Salt Lake City DUI Lawyer & Attorney : Glen Neeley : Serving Davis County, Ogden, Brigham City, Logan

In this recent article, a form  UHP  Trooper  appeals his  conviction from a Justice Court.  This is actually very common.  Utah has a unique system.  Class B Misdemeanors and lessor offenses can be heard in a Justice Court (municipal court, or city court).  These courts have no video or record made while hearings go on.  There are soon changes to be made to these courts because some feel there is at least the appearance that these courts serve only the purpose of collecting money.

If you don't like what you get in this court not of record, you can appeal to the District Court.  You get a whole new start...well sort of.  Check this out.  You go to Court, everything is against you and you lose.  You don't get a fair trial.  So the judge sentences you to jail.  You tell the judge that you want to appeal to the District Court.  The judge gets miffed by this--takes money from his employer perhaps.  So the judge says, fine, go to the District Court, but I'm still imposing the jail time.  Then you are stuck trying to get the District Court to stay your sentence.  That is what happened in this case according to the article.

When Swain decided to appeal the case to 3rd District Court, his attorney asked Bertch to stay the sentence pending the outcome of the appeal.

Bertch refused, noting in an entry that a stay must be granted only if there is a substantial likelihood of a different outcome on appeal. The judge said he felt there was not much likelihood of a different outcome. Meanwhile, Bertch said, the sentencing provisions will protect the public from Swain.

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The Logan Law Enforcement is going to be doing a DUI check point this weekend according to the Herald Journal.  The interesting thing is this.  The article says the officers are checking for drunk drivers not be their ability to drive, not by weaving down the street, but by checking for minor things like registration, valid licenses, insurance and equipment violations.  This is the ruse or deception.  "We are looking for DUI drivers by checking you for other things."  This deception and behavior is not constitutional in many states.

Officers setting up checkpoint to prevent DUIs
By Aaron Falk
Published:
Friday, December 28, 2007 2:30 AM CST
A traffic checkpoint along U.S. Highway 89/91 will help deter drunken drivers during one of the busiest weekends of the year, police officials say.

Part of a statewide campaign to crack down on impaired motorists, officers from the Cache County Sheriff’s Office, Utah Highway Patrol and Logan City Police Department will team up Saturday night to man the checkpoint at about 2800 S. Highway 89/91.

“It’s an effective campaign,” Logan Police Capt. Tyson Budge said. “Utah has one of the lowest percentage of DUI drivers and we kind of want to keep it that way.”

More than 280 people were killed in alcohol related crashes in both 2005 and 2006, according to statistics from the National Highway Traffic Safety Administration.

Budge said the weekend before New Year’s Eve is one of the busiest times of the year for DUI arrests. Logan Police arrested between nine and 14 people during that weekend each of the last three years, Budge said.

Between 2001 and 2005, an average of 36 deaths occurred each day in crashes involving an alcohol impaired driver, according to the NHTSA. That number jumped to 45 per day during the Christmas holiday and 54 per day over New Years.

The checkpoint will be the first for Logan Police in more than a decade, Budge said. While arrest numbers are generally low, the preventative measure is invaluable, he said.

Officers at the checkpoint will be looking for a valid license, registration, insurance and equipment violations. Officials don’t believe the checkpoint will cause traffic delays. Most stops will take about a minute and police will only detain four cars at a time in each direction, Budge said.

“If they’re full, everyone else is waived through,” he said.

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I went to a sentencing hearing today.  My client was found Not Guilty of felony DUI at trial.  He was found guilty of interfering with an arrest.  At sentencing, the state jumps up and down "WE WANT JAIL!"  The  interfering with arrest charge was a minor issue in the case.  Most people get that charge mainly because they were uncooperative.  Most people get a small fine and a slap on the wrist without much noise from the prosecutor.  It felt like when my client was acquitted, the State was incensed.  So on a minor charge, the State jumps up and down crying for jail time on something no one ever goes to jail without some extraneous circumstances.

I have no complaints about the judge in this particular case.  He bent over backwards to ensure that my client was handed a fair trial.  The judge made very sound decisions in ruling on objections and matters of evidence.  That does not mean that the judge ruled in my favor all of the time, but he always made sure I understood why he ruled against me.  The judge was fair on sentencing.  He certainly did not go easy on my client, but he gave my client a chance.  My client's future rests in his own hands.

I have some concerns about the sentencing process.  The judge sends a person that is to be sentenced to get a pre-sentence report.  The person goes to a probation agency.  The agency is supposed to be independent of the prosecution.  However, it seems far too often that the input comes from the prosecution.  In fact, in Weber County, the probation person sits in Court on the right hand side of the prosecutor.  They are one being in purpose.  I often see at sentencing a prosecutor whispering in the probation agent's ear.  Why have the probation person there?  If the judge wants to know what the prosecutor recommends, just ask the prosecutor.  My feeling is that this is an area that needs to be fixed. 

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A couple of  years ago, a video appeared on the internet which is shown below.  This has some good entertainment value and people snickered as they watched.  The movie was passed through emails and links all around the web.  Some believed this incident was real.  While it was a staged act, the point is well taken.

    First, imagine yourself doing these tests.  While exaggerated, this little clip goes to show the reality.  The officers will have you keep doing tests until they can write enough things down to be able to say you are drunk.

    Second, this little clip goes to show why people should not speak.  The man's own admission is what makes the case hard to defend.  We see Miranda rights on TV.   We know we should not speak.  Yet, we all think we are going to talk our way of trouble.  It just doesn't happen like that.

    Third, this clip shows everyone has different abilities.  How can balance tests in any way related to driving.  We are all different.  My child can do a back-bend.  I cannot.  Does that mean I must be impaired because I can't do the tests.  Just something to consider.

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A DUI specialist from Lubbock Texas, Stephen Hamilton, wrote this interesting article about Field Sobriety Tricks.  He ended up with a case where the officer admits that that these tests are tricks.  The officer tells the citizen accused that these tests "are just part of the part of the field sobriety tricks."  Mr. Hamilton even shows you the small video clip.  It's worth checking out.

There are many posts that that talk about these tests.  They are designed to make the accused fail.  If you do not understand each and every instruction and do each part of the exercises perfectly, you could find yourself defending yourself from a DUI charge.

I see people all the time that fail these tests for reasons other than alcohol.  Maybe they have a physical problem that prevents them from being perfect on the tests.  Maybe they are just tired.  Maybe they lack the coordination.  Whatever the reason, innocent people fail these tests all the time.  Maybe in reality, the officer sees what he wants to see.  I had a UHP trooper admit to me that the UHP gives awards for the trooper who makes the most DUI arrests in one year.  Great motivation.

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So you have been arrested for a DUI in Utah.  You are embarrassed, mad, depressed, and wondering what happens next.  This is an overview of the what the process when you are arrested for a DUI in Utah. 

1. Arraignment:  The Court schedules an initial appearance.  This is a gray area.  Sometimes  you need to call the Court to find out when you need to show up.  Sometimes a court date is set up by the time you get released from jail.   Sometimes, you just show up on certain days.  It is advisable to talk to a lawyer before this hearing so the lawyer can advise you how to proceed.  Many times if you hire a lawyer before this first hearing, the lawyer will cancel this hearing by entering his appearance with a document, enter your plea of not guilty with a document, and request that the case be set for the next hearing.
2. Pretrial Conference:  The next step is a pretrial conference.  This is a meeting with the prosecutor to discuss a possible resolution or plea bargain.  If the prosecutor does not make an offer that the citizen can live with, then the case is set for further proceedings.  Many times, the case is resolved at this point.
3. Suppression Hearings:  Many times a lawyer will file a motion to suppress evidence at this point.  If the lawyer feels there is a legal reason that some evidence (i.e. the breath test result, certain statements, etc.) should not be heard by the jury, he files a motion to suppress that information.  Usually, there is a hearing and testimony of witnesses can be taken.  The Court rules on those motions at the hearing, or he thinks about and takes under advisement issuing a decision at a later date.
4. Trial:  If there has been no resolution, the case will be heard at a trial.  In Utah, for a DUI, a person has the right to a jury trial or to have the trial heard before the bench, which means the judge.  I almost always request a jury.  In Utah, for a Class B Misdemeanor DUI, four jurors are selected to hear the case.
5. Not Guilty:  If you are found Not Guilty, the case is over.
6. Sentencing:  If you are found Guilty of DUI, then you are sentenced.  Sometimes it will be the day of trial, but you have a right not to be sentenced in less than two days, and not more than 45 days.  I believe the idea of this is a cooling off period and sometimes the court requests information to determine the proper sentence.
7. Appeal:  If you are in a justice court, you have a right to a whole new trial in the District Court.   If you are already in the District Court, you have a right to appeal to an appellate court, which is done in writing, not by another trial.

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This past weekend, 18 Utah Highway Patrol Troopers made 18 arrests people for DUI.  100 cars were pulled over according to the article in the Deseret Morning News.  Here we go again, officers look for any reason they can to pull a citizen over to check them for alcohol.  The motive is wrong even though the outcome is legal.  119 vehicles were stopped.  Trooper Cameron Roden justifies the "harassment" patrol by saying that they are trying to interdict where they can. 

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The question that was presented to me the other day was, "Why should I hire a Utah DUI Attorney, rather than an attorney that does all sorts of cases?"  I responded, with a question, "If you needed brain surgery, would you go to a general practitioner?"  Defending DUI has become a specialty that takes years of training and experience to properly defend a person properly.  To be a Utah DUI Attorney does not necessarily mean the attorney's practice is exclusively devoted to defending DUIs.  However, it should be pretty close.  A Utah DUI Attorney can be identified because he has certificates on his wall showing you that he has been to national seminars.  The Utah DUI Attorney will have a bookshelf in his office chalk full of how to defend DUIs in Utah.  The Utah DUI Attorney will not talk to you about plea bargain as your first option when you walk through the door.  The Utah DUI Attorney will not be cheap because he will do more work on the DUI case than the general practitioner. 

In shopping for a DUI lawyer, many people shop for the cheapest Utah DUI Attorney they can find.  The problem is that those people almost always regret it.  The biggest complaint I hear from people about their Utah DUI attorney is not that they lost my case.  The biggest complaint is that "my attorney didn't do anything.  He was the cheapest I could afford, but he would not take my case to trial." 

On a side note, when looking for a Utah DUI Attorney, make sure you ask the question to the attorney you are interviewing, "are you going to handle my case, or is there someone else that will handle the case like and associate."

Here are some key points in looking for a Utah DUI Attorney:

• How many times does the attorney go to trial?
• What type of seminars has the attorney attended in the last two years?
• Has the attorney been certified in conducting Field Sobriety Tests?
• Has the attorney completed any special training on the breath test instruments?
• What does the attorney's study and what books are on his shelf in his office?
• What does the attorney charge?
• What do other attorney's say about the attorney?
• What percentage of his practice is focused on DUIs?

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I saw this article published by the Standard Examiner.  The story is about looking for DUI drivers during the month of December.  Contrary to popular police belief, December and the holidays, is not the most dangerous months according to the article.  In fact the article says "December ranked seventh of all months for the most part traffic fatalities.  The most deadly month is July.

Here is the what the article says:

But even Pectol, whose office is the main repository for Utah DUI statistics, cannot provide data that show impaired driving happens more frequently during the holidays.

According to Highway Safety data, December ranked seventh of all months for the most traffic fatalities between 1996 and 2005. The most deadly month was July.

In 2002, the last year Highway Safety's crash summary separated DUI-related crashes by month, December was seventh with 172 DUI-related crashes. July was first with 227.

In 2001, however, December was second only to August for DUI-related crashes.

Pectol said the statistics on December DUIs are mixed, but she does believe there is an increase in impaired driving during the month. Statistics, she said, can't measure how many impaired drivers are not caught, so it's difficult to prove if any month truly has more impaired driving.

"I think we can only suspect because there's not a good way to gather that kind of data," she said. "Even if you asked an anonymous survey, I'm not sure everyone would be honest."

The officer then blames wrong statistics that are collected by his own agency.

It is disturbing to me that the officer being interviewed is going beyond the law and believes people at a .04 or .06 blood alcohol level is impaired.  In reality, the officer seems to indicate that if you have any alcohol on your breath and you are pulled over, you will be arrested for DUI.

I agree that people should not drink and drive with any alcohol.  That is beyond the law.  One person's morals should not be a basis to make a serious allegation such as DUI.

Read the whole article here.

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Here is an article about South Carolina, which ranks as one of the worst for percentages of drunk-related deaths.  However, Utah ranks as one of the best in the nation.

The article states:

--In the U.S., someone is killed in an alcohol-related accident about every 30 minutes.

--Roughly one-third of all drivers arrested or convicted of driving while intoxicated or driving under the influence of alcohol are repeat offenders.

--There were 13,470 drunk-driving traffic deaths last year in the U.S.

Some of the other "worst" states in percentage of fatalities involving a drunk driver: Montana, Hawaii, Texas, Louisiana, New Hampshire, North Dakota, Connecticut and South Dakota.

These states are reported as the "best" in low percentage of drunk-related deaths: Utah, Kentucky, Nebraska, North Carolina, Alaska, Maine, New York, Georgia, Indiana and Iowa.

The author jumps on the bandwagon with MADD to get even more tougher on DUIs.  The author believes that jail time is a threat.  Most of the people I deal with do not intend to drive drunk.  They seem to lose their rational thinking at some point during the evening.  Calling on the powers of deterrence just doesn't seem to work.  In the previous post I did, I like the solutions suggested by the Janice.  It's too easy to gripe and complain.  It's too easy to jump on the band wagon of "let's get tough of DUIs.  Imprisoning people has never worked.  Look for other solutions.  Make car manufacturer's develop cars that won't start if alcohol is on your breath.  Provide other ways for a person to get home.  Just some things to consider.

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I like this article written by Janice Kopaunik.  She seems to be looking for a solution to the problem, not just complaining about it.  She makes some really good observations.

• Does heavier punishments work? 
  
  • If you have been drinking, do you really rationalize the stiff punishments and fines?
• "Punitive laws will do little to stop would-be-criminals when the punishment is already severe enough."
  • This is a great observation.  She recognizes that the consequences of a DUI are more severe than the ticket itself citing the loss of license, losing a job, etc.
• Janice then talks about a solution and looks for an effective strategy.   She looks at preventative measures like providing low cost and free rides at the expense of convicted drunk drivers.  In other words, Janice is suggesting that fines and fees that are paid to the court should be used to fund ways of getting people home safe.

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You don't see to many sobriety check points in Utah anymore.  The constitutionality of the checkpoints have been brought into question and outlawed in many states.  The procedure involves directing traffic off the road and checking the drivers for alcohol.  Now what the officers do to get around constitutionality problems, is do saturation patrols.  A bunch of officers get together and saturate an area, which is usually around the bar areas, and look for any minor reason to pull citizens over to check them for alcohol.  Here is a news video that shows Office Davenport pull a man over for driving "under" the speed limit and investigating him for alcohol.  The man was just barely over the legal limit after the officer had him blow hard into his hand held portable breath tester.  He tells the man from what he sees that the man is too impaired to drive.  The problem with this is that the studies regarding field sobriety tests say that if you see the minimum clues of impairment, the person should be over a .10 in a breath alcohol result.  In this video, the officer gets a result of .09.  This brings in the officer's credibility at issue as to whether he really saw clues or did he just smell alcohol and concluded impairment.  He finds something in the man's pocket and assumes it is Heroin, when in reality it was a roach for marijuana.  Surly an experienced officer such as Davenport could tell the difference.

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