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Utah Criminal Defense Blog

Utah Amends Sex Offender Registry

Representative Craig Hall saw eight of the 10 bills he was the chief sponsor on pass during the 2017 General Legislative Session in Utah. One success was the passage of House Bill (HB) 380, which Governor Gary Herbert signed on March 28. Hall’s website claims that individuals are required to register as sex offenders for 10 years or life (depending on the severity of the crime), but “defense attorneys and prosecutors have improperly made plea deals that have let some individuals be removed from the registry before their time is up.”

“This bill makes clear that such agreements between prosecutors and defense attorneys are improper, and shall not be made,” Hall’s website states. “And if they are made, the Utah Attorney General’s Office will have the authority to have these agreements held invalid.”

HB 380 amends two statutes of the Utah Code. The bill amends Utah Code § 77-41-103 to require a court to, within three business days, forward a signed copy of an order to the Sex and Kidnap Offender Registry office within the Utah Department of Corrections (UDC) when the court modifies, withdraws, sets aside, vacates, or otherwise alters a conviction for a sex or kidnap offender conviction listed in Utah Code § 77-41-102(9) or (17). HB 380 also amends the same statute to allow the UDC to “intervene in any matter, including a criminal action, where the matter purports to affect a person’s lawfully entered registration requirement.”

Replacement of prior remedies under Utah Code § 78B-9-102 is also amended by HB 380, as the bill makes it such that a court cannot enter an order to withdraw, modify, vacate or otherwise set aside a plea unless it is in conformity with the Post-Conviction Remedies Act or Utah Code § 77-13-6. The UDC is required by Utah Code § 77-41-103(4) to provide the following additional information when available:

  • The crimes the offender has been convicted of or adjudicated delinquent for;
  • A description of the offender’s primary and secondary targets; and
  • Any other relevant identifying information as determined by the department.

The UDC is also required to maintain the Sex Offender and Kidnap Offender Notification and Registration website and ensure that the registration information collected regarding an offender’s enrollment or employment at an educational institution is promptly made available to any law enforcement agency that has jurisdiction where the institution is located if the educational institution is an institution of higher education, or promptly made available to the district superintendent of the school district where the offender is enrolled if the educational institution is an institution of primary education, and entered into the appropriate state records or data system.

Attorney in Salt Lake City for Sex Offenders

Convicted sex offenders are required under Utah Code § 77-41-105(3)(a) to register every year during the month of the offender’s date of birth, during the month that is the sixth month after the offender’s birth month, and also within three business days of every change of the offender’s primary residence, any secondary residences, place of employment, vehicle information, or educational information for the duration of their sentences and for 10 years after termination of sentences or custody of the division. An alleged offender can be required to register for the their lifetimes under Utah Code § 77-41-105(3)(c)(i) if they are convicted as adults of any any offense listed in Utah Code § 77-41-102(9) or (17) if, at the time of the conviction, the alleged offender has previously been convicted of an offense listed in Utah Code § 77-41-102(9) or (17) or has previously been required to register as a sex offender for an offense committed as a juvenile, or convicted of any of the following offenses, including attempting, soliciting, or conspiring to commit any felony of:

Child kidnapping, except if the alleged offender is a natural parent of the victim;

  • Rape of a child;
  • Object rape;
  • Object rape of a child;
  • Sodomy on a child;
  • Aggravated sexual abuse of a child; or
  • Aggravated sexual assault.

Offenses subject to lifetime registration requirements also include any of the following:

  • Felony violation of enticing a minor over the Internet;
  • Aggravated kidnapping, except if the offender is a natural parent of the victim;
  • Forcible sodomy;
  • Sexual abuse of a child;
  • Sexual exploitation of a minor; or
  • Aggravated exploitation of prostitution, on or after May 10, 2011.

Utah Code § 77-41-112 allows people to petition the court where they were convicted of offenses requiring registration for orders removing the offenders from the Sex Offender and Kidnap Offender Registry if they were convicted of offenses listed under Utah Code § 77-41-112(2), at least five years have passed since the completion of the offender’s sentence for the offense, the offense is the only conviction for which the offender is required to register, and the offender has not been convicted, subsequently to the offense for which the offender was placed on the registry, of a violation listed in Utah Code § 77-41-102(9) or Utah Code § 77-41-102(17). Convicted sex offenders who meet all of these requirements still must complete a number of other requirements under the statute in order to be removed from the state’s sex offender registry.

If you are hoping to be removed from the sex offender registry, allegedly failed to register as a sex offender, or have been accused of any kind of sex crime, it is in your best interest to immediately retain legal counsel. A Salt Lake City criminal defense lawyer can fight to help you achieve the most favorable outcome to your case that results in the fewest possible penalties.

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Increased Penalties for HIV/AIDS Sex Offenders in Utah

On March 28, Governor Gary Herbert signed House Bill (HB) 369, adding a new section to the sentencing part of the punishments chapter of the Utah Code. HB 369 enacts Utah Code § 76-3-203.12, “Enhanced penalty for sexual offenses committed by a person with Human Immunodeficiency Virus (HIV), Acquired Immunodeficiency Virus (AIDS), hepatitis B, or hepatitis C.”

The new statute states that a person convicted of a sexual offense described in Chapter 5, Part 4, Sexual Offenses, is subject to an enhanced penalty if at the time of the sexual offense the person was infected with HIV, AIDS, hepatitis B, or hepatitis C and the person knew of the infection. Except when the underlying criminal offense is a first-degree felony, Utah Code § 76-3-203.12(2)(a) provides that the enhancement of a penalty described in Utah Code § 76-3-203.12(1) shall be an enhancement of one classification higher than the root offense for which the person was convicted.

The Salt Lake Tribune describe the version of HB 360 passed by the Senate as “a watered-down version” after a the bill “originally included a controversial provision that would make it illegal for an HIV-positive individual to engage in otherwise consensual activity without disclosing their HIV status to their partner.” Sale Lake Magazine reported in February that Will Carlson, representing the Statewide Association of Prosecutors, said he agreed with the bill’s intent but had reservations when HB 369 was first heard by the House Judiciary Committee.

“This does not say if you have a crime and the offender is HIV-positive then that crime is enhanced,” Carlson said. “This says if you are HIV-positive and you are intimate, this is a crime unless you’ve disclosed your status.”

According to the United States Congress, there are 33 states and two United States territories that have criminal statutes relating to perceived HIV exposure. The HIV Medicine Association (HIVMA) of the Infectious Diseases Society of America (IDSA), which represents physicians, scientists, and other health care professionals who practice on the frontline of the HIV/AIDS pandemic, issued a press release on October 16, 2012, in which it urged for the repeal of HIV-specific criminal statutes.

“Stigma and discrimination continue to be major impediments to the comprehensive response necessary to address the HIV public health crisis,” the press release said. “Policies and laws that create HIV-specific crimes or that impose penalties for persons who are HIV- infected are unjust and harmful to public health around the world.”

Salt Lake City Sex Crime Defense Lawyer

Ironically, United States Representative Barbara Lee of California introduced H.R. 1739, otherwise known as the “Repeal Existing Policies that Encourage and Allow Legal HIV Discrimination Act of 2017” or the “REPEAL HIV Discrimination Act of 2017,” the day before Governor Herbert signed HB 369. If passed, the act would require the Attorney General, the Secretary of Health and Human Services, and the Secretary of Defense to act jointly and initiate a national review of federal and state “laws, policies, regulations, and judicial precedents and decisions regarding criminal and related civil commitment cases involving people living with HIV/AIDS, including in regard to the Uniform Code of Military Justice (UCMJ).”

Some of the concerning findings of Congress that are contained in H.R. 1739 include the following:

  • 11 states have HIV-specific laws that make spitting or biting a felony, even though it is not possible to transmit HIV via saliva;
  • 25 states criminalize one or more behaviors that pose a low or negligible risk for HIV transmission;
  • HIV-specific criminal laws are classified as felonies in 28 states; in three states, a person’s exposure to another to HIV does not subject the person to criminal prosecution for that act alone, but may result in a sentence enhancement. Eighteen states impose sentences of up to 10 years; seven impose sentences between 11 and 20 years; and five impose sentences of greater than 20 years;
  • The number of prosecutions, arrests, and instances where HIV-specific criminal laws are used to induce plea agreements is unknown;
  • Multiple peer-reviewed studies demonstrate that HIV-specific laws do not reduce risk-taking behavior or increase disclosure by people living with or at risk of HIV, and there is increasing evidence that these laws reduce the willingness to get tested. Furthermore, placing legal responsibility for preventing the transmission of HIV and other pathogens exclusively on people diagnosed with HIV, and without consideration of other pathogens that can be sexually transmitted, undermines the public health message that all people should practice behaviors that protect themselves and their partners from HIV and other sexually transmitted diseases;
  • The identity of an individual accused of violating existing HIV-specific restrictions is broadcast through media reports, potentially destroying employment opportunities and relationships and violating the person’s right to privacy; and
  • Individuals who are convicted for HIV exposure, nondisclosure, or transmission often must register as sex offenders even in cases of consensual sexual activity. Their employability is destroyed and their family relationships are fractured.

H.R. 1739 also notes that state and federal “criminal law does not currently reflect the three decades of medical advances and discoveries made with regard to transmission and treatment of HIV/AIDS.” The bill states that according to Centers for Disease Control and Prevention (CDC), “correct and consistent male or female condom use is very effective in preventing HIV transmission,” but most state “HIV-specific laws and prosecutions do not treat the use of a condom during sexual intercourse as a mitigating factor or evidence that the defendant did not intend to transmit HIV.” The federal bill also specifically notes, “Criminal laws and prosecutions do not take into account the benefits of effective antiretroviral medications, which reduce the HIV virus to undetectable levels and further reduce the already low risk of transmitting the HIV to near zero.”

Utah’s bill indeed does not account for alleged offenders who are virally suppressed—meaning that the amount of HIV in their blood is very low (less than 200 copies per milliliter) and the chances of transmitting HIV are greatly reduced. It is in the best interest of any person accused of a sex crime in Utah to immediately contact an experienced Salt Lake City criminal defense attorney. People who are facing increased penalties because they were diagnosed with HIV, AIDS, hepatitis B, or hepatitis C are still entitled to a presumption of innocence.

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Utah Makes Rape Kit Testing Mandatory

Rape kits (also known as sexual assault forensic exams) frequently contain DNA evidence that can help police arrest and prosecutors convict the alleged offenders who commit sex crimes. Despite the hundreds of thousands of victims who have undergone the incredibly invasive tests that are part of rape kits, numerous such kits have been backlogged and remain untested in jurisdictions throughout the country.

The Salt Lake City Tribune reported on March 25 that Utah’s statewide working group for sexual assault kits found an estimated 2,750 untested rape kits statewide in 2014. Under a new bill signed into law by Governor Gary Herbert on March 22, local law enforcement agencies in Utah will have to submit sexual assault kits to state forensic labs for testing within 30 days of retrieval.

House Bill (HB) 200 also creates a statewide tracking system for all rape kits that allow victims to anonymously track kits as they are evaluated and tested. HB 200 imposes different requirements for the handling of sexual assault kits—packages of items used by medical personnel to gather and preserve biological and physical evidence following allegations of sexual assault—and restricted kits—sexual assault kits collected by a collecting facility and for which an alleged victim who is 18 years of age or older chooses not to provide a personal statement about the sexual assault to law enforcement, as provided in Utah Code § 76-5-606(1)(d).

Utah Code § 76-5-604 states that except for restricted kits, each sexual assault kit must be submitted to the Utah Bureau of Forensic Services as soon as possible, but no later than 30 days after receipt by a law enforcement agency. Restricted kits cannot be submitted to the Utah Bureau of Forensic Services, but if an alleged victim chooses to provide a personal statement about the sexual assault or sexual abuse to law enforcement at any time after declining to provide a statement, the restricted kit will no longer be classified as restricted and the kit will be transmitted to the Utah Bureau of Forensic Services as soon as possible, but no later than 30 days after the victim chooses to provide a statement to law enforcement.

Under Utah Code § 76-5-604, any item of evidence gathered by collecting facility personnel, law enforcement, prosecutorial, or defense authorities that may be subject to DNA evidence testing and analysis in order to confirm the guilt or innocence of a criminal defendant cannot be disposed of before trial of a criminal defendant unless 50 years have passed from the date of evidence collection for sexual assault kits relating to an uncharged or unresolved crime or 20 years have passed from the date of evidence collection for restricted kits, and:

  • The prosecution has determined that the defendant will not be tried for the criminal offense;
  • The prosecution has filed a motion with the court to destroy the evidence; and
  • An attempt has been made to notify the victim as required in Utah Code § 77-37-3(3)(b)(i) and (ii).

The Sexual Assault Kit Processing Act also enacts Utah Code § 76-5-607, which establishes that the Department of Public Safety must develop and implement a statewide tracking system by July 1, 2018, that contains the following information for all sexual assault kits collected by law enforcement:

  • The submission status of sexual assault kits by law enforcement to the Utah Bureau of Forensic Services;
  • Notification by the Utah Bureau of Forensic Services to law enforcement of DNA analysis findings; and
  • The storage location of sexual assault kits.

The same statute also states that the tracking system will include a secure electronic access that allows the submitting agency, collecting facility, department, and a victim, or his or her designee, to access or receive information, provided that the disclosure does not impede or compromise an active investigation, about the lab submission status, DNA analysis findings provided to law enforcement, and storage location of a sexual assault kit that was gathered from that victim.

Salt Lake City Rape Defense Attorney

Lawmakers in Utah cited one recent case as an example why HB 200 is so important. KSTU-TV reported on March 16 that a convicted sex offender incarcerated in the Utah State Prison was charged with the 2014 rape of a 14-year-old girl in Davis County three years after the rape kit the alleged victim took was finally tested.

It is important to keep in mind that not all rape kits are damaging to alleged offenders in sexual assault cases. If there is no evidence of trauma or the evidence is not consistent with an alleged victim’s accusations, the results of a rape kit could very well result in criminal charges being dismissed.

While they are certainly important to the criminal justice process, rape kits are still only a part of the much bigger picture. Allegations of rape are often far more complex, and disputes about consent are especially common.

If you believe that you might be under investigation or you were already arrested for rape, sexual assault, or sexual battery in Utah, it is in your best interest to exercise your right to remain silent until you have legal counsel. Contact an experienced Salt Lake City criminal defense lawyer as soon as possible for help achieving the most favorable resolution to your case.

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Utah Adds Synthetic Drugs to Controlled Substances

Governor Gary Herbert signed House Bill (HB) 110 on March 21, resulting in new additions to list of controlled substances under the Utah Controlled Substances Act. HB 110 added the following to the list of controlled substances under Schedule I:

  • 3,4-dichloro-N-[2-(dimethylamino)cyclohexyl]-N-methylbenzamide (also known as U-47700, Pink, Pinky, or U4);
  • Acetyl fentanyl: (N-(1-phenethylpiperidin-4-yl)-N-phenylacetamide);
  • Butyryl fentanyl: N-(1-(2-phenylethyl)-4-piperidinyl)-N-phenylbutyramide; and
  • Furanyl fentanyl: N-phenyl-N-[1-(2-phenylethyl)piperidin-4-yl]furan-2-carboxamide.

The bill also made the following substances, their analogs, homologs, and synthetic equivalents listed controlled substances:

  • ADB-CHMINACA: N-[(2S)-1-amino-3,3-dimethyl-1-oxobutan-2-yl]-1-(cyclohexylmethyl)indazole-3-carboxamide;
  • ADB-FUBINACA: (N-(1-amino-3,3-dimethyl-1oxobutan-2-yl)-1-(4-fluorobenzyl)-1H-indazole-3-caboxamide); and
  • FUB-AMB; methyl (1-(4-fluorobenzyl)-1H-indazole-3-carbonyl)valinate.

While the names of many of these controlled substances are completely foreign to most average people, all of the drugs listed above are representative of a growing problem throughout Utah and across the nation: Opioids and synthetic drugs.

Acetyl fentanyl, butyryl fentanyl, and furanyl fentanyl are all opioid analgesic drugs that are analogs of fentanyl. Last September, the Salt Lake Tribune reported that U.S. Attorney for Utah John Huber warned that Utah “can expect a jump in overdose deaths similar to what is occurring in other parts of the country.” Robert Rolfs, deputy director of the Utah Department of Health, told the Tribune that Utah had the fourth-highest rate in the nation for drug poisoning deaths, “which are now more common than deaths caused by firearms, falls and motor vehicle crashes.”

U-47700 or Pink is a synthetic opioid pain medication similar to fentanyl in that even small doses can be fatal. ADB-CHMINACA, ADB-FUBINACA, and FUB-AMB are all synthetic cannabinoids with numerous reports of people being killed or adversely affected by using the drugs.

Synthetic Drugs Lawyer in Salt Lake City

CNN reported that China would ban the manufacture and sale of four variations of fentanyl beginning March 1, a move that United States Drug Enforcement Administration (DEA) spokesman Russ Baer called “a potential game-changer.” Furanyl fentanyl as well as carfentanil, acrylfentanyl, and valeryl fentanyl were among the drugs that China would prohibit from being manufactured and sold.

Many people mistakenly assume that synthetic drugs are either legal or carry penalties that are far less severe than other more well-known illicit drugs. The truth is that even simple possession of a Schedule I controlled substance or controlled substance analog is a class A misdemeanor for the first or second offense. A third or subsequent conviction is a third-degree felony.

If an alleged offender is accused of possessing a Schedule I controlled substance or controlled substance analog with intent to distribute, that person can be charged with a second-degree felony for the first offenses and a first-degree felony for the second or any subsequent offense. Felony convictions can result in very lengthy prison sentences.

Utah’s move to add the drugs listed above to its list of controlled substances comes after the DEA made furanyl fentanyl (also known as White China) a Schedule I controlled substance. Lawmakers throughout the country are finding that as soon as they add one synthetic drug or chemical compound to the list of controlled substances, something new with only a minor chemical difference will pop up.

Were you recently arrested in Utah for allegedly possessing fentanyl or any other kind of synthetic drug? You should refuse to make any kind of statement to authorities until you have a Salt Lake City criminal defense attorney.

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Threatening Certain People in Utah Can Be Assault

On March 17, Governor Gary Herbert signed Senate Bill (SB) 235, which modified assault offenses against certain persons to include a threat of violence. Utah statutes for assault against school employees, assault against peace officer or a military servicemember in uniform, and assault against health care provider and emergency medical service worker were amended such that an alleged offender now commits those offenses if he or she commits an assault or threat of violence against those protected classes.

Utah Code § 76-5-102(1) defines an assault as “an attempt, with unlawful force or violence, to do bodily injury to another” or “an act, committed with unlawful force or violence, that causes bodily injury to another or creates a substantial risk of bodily injury to another.” Under Utah Code § 76-5-107(1), a person commits a threat of violence if he or she “threatens to commit any offense involving bodily injury, death, or substantial property damage, and acts with intent to place a person in fear of imminent serious bodily injury, substantial bodily injury, or death” or “makes a threat, accompanied by a show of immediate force or violence, to do bodily injury to another.”

Assault and threat of violence are both class B misdemeanor offenses on their own, although assault can be a class A misdemeanor if the alleged offender causes substantial bodily injury to another person or the alleged victim is pregnant and the alleged offender has knowledge of the pregnancy. Assault against school employees is also a class A misdemeanor, but assault against peace officer or a military servicemember in uniform and assault against health care provider and emergency medical service worker can become third-degree or second-degree felony offenses.

Attorney for Assault Arrests in Salt Lake City

The passage of SB 235 now allows people to be arrested for alleged assault crimes committed against certain protected classes for mere threats. Utah Code § 76-5-107(4) notes that a threat of violence can be “express or implied,” but an alleged offender cannot claim he or she did not attempt to or was incapable of carrying out the threat as a legal defense.

Prosecutors often aggressively seek harsh penalties for people accused of violent crimes such as assault, and the commitment to maximum punishments is only compounded when the alleged victim is a member of a protected class. Utah Code § 76-2-402(1)(a), however, provides that 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.”

Self-defense claims can be valid excuses for many people facing assault charges in Utah, but it can be tricky proving that an alleged offender reasonably believed that force or a threat of force was necessary to defend him or herself. Anybody accused of assault against a certain protected class of individuals should contact a Salt Lake City criminal defense lawyer as soon as possible for help possibly having criminal charges reduced or dismissed.

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Utah Passes Permanent Continuous Protective Orders

When introducing House Bill (HB) 248 in February, Representative LaVar Christensen said that the bill which would allow victims of domestic violence to seek permanent protective orders (commonly referred to as restraining orders) from individuals convicted of domestic violence would correct a “situation of immense risk of future harm that otherwise still exists.” “No victim should have to relive it all over again, have to go get an attorney, have to go file some type of legal action,” Christensen said, according to the Daily Herald. “There should be inherent in the criminal sentencing, and the criminal conviction, a provision for ongoing protection for the victim.”

Heather Wolsey, the online sales manager at the Herald, testified at a House hearing that she obtained her first protective order in 2012 and has since had to obtain eight more protection orders, saying that “knowing that I have to go and face my abuser and beg to have a piece of paper from the court telling him to stay away from me is absolutely absurd.” She added, “We shouldn’t have to be re-victimized every time something’s coming up.”

Governor Gary Herbert signed HB 248 on March 24. The bill affects 10 sections of the Utah Code, with the majority of the changes being made to Utah Code § 77-36-5.1. As amended, the statute will now add the following text:

(6) (a) Because of the serious, unique, and highly traumatic nature of domestic violence crimes, the high recidivism rate of violent offenders, and the demonstrated increased risk of continued acts of violence subsequent to the release of a perpetrator who is convicted of domestic violence, it is the finding of the Legislature that domestic violence crimes warrant the issuance of continuous protective orders under this Subsection (6) because of the need to provide ongoing protection for the victim and to be consistent with the purposes of protecting victims’ rights under Chapter 37, Victims’ Rights, and Chapter 38, Rights of Crime Victims Act, and Article I, Section 28 of the Utah Constitution.

(b) If a perpetrator is convicted of a domestic violence offense resulting in a sentence of imprisonment, including jail, that is to be served after conviction, the court shall issue a continuous protective order at the time of the conviction or sentencing limiting the contact between the perpetrator and the victim unless the court determines by clear and convincing evidence that the victim does not a have a reasonable fear of future harm or abuse.

(c) (i) The court shall notify the perpetrator of the right to request a hearing.

(ii) If the perpetrator requests a hearing under this Subsection (6)(c), the court shall hold the hearing at the time determined by the court. The continuous protective order shall be in effect while the hearing is being scheduled and while the hearing is pending.

(d) A continuous protective order is permanent in accordance with this Subsection (6)(d) and may grant the following relief:

(i) enjoining the perpetrator from threatening to commit or committing acts of domestic violence against the victim or other family or household member;

(ii) prohibiting the perpetrator from harassing, telephoning, contacting, or otherwise communicating with the victim, directly or indirectly;

(iii) prohibiting the perpetrator from going to the victim’s residence, school, place of employment, and the premises of any of these, or a specified place frequented regularly by the victim or any designated family or other household member;

(iv) directing the perpetrator to pay restitution to the victim as may apply, and shall be enforced in accordance with Chapter 38a, Crime Victims Restitution Act; and

(v) any other order the court considers necessary to fully protect the victim and members of the victim’s family or other household member.

(e) A continuous protective order may be modified or dismissed only if the court determines by clear and convincing evidence that all requirements of this Subsection (6) have been met and the victim does not have a reasonable fear of future harm or abuse.

(f) Notice of a continuous protective order issued pursuant to this section shall be sent by the court to the statewide domestic violence network.

(g) Violation of a continuous protective order issued pursuant to this Subsection (6) is a class A misdemeanor, is a domestic violence offense under Section 77-36-1, and is subject to increased penalties in accordance with Section 77-36-1.1.

(h) In addition to the process of issuing a continuous protective order described in Subsection (6)(a), a district court may issue a continuous protective order at any time if the victim files a petition with the district court, and after notice and hearing the district court finds that a continuous protective order is necessary to protect the victim.

(7) (a) Before release of a person who is subject to a continuous protective order issued under Subsection (6), the victim shall receive notice of the imminent release by the law enforcement agency that is releasing the person who is subject to the continuous protective order:

(i) if the victim has provided the law enforcement agency contact information; and

(ii) in accordance with Section 64-13-14.7, if applicable.

(b) Before release, the law enforcement agency shall notify in writing the person being released that a violation of the continuous protective order issued at the time of conviction or sentencing continues to apply, and that a violation of the continuous protective order is a class A misdemeanor, is a separate domestic violence offense under Section 77-36-1, and is subject to increased penalties in accordance with Section 77-36-1.1.

Several other amendments reflected technical changes to the specific section or subsection numbers of the Utah Code being cited. The Herald reported that no one testified in opposition to HB 248.

Salt Lake City Domestic Violence Protective Order Lawyer

When an alleged victim seeks a protective order, he or she is referred to as the petitioner and the alleged offender is referred to as the respondent. A court may issue a temporary protective order at a hearing attend by only the petitioner, but respondents are notified and given the opportunity to attend hearings for permanent protective orders.

Whereas protective orders typically last about two years, HB 248 now allows petitioners to seek permanent continuous protective orders that can only be modified or dismissed at the request of the petitioners. Anybody who is served with a protective order should immediately retain legal counsel.

A Salt Lake City criminal defense attorney can represent you at any protective order hearing and help present the case that helps you achieve the most favorable outcome. Protective orders can have an effect on divorce and child custody proceedings, so it is important not to attend hearings without legal representation if you have been arrested or accused of a crime of domestic violence.

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New Gun Restrictions for Domestic Abusers in Utah

“The state needs to be able to protect people from danger,” Representative Brian King said in a January 27 press release announcing his intention to House Bill (HB) 206, which amends provisions relating to certain weapons restrictions relating to domestic violence by expanding the scope of a Category II restricted person. “This bill puts teeth into an already existing federal law. We need to be able to enforce these laws. Domestic violence accounts for nearly one-third of all homicides in Utah. This includes children. That is unacceptable.”

Governor Gary Herbert signed HB 206 on March 23, and the bill amends Utah Code § 76-10-503 such that a Category II restricted person now also includes a person who:

  • is a respondent or defendant subject to a protective order or child protective order that is issued after a hearing for which the respondent or defendant received actual notice and at which the respondent or defendant has an opportunity to participate, that restrains the respondent or defendant from harassing, stalking, threatening, or engaging in other conduct that would place an intimate partner, as defined in 18 U.S. Code § 921, or a child of the intimate partner, in reasonable fear of bodily injury to the intimate partner or child of the intimate partner, and that includes a finding that the respondent or defendant represents a credible threat to the physical safety of an individual who meets the definition of an intimate partner in 18 U.S. Code § 921 or the child of the individual; or explicitly prohibits the use, attempted use, or threatened use of physical force that would reasonably be expected to cause bodily harm against an intimate partner or the child of an intimate partner; or
  • has been convicted of the commission or attempted commission of assault under Utah Code § 76-5-102 or aggravated assault under Utah Code § 76-5-103 against a current or former spouse, parent, guardian, individual with whom the restricted person shares a child in common, individual who is cohabitating or has cohabitated with the restricted person as a spouse, parent, or guardian, or against an individual similarly situated to a spouse, parent, or guardian of the restricted person.

The same day that he signed HB 206, Governor Herbert also signed HB 198, which amended the conceal carry restrictions under Utah Code § 53-5-704.5 such that people only need to be at least 18 years of age instead of 21 in order to obtain concealed carry permits. HB 206 passed the House with 72 yeas, no nays, and three absent or not voting, while there were 23 yeas, two nays, and four absent or not voting in the Senate.

Salt Lake City Attorney for Persons Restricted from Firearm Possession

Numerous organizations, including Americans for Responsible Solutions—the gun violence prevention organization founded by former Congresswoman Gabrielle Giffords and Navy combat veteran and NASA astronaut Captain Mark Kelly—applauded the legislation that brought Utah more in line with federal law and better protects victims of domestic abuse from gun violence. According to the Utah Department of Health, there is approximately one intimate partner-related homicide every 33 days in Utah.

Last year, the United States Supreme Court ruled in a 6-2 vote that domestic abusers convicted of misdemeanors can be barred from owning firearms. In Voisine v. United States, 579 U.S. ___ (2016), the Court held that reckless domestic assault qualifies as a “misdemeanor crime of domestic violence.”

Alleged incidents of domestic violence are often emotionally charged, and police officers responding to domestic violence calls are often inclined to arrest alleged offenders even when there might not be evidence to support the criminal charges. If you were arrested for an alleged domestic violence offense in Utah, a conviction could substantially affect your right to own or possess a firearm.

You should not say anything to authorities without legal representation. Contact an experienced Salt Lake City criminal defense lawyer as soon as possible.

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Utah Legalizes Medical Marijuana Research

Salt Lake City Lawyer for Medical Marijuana Arrests

In 2014, Governor Gary Herbert signed House Bill (HB) 105, the Utah Industrial Hemp Research Act and Hemp Extract Registration Act. The bill—which exempted individuals with intractable epilepsy who use or possess extract from a cannabis plant, or a mixture or preparation containing cannabis plant material, that is composed of less than 0.3 percent tetrahydrocannabinol (THC) by weight, is composed of at least 15 percent cannabidiol (CBD) by weight, and contains no other psychoactive substance from the penalties related to possession or use of the hemp extract under the Controlled Substances Act—was named Charlee’s Law in honor of Charlee Nelson, a 6-year-old who the Daily Mail reported had as many as 500 seizures a day and suffered from the neurodegenerative disorder Batten disease.

In addition to lacking provisions that allowed potential users to acquire approved oils or cultivate marijuana, Charlee’s Law also had a sunset date of July 1, 2016. Governor Herbert signed a couple more bills this year that could give hope to Utah residents who are seeking medicinal marijuana.

On March 25, Governor Herbert signed both HB 130, otherwise known as the “Cannabinoid Research Act,” and Senate Bill (SB) 219, relating to CBD in drugs approved by the United States Food and Drug Administration (FDA). HB 130 allows a person conducting an approved study to, for the purposes of the study, process a cannabinoid product or an expanded cannabinoid product, possess a cannabinoid product or an expanded cannabinoid product, and administer a cannabinoid product, or an expanded cannabinoid product to an individual in accordance with the approved study.

Under HB 130, a person conducting an approved study may also import cannabis, a cannabinoid product, or an expanded cannabinoid product from another state if the importation complies with federal law and the person uses the cannabis, cannabinoid product, or expanded cannabinoid product in accordance with the approved study, or obtain cannabis, a cannabinoid product, or an expanded cannabinoid product from the National Institute on Drug Abuse (NIDA). A person conducting an approved study may also distribute cannabis, a cannabinoid product, or an expanded cannabinoid product outside the state if the distribution complies with federal law and the distribution is for the purposes of, and in accordance with, the approved study.

SB 219 provides a schedule in the state Controlled Substances Act for CBD in a drug product approved by the FDA. While the Desert News reported on January 27 that state lawmakers were considering laying the groundwork for medicinal marijuana, they had no plans this year to make it legal in Utah. Representative Gage Froerer told the Desert News that lawmakers also wanted to “wait until the Trump administration’s stance on medical marijuana becomes clear.”

Salt Lake City Lawyer for Medical Marijuana Arrests

THC and synthetic equivalents of the substances contained in the cannabis plant, or in the resinous extractives of cannabis, are classified as Schedule I controlled substances under the Utah Controlled Substances Act. THC and marijuana (referred to as “marihuana” in the statute) are also classified as Schedule I controlled substances under the federal Controlled Substances Act (CSA), meaning that they are considered “drugs with no currently accepted medical use.”

Marijuana, however, has been routinely shown to control or decrease the symptoms associated with epileptic seizures or other severe seizure disorders. Smoking cannabis has also proven helpful for people suffering from multiple sclerosis, cancer, Crohn’s disease, and glaucoma.

Without access to legal marijuana or even CBD oils, many people with serious medical conditions who stand to benefit from cannabis use instead risk serious criminal penalties for possessing marijuana. While possession of smaller amounts of cannabis is usually a misdemeanor offense, repeat offenses or cases involving possession of larger amounts can lead to felony charges.

If you are arrested in Utah for alleged possession of marijuana that you needed to help treat you or your loved one’s medical condition, it is in your best interest to immediately contact an experienced Salt Lake City criminal defense attorney. Darren Levitt is a lifetime member of the National Organization for the Reform of Marijuana Laws (NORML), a nonprofit organization with the mission “to move public opinion sufficiently to legalize the responsible use of marijuana by adults, and to serve as an advocate for consumers to assure they have access to high quality marijuana that is safe, convenient and affordable.”

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Utah Sees Major Drug Busts

Salt Lake City Drug Crime Defense Lawyer reported on March 30 that Salt Lake City police officers seized almost 330,000 doses of drugs in 2016, an astonishing 82 percent increase from the previous year. An officer with the Salt Lake City Police Department told KSL, “We’ve got people coming from not just around the valley, but all over the adjoining counties because it’s so easy to buy dope here.”

Dope can be slang for just about any illegal drug. It seems as though Utah has had no shortage of major arrests involving controlled substances in recent months.

On March 23, the Desert News reported that Utah Highway Patrol (UHP) troopers stopped a vehicle on Interstate 80 and found 100 pounds of marijuana in vacuum-sealed bags a mere two days after holding a press conference to talk about the unusually high quantities of drugs that UHP troopers were finding on the road. Utah Highway Patrol Sergeant Steve Salas said at the news conference that the approximately 110 pounds of methamphetamine seized over the course of two weeks was “about double what we historically seize in the first two months of a year.”

The St. George News reported on February 13 that Garland Police, the Tremonton Police Department, and the Box Elder County Sheriff’s Office seized than 36 pounds of methamphetamine with a reported street value estimated of over $500,000 “sealed in food jars to hide the contents” just off Interstate 15 in northern Utah. KSTU-TV reported last November that a Drug Enforcement Administration (DEA) investigation resulted in the discovery of hundreds of thousands of counterfeit opioid tablets and nearly $1 million in cash as part of an alleged pill manufacturing operation in Cottonwood Heights that was one of the largest drug busts in Utah history.

KSTU also reported on March 28 that a 19-year-old Oregon man was pulled over for driving on the walking path in Hobble Creek Canyon, and a subsequent search of the man’s vehicle resulted in the seizure of 727 ecstasy pills, 2 grams of cocaine, 8 vials of LSD, 47 grams of marijuana, 12 Xanax pills, 22 grams of dab (synthetic marijuana or marijuana hash oil), and $1,120 in cash. The quantities totaled more than 2,200 individual doses of drugs with a street value of approximately $25,000.

The Utah County Sheriff’s Office believed the man intended to sell drugs at the Holi Festival of Colors in Spanish Fork that weekend. The man was charged with six counts of possession of a controlled substance with intent to distribute, three counts of endangering a child, one count of driving with a measurable controlled substance in the body, one count of possession of drug paraphernalia and one count of driving on the sidewalk. The man was accompanied by three juveniles—a boy and two girls—who were cited for possession of marijuana and drug paraphernalia before the mother of one of the girls drove to Utah and took all three juveniles back to Oregon, according to KTSU.

Salt Lake City Drug Crime Defense Lawyer

The staggering number of drug arrests in Utah not only illustrates how prevalent controlled substances are in the Salt Lake City area, but also how authorities continue to investigate and enforce drug laws. Rest assured, these types of cases remain a major issue for law enforcement agencies all over the Beehive State.

The Salt Lake Tribune reported that Salt Lake City Police Chief Mike Brown said the jail restrictions implemented by Salt Lake County Sheriff Jim Winder in 2016 intended to help reduce overcrowding at the local jail led to an increase in the number of drug-related offenses and overdose deaths shot in Salt Lake City in 2016. “I think it’s way too early, and frankly impossible, to tell if a single policy about misdemeanor booking restrictions can so affect crime rates,” Winder told the Tribune.

Even simple possession of controlled substance offenses can be classified as felonies in certain cases. When a person is accused of having intent to distribute a controlled substance or is charged with drug trafficking, prosecutors will aggressively seek maximum penalties.

Whether you are a resident of Utah or a visitor from another state or country, any kind of drug-related arrest can create a significant number of legal issues that carry very serious long-term consequences. You should always try not to say anything to police without legal representation.

It is in your best interest to contact a Salt Lake City criminal defense attorney as soon as possible to receive a thorough review of your case. Criminal charges could be reduced or dismissed if law enforcement officers violated your constitutional rights during any search or seizure relating to a controlled substance.

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Utah Becomes First State to Lower BAC Limit to 0.05

Utah was the first state to lower the legal limit for blood or breath alcohol concentration (BAC) when driving from 0.10 to 0.08 in 1983, so perhaps it is not terribly surprising that the Beehive State appears poised to become the first state to once again further lower the limits. On March 23, Governor Gary Herbert signed House Bill (HB) 155, effectively reducing the BAC limits for driving under the influence (DUI) and other criminal offenses from 0.08 to 0.05.

The move comes nearly four years after the National Transportation Safety Board (NTSB) recommended that the states reduce the allowable BAC to 0.05. All 50 states in the nation and the District of Columbia adopted the 0.08 standard after then-President Bill Clinton signed a law in 2000 that withheld federal highway funds from states that did not comply.

The New York Times noted in 2013 that the “standard in most of the industrialized world is 0.05 percent,” but The Hill reported that same year of the NTSB push that states showed little interest in revisiting the hot-button issue, industry groups lined up against the plan, and even Mothers Against Drunk Driving (MADD) and the Governors Highway Safety Association (GHSA) declined to endorse the NTSB recommendations.

Governor Herbert faced similar pressure from groups lobbying against the bill. Restaurant and hospitality groups such as the Utah Restaurant Association and the Salt Lake Area Restaurant Association urged the governor to veto the bill, and the American Beverage Institute (ABI) took out this full-page ad in USA Today and Salt Lake City’s daily newspapers opposing the bill:

Salt Lake City DUI Lawyer

According to the Times, government statistics show that people with a BAC of 0.05 percent are 38 percent more likely to be involved in a crash than those who have not been drinking, while individuals with BACs of 0.08 percent are 169 percent more likely. Restaurant and hospitality groups were not only fearful about possible decreases in alcohol consumption and tourism because of a decreased BAC threshold, but the industry was also dealing with expected increases in the price of liquor because of the governor signing HB 442, which would tear down the so-called “Zion Curtains” in restaurants and overhaul other parts of Utah liquor laws.

Salt Lake City DUI Attorney

While it will remain to be seen what effect lowering BAC limits has on the reduction in traffic fatalities in Utah, we are probably more likely to see an increase in the number of DUI arrests in the Beehive State when HB 155 takes effect on December 30, 2018. According to MADD, about one-third of all individuals arrested or convicted for drunk driving are repeat offenders.

Men who weigh 240 pounds or less could be considered legally intoxicated in Utah if they consume three alcoholic beverages in one hour. A woman who weighs less than 180 pounds can have a BAC of 0.05 or higher after only two alcoholic drinks consumed in an hour. A woman who weighs 100 pounds or less could reach the 0.05 BAC limit after a single drink.

Many people arrested for DUI for the first time in Utah often claim that they did not realize how intoxicated they were. When the state BAC limit is lowered to 0.05, there will likely be even more people who feel as though they passed field sobriety tests and did not exhibit any signs or symptoms of intoxication but were arrested for DUI after blowing 0.05 or higher.

ABI Managing Director Sarah Longwell called Governor Herbert’s decision to sign HB 155 “a sad day for Utah.” “Governor Herbert’s decision to sign Utah’s .05 legislation will not only harm the people of Utah, but cripple their restaurant and tourism industries,” Longwell said in a statement. “A 120 pound woman can now have little more than a single drink before being subject to arrest, $10,000 in fines, attorney fees, increased insurance costs, and the social stigma of being labeled a “drunk driver”—which will lead many to forgo that glass of wine with dinner.”

KSTU-TV reported that if a special session is called, “lawmakers could water down HB155 to delay when it becomes effective and its overall impact if someone is ever arrested with a .05 BAC.” For the time being, residents and visitors should plan on being even more cautious than usual when consuming alcohol in Utah.

If you are charged with DUI anywhere in Salt Lake County, you should know that an arrest is not the same as a conviction. An experienced Salt Lake City criminal defense lawyer can review every aspect of your traffic stop and arrest to determine whether any police error or oversight could lead to criminal charges being reduced or dismissed.

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Darren Levitt participates in a variety of legal associations to give you well-rounded, insightful defense strategies.

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