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Utah Legislature

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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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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Utah Legislature Ponders Change to DUI Roadblock Law


source: SoCal photos

Last month the Utah House of Representatives voted 8-5 in favor of recommending HB 140.  HB 140, also called the “Vehicle Checkpoints Amendments” Act, repeals authorization for traffic checkpoints regarding impaired driving and vehicle operation.  More specifically, the bill repeals authorization for administrative traffic checkpoints regarding drivers that may be under the influence of alcohol or drugs, and regarding license plates, registration certificates, insurance certificates, or drivers’ licenses.

To be sure, however, the bill does not do away with checkpoints all together.  Instead, the new law requires that the administrative traffic checkpoint may be established and operated upon written authority of a judge.  A judge may issue written authority where there is a written plan for the checkpoint describing details of the operation, such as: the location, date/time/duration, sequence of traffic to be stopped, purpose, minimum personnel numbers, configuration (signs, etc), advance notice to public-at-large, and instruction given to operating enforcement officers.

The judge is required to make an independent judicial determination that the plan minimizes the time delay, privacy intrusions, to motorists.

If you’ve been stopped and charged with a DUI, then a DUI attorney in Salt Lake City and surrounding areas of Utah can certainly help you vigorously defend against the charges and protect your rights.

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