Criminal Defense Frequently Asked Questions

Do I need a lawyer’s help if I am accused of a crime?

It is in your best interest to call us immediately to protect your rights and preserve your freedom, we are experienced Salt Lake City criminal defense lawyers and we can help. If you suspect you will be facing the criminal justice system you want the protection and advice only an attorney can provide. We are going to fight for your legal and constitutional rights, and ensure the proceedings against you are constitutional and fair. If you cannot afford an attorney, you may be eligible for free legal counsel through the state’s legal defender programs.


What is the difference between a felony and a misdemeanor?

Every jurisdiction has its own specific definition. Traditionally a misdemeanor is a crime that is generally punishable by jail time of less than one year, and a felony is a crime that is punishable by a year or more in prison. Felonies are more severe crimes than misdemeanors. When charged with a misdemeanor, you are not facing a prison sentence longer than one year.

 

A misdemeanor purely means a crime of misconduct. Normally, felony charges are more serious, such as robbery, rape or murder. Misdemeanors are more like retail theft, simple battery, or shoplifting.

 

Regardless of what type of charges you are facing, it is still extremely important that you hire a lawyer who specializes in criminal defense. We at the Utah Trial Lawyers are experts in criminal defense in Utah and we will ensure your rights are protected.


What should I do if I am arrested?

If the police arrest you, your first action should be to ask to speak with your attorney at the Utah Trial Lawyers. There is no benefit in speaking to the police; the police are only there to gather information to convict you. Do NOT speak to the police without your criminal defense attorney present; doing so could result in the loss of certain defenses and more importantly you could incriminate yourself. You are NOT required to give a statement to the police.

 

You have a right to a lawyer and a right to remain silent. It is imperative to invoke these two rights as soon as possible to ensure you receive the best possible outcome for your case. The police will use anything you say against you in court, so it is in your best interest to say nothing at all.


What is probable cause? And when does it comes into play with police searches?

The fourth amendment under the U.S. constitution requires the police to have a search warrant to conduct a search of your property, your person or the property in your possession. Unfortunately, there are exceptions that give police the power for a warrantless search. One exception is to conduct a search when the police have probable cause and the area or item in question can be moved or is transient.

 

If the police wanted to search your home or another fixed structure owned by you, than the majority of the time, police would be required by Utah state law and federal law to apply for and obtain a search warrant to conduct a search of your home or other property.

 

If the police wanted to search your person or your vehicle then the law has allowed lower conditions allowing the police to conduct a valid search of your person or of your vehicle if probable cause exists. If the police have probable cause to believe that in your possession or in your vehicle there is illegal items or contraband than most states or jurisdictions will allow them to search your person or your vehicle if they possessed probable cause at the time the search began.

 

If the police are walking by a car and based on the officer’s experience and training they see and smell marijuana smoke out the car windows than based upon that officer’s training they recognize the smell of the smoke as burnt marijuana than that may justify a search of the inside of the car.

 

Even though the officer did not see the marijuana they can probably conduct a search on the inside of the car for the marijuana without a warrant because the car can be moved and the smell of marijuana was coming from inside the car. Essentially the smell of marijuana gives the police probable cause and the basis to perform a warrantless search.


What is a knock and talk search?

Police receive a lot of information every day and without probable cause or a search warrant the police cannot go into a home and conduct a search for illegal substances or evidence of other crimes. One of the police’s favorite methods to use is known as a knock and talk.

 

Essentially, the police literally knock on the front door of the suspected home and try to engage the owner or occupant of the home or apartment in a conversation. The police do not have the ability to conduct a police search in the home because there is no warrant, no exigent circumstances, and no probable cause. The police are trying to get the consent of the citizen to allow them to enter and search their home.

 

Do NOT under any circumstances give consent to the police to search your home. If you consent and allow the search of your residence without a warrant, then anything the police see or find in the search, may be confiscated and used in a case against you.

 

If you do not consent to a search of your home, then the police cannot come in without a search warrant as long as there is no probable cause, or as long as there’s not a pile of drugs or other illegal substance or item in plain view.


What is the Plain View Search and Seizure?

One of the main exceptions to a search warrant is the plain view doctrine. The plain view doctrine allows the police to obtain and search items or substances if the item or substance is in their plain view, and the officer can substantiate to a judge that when they viewed the item or substance they knew it to be illegal.

 

Essentially a police officer can search your car or home if they see through a window a pile of drugs or other illegal substances or items and the officer can articulate to a judge what he observed.

 

Part of what the officer will have to articulate is the way the item was packaged, the markings on the package, or that the size of the package was consistent with his training and experience to be consistent with drugs or other illegal items.  that would allow him to make a plain view seizure.


What type of crimes do the Utah Trial Lawyers handle?

Our firm handles a wide range of criminal defense cases such as:

  1. Misdemeanors / traffic offenses
  2. DUI
  3. Weapons / firearm violations
  4. Expungements
  5. Violent crimes
  6. Sex crimes
  7. White collar / financial crimes
  8. Drug offenses
  9. Fraud and identity theft
  10. Domestic violence

Do I need to hire an attorney if I know what I want to plead?

There are lots of reasons for pleading guilty but it is absolutely essential that you understand everything going on in your case before making that decision. It is vital you hire a criminal defense lawyer to protect your rights.

 

It is always best to hire an attorney, you never know what defenses or legal strategy can be used in your case, there’s a reason why law school was three years and why at the Utah Trial Lawyers we’ve spent years becoming better advocates.

 

In criminal cases it is often the goal of the prosecution to bring the severest consequences possible and an attorney from our firm can help you obtain a lighter sentence, minimize, or completely eliminate your criminal charges if possible.


What is the difference between a dismissal and an expungement?

Dismissals occur when evidence is suppressed or other legal motions are successful. In certain situations, a dismissal can be given if you perform community service or attend specific classes.

 

A dismissal can also occur when a prosecutor drops your case. This happens after the assistant district attorney reviews your case and decides the evidence against you isn’t strong enough or your case is not worth prosecution.

 

Expungements are when your case is erased. The court records relating to your case are destroyed and you can truthfully state on job and other applications that you have never been convicted of a criminal charge.

 

Expungements are difficult to obtain most of the time, so if you wish to learn if an expungement is available for your past criminal conviction, you will need to hire an experienced criminal defense attorney.


Will my case go to trial?

When charges are filed against you and a resolution cannot be reached prior to going to trial, our justice system allows for a judge or a jury to decide whether you are not guilty of the charges.  

 

Prior to trial your lawyer may be able to convince the prosecution your case is not worth prosecuting or may be able to prove your charges were not filed on legal grounds. If either one of these scenarios are true, than your case may be dismissed.

 

Here at the Utah Trial Lawyers we are always ready to go to trial and we prepare each and every case as if we were going to trial.


What is the role of the prosecutor?

The prosecutor is the attorney who represents the federal, state or local or government in a criminal case against its citizens. Prosecutor titles vary by jurisdiction, but the most common titles include district attorney, county attorney, and state’s attorney.

 

The prosecutions role or job is to seek punishment for those committing crimes in their jurisdiction. Prosecutors have the high burden to prove each and every element of the criminal charges against you beyond all reasonable doubt.

 

When prosecutors review a police report and receive information about the criminal act, the prosecution has to decide if there is enough evidence to support a conviction.

 

The prosecutor must establish that each and every element of the crime can be proved at trial beyond a reasonable doubt and most take that responsibility very seriously. If the prosecutor does not believe that they have enough evidence to prove their case and succeed at trial, then it is likely the case will be dismissed.


What is white-collar crime?

White-collar crime is also referred to as paper crime. The majority of times white collar crime involves a non-violent criminal act; it usually entails fraud or some kind of financial crime.  

 

It also requires dishonesty committed in business or commercial situations. Some more specific examples of white collar crimes include insider trading, embezzlement, securities fraud and tax evasion.


How are children prosecuted?

Criminal conduct by a minor is typically prosecuted in the juvenile court system. The juvenile justice system’s philosophy is that minor children should not be stigmatized or punished in the future for past criminal conduct.

 

Children are immature which affects their abilities to make proper choices and to recognize right from wrong, therefore, the role of the juvenile justice system is seen as more rehabilitative rather than punitive.

 

There are some instances where minor children commit violent crimes and depending on the age of the child may be tried in adult criminal court instead.


What is embezzlement?

Embezzlement is usually thought of by being committed by a high level bank employee who gradually takes money from the bank over a period of time. Embezzlement involves several factors. The first factor is theft or larceny; theft or larceny is when a person diverts cash or assets from the rightful owner to themselves.

 

The second factor is the relationship to the victim; it matters who is taking the money and where they worked or lived. It’s those two factors discussed above that move it from a theft, to the higher crime of embezzlement.


What is a criminal assault?

A criminal assault involves the fear of imminent bodily harm. A criminal assault can be a misdemeanor or felony charge. If someone raises a hand to hit you, that usually would fall under the misdemeanor charge of simple assault. A felony assault occurs when someone points a gun at your head and you are in fear of imminent deadly harm.

 

There are two factors that criminal assault requires, the first factor is fear by the victim, and the second factor is imminent danger. The victim must be afraid and must be aware of the assault. Imminent danger means that the danger must take place almost immediately.

 

If someone points a gun at you, and you are afraid, that would be fear of imminent bodily harm or deadly force. If someone tells you if you wear those khaki shorts again I’m going to shoot you, that statement can’t be aggravated assault.

 

You may be afraid, but the fear is not imminent. Without an imminent threat the deadly force is not immediate, and therefore, the crime of assault has not been completed.


What is arson?

Arson is the intentional setting of a fire to a building or structure. Arson can be accomplished by burning a car, office building, or a house. Arson only occurs when a fire is started intentionally. The degree of arson depends on several factors.

 

The first factor is if there are people in the structure at the time of the intentional fire. It is a higher degree of felony if the structure was occupied which subjects the accused to possible incarceration. If the structure is unoccupied it still may constitute arson, but it is usually a lower degree of felony.

 

Arsons are usually felonies which make it a serious offense. If you’ve been arrested for arson, check with us here at the Utah Trial Lawyers. We will tell you whether or not your crime, or your alleged act, meets the requirement of criminal arson.


What is considered rape or sexual battery?

Rape is defined as the unlawful, nonconsensual intercourse with another person with either force or use of threat of force. If the person is injured during the course of the rape or sexual battery, then the charge is a more serious felony charge.

 

If a weapon is used, it makes it a more serious degree of felony. The level of the criminal charge is based upon the force, injury, or weapon used. Sexual battery is also based upon the use of force and injury.


What is drug trafficking?

Drug trafficking charges in Utah are serious. Generally we picture someone flying in planes of cocaine from some exotic location but a trafficking offense is determined by the quantity of the substance and not where it’s from. If you possess a certain amount of a substance, it moves the criminal charge from mere simple possession to the more severe charge of trafficking.

 

The more of a legal substance you possess, the higher the degree of felony and more serious the charge. Trafficking does not necessarily require a selling of the substance; it just needs to involve possession of the substance.

 

A person is guilty of trafficking a controlled substance if they possess it, if they buy it, if they sell it, if they deliver it, or if they transport it. Trafficking does not have to include the moving of large amounts of drugs from one country to another, it can mean possession of the drug, or simply selling or delivering the drug, but it must constitute a certain quantity or a certain weight.


What is larceny?

Larceny is the depriving of something of value from another person and it doesn’t matter whether the deprivation is temporary or permanent. Larceny is when you go into a store and take a c.d. and put it in your jacket; at that point you deprived the store the use of that c.d. and you have committed the crime of theft.

 

There are many different levels of theft. Shoplifting may be a petty theft misdemeanor, but the value of what you take will determine if it is a misdemeanor or a felony. The greater the value of the item taken, the greater the punishment.


What is conspiracy?

What you’re really asking is what is the crime of conspiracy, and what would a person have done to be charged with that crime? Criminal conspiracy is not necessarily committing a crime, but it is the agreement to commit a crime.

 

Essentially conspiracy is when two or more people agree to commit an unlawful act. One of the two people agreeing to commit a crime may not be an undercover officer. However, if you were to buy some cocaine with another person from an undercover officer and the two of you agreed to the buy together, than at that point you would have committed conspiracy.

 

It is not a requirement of conspiracy for the criminal act to take place. The elements of conspiracy only require that an agreement to commit a criminal act be proven by the prosecutor and not that the criminal act be carried out. If you agree to traffic cocaine, or sell cocaine, there is no need for the actual cocaine or for the transaction to occur to be guilty of conspiracy.  

 

To satisfy the elements for conspiracy you only need an agreement between two or more people to commit a criminal act. The crime is the agreement and not the actual offense.


What are the mistakes that can be avoided after a DUI arrest?

  • The most common mistake after a DUI arrest is not recognizing the seriousness of the situation. DUI convictions can remain on your driving record for as long as short as five years but can remain for a lifetime. Having a DUI on your record can affect your ability to get a job, can affect your credit, and your ability to drive. It is extremely important to not ignore this significant incident in your life.

 

  • The second mistake we see is not immediately hiring a lawyer who deals specifically with DUI cases. DUI cases are a specialized area of law and it requires someone with a vast experience in the specific rules and regulations in the state of Utah.

 

  • Never admit defeat if you have been arrested for a DUI. Defending a DUI is complex, and despite what you perceive your situation is, do not assume your case cannot be won. Always consult with a lawyer before you make any decisions. Often time’s people believe their case is not winnable if they had a high breath test reading, but there are always arguments and defenses available in every situation.  For example, the police officer needs a basis for the arrest, the traffic stop has to be valid, and the rules and regulations of the intoxilyzer had to be followed.  

 

  • If you want to keep your driver’s license it is very important to apply for an administrative hearing after your arrest. Usually after a DUI arrest your license is taken by the police officer. In Utah you have ten days to apply for an administrative hearing. This allows your lawyer to either get your driver’s license back or at the very least gather valuable information that can be used in your defense for your criminal case.

 

  • Do not drive while your license is suspended. It is very common for your license to be suspended after a DUI arrest. A license suspension makes applying for an administrative hearing all the more important. Through the administrative hearing you may be able to receive a hardship or temporary driving permit which will allow you to drive while your case is pending. Utah deals with people who drive with a DUI suspension harshly, it is a separate crime and can result in jail time or a high fine.

 

  • Remember to call your court clerk, understand when your court date is, and make sure that you appear for all your court hearings.

What are the most common myths surrounding a DUI arrest?

The most common DUI myth is that a penny under your tongue will affect a breathalyzer reading.  Putting any coin in your mouth before you take a breath test will not affect the breath test reading. Myths sometimes even affect law enforcement; this myth is why police officers are required to take a look at your mouth prior to a breath test being administered.

 

You’ll also never be asked to repeat the ABC’s backwards as a field sobriety test. You may be subject to the Rhomberg Alphabet Test, but this is simply saying the alphabet without singing or rhyming A to Z.

 

Another DUI arrest myth is that you’ll be automatically released if your breathalyzer results are under the legal limit. If you blow under the legal limit it is likely that law enforcement will ask you to take a urine test or they’ll just put you in the county jail.

 

Even if you blow under the legal limit you’ll still be required to raise a defense. If you blow under the legal limit it just increases your chances of not receiving a conviction.

 

It is a myth that if you refuse to take a field sobriety test then the government has no evidence against you and will have to dismiss your case. It may be more difficult for the government to prove you guilty beyond a reasonable doubt, but the government still has the ability to present the observations of the police officer of how you talked, how you walked, and your interactions with her.

 

The prosecution also has the ability to tell the jury that you refused to take a breath, blood, or urine test. The government is required to prove that you were driving a motor vehicle, that you were under the influence of alcohol or a controlled substance, and that your normal faculties were impaired.

 

The final myth is that your case will be dismissed if the officer forgot to read you your rights. Miranda rights only apply to custodial interrogation and statements made against your interest. If the prosecution can prove their case without using your statements against you, than your case won’t be dismissed.


What is the difference between probation and parole?

Probation is a sentence that allows you to stay out of prison as long as you comply with the court’s conditions. Conditions may include reporting to a probation officer, refraining from alcohol and drugs, and not committing further crimes.

 

Parole is the supervised release of a prisoner that was incarcerated. Parole is designed to help individuals complete their criminal sentence outside of jail if they have already completed a portion of their prison sentence. Conditions of parole are similar to those of probation. Probation is an alternative to prison, while parole is a shortened amount of time spent in prison.


Can I get my criminal record expunged?

Your criminal record is very important, people are not hired for jobs and we now have applications asking if you’ve been convicted of a misdemeanor. Understand that if you have been arrested or have a prior arrest record, now is the time for an expungement.

 

Many people believe entering a diversion program automatically expunges your record but that is not the case.  If you had your case resolved that does not mean it was sealed or expunged, you still need to take the next step to make that happen and petition the court to expunge your criminal history.


When can my record not be expunged?

The most common scenario that prevents an expungement is if there hasn’t been enough time passed from your conviction. You also don’t qualify for an expungement for certain crimes or if you have charges pending.

 

Petitioners can’t be convicted in separate criminal episodes of two or more felonies; three or more crimes of which two are class A misdemeanors; four or more crimes of which three are class B misdemeanors; or five or more crimes of any degree.


What is criminal restitution?

A criminal sentence may include the payment of restitution to the victim. Restitution is the loss associated with the crime and may include compensation for property loss, medical expenses, or funeral expenses. The philosophy behind criminal restitution is to give the offender a direct part in making things whole for his victim.


If I am convicted of a crime can I be deported?

As with most legal issues, the answer is, it depends. If a person is not a citizen and is convicted of certain crimes, he or she may be removed. Removal may include those on work or student visas as well as lawful permanent residents.

 

U.S. immigration law states that a noncitizen that has been convicted of an aggravated felony, or a crime of moral turpitude or any one of a number of other enumerated crimes is at risk for removal. Besides the possibility of removal, a conviction may negatively affect a lawful permanent resident’s ability to one day become a citizen.

If you have additional questions or if you would like to speak to us regarding your Criminal case, call us at 801-849-9300.