Ineffective Assistance of Counsel and Immigration Consequences

Immigration consequences and ineffective assistance of counsel

Entering a guilty plea to a crime can have immigration consequences.

Recently the Utah Court of Appeals addressed whether an attorney was deemed to have given ineffective assistance of counsel to a non-U.S. citizen. In State v. Aguirre-Juarez, the defendant plead guilty to one count of attempted identity fraud, a class A misdemeanor.  She had allegedly used a fake green card, an alien registration number that didn’t belong to her, and someone’s social security number.

Her attorney was able to work out a plea option where one count would be dismissed and she would plea guilty to one reduced count. Under the Immigration and Nationality Act, any alien convicted of a crime of moral turpitude “for which a sentence of one year or longer may be imposed” can be deported. The defendant’s attempted identity fraud conviction was a class A misdemeanor which carries jail time of up to one year, which would make it fall squarely within the purview of the INA language above. The defendant’s attorney was aware of this and thus was able to get the court to sentence his client to only 364 days, with most of that sentence being suspended.  This took her outside the INA one -year language. She agreed to the deal and expressed that she understood her conviction could have immigration consequences.

The problem arose when after the fact it was discovered that another provision of the INA prohibits an individual convicted of a crime of moral turpitude and sentenced to incarceration for six months or more from being able to be readmitted to the United States. Apparently neither defense counsel nor the prosecutor were aware of this. Defendant appealed claiming that her attorney should have known about this and she was entitled to an attorney who was aware of this provision of the INA.

In determining whether the defendant’s attorney had provided ineffective assistance of counsel the court addressed whether (1) the attorney’s performance was deficient and (2) whether the attorney’s performance prejudiced the defendant. The Court of Appeals addressed only the second prong and found that she was not prejudice because even if she had been sentenced to less than six months she still would not have been able to re-enter the United States because of yet another provision of the INA prevents “any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure . . . a visa, other documentation, or admission into the United States or other benefit provided under this Act.” The Court found this section of the INA would apply to defendant because she sought to gain employment in the United States (a benefit to which she was not entitled) through fraud.  Thus, the defendant could not show prejudice and her claim was denied.

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Medical Marijuana in Utah Limited Program Begins

Last month was officially the first month where a limited use medical marijuana in Utah license could be obtained by a few select patients in the state. So how many medical marijuana cards were issues in July? Only 11 total licenses were obtained. Compare these number to other states such as California, Nevada, and other western neighbors and it is easy to see Utah is barely providing any medical use marijuana at all. The medical marijuana laws in Utah only currently allow individuals with severe epilepsy to possess cannabis extract oil. Medical marijuana in Utah  is currently not legal for any other use or in any other form. Legislation on this issue successfully passed this year when several mother’s of epileptic children and their support came forward pushing for a bill. Half of the cards issued by the state were for child patients. This is a good step in the right direction but Utah still has quite a ways to go in opening up the medical uses of cannabis.

Distribution Still not Permitted

Medical Marijuana in Utah

Medical Marijuana

Utah’s law is so limited and narrowly tailored, it doesn’t even permit pharmacies or doctors to distribute the cannabis oil. Rather, patients sill have to obtain the oil from another state, the license only allows them to possess it. The current major supplier of the cannabis oil is located in Colorado. There is a waiting list to obtain the oil,  and that list is growing. Therefore, patients in Utah are having a tough time getting any oil even if they have successfully obtained their medical marijuana card. There is a growing demand for the cannabis oil and it doesn’t look like the supply is going to be able to meet the demand anytime soon. Patients hoping for medical marijuana in Utah may be left without for some time.

Future of Medical Marijuana in Utah

Change in drug policy often takes time so many patients are holding out hope the laws will become even more relaxed when it comes to the medical use marijuana. Many are already calling and planning for continued legislation building on the foundation previously set in this area. Additionally, just this year the Justice Department has relaxed enforcement of the federal laws on simple marijuana possession. Utah it seems may follow but surely the changes here will be slow and gradual. Don’t expect full blown medical marijuana use similar to California any time soon.

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What is the Voir Dire Process in a Utah Jury Trial

The Importance of the Jury Trial and Voir Dire

Voir dire is process of weeding out problematic jurors.

Voir dire is part of the jury selection process.

The jury trial is a right over which many lives were lost in the founding of this country.  It is a mechanism to protect individuals against an oppressive government. Think about how different things would be if an individual charged with a crime could then be tried by a government bureaucrat instead of a number of different individuals from his community. Juries can protect people from false allegations by the state. It is another check and balance on state power.

Juries, however, are not infallible. They are composed of people who have their own biases and prejudices. While it is impossible to remove those biases and prejudices from members of the jury, the law has developed to permit lawyers and judges to ask prospective jurors a series of questions to determine if any particular juror carries with him a preconceived notion that could interfere with is rendering a fair judgment in the case.  This questioning process is called voir dire, which is a term loosely based on a Latin phrase which means to say the truth and which is conducted during the jury selection process.

Rules Governing the Voir Dire Process

Because voir dire only occurs in the trial court, the trial court judge has a lot of flexibility on how he runs the process.  Nonetheless, there are several rules that the judge must follow. If the trial judge violates any of those rules his decision can be reviewed by an appellate court judge under an abuse of discretion standard. See Alcazar v. University of Utah Hosps. & Clinics, 188 P.3d 490.

As discussed in the recent State v. Alvarez case: Generally,the trial court is afforded broad discretion in conducting voir dire, but that discretion must be exercised in favor of allowing discovery of biases or prejudice in prospective jurors. The key inquiry is whether, considering the totality of the questioning, counsel was afforded an adequate opportunity to gain the information necessary to evaluate jurors. If the trial court’s decision to exclude the question about juror embarrassment substantially impaired Defendant’s right to the informed exercise of peremptory challenges, it is reversible error.

So the entire purpose of voir dire is to allow the lawyers to evaluate the prospective jurors and to do so in a way that allows the lawyers to be able to make informed conclusions about each prospective juror.

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The 12 Steps of a Drug Recognition Evaluation

12 Steps to a Drug Recognition Evaluation

Only certain officers are trained in determining whether someone is under the influence of drugs.

When people think about impaired driving most people think of the typical alcohol-induced DUI, but drugs are involved in almost as many impaired driving cases.  There are some tests that have been developed specifically to detect the involvement of drugs in an impaired driving case.  The test is called a drug recognition evaluation or DRE.  There are 12 basic steps that a certified DRE law enforcement officer will go through to determine if someone is impaired by drugs.

  1. Breath Alcohol Test – This is the first thing a DRE officer will do to determine a suspect’s BAC. This will help determine whether alcohol is the culprit in the driver’s impairment.
  2. Interview of the Arresting Officer – The DRE officer will interview the arresting officer as soon as possible to gather what the arresting officer witnessed.
  3. Preliminary Examination – This is a physical examination to determine the physical signs of impairment.
  4. Eye exam – This includes three different examinations include the horizontal gaze nystagmus (HGN – also used to determine the presence of impairment by alcohol); the vertical gaze nystagmus (VGN); and lack of convergence.

  5. Psychophysical Tests – This includes four different tests: (1) The Romberg Balance test; (2) the walk-and-turn test; (3) the one leg stand test; and (4) the finger to nose test.
  6. Vital Signs – drugs can affect the vital signs in a number of different ways and the vital signs can tell the trained officer what types of drugs may be in the suspect’s system.
  7. Dark room – The officer tests how the eyes react to light.
  8. Muscle Tone – This involves probing the muscles of the arms to determine the rigidity or flaccidity of the muscles.
  9. Look for Injection Sites - The officer will inspect the suspect for injection sites to see if he had been using needles to inject drugs into his system.
  10. Suspect’s Statements – The officer will then interview the suspect in attempt to gather incriminating statements from him.
  11. Documenting Opinion – The officer will then document his opinion as to the impairment of the suspect and which drugs may be the cause for impairment.
  12. Toxicology – A chemical test, such as a blood test, will be performed to determine the presence of controlled substances in the blood.
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Woman Attacks Salt Lake Man With Samurai Sword

The Deseret News reports yesterday that a woman in Salt Lake got upset at a man who lived in the apartment beneath her because he complained that she was being too noisy. Rather than quiet down, the woman decided to get angry at him, so she grabbed a samurai sword and took a swing at him, slicing his arm. She was arrested and potential charges of attempted murder are being considered.

The case is notable because of the fact that the dangerous weapon was a samurai sword. It’s not every day that someone gets attacked like that.

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Increasing Costs in the Criminal Justice System

National Public Radio (“NPR”) ran a very interesting story this morning about the rise in court fees and the corresponding rise in defendants serving jail time because they were unable to pay their court ordered fines, restitution, or other related costs of probation. The whole story can be read here. NPR’s investigation into the costs associated with the criminal justice system spanned all 50 states and was conducted over a year long period. NPR’s investigation turned up some notable facts including the following:

  • 43 states allow defendants to be billed for public defender services.
  • 41 states charge inmates for room and board in jail and prison. This is true in Utah and referred to as the “pay to stay program.”
  • 44 states charge defendants for private probation and parole supervision services. This is true in Utah where almost all defendants on supervised probation pay the costs associated therewith.
  • All states except Hawaii charge the defendant a fee for any electronic monitoring.

In Utah, Defendants get billed at almost every step of the process, from the time they are arrested they have to pay a bail amount, court fines, costs of assessments, classes, counseling, probation fees, jail fees, and the list goes on. It is no wonder why so many defendants default on their court ordered financial obligations and get hung up in the system. Many Defendants are ordered to serve jail time as a result of their inability to pay fines or other court imposed financial obligations.

Too Poor to Pay Fines?

The U.S. Supreme Court in 1983 ruled you could not be sent to jail if you were too poor to pay court fines and fees. The case was Bearden v. Georgia in which the court also concluded a defendant who fails to pay court fines and fees could only serve jail time as a result if that Defendant in fact had the money to pay and willfully refused to do so. Despite this long standing precedent, many courts, including those in Utah are routinely sending defendants to jail who are unable to pay court fines, fees, restitution, or other court orders financial obligations. Often this means the person loses what little employment they have further sending them down the rabbit hole.

Ending the Practice

At Utah Defenders we are committed to ending the practice of sending defendants to jail who cannot pay their court fines or fees. If you are in this situation and would like to speak with a Salt Lake Criminal Defense Attorney please call us anytime.

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Computer Crimes in Utah are Becoming More Common

Computer Crimes on the Rise

We are seeing an interesting trend in Utah: people are hacking into their employer’s, partner’s, friend’s, ex-lover’s, ex-spouse’s Facebook accounts, email accounts, and other social media outlets in an effort to get revenge on them.  In doing so they rarely realize that what they are doing is illegal and has serious consequences.  Most people are lucky because they get away with it, mainly because the ex decides not to report it to law enforcement.  For those who are not so lucky, they may have to deal with police, courts, fine, and even jail.

Unauthorized Access of Another’s Email and Social Media Can Be A Felony

Utah makes it illegal to access or attempt to access another’s computer, computer software, computer data, etc. or he otherwise modifies, damages, destroys, or discloses such computer data can be charged with as low as a class B misdemeanor or as high as a second degree felony.  The degree of crime all depends on how much damage was caused by the unauthorized access.  Anything over $5,000 in damages is a second degree felony; anything less than $500 is a class B misdemeanor.

For example, let’s say that you work in an office and you have been given access to the company’s Facebook page.  You get fired by a boss who has been nothing but disrespectful to you.  You get home and in a fit of anger login to the company’s Facebook page and post something to embarrass that boss.  The boss doesn’t like it and calls the police. Now not only are you having to deal with having lost your job you have the police knocking on your door wanting to ask you some questions.  The evidence stacks up against you and now you have felony charges against you for computer crimes, you get arrested, booked into jail, have to make bail, and now you have to go to court to defend against the charges.

We one of the few firms that actually has significant experience in this realm of the law so give us a call for a free consultation if you have been charged with a computer crime.

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Arizona Supreme Court Limits Arizona’s DUI Metabolite Law

The Arizona Supreme Court recently ruled on a case involving its DUI metabolite statute, a statute which is very similar to Utah’s. In Arizona v. Harris, the Arizona Supreme Court addressed whether the presence of a drug metabolite in a driver’s blood that does not cause the driver to be impaired should be illegal given the Legislature’s intent to penalize impaired driving.

In Harris the defendant was pulled over in his car for speeding and unsafe lane changes. The law enforcement officer who pulled him over suspected him to be impaired.  The defendant admitted to smoking some marijuana the night before he was pulled over and he also voluntarily submitted to a blood test which revealed Carboxy-THC. Defendant was charged with DUI for being the slightest degree impaired and for DUI metabolite which prohibits a person driving a vehicle if he has any drug or its metabolite in his blood.

The State dismissed the DUI impairment charge and then the justice court dismissed the DUI metabolite charge on grounds that it did not believe the Legislature intended to include every single metabolite, especially those drugs that do not impair an individual. The superior court affirmed the justice court’s ruling but the court of appeals reversed it.

The Arizona Supreme Court reversed the Court of Appeals finding that interpreting the metabolite statute to extend to all byproducts would lead to an absurd result for the following reasons:

  1. It would create criminal liability regardless of how long the metabolite remains in the driver’s system or whether it has any impairing effect.
  2. It would criminalize otherwise legal conduct (e.g., medical marijuana).
  3. It would allow the prosecution of an individual who drives after ingesting a legal substance that shares a nonimpairing metabolite with a proscribed substance.

Based on these absurd results, the court then found that the Legislature could only have intended to prohibit driving with any amount of an impairing substance resulting from a drug.

This is the right result in this case and hopefully Utah will follow Arizona’s lead.  It makes absolutely no sense to criminalize the mere presence of a non-impairing drug in a person’s blood.  Good job Arizona.

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Do Prosecutors Have to Disclose Exculpatory Evidence to the Defense?

What is a prosecutor’s duty to disclose evidence?

In criminal cases the State has the burden to prove beyond a reasonable doubt that the defendant committed the crime being charged.  The State can only satisfy its burden if it produces supporting evidence.  Supporting evidence is gathered by the law enforcement agencies involved in the case.  The collection of evidence gives the prosecution a distinct advantage in criminal cases.  The State’s ability to collect evidence and its unlimited resources has persuaded the United States Supreme Court to establish a clear rule that the prosecution must disclose any material, exculpatory evidence to the defendant and his counsel.  Brady v. Maryland, 373 U.S. 83 (1963). This fundamental duty of prosecutors is unconditional.

What if a prosecutor fails to disclose evidence?

Since the Brady decision was decided, courts have determined that not every failure of a prosecutor to disclosed evidence will result in a reversal of a conviction.  Instead, courts use a two-pronged approach to determine whether the violation warrants reversal of the conviction: where the suppression of evidence “(1) remains unknown to the defense both before and throughout trial and (2) is material and exculpatory, meaning its disclosure would have created a ‘reasonable probability’ that ‘the result of the proceeding would have been different.'”

This exception poses serious problems for defense.  For example, imagine that the prosecution holds back exculpatory evidence until mid-way through the trial, as happened in State v. Alvarado, 2014 UT App 87.  In that case the court found that there was no Brady violation because the first prong of the above test was not met, because the information was disclosed mid-trial.  As defense counsel, finding out about exculpatory evidence during trial creates a huge burden.  It leaves no time to prepare how to use the information as substantive evidence or for impeachment purposes while cross examining witnesses.  It also gives prosecutors an out for acting in bad faith by withholding evidence until the time of trial.

Fortunately, Rule 16 of the Utah Rules of Criminal Procedure provides a partial remedy for when prosecutors withhold evidence in that a defendant can request a continuance to allow for preparation concerning the newly discovered evidence.  In the Alvarado case the defendant’s attorney did not request a continuance but instead moved forward with the trial in spite of the late disclosure of evidence.

Thus, in order to prove a Brady violation there must be evidence withheld by the State all the way through trial, and it must be such that would exonerate the defendant or at least change the outcome of the case.

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What is a Terry Stop and Frisk?

In 1968 the United States Supreme Court decided the case Terry v. Ohio, 392 U.S. 1. From that case is what came to be known as the Terry Stop Exception to the Fourth Amendment.  This exception permits a policeman who lacks probable cause but whose observations lead him reasonably to suspect that someone is committing a crime, or just committed a crime, or is just about to commit a crime, to detain the suspect and investigate him.

The policeman’s investigation must be connected with the original reason for stopping the suspect and the investigation must be limited.  The inquiry may include asking the detained individual a moderate number of questions to determine his identity and to obtain information in support of the officer’s suspicions.  What people should keep in mind is that even if a cop conducts a Terry stop, the detained individual does not have to answer the cop’s questions.  If the officer asks for identification then the suspect has to give him that, but he does not have to answer any questions.  The risk a detainee runs by answering questions if that the officer will develop probable cause from the detainee’s answers, thereby allowing the officer to arrest him.  If the detainee simply says nothing, the cop has to let him go.

Terry stop, however, does not oblige the officer to give Miranda warnings to the detained individual, so anything that a suspect says during a Terry stop can be used against him.

The most common example of a Terry stop is a traffic stop.  Police officers patrolling the streets for would-be criminals are permitted under the law to stop any vehicle that gives a policeman “reasonable suspicion” that the vehicle’s occupants committed a crime.  This standard is satisfied by the breaking of a basic traffic law such as speeding or not coming to a complete stop.  When one breaks a traffic law he has committed a crime, and therefore, the policeman who witnesses this has “reasonable suspicion” to stop the vehicle.

Once the cop conducts the Terry stop he may conduct a brief frisk of the person if the officer “reasonably feared for his safety or the safety of others.”  Under the Terry frisk exception the cop can conduct a warrantless search of the person if the circumstances are such that a substantial risk of harm could result to the persons involved if the search were delayed in order to get a warrant.  Officers must still be able to point to specific and articulable facts which would lead a reasonable person to conclude that the suspect may be armed and dangerous.

The Terry stop and frisk exception is a terrible law and gives law enforcement way too much power to harass people.  At least they can’t force us to talk…yet.

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