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Domestic Violence

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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Veteran’s Court Program: An Alternative to Incarceration for U.S. Veterans

Utah Veteran's CourtAccording to the United States Department of Justice’s special report on veterans in prison and jail, which was released in December 2015, 181,500 veterans were incarcerated in U.S. jails and prisons. From 2011-2012 armed forces veterans made up 8 percent of the jail and prison population.

The figures regarding incarcerated veterans are especially troubling considering approximately half of veterans in jail or prison have been diagnosed with a mental disorder by a medical professional. Commonly, veteran suffer from serious mental health issues after military service, including post-traumatic stress disorder, depression, and traumatic brain injuries (TBI), which contribute to  criminal and violent behavior.

Studies show veterans are more likely to be sentenced for violent crimes than non-veterans. Of the veterans convicted, more than 77 percent were honorably discharged or discharged under honorable conditions.

Commonly, veterans were charged with the following offenses:

  • Domestic Violence
  • Driving Under the Influence/Drunk Driving (DUI)
  • Weapons/Firearms Charges
  • Assault/Aggravated Assault

Utah law makers recognize that the men and women who served honorably in the United States Armed Forces face unique and pronounced obstacles reintegrating into society after military service and combat. In response, the Utah Legislature created Veteran’s Courts, also called the Justice Outreach Initiative, in March of 2015.

Utah Code §78A-5-301, the legislation which authorizes Veteran’s Courts, allows former active military, naval, or air service members to enter the program upon entering a plea of guilty or plea in abeyance (or no contest).  Both low-level and more serious offenders are eligible for the program.

Acceptance into the Veteran’s Court is discretionary and requires a showing of why the program is appropriate based on the criminal offense. If you are a veteran or former military member charged with a criminal offense anywhere in Utah, including Salt Lake County, Box Elder County, Cache County, Weber County, or surrounding areas, it is important to consult an experienced criminal defense attorney about the Utah Veteran’s Court program.

What is the Veteran’s Program?

Veteran’s Court is a collaborative program involving defense attorneys, prosecutors, the court, and the United States Office of Veteran Affairs that is designed to help veteran; particularly those who suffer with post-traumatic stress syndrome or other mental illness, connect with the resources they need and reintegrate into society.

As part of the Veteran’s Court program, the following requirements must be met:

  1. The defendant must be a former member of the military, naval, or air service;
  2. The defendant must enter a plea of guilty or a plea in abeyance to criminal charges;
  3. As part of the program, the defendant is subject to frequent alcohol testing (if appropriate);
  4. The defendant must participate in veteran diversion outreach program, including substance abuse program (if appropriate); and
  5. The defendant must fulfill any additional sanctions or penalties imposed by the Court, which are appropriate to promote public safety, safety of victim(s), and are consistent with the defendant’s due process rights.

The Utah Veteran’s Court Program accepts defendants charged with low-level and serious offenses. According to Richard Schwermer, assistant Utah State Courts administrator, in a June 2015 interview, the Veteran’s Court program is dedicated to individuals who are already pained by the deaths of their comrades. The program is committed to helping them.

He emphatically stated:

“If we don’t take them in veteran’s court, by definition they’re going to get less help. That’s why we take the folks with very serious issues.”

Why do I Need an Attorney for the Veteran’s Program?

While the Veteran’s Court Program is dedicated to the rehabilitation and treatment of former United States Armed Forces members, acceptance into the program is discretionary. This means that an individual is not automatically accepted into the program by virtue of veteran status.

  1. Veteran’s Court is Not Automatic: The veteran defendant must show that he or she deserves acceptance into the program. Veteran’s Court does accept both low-level and more serious criminal defendants; however, the defendant must show he or she can be rehabilitated and will not show a continuing threat to the public. An experienced criminal defense attorney can identify the necessary evidence to support why acceptance into the program is appropriate.
  2. Adherence to Program Requirements is Important: The Veteran’s Court Program is not a “get out of jail free” card. Participants must follow the program’s strict requirements, which include peer mentoring, substance abuse counseling, alcohol abuse counseling, regular court check-ins, and frequent alcohol testing. Failure to adhere to these requirements could result in dismissal from the program and subject the defendant to jail time and expensive fines.
  3. Expunction is Possible upon Completion: Also, the benefits of the Veteran’s Court program are too great to leave up to chance. Upon acceptance and completion of the program, the criminal charges are dropped or the defendant’s criminal record is expunged.

Expunction or the process of clearing the criminal offense from public record is key to a veteran getting his or her life back on track after receiving tools and resources from the Veteran’s Court program.

Conclusion

Darren Levitt of Levitt Legal is an experienced criminal defense attorney based in Salt Lake City, Utah. He represents veterans and civilians, who have been charged with criminal offenses, including domestic violence, assault, DUI, theft, and more.

Levitt Legal proudly defends individuals throughout Utah, including Salt Lake City, Sandy, West Jordan, West Valley City, and surrounding areas. Contact Levitt Legal at 801-455-1743 for a confidential review of your case. Attorney available 24/7.

References:

 Utah Code §78A-5-301 ǀ Veterans Court

National Alliance of Mental Illness-Veterans and Active Duty

Department of Justice ǀ Veterans in Prison and Jail, 2011-12

Department of Justice ǀ Veterans in Prison and Jail, 2004

 

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What To Know About Utah Protective Order Hearings

CourtroomDomestic violence has received increased national awareness in recent months. More people have spoken out about the seriousness of this issue, often helping victims understand their options. In the state of Utah, domestic violence often involves current or former spouses, people in dating relationships, or members of the same household.

Many of these cases can result in the issuance of protective orders. In Utah, there are two types of protective orders that a court may issue under the Cohabitant Abuse Act:

  • Criminal protective orders are issued when there are criminal domestic violence charges against an alleged offender. A court may issue a protective order while a case is pending or after an alleged offender has been convicted.
  • Civil protective orders are sought from courts by alleged victims in cases in which there may not be criminal charges. There are two types of civil protective orders: Temporary protective orders and final protective orders.

Temporary protective orders are frequently called “ex parte” protective orders. Ex parte is Latin for “by or for one party,” and ex parte judicial proceedings are conducted solely for the benefit of one party. A Utah court may issue an ex parte protective order based only on testimony from the alleged victim. These types of protective orders are temporary and will expire if they are not extended at hearing dates.

The issuance of an ex parte protective order will usually lead to a date being set for a final protective order hearing, typically within 20 days. During this hearing, an alleged offender will have the opportunity to present his or her own case. Because emotions usually run high in these types of cases, it is wise to have legal representation for a protective order hearing.

Under Utah Code § 78B-7-106, a protective order may grant the following types of relief to alleged victims:

  • Prohibit the alleged offender from threatening to commit or committing domestic violence or abuse against the alleged victim and any designated family or household member
  • Prohibit the alleged offender from harassing, telephoning, contacting, or otherwise communicating with the alleged victim, directly or indirectly
  • Order that the alleged offender to leave and stay away from the residence, school, or place of employment of the alleged victim
  • Prohibit the alleged offender from purchasing, using, or possessing a firearm or other weapon specified by the court
  • Award possession and use of an automobile and other essential personal effects to the alleged victim
  • Grant to the alleged victim temporary custody of any minor children
  • Order any further relief that the court considers necessary to provide for the safety and welfare of the alleged victim and any designated family or household member
  • Order the alleged offender to pay child support or spousal support

Alleged offenders need to remember that temporary protective orders are still in effect when both parties appear in court for the final hearing, meaning that any confrontations outside the courthouse may lead to criminal charges for violations of protective orders. Again, it is wise to seek the help of an experienced lawyer who can help prepare written statements, present evidence and witnesses, and generally ensure all legal guidelines are properly followed.

Legal counsel will not only help you prepare the strongest possible initial case, but will also understand what your appeal options are if you are preparing for a protective order hearing. If you have an upcoming protective order hearing in Utah, contact a Salt Lake City domestic violence defense attorney today to discuss your case and understand all of your legal options.

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