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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Do I have to Pay to Stay in Jail?

Getting accused of a crime is not cheap.  Take a DUI for example.  When you get arrested your car gets impounded.  You have to pay for your vehicle to be towed and impounded.  You have to hire a lawyer.  If you’re found guilty or you enter into a plea arrangement, you’ll have stiff fines that you have to pay.  If you’re convicted or enter into a plea deal, you will likely have to pay a licensed substance abuse counselor to assess your risk and then you will have to pay to follow the recommendations of the counselor.  You will also have to pay a monthly fee for an interlock device and you’ll have to pay driver’s license reinstatement fees.

Incarceration and Medical Costs

As though that weren’t enough, the Utah Legislature (in its infinite wisdom) mandates that a criminal defendant who is convicted and sentenced to jail must pay the county back for his incarceration costs and any medical care he receives while in there.  That wonderful law can be found in Utah Code Section 76-3-201(6).  The Legislature has given the court power to reduce the amount owed to the county for incarceration costs.  In making that determination, the court will consider:

  • The defendant’s financial resources;
  • How much of a burden it will add to the defendant given his other financial obligations;
  • Whether the defendant can make payments;
  • Whether paying the jail costs will have a rehabilitative effect on the defendant;
  • Anything else the court wants to consider.

Transportation Costs

Not done yet.  If you are in jail and you have charges pending in another county and you are transported to that county for a court appearance and are subsequently convicted of a crime, you have to pay for your transportation costs.

So yeah…apparently taxes don’t pay for anything anymore.

What’s the lesson in all of this?  There are a couple.  First, the government sucks.  Since anyone can be a criminal under our expansive criminal penal code, anyone can get hit with the fines and costs discussed in this post.  Second, do everything you can to avoid getting into any kind of trouble because not only does the government want you to be strictly obedient to all of its laws (whether oppressive or not), in the event you break one of its laws it also wants to bankrupt you.

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The Three Primary Elements of Sexual Abuse of a Child

The crime of sexual abuse of a child seems to indicate that the crime is sexual in nature, but when one looks at the elements of the crime that does not necessarily have to be true.

The first elements of this crime is that the defendant must have touched “the anus, buttocks, genitalia, or breast of a female child.”  In the alternative, the defendant could have taken “indecent liberties” with the child or the defendant could have made the child take “indecent liberties” with him.

The next element of the crime involves the intent that the defendant had in touching the child.  There are three specific types of intent that will satisfy the statute.  First, the defendant could have had intent to cause the child substantial bodily pain.  Second, the defendant could have had intent to cause the child substantial emotional pain.  Finally, the defendant could have had the intent arouse or gratify his own sexual desires, the sexual desires of the child, or anyone else.  Any one or more of the above three intents is sufficient to satisfy the statute.

Breaking down these three intents one can imagine what substantial bodily pain is.  Likewise, gratifying one’s sexual desires is easily understood.  The one intent that is more difficult to understand, however, is the intent to cause substantial emotional pain.  The reason this is difficult is because the term is nowhere defined by statute or case law.  Case law has defined the term “emotional distress” as resulting “from conduct that is outrageous and intolerable in that it offends the generally accepted standards of decency and morality.”  Ellison v. Stam, 126 P.3d 1242 (Ut App. 2006).  This is helpful because emotional distress and emotional pain could be found to be similar.  The difference, however, is that “emotional distress” is not as serious as “substantial emotional pain,” so although the definition may give a good starting point it is not wholly applicable.  Utah Code 76-5-406.5 may give some guidance in that it refers to a defendant causing “severe psychological harm” to the child.  This would indicate that the child must have been diagnosed by a mental health professional.  Otherwise, how could one determine that a child had suffered severe psychological harm?

Any good criminal defense lawyer is going to focus on these three factors, because intent must be proved beyond a reasonable doubt and that is very difficult for a prosecutor to do. Contact us for a free consultation if you are facing child sex abuse charges.

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What Constitutes Resisting Arrest in Utah?

Lawful Arrest

Resisting arrest, or interference with an arresting office, is a crime that gets tacked on as an additional offense for any defendant who didn’t just roll over for the cops.  If you are a suspect for a crime and you argue with a law enforcement officer, for example, you run a real risk of getting hit with resisting arrest.

According to the statute, the crime for interfering with an arresting officer can attach only if the arrest was “lawful.”  So for example, let’s say that a Kid A, an 18 year old, is in the bathroom at his school using the facilities.  Kid B is also in the bathroom but he is smoking in the bathroom.  Kid B leaves the bathroom leaving the odor of smoked cigarettes in the bathroom.  Kid A remains in the stall in the bathroom.  Kid A finishes up, washes his hands, and leaves the bathroom.  As soon as Kid A leaves the school officer sees him, walks by him, smells smoked tobacco coming from the bathroom and Kid A’s person and determines that Kid A was smoking underage illegally.  Officer searches Kid A’s person and backpack and finds no   Officer tells Kid A to go to the principal’s office and grabs his arm.  Kid A can’t figure out what’s going on and starts to tell the cop to leave him alone and starts to pull away from the officer.  The officer tackles Kid A and then cites him for resisting arrest.

In the above example Kid A was innocent of the original crime – possessing tobacco.  Thus, his arrest for said crime was unlawful, which means that he cannot be convicted of resisting arrest…at least you would think. This issue was decided nearly 100 years ago when the Utah Supreme Court held: “Where an unlawful arrest is attempted by an officer or another, the person sought to be thus unlawfully arrested may no doubt resist such an arrest with all proper and reasonable means.”  148 P. 1071, 1076-77 (Utah 1915).  This is the right rule.  Cops can’t simply go around arresting people for no reason and then charge them with resisting arrest when they actually stick up for their rights.

Over the last 100 years, however, the courts have removed the “lawful” component of resisting arrest even though the statute says the arrest has to be lawful!  It makes no sense, but basically if you are arrested unlawfully and you then resist the arrest, you can be found guilty of resisting arrest.  In other words, cops can do whatever they want and you have no right to fight back.


The resisting arrest law in found in the Utah Code. The text of that law is below:

76-8-305. Interference with arresting officer.
A person is guilty of a class B misdemeanor if he has knowledge, or by the exercise of reasonable care should have knowledge, that a peace officer is seeking to effect a lawful arrest or detention of that person or another and interferes with the arrest or detention by:
(1) use of force or any weapon;
(2) the arrested person’s refusal to perform any act required by lawful order:
(a) necessary to effect the arrest or detention; and
(b) made by a peace officer involved in the arrest or detention; or
(3) the arrested person’s or another person’s refusal to refrain from performing any act that would impede the arrest or detention.

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