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

I found an interesting article this afternoon.  It was really interesting to me because it was my case.  This case was first heard in the North Logan Justice Court.  The judge in that Court heard the exact same evidence but ruled that the officer's had reasonable suspicion.   I didn't agree with the judge's decision to we appealed the case to the District Court.  The District Court Judge Judkins listen to the evidence, analyzed, and questioned the evidence.  He made the correct ruling regarding an unpopular crime.  Here's the article.

4th Amendment holds in a case of mooning, alcohol
The Associated Press
Article Last Updated: 05/08/2008 02:18:46 PM MDT

Posted: 2:20 PM- LOGAN -- A judge threw out a drunken-driving charge in a case that involved bare bottoms and a defiant step on the gas.
Police stopped Nicholas Johnson, 22, after he revved his pickup truck in response to friends who mooned him at a traffic stop.
An officer smelled alcohol and arrested Johnson, who had a blood-alcohol level of 0.13 percent, above Utah's legal threshold.
But defense attorney Glen Neeley claimed the officer had no probable cause to stop the pickup truck last September in North Logan. First District Judge Clint Judkins agreed.
"We're not a police state yet," Judkins said Wednesday. "Revving your engine is not illegal.
"This has to be looked at through two windows. The first being that the police officer was on the street simply doing his job, the other is a person's Fourth Amendment right," the judge said, referring to an unreasonable search.

Here is two other links to the same story.

1. Ksl
2. AOL

    It is interesting to read the comments at the end of these posts.  Some people feel that Officer Elleman was justified in trampling over the 4th Amendment, that he did the wrong thing but for the right reason.  Many others agree with the judge.  I am proud of judges that make the right decisions regardless of the popular vote.  This type of judge protects what little rights we do have--even in a case that involved someone "accused" of a DUI.  The judge did not just protect this young man's rights, he protected all of us from an unreasonable search and seizure.  Imagine a police state where an officer can pull you over for no reason.  Many say, "I don't have anything to hide."  To you I say good for you; can't wait for the government to intrusively invade your life for no reason and find that one imperfection in your life so you can say, "I have nothing to hide".  Then you will be looking down the barrel of a prosecution that is wrongful and false, and your only defense is "I have nothing to hide."

• Print
• Comments
• Trackbacks

If a person is convicted of a DUI and the breath test was over a .16, most courts will require the person to put an ignition interlock device on any car they own and any car they drive. If a person has more than one conviction within 10 years, it is mandatory by state law to have this device. The device is basically a breathalyzer that will not allow a car to start if the driver has alcohol in their system. Kutv News did a story on this which I have posted below in the continue reading button. Here's the problem that many clients experience with this device:

• They constantly malfunction.
  
• They can read alcohol if the person has perfume on them or an alcohol based fragrance.
  
•  They misread other substances on the breath as alcohol.
  
•  They have to be maintained and checked constantly.

Continue Reading...

• Print
• Comments
• Trackbacks

    A couple of years ago I attended the Indiana University Borkenstein Course. This is a course that Utah Breath Test technicians are required to take to qualify for their job as technicians. The taxpayer spends a lot of money on these people to take this course. The course is taught by the top scientists in the country and the world. For example, AW Jones from Sweden is probably considered as the worldwide expert on breath testing. Dr. Kurt Dubowski is probably considered the leading expert on breath testing in the nation.

    All of the scientists and experts that taught at the program taught one common theme for forensic breath testing: Quality Assurance is the most important aspect of forensic breath testing. Each expert emphasized that any breath test program should employ duplicate breath testing to ensure an accurate result. The Utah Department of Public Safety chooses to ignore the quality assurance safeguards of duplicate breath testing. I have heard the excuses that it would cost too much to "we don't have to and we don't care." A fellow National College for DUI Defense member posted his research on states that require duplicate testing and those that don't. http://www.wvdui.com/StateBreathMachines.asp

• The interesting thing is that 27 states reported duplicate breath test requirements. 18 states still employ single breath test requirements.

     If it is important to ensure that tests are accurate, that innocent people are not convicted, and to ensure that justice is served, why doesn't Utah step up to the plate. It is not expensive, it is just a software issue. The state has recently purchased brand new Intoxilyzer 8000 machines. Those machines are designed to do duplicate testing. Yet, duplicate testing is still not employed. It seems to me that if the state employed a system to ensure accurate results, they may have to employ the idea that maybe the officer made a mistake in making the arrest.

Continue Reading...

• Print
• Comments
• Trackbacks

I was discussing a case with a prosecutor today.  He made the offer that my client plead to Driving with a Measurable Amount of a Controlled Substance in his system.  This is basically the same thing as a DUI, except the prosecution does not have to prove any impairment or level whatsoever.  The only thing they have to show is that the person had a small amount of the byproduct of a drug in their system.  The only defense to this charge is that the person has a valid prescription for the controlled substance.  Should the person plead to this charge?  My answer is if there is another way around it, don't plea to.  I suggested a Drug Related Reckless charge.  The prosecutor asked why?  Here are my four reasons?

• A metabolite charge will suspend your license for 90 days, or 1 year if it is a second offense.
• A Drug Related Reckless driving charge will save the license (if you kept it at the DMV hearing), or will reduce the license suspension to 60 days if it is a first offense.
• Usually, the Courts will give a lessor fine for a DRR.
• Usually, the DRR will not involve jail time or as much community service hours.

Be aware that both charges are similar in nature.  They both will stay on your record for 10 years before expungement can take place.  Both usually require a drug class.  Both will have the stigma of DUI along with insurance implications.

• Print
• Comments
• Trackbacks

So here is a follow up on the story from yesterday.  The interesting thing about this case is that the officer was never found guilty of DUI.  However, his department presumed him guilty and fired him anyway.  It's interesting that the police don't even respect the sacred presumption of innocence even when dealing with their own.  The story reads that the office was fired for DUI, yet no DUI was ever prosecuted.  Got to love that.

U officer fired for DUI
By: Ana Breton
Posted: 3/26/08
A former officer at the U Police Department had his peace officer certification suspended for the next three years after he was arrested for drunken driving.

Officer Tory Park's certification was suspended by the Utah Peace Officer Standards and Training Council, which establishes and upholds rules of conduct for the state's certified peace officers. Officers are given the certification after they graduate from a police academy and keep their accreditation by completing 40 hours of training in their department and follow POST council standards.

The council suspended Park's certification during its quarterly conference during the weekend. There, the council suspended the certifications of 29 other officers in Utah. Park was the only officer punished from a university police department in the state.

Lt. Steve Winward, POST bureau chief of investigations said Park's certification was suspended after the council found that he had been arrested for driving under the influence last year. Winward said Park was arrested on May 26 after he crashed his personal vehicle into a road sign when he was off duty. Winward said there was not enough evidence to convict him in court for DUI, but that Park plead guilty to leaving the scene of an accident and reckless driving.

"They took the alcohol charges out, because it would have been hard to prove the case to determine if he drank before or during the accident," Winward said.

Capt. Lynn Mitchell at the U Police Department said that Park was terminated and quickly replaced after he was arrested.

"It's disheartening. We arrest people who violate laws, so we don't want our people to be doing those kinds of things, for crying out loud," Mitchell said. "We arrest people for DUI, but that doesn't give us permission to do it ourselves."

Although Mitchell declined to comment about the specific POST case because it involved disciplinary action, he said that Park is not the first officer to have a peace officer certification suspended at the police department.

"It's not a first," Mitchell said. "But then again we've been here since 1958, so we've gone through a lot of officers."

Mitchell said the last time a U officer's certification was suspended was about four years ago. Park's termination "almost went unnoticed," Mitchell said.

Without certification, an officer is unable to take a position at a police department in the state of Utah. Additionally, Mitchell said that Park will not have a chance to train every year, so if he wants to come back into the field, he will have to pass the entire certification process again.

"Tory was a nice guy. I feel bad for him," Mitchell said. "But I can't respect that."

The 30 Utah officers who were accused of breaking POST ethical rules might be the highest number of officers disciplined in recent history.

Winward said the POST council has been understaffed because several officers have been absent because of personal reasons, such as surgery, and that "cases kept getting backlogged." The council's next meeting is in June.

• Print
• Comments
• Trackbacks

The Police are making arrests for DUIs.  A story broke today about 30 officers being disciplined.  Many of the disciplined officers were involved in sexual misconduct.  However, I was shocked to see a few of them were officers convicted of DUI or Alcohol Related offenses.  One of the officer's was the the poster child for getting tough of DUIs. 

Here's a break down of what discipline occurred:

Officers disciplined

Other current or former peace officers disciplined today were:
-- Centerville police: John F. Spencer, revoked for felony convictions of child abuse and assault
-- Salt Lake County Sheriff s Office: Jaron H. Brown and Ronald Friend, two-year suspensions for sexual misconduct and associating with criminals; James M. Coleman, revoked for theft conviction
-- Orem police: Barry T. Nielsen, revoked for conviction of sexual battery
-- Utah Highway Patrol: John C. Ellis, revoked for criminal trespass
-- South Ogden: Stuart J. Ford, revoked for domestic violence
-- Utah County Sheriff s Office: Troy W. Abplanalp, revoked for conviction of making threats with a weapon
-- Salt Lake Valley Emergency Communications Center: Stephanie K. Poret, revoked for drug use
-- Tooele County Sheriff s Office: Elizabeth M. Miller, revoked for custodial sexual misconduct
-- Salt Lake City police: Roger J. Nielson, revoked for sexual misconduct; Cortney C. Haggerty, four-year suspension for drug use
-- Utah Department of Corrections: Stephen A. Gray, revoked for custodial sexual misconduct; Katie C. Schofield, revoked for custodial sexual misconduct; Robert W. Crozier, revoked for sexual misconduct with a state computer; Alan W. Hurst, three-year suspension for driving under the influence; Bryan R. Sandness, two-year conviction for driving under the influence; David A. Goodrich, 9-month suspension for pattern of misconduct
-- Ogden police: Leon Weese, 18-month suspension for sexual misconduct
-- University of Utah police: Tory K. Park, three-year suspension for driving under the influence
-- Police academy cadets: Benjamin L. Walker, four-year suspension for theft; Valerie Hutchens, four-year suspension for falsifying her application
-- Washington County Sheriff s Office: Joy L. Andrews, three-year suspension for lying
-- Cache County Sheriff s Office: Jared L. Glover, one-year suspension for pattern of misconduct

Continue Reading...

• Print
• Comments
• Trackbacks

Many of my clients get arrested right after leaving Bogey's.  The police seem to drive around the club between 11:00 p.m. to closing time waiting for people to leave.  The officers will then following the citizen until the person commits a minor traffic citation.  The officers then pull them over, ask how much alcohol was consumed, and the citizen is now looking down the wrong end of a DUI.  I saw this article in the Tribune that talks about how the officers actually went into Bogey's and harassed the patrons to try to get them to commit crimes by offering money for sexual acts and lewd behavior.  The officers then purchased alcohol for an intoxicated person, and then cited the bar owner for serving an intoxicated person.  Is this really what we pay our officers to do?  Here's the highlights.

• Three state undercover cops walked into Bogey's Night Club one September night and then over the course of two hours repeatedly made lewd comments to a waitress, waved a $5 bill at a rowdy customer enticing her to expose her breasts and, when she refused, bought her a drink.
• After ordering themselves dinner and drinks, the officers cited the club for serving alcohol to an intoxicated patron - the same woman they had treated to a shot of Jagermeister liqueur.
• Lt. Ed Michaud, head of the state's alcohol enforcement team, said he was unaware of the officers' actions until questioned by a reporter. He said the agents' conduct was "over the top and an embarrassment to the department" that will be addressed at future training sessions.

Continue Reading...

• Print
• Comments
• Trackbacks

An article written in the Daily Utah Chronicle surfaced today regarding friends letting friends drive Drunk.  The writer brings out some good points that I would like to highlight.

• Being convicted of a DUI in Utah carries steep criminal penalties, including revocation of your driver's license, jail time, fines and community service. These penalties increase and are compounded with every repeated DUI offense.
• This New Year's holiday weekend, the Utah Highway Patrol said it made just six arrests in Salt Lake and Utah counties for driving under the influence, and there were no DUI-related crashes.
• under Utah's laws, even if your BAC is less than .08 percent, you can be arrested and charged with a DUI if you are still driving impaired by drugs or alcohol.

The thing that is interesting about this article is all the doom and gloom statistics.  This thinking leads to punish the innocent for the sake of punishing the guilty.  What I mean by that is it is dangerous to assume that "most drunk drivers don't get caught the first time they drive drunk. "  I had a judge mention this statistic once.  He then punished the guy for all the times "he did not get caught."  People should be judge by the crime at hand, not by the crimes they could have or even probably have committed.  We still believe in the presumption of innocence, don't we?  Here's the remainder of the article below.

Continue Reading...

• Print
• Comments
• Trackbacks

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.

Continue Reading...

• Print
• Comments
• Trackbacks

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.

• Print
• Comments
• Trackbacks

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.

• Print
• Comments
• Trackbacks

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.

• Print
• Comments
• Trackbacks

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.

These are common questions that many Utah DUI clients ask me when they are arrested about the procedure.  It is important to hire the right attorney as early as possible in the process so the attorney can prepare the case as soon as possible.  It is very difficult in calendaring and in preparation when the attorney gets hired half way through the process.

• Print
• Comments
• Trackbacks