in his case for years. He is finally free.

Below is an excerpt from the press conference in which an Innocence Project attorney summarizes the case.

Faulty Blood Tests in Denver

2009-12-16T12:53:00.000-08:00

I recently posted my thoughts on why I became a criminal defense attorney. A recent story from the Denver Post reaffirms the importance of having good, critical defense attorneys.

An internal review of blood tests performed in Colorado Springs showed that at least 82 tests showed a higher blood-alcohol content than they should have. Hundreds of other samples are being retested to find out whether the problem manifested in other cases as well.

The Colorado Springs lab that performed these tests should be commended for trying to correct its mistakes. But this case shows that there is no such thing as a fool-proof test.

Being a Criminal Defense Lawyer

2009-12-08T08:57:00.000-08:00

People often ask me how I can defend criminals. Some of our clients are accused of some pretty serious crimes. And not all of our clients are innocent. I have had clients tell me in the first interview, "I did it. It was stupid of me and I feel terrible about it." What should a good lawyer do in that kind of situation?

I never imagined that I would be a criminal defense attorney when I graduated law school. I thought I would be a real estate lawyer. One of my first jobs after law school was as a criminal prosecutor for Salt Lake City. I never thought I would be on the other side of criminal prosecution.

But I believe that we all have certain rights. The Constitution guarantees us all the right to remain silent, the right to a trial by an impartial jury, the right to be presumed innocent until proven guilty, and the right to be secure from unreasonable searches and seizures. Even if a person is guilty of the crime, they have those rights. In our system, the prosecutor bears the responsibility of proving the accused guilty beyond a reasonable doubt. If the prosecutor cannot do that, the accused are acquitted even if they committed the crime of which they are accused.

During my first meeting with a client, I will often say something like, "You are hiring me to help protect your legal rights. I will tell you what your legal options are. But, you may want to talk to someone else that you trust about your moral obligations. If you have a clergy person that you trust, you may want to talk to them."

Our nation was founded by people who believed that these rights are so important, everyone should have them even if they have done terrible things. John Adams defended British soldiers who were accused of killing five unarmed colonists in the Boston Massacre. None of the other lawyers in the area would defend the men because the colonies were so incensed by what they had done. Adams wanted to have a political career, but he accepted the call to be their criminal defense attorney even thought he believed it would be political suicide. David McCullough records in his biography, John Adams that Adams wrote this about his defense of the British soldiers: "It was . . . one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country." He believed that sentencing the soldiers to death without a fair trial would have been "as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently." Fortunately, this case did not end Adams' political career and he went on to be president of the United States.

I add my declaration to John Adams'. If we punished criminal defendants without fair trials, we would place a foul stain upon this country. I treasure the liberty that is protected by the United States Constitution and I feel privileged to assert its protections in defense of the accused.

Become a Legal Scholar for Free

2009-12-03T06:46:00.000-08:00

Last month, Google debuted a service that allows anyone to search for legal opinions and legal articles. On it's official blog, Google states that "Starting today [November 17, 2009], we're enabling people everywhere to find and read full text legal opinions from U.S. federal and state district, appellate and supreme courts using Google Scholar."

Why should you or I care that Google has developed a product that allows free searches of legal opinions? Well, legal opinions are law. As judges decide cases, they make rules that we have to follow. So, if you can't read those laws or search for the right ones, you can't follow them or try to change them if you disagree with them. Or, as the Google blog puts it, "Laws that you don't know about, you can't follow — or make effective arguments to change."

Check out Google Scholar - Legal by heading to www.google.com/scholar. Click on the button that says "Legal opinions and journals" and search away. Have fun.

Spouses Don't Have to Testify Against Each Other

2009-12-01T09:26:00.000-08:00

Tiger Woods was in a traffic accident on Friday and had to be hospitalized briefly. Details of the accident have been sparse, but some have speculated that the accident might have been related to a domestic violence incident.

Woods has said relatively little about the incident, and part of the reason could be his fear that his wife could be prosecuted for domestic violence regardless of his desire for her to be prosecuted.

According to Slate's Hanna Rosin, Florida implemented a pro-arrest policy in 1991 which allows the police to make arrests in domestic violence cases regardless of the desires of the alleged victim. "The decision to arrest and charge shall not require the consent of the victim or consideration of the relationship of the parties."

The argument in favor of these aggressive arrest policies is that police and prosecutors have been reluctant to prosecute domestic violence in the past. Frequently, the alleged victim refuses to testify.

Unfortunately, aggressive prosecution of domestic violence when the accused and the alleged victim are married is nearly impossible if the alleged victim does not want to cooperate. The Utah Constitution provides that "a wife shall not be compelled to testify against her husband, nor a husband against his wife." The result is that if the alleged victim is married to the accused, the victim can refuse to testify. Frequently, there is not enough evidence to proceed with prosecution without the alleged victim's testimony.

Sadly, aggressive prosecutors spend resources prosecuting cases that will never result in convictions. Worse, the accused often has to spend time in jail, and money on bail and attorney's fees, despite the fact that there is almost no chance of a conviction.

Our firm recently got a case dismissed based on the marital privilege. The prosecutor had asked our client to plead guilty before he had a lawyer. The client didn't want to and his wife had said she refused to testify. The client hired us and we called the prosecutor a few times. The prosecutor kept insisting that we couldn't tell the client's wife that she was not obligated to testify against her husband. Eventually, though, the prosecutor saw that he was going to lose the case and decided to dismiss the case rather than be embarrassed at a trial.

The Tiger Woods case and our firm's experience show that some aggressive prosecution schemes for domestic violence cases do not jibe with common sense.

Expungement

2009-11-25T05:22:00.000-08:00

Utah law allows certain records of criminal arrests and even convictions to be sealed by following a set of procedures. The process of sealing criminal records is called "expungement." This page explains most of the current requirements for expungement in Utah.

An amendment to the current expungement laws is being proposed in the Utah legislature and may be considered in the upcoming legislative session. The draft language of the bill can be found here.

Kelly Ann Booth, a Utah attorney who has been closely tracking this proposed legislation says, "The proposed changes in expungement law [will] severely limit people’s ability to expunge convictions." She cites three primary problems with the new law:

New Fees - The proposed changes would include new fees. The new fees will make it more difficult for some people to get access to expungement relief.
Prosecutorial Discretion - The new rules would allow a prosecutor to dismiss criminal charges, and then prevent the accused person from expunging his or her record by refusing to consent to the expungement.
Investigation Exception - The bill would prevent expungement of a crime that is under investigation. Ms. Booth argues that this language should be more precise to prevent a prosecutor from dropping charges and then "investigating" for years a crime that will never be brought to court.

For a long time now, Utah law has recognized that people who have made a few isolated mistakes or been mistakenly arrested should have the opportunity to clean their records. I have read the new bill, and I share Ms. Booth's concerns. Utah's lawmakers should carefully consider whether these changes will accomplish their goals.

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Criminalize Everything?

2009-11-24T05:32:00.000-08:00

The New York Times reports today on a number of cases challenging the expanding scope of federal criminal laws. Groups on the political left, like the ACLU, are arguing against vague laws that infringe on individual liberty and they are joined by some of their old enemies from the political right who believe that federal criminal law is too pervasive.

One book cited by the NY Times article argues that "federal criminal law is so comprehensive and vague that all Americans violate it every day, meaning prosecutors can indict anyone at all."

Former federal judge and University of Utah professor Paul Cassell is quoted as saying that federal law allows the government to confiscate an entire yacht if a single joint of marijuana is found on it.

State law can be as pervasive and invasive of liberty as federal criminal law. For example, I prosecuted traffic offenses as a prosecutor for Salt Lake City along with a dozen or so other City prosecutors. I had discussions with them about how difficult it is to follow every requirement of the traffic code. One experienced prosecutor said that, as an experiment, she, a lawyer with extensive knowledge of the traffic code, had tried to drive without violating any of the traffic laws, but was completely unsuccessful.

The penalties for violating Utah's traffic laws do not compare to federal prison time. But a police officer can stop a car that violates the traffic code to investigate the traffic offense. Being detained by a police officer is a major intrusion into our personal liberty. Police frequently stop cars for such minor offenses as operating a vehicle without a functioning tail light, and then find a reason to search the vehicle.

The United States Constitution protects our right to be free from "unreasonable searches and seizures." But when every driver can be stopped by the police and eventually searched, are we really secure in our "persons, houses, papers, and effects?" The federal and the Utah legislatures should reconsider the trend toward criminalizing everything.

Parole in Utah

2009-11-23T08:42:00.000-08:00

Utah uses indeterminate sentencing for prison terms. That means that if you get sentenced to prison, the judge sentences you to a term of, say, 0-5 years in the Utah State Prison. Then, periodically, you go before the Utah Board of Pardons and Parole which decides whether you stay in prison or whether you are released on parole. As the Salt Lake Tribune reports today, "The board members wield plenty of power, and they know it."

Robert Yeates, one of the board's five members, is my former boss from my days at the Utah Commission on Criminal and Juvenile Justice. I have not appeared in front of him at a parole hearing, but I am confident that he is a fair-minded man who will use the immense power he now has over the lives of prison inmates with as much justice as he can.

Mr. Yeates has served as a prosecutor for Salt Lake County, Third District Juvenile Court judge, the director of the Utah Sentencing Commission, and Executive Director of the Utah Commission on Criminal and Juvenile Justice. He was appointed to the Board of Pardons in March of 2009.

I worked for Mr. Yeates as an intern during law school when he was the Executive Director of the Commission on Criminal and Juvenile Justice. He is a compassionate person who appreciates the effects government decisions can have on the accused in criminal cases, victims, and underserved members of society.

For example, Mr. Yeates and another of my former bosses, Sim Gill, have advocated a more nuanced approach to individuals with mental illness who are incarcerated. They have advanced the idea of a mental health court that would address the unique needs of the mentally ill who overwhelm the jail and prison systems.

I am not convinced that Utah's indefinite sentencing system is the best way to administer justice to those convicted of felonies. But I am pleased that someone as compassionate as Mr. Yeates is serving on this powerful board.

Update: SL Tribune and D News Pick Up Innocence Story

2009-11-21T07:17:00.000-08:00

The Salt Lake Tribune and the Deseret News have picked up Harry Miller's story. Yesterday, I posted a summary of Mr. Miller's struggle to prove his innocence. My summary was largely taken from the Utah Court of Appeals' opinion. The newspaper articles add new detail and humanity to the story. I highly recommend them. Click on the links below to be directed to the stories:

Salt Lake Tribune story
Deseret News story

After 4 Years In Jail, Man Gets Hearing on Innocence

2009-11-20T11:40:00.000-08:00

Yesterday, the Utah Court of Appeals ruled that Harry Miller is entitled to a hearing to determine his innocence. Miller was originally arrested in 2003 and accused of aggravated robbery. After a jury trial in February of 2004, he was convicted and sentenced to a prison term of five years to life. However, Mr. Miller claimed that he had an alibi. He claimed that on the date he was alleged to have committed the crime of aggravated robbery, he was recovering from a stroke in Louisiana.

Mr. Miller claims that his trial attorney did not go to the trouble of identifying alibi witnesses and that he would have been acquitted if the witnesses had been interviewed. Mr. Miller appealed his original conviction, but before all of the issues on appeal could be addressed, the State agreed to reverse the conviction in the interest of justice. After the reversal, the State decided not to proceed with prosecution.

After nearly four and a half years in jail, Mr. Miller was released in July of 2007. In 2008, the Utah legislature passed a Factual Innocence Statute which allows people who believe they have been wrongly accused to get a declaration of their innocence and compensation for the time that they were wrongly imprisoned.

The State argued that Mr. Miller was not entitled to a hearing on his innocence for technical reasons. The Court of Appeals disagreed with the State and ordered the hearing without deciding whether Mr. Miller will prevail on his claims.

Mr. Miller was represented by Andrew McCullough on appeal and the Rocky Mountain Innocence Center filed a brief supporting Mr. Miller. Utah criminal defense attorney Kelly Ann Booth believes that this decision will require Utah courts to "hear claims of factual innocence without making the person bringing the claims jump through myriad procedural hoops."

Smart Kidnapper Pleads Guilty

2009-11-19T05:34:00.000-08:00

Yesterday, in Salt Lake's Federal District Court, Wanda Barzee pleaded guilty to kidnapping Elizabeth Smart in 2002 and unlawfully transporting a minor across state lines. A short story in KUER News provides the details.

Her attorney, Scott Williams, indicated that Barzee will now be available to testify as part of the government's case against her estranged husband, Brian Mitchell.

As horrifying as her crimes are, our country has met Barzee's depravity with calm justice. Rod Exum has a moving column today in the Chatanoogan in which he compares the American justice system to the brutality of Somalia's. It has taken years for Barzee to plead guilty. During those years, judges and doctors and prosecutors and defense attorneys and members of the public and the Smart family have agonized over the question of whether Barzee was competent to be tried. We've spent these years postponing this result because we still believe that it would be more tragic to sacrifice the principles of justice that protect individuals from the government than it would be to delay punishing someone whose sanity is still in question.

Around the world, in Iran, China, Myanmar, and Somalia, powerful governments crush individuals with "quick justice." But often, the crimes committed in the name of justice are as bad or worse than those that were committed by those being punished.

When asked whether he and Elizabeth forgave Barzee, Ed Smart, Elizabeth's father answered, "Absolutely!" Mr. Smart had no obligation to extend mercy to Barzee, but he chose to meet her criminal violence with charity.

Automobile Searches

2009-11-16T07:22:00.000-08:00

The law governing automobile searches changed dramatically this year with the United States Supreme Court’s decision in Arizona v. Gant, 556 U. S. ____ (2009). Previously, state and federal courts had interpreted the Supreme Court’s decision in New York v. Belton to allow police officers to search the passenger area of an automobile without a warrant after the passenger had been arrested regardless of the passenger’s proximity to the car. 453 U.S. 454 (1981).

Gant rejects this broad reading of Belton. The Court’s re-interpretation of Belton “authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Gant, 556 U. S. ____ (2009). In Gant, the police searched the defendant’s car after the defendant was handcuffed and sitting in the back seat of a patrol car. The Supreme Court held the search in Gant to be unreasonable because there was no danger that the defendant would be able to reach into the car to access evidence or weapons.

The Gant decision could affect many criminal cases in Utah. Prior to Gant, police officers were generally trained that the passenger compartment of a motor vehicle could be searched without a warrant after an occupant had been arrested no matter how far from the car the suspect was at the time of the search. Gant indicates that any evidence obtained as a result of such a “search incident to arrest” could be suppressed and the prosecution would not be able to present it at trial.

Two Utah cases have applied Gant retroactively to pre-Gant searches. In State v. Brower, 2009 UT App 143, and State v. Hill, 2009 UT App 254, the State of Utah moved to vacate convictions based on searches that violated the principles of Gant even though the searches occurred long before Gant was decided. In Hill, the illegal search occurred in 2007. In Brower, the Court of Appeals' decision does not clearly indicate the date of the search, but the trial court's docket indicates that the offense date was April 28, 2007. In each case, the State, not the defendant, moved to vacate the convictions based on Gant and the Court of Appeals granted the State's request.