There is a big market for antiques and some items can go for hundreds of thousands and even millions of dollars.  In the antique business one has to be wary of fakes.  Remember the Salamander Papers in the 1980s?  Producing fake historical documents, guns, clothing, and all other types of items is a big business.  Have you ever seen the TV show Pawn Stars?  Those poor guys are always on the lookout for fake historical items and have to have experts looking at the items before committing to buying them.

The crime of making fake antiques is call criminal simulation.  Criminal simulation requires an intent to defraud another and any of the following:

• When someone makes or alters an object in whole or in part so that it appears to have value because of age, antiquity, rarity, source, or authorship that it does not have;
• When someone sells, passes, or otherwise utters an object so made or altered;
• When someone possesses an object so made or altered with intent to sell, pass, or otherwise utter it; or
• When someone authenticates or certifies an object so made or altered as genuine or as different from what it is.

Criminal simulation is the not the most common crime and often unheard of because people who commit such frauds are very good at what they do and not getting caught.  The crime, however, runs to everyone in the chain of the transaction, but each person in the chain of the transaction has to have the requisite intent to defraud.

Penalties for Criminal Simulation

The penalties for this charge are dependent on the amount defrauded and ranges from a class B misdemeanor all the way up to a second degree felony.

• If the value is less than $500, the offense is a class B misdemeanor.
• If the value is between $500 and $1,500, the offense is a class A misdemeanor.
• If the value is between $1,500 and $5,000, the offense is a felony of the third degree.
• If the value is more than $5,000, the offense is a felony of the second degree.

If you are facing criminal simulation charges give our Utah criminal defense attorneys a call at 801.618.1334 for a free consultation.

Non DUI or Reckless Driving Cases

For every case filed in a Utah Justice Court that is not a DUI or a reckless driving charge, the court is limited on sentencing a defendant to jail by the appeal process.  When a defendant appeals from a justice court, Rule 27A of the Utah Rules of Criminal Procedure states that a justice court “shall order stayed any period of incarceration.”  There is an exception but it requires the justice court to find “by a preponderance of the evidence that the defendant posed a danger to another person or the community” or that “the appeal does not appear to have a legal basis.”

We have never encountered a time when the court has made a finding under the above two exceptions, but obviously if a defendant is facing charges for a violent crime there is a possibility that the court could make such a finding.

DUI and Reckless Driving Cases

For terms of incarceration less than 30 days, the justice court must stay the jail sentence unless the court finds, at the time of sentencing, that the defendant “poses an identifiable risk to the safety of another or the community and that the period of incarceration, and no less restrictive alternative, is necessary to reduce or eliminate that risk” or that the “appeal has no legal basis.”

For terms of incarceration greater than 30 days, the defendant has the burden of filing a memorandum that establishes the “legal basis for the appeal and that the appeal is not being taken for purposes of delay…why the defendant is not a flight risk…and why the defendant does not pose a danger to any other person or the community.”  Once the defendant has filed such a memo with the court the court must hold a hearing on the matter within 10 days and then must order the defendant released from jail unless it finds by a preponderance of the evidence that (1) the defendant is a flight risk; (2) the defendant would pose a danger to any other person or the community if released; or (3) the appeal does not appear to have a legal basis.

If you are facing a charge in a Utah justice court that could result in incarceration give our criminal defense lawyers a call at 801.618.1334

The Utah Legislature has taken it upon itself to give the district attorneys freedom to increase the category of a crime if the defendant has committed the same or similar crime in the past.  For example, a crime that can be charged as a class B misdemeanor by itself may be charged as a class A misdemeanor or even as a felony if the defendant has committed that same or similar crime in the past.

What Are the Common Enhanceable Offenses?

There are a lot of enhanceable offenses in Utah, but there are a few that are more common than others.

• Domestic violence – If an individual is convicted of domestic violence in Utah he needs to understand that if he is charged with another qualifying domestic violence crime within a five year period it can be enhanced one degree higher.  That can make a big difference in a case because it can mean the difference between a misdemeanor and a felony, jail time and prison time, and other penalties.  See Utah Code 77-36-1.1.
• Theft – Theft in Utah is another enhanceable offense.  It can be charged as a second degree felony if the actor has been twice before convicted of theft if each prior offense was committed within 10 years of the date of the current conviction or the date of the offense upon which the current conviction is based.  See Utah Code 76-6-412.
• Drug offenses – Drug production and distribution are enhanceable offenses for for any second or subsequent conviction.  Likewise, drug possession is an enhanceable offense for any second or subsequent conviction.  See Utah Code 58-37-8.
• DUIs – A DUI is an enhanceable offense if you get three in a 10 year period.  The Third DUI is a felony DUI and can result in prison time.  See Utah Code 41-6a-503.

If you are facing an enhanceable offense in Utah, call our criminal defense lawyers at 801.618.1334 to find out your options and how we can protect your rights.

A presentence report is put together by a probation officer at AP&P.  The defendant has to contact AP&P within 48 hours of entering a plea or being found guilty to set up a time to meet with AP&P for an interview.  At the interview the AP&P officer will question the defendant about the circumstances surrounding the conviction and review his criminal history, family situation, and employment situation.  From this interview the probation officer will put together a report and make recommendations to the judge.

The report contains several sections:

• Summary of recommendations;
• Criminal background summary including the defendant’s adult history and juvenile history;
• Evaluative assessment and problem areas;
• Description of the any plea agreement entered into;
• Factual summary of the offense;
• Any statement made by the defendant to the probation officer;
• Opinion of the probation officer;
• Whether the defendant is currently in custody;
• Whether any co-defendants were involved;
• Whether there are any pending cases;
• Whether the defendant has any known gang affiliations;
• Whether he has ever been on probation or parole;
• Any victim impact statement and information regarding restitution;
• A statement of the defendant’s life history and current living situation;
• Information concerning the defendant’s education, employment, and finances;
• The defendant’s substance abuse history;
• Any information obtained from collateral contacts;
• A report based on Utah’s sentencing matrix showing where the defendant falls under the matrix;
• A report of any aggravating or mitigating factors affecting the defendant’s sentencing recommendation;
• Any special conditions that should apply such as sex offender conditions;
• Other pertinent information not included above.

The defendant will have an opportunity to dispute any incorrect factual issues that are in the report.  The judge is not bound to follow the recommendations, but most judges give the report great weight and will typically follow the recommendations.

For more information feel free to contact our criminal defense law firm.

• makes repeated contact by means of electronic communications, whether or not a conversation ensues; or
• after the recipient has requested or informed the person not to contact the recipient, and the person repeatedly or continuously: contacts the electronic communication device of the recipient; or causes an electronic communication device of the recipient to ring or to receive other notification of attempted contact by means of electronic communication;
• makes contact by means of electronic communication and insults, taunts, or challenges the recipient of the communication or any person at the receiving location in a manner likely to provoke a violent or disorderly response;
• makes contact by means of electronic communication and threatens to inflict injury, physical harm, or damage to any person or the property of any person;
• causes disruption, jamming, or overload of an electronic communication system through excessive message traffic or other means utilizing an electronic communication device.

As one can see from reading the statutory provisions cited above, there are several ways in which a person could be cited for Electronic Communication Harassment in Utah. People should be especially careful of threatening someone in a text message because such conduct could potentially carry other charges as well. Once you put something in writing whether through email or text, it is out there and there is no getting it back. Don’t send a message you could potentially be charged for and later presented a copy of in court.

Get a Criminal Defense Lawyer on Your Side

If you have been charged with Electronic Communication Harassment in Utah, you will need a strong defense to give you the best resolution in the case. Our team of Criminal Defense Lawyers in Utah can represent you through any charge. For more information or to get us started on your case right away, call us today.

All 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to a chemical test to if they are arrested or otherwise detained on suspicion of a drunk-driving offense in order to determine the motorist’s blood alcohol level.

Utah’s implied consent law is found in Utah Code 41-6a-520 and states that every person is deemed to have given his consent to a chemical test of the person’s “breath, blood, urine, or oral fluids” to determine if the individual was driving while impaired.  If you are arrested for DUI in Utah, the law enforcement officer must ask for your consent to perform a test and give you an opportunity to refuse.  If you refuse, the officer then must give you an admonition explaining that if you refuse you can lose your license for 18 months.

What If I Refuse a Blood Test?

Recently the United States Supreme Court decided Missouri v. McNeely and found that the natural metabolization of alcohol in the bloodstream does not present a per se exception under the exigent circumstances exception to the Fourth Amendment’s warrant requirement.  Whether a warrantless blood draw was justified must be considered on the totality of the circumstances and if the totality of the circumstances does not justify the warrantless search then the results should be suppressed by the trial court and the results should not be admitted against the defendant.

Does McNeely Apply to My Case?

If you are facing DUI charges think back on whether the law enforcement officer asked for your consent to draw your blood.  Did he ever talk to about it?  Most law enforcement officers will only ask for your consent to do a breath test.  Sometimes the breath test does not work properly because of an insufficient air quantity that is tested.  At that point law enforcement may seek to do a blood draw, but they can only do so with your consent or a warrant.

Let our Utah DUI lawyers take a look at your case to see if we can get your blood test results suppressed.  Call us anytime at 801.618.1334 for a free consultation.

West Valley has long had problems in the law enforcement area, specifically with regard to certain officers in their narcotics unit. As Utah Criminal Defense Attorneys we have long been fighting cases in the West Valley Justice Court as well as higher offenses in the Third District Court and have seen firsthand the corruption involved in some of these narcotics investigations. We have been fighting to hold the department accountable and believe further information will be forthcoming as to just how bad the problem really is.

The information which surfaced as a part of the internal audit will be shared with the FBI and the Salt Lake County attorney’s office as part of their respective investigations. It is not looking good for West Valley these days. Beyond the stolen money and drugs, we believe further information may come forth relating to officer involved shootings and other recent incidents of great concern. The City mentioned 6 areas of concern which were discovered through their internal audit:

• Improper Evidence Handling
• Missing Cash and Drugs
• Missing Other Small Items
• Officer’s Collecting Trophies from Cases
• Improper Use of Confidential Informants
• Illegal GPS Use

The City is not releasing the names and information for the officers involved at this time but did mention they believe it was one or possibly two officers who are the main culprits. We tend to believe more officers are implicated.

West Valley Criminal Defense Lawyer

If you believe officers misconduct was involved in a case in which you were charged, call and speak with a West Valley Criminal Defense Lawyer in our office today. We have handle numerous cases in which officers committed illegal searches, seizures, or otherwise violated constitutionally protected rights. In those cases we work hard to hold law enforcement accountable for their actions.

The law in the United States and Utah derives from English common law and under the common law an individual has the right to defend himself against aggressions and violence from others.  That same common law recognized the right to defend the life and property of others.

Utah has taken the common law and set it forth in a statute.  Under Utah Code section 76-2-402(1)(a), a person is justified in threatening or using force against another when and to the extent that the person reasonably believes that force or a threat of force is necessary to defend the person or a third person against another person’s imminent use of unlawful force.

What Does Imminent and Necessary Mean?

Recently the Utah Supreme Court set about to give guidance and what the terms “imminent” and “necessary” mean for purposes.  In State v. Berriel, the Utah Supreme Court looked to dictionaries to find the meanings.

Black’s Law Dictionary defines “imminent danger” as “an immediate, real threat to one’s safety” and as “the danger resulting from an immediate threatened in jury.” Webster’s Dictionary defines “imminent” as “about to occur at any moment” and as “impending.” The imminence requirement distinguishes lawful defensive force from two forms of unlawful force: that which comes too soon and that which comes too late. “A preemptive strike against a feared aggressor is illegal force used too soon; and retaliation against a successful aggressor is illegal force used too late.” Defensive force “is neither a punishment nor an act of law enforcement” but rather “an act of emergency that is temporally and materially confined, with the narrow purpose of warding off the pending threat.” Webster’s Dictionary defines “necessary” as “absolutely required,” “indispensable,” and “unavoidably determined by prior conditions or circumstances.” The necessary requirement distinguishes wanton violence from force that is crucial to averting an unlawful attack. Force is justifiable only if a reasonable belief in the imminence of unlawful harm and in the necessity of defensive force coincide with the defendant’s use of force.

All cases where defense of a third person is presented will fall on whether the acts were necessary and whether the danger was imminent.  Courts are consistent in finding that such a defense is not available where there is only a history of violence and/or a threat of future harm.

Contact our Utah criminal defense lawyers if you have additional questions about self defense and defense of others.  We can be reached anytime at 801.618.1334.

Utah Defenders – Salt Lake Criminal Defense Attorneys

The Salt Lake Criminal Defense Attorneys at Utah Defenders are experienced in handling the most complex drug distribution cases, to the most common simple possession cases. No matter what your circumstances, having a qualified attorney on board can make all the difference in making sure your rights are protected and your case is resolved in the best way possible. Don’t take any chances by just pleading guilty to a drug charge and hoping for the best. Most drug charges carry the potential penalty of 180 days in jail or more. Before you just resign yourself to a guilty plea and potential jail time, call and speak with us today by calling 801.618.1334.

The trial court advised the jury to apply the following four factors to determine whether the pocket knife was a dangerous weapon:

• The character of the instrument, object, or thing;
• The character of the wound produced, if any;
• The manner in which the instrument, object, or thing was used; and
• The other lawful purposes for which the instrument, object, or thing may be used.

On appeal the defendant argued that all four factors must be present (i.e., that the object must actually be used to cause harm) for the object to be considered a dangerous weapon, but the court disagreed and instead held that the object does not have to be used for a defendant to be convicted of possession of a dangerous weapon.  The court then affirmed the jury’s finding that Miles was guilty of possession of a dangerous weapon.

Justice Davis dissented from the court’s opinion and said that he would have reversed the conviction because there was no evidence of Miles using the knife or even accessing it.  Justice Davis found that the majority of the court focused too much on what Miles might have done with the knife, but that mere potentialities does not satisfy the high burden the city had to prove beyond a reasonable doubt.

Lesson for those charged with this type of crime: anything can be considered a dangerous weapon so lawyer up.  Call our Utah criminal defense attorneys at 801.618.1334 for a free consultation.