What’s the difference between Driving Under the Influence and Impaired Driving in Utah?

If you’re charged with a DUI in Utah, there is a decent chance that you will be offered a plea bargain to reduce the charges to Impaired Driving. There are some advantages, and some disadvantages to these plea offers. As with many other facets of DUI defense, and criminal defense, the decision whether to accept this offer depends entirely on each individual’s circumstances. For some, it is a great deal, for others, it offers very little in comparison to pleading guilty to the DUI “straight up” or “as charged”.  Today, I’m going to compare and contrast the two charges to help you understand the differences.

Minimum Mandatory Penalties Impaired Driving DUI
Classification Class B Misdemeanor Class B Misdemeanor
Jail no mandatory jail time 48 hours (sometimes served through community service)
Fine Over $1400 after surcharge Over $1400 after surcharge
Treatment Screening and Minimum Treatment requirements Screening and Minimum Treatment requirements. Additional requirements if BAC>0.16
Probation Court Probation, typically 12 months Court Probation, typically 12 months, Supervised probation if BAC>0.16
Ignition Interlock Not required, and typically not ordered Required by Driver License Division for 18 months – Defendant pays costs
DL Suspension Reduced to 60 days or no suspension if license not originally  suspended by DLD 120 days

One thing that you may notice when looking over this table is that the penalties for impaired driving are not significantly different from those for DUI. The offense classification, fine, required treatment and probation are the same. The advantages, in terms of sentencing consequences for Impaired Driving are limited to no mandatory jail time, no ignition interlock requirement, and a lesser license suspension period.

That is not to say that those advantages are meaningless. The ignition interlock requirement in particular is extremely expensive and cumbersome, and getting out of that requirement is often a major factor in making a decision as to whether to accept a plea to Impaired Driving.

However, it is also important to remember that, although there is no requirement of jail time and interlock device, the judge does have the discretion to order these in Impaired Driving convictions. Judges do not do this, in general. However, there are certain judges who have recently been ordering interlock devices for Impaired Driving convictions. So it is important to discuss the sentencing proclivities of the judge in your case with an experienced Utah DUI attorney.

Im a DUI and Criminal Defense Attorney, and I represent clients in the Salt Lake Valley, and throughout Utah. Have a question about your DUI charge? Give me a call – I offer free consultations. (801)200-3795.
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“Um…he’s got these emails, your Honor…” | the fourth mode of persuasion

Part of the charm of being a lawyer is that every so-often, you find yourself reading something really old, and it gives you a glimpse of the lifestyle of “simpler” times. Whenever I find myself reading old English cases, or cases from the early Colonial era, it always strikes me how much Judges would rely on a person’s word. Invariably, there is some fact pattern where a textile merchant had claimed to have purchased three bales of cotton from such an such, with such and such terms – and the Court would basically take his word for it and argue the legal issues from there.

My impression is usually that it was “trust” rather than trust, that supported a Court’s acceptance of such proffered evidence. In other words, people were taken at their word because there wasn’t much choice not to. But these days, we have avenues of verification.

These days, if you want to sue over bales of cotton you’d better have a receipt; also, an invoice, purchase order, contract, barcode, serial number, and any relevant email correspondence. As for discovery, you’ll be needing to ask what field the cotton was gathered in, the date and weather at the time of picking, and the employee number of anyone who handled the product.

I’m kidding, of course. But there’s truth in all jest.

Now, I deal in the world of criminal law, which tends to be a bit different. In many ways we end up taking a step back to the old days of taking people at their word if we’re not careful. Particularly when it comes to being persuasive to judges, prosecutors, clerks, probation officers, and anyone else who might be able to ruin your day, a little documentation goes a long way. Court professionals can get so used to hearing “he said, she said” stories that they become jaded. If I’m not careful they will pre-judge my clients. And that’s not acceptable.

So what is a lawyer to do when his/her client is facing an order to show cause for violation of probation conditions, and they say they are doing everything they can to be in compliance but the probation officer is not returning their calls, their voicemail box is full, and their emails are getting kicked back?

Well, your first instinct is to glower and say “let’s tell the Judge…and if she doesn’t listen…we’ll tell her louder!”

The problem is not that the judge isn’t listening, it is that the judge has already heard the same story four times this week, and it’s only Monday.

If you’re looking for persuasion, use some documentation.

I love email. I also love phone records, security cameras, prescriptions and dashboard videos. Throw in utility bills, receipts and Facebook posts too. Oh, and let’s not forget text messages. There’s a paper trail for everything if you think about it.

It’s usually not even important whether these things are “admissible” under the rules of evidence, because the rules of evidence don’t apply to negotiation, nor will they prevent you from scoring points with a  mere threat of empirical evidence – admissible or not.

If you aced Philosophy 101, you’ll probably remember Aristotle’s three modes of persuasion: ethos, pathos, and logos. Well, I submit that Aristotle never had to brave the spaghetti-western world of Utah justice courts, and for that reason, he missed the last mode of persuasion, which I’ll call “documentos”.  (An aside: yes, I know, providing documentation is just a way of establishing ethos…this isn’t a Ph.D dissertation people, I’m just trying to make a point!)

“So…um…he’s got these emails your honor.”

Sometimes the way you figure out that you’ve won an argument is that you hear a particularly awkward concession from your opponent. That happened to me recently. After my opponent initially brandished the usual weapon of peace-officer credibility to ground his side of the story, I presented him with some emails that contradicted his assertions. He backed off, really, without even looking at them. When the judge was surprised at his sudden change of tone, she pressed him for some information. All he could muster was an awkward and vague, “so…um…he’s got these emails your honor.”

Getty Images

Getty Images

When you use the documentos right, it can be like watching a batter trying to get some wood on a filthy change up when he was expecting a fastball.

–I’M COURT KOEHLER, AND I AM A UTAH DUI ATTORNEY, UTAH BANKRUPTCY ATTORNEY, AND UTAH DIVORCE ATTORNEY. YOU CAN TAKE A LOOK AT MY WEB PAGE: WWW.SALTLAKEDUIDEFENSE.COM, OR CALL ME AT: (801)200-3795.

Under 21? Your criminal defense attorney discusses the serious consequences of DUI and Marijuana Possession charges for minors in Utah.

Some people wonder why you would pay good money for a Utah criminal defense attorney to represent you for “minor” charges such as DUI, drug possession and possession of drug paraphernalia. It is true that these crimes are misdemeanors; and also that they usually do not result in jail time – especially for a first offense. Nevertheless, the collateral consequences of these crimes make them very serious. Is it worth it to pay an attorney to defend you against a charges that will only cost you $1400 in fines? Maybe not. But what if you’re also looking at several hundred dollars a month over the course of a year for ignition interlock fees, supervised probation fees, and substance abuse treatment costs? What if you are facing a driver license suspension, without any possibility of a limited work or school driving permit? Now do you need a lawyer?

And what if you’re under 21 when you’re arrested? As if the potential consequences of a DUI or drug possession arrest were not already heart-attack serious, there are even worse consequences for minors. A relatively new law makes it so that if you are convicted of a DUI while you’re under 21, you’re looking at a one-year driver license suspension. And if you’re under 19 at the time of your arrest, it is a two-year suspension. Ouch!

There are similar penalties for minors convicted of possession of drugs and possession of drug paraphernalia. Minors with those charges are also looking at a one-year suspension.

Now comes the part of the article where I tell you, for the umpteenth time, that you really need to get advice from a Salt Lake City criminal defense attorney if you’re facing these charges and you were under 21 at the time of your arrest. Well, I’m sorry to be so repetitive, but it is true! And no, I do not write these articles to get finger dexterity exercise, I write them to provide useful information for potential clients.

If you’re facing these types of charges, and you’re concerned about losing your license for a very long time, please give me a call at (801)200-3795. License suspensions are one of the most devastating consequences of DUI and drug possession arrests. But a good attorney that knows the laws in Utah can help you avoid them!

I’m Court Koehler, and I’m an attorney practicing criminal defense and DUI defense in Salt Lake City, and throughout the great state of Utah. If you’re facing criminal charges PLEASE CALL ME and mention this article for a phone consultation, free of charge. 801.200.3795

that marijuana possession charge may seem like no big deal, but there’s some things you should know | Salt Lake City Criminal Defense Attorney

Will the recent legalization of recreational marijuana in neighboring Colorado affect Utah’s enforcement of marijuana laws? Who can say? Is reform for marijuana laws coming soon for Utah as well? Who can say? In either case, pot is definitely still illegal in Utah. So, for the time being, let’s discuss the consequences for marijuana possession charges. Hint: this is one of those areas of the law where having a lawyer can really make a big difference.

that marijuana possession charge may seem like no big deal, but there's some things you should know

that marijuana possession charge may seem like no big deal, but there’s some things you should know

The obvious consequences for recreational marijuana possession charges. 

Here’s what you need to know: possession of a small amount of marijuana, defined by statute as less than one ounce in weight, is a class B misdemeanor, and it is really not “the end of the world” in terms of the consequences you are likely to receive if ultimately convicted. For instance, if I had to chose, I would rather be facing a marijuana possession charge than a first time DUI or Assault. Both DUI and assault are also class B misdemeanors. But a DUI carries a boat-load of minimum mandatory sentences; and an assault charge can also have serious collateral long-term consequences. By comparison, marijuana possession does not have a mandatory minimum sentence, and a first-time offender is not likely to be sentenced to any jail time. 

Technically, any class B misdemeanor in Utah is punishable by up to 6 months in jail and $1,000 in fines. But it is unheard of for a first-time offender to receive a maximum sentence. Although some judges will give jail sentences to first-time possession offenders, they are in the minority. If ultimately convicted, you’re likely to receive a fine of several hundred dollars and a suspended jail sentence (meaning you do not have to go to jail unless to violate probation terms). It is also common – especially if you have a Salt Lake City criminal defense attorney helping you – to receive a “plea in abeyance”. A plea in abeyance means that you plead guilty to the charge, but the court sentences you to probation without technically entering the conviction. If you complete the probation successfully, then the court never enters the conviction and it does not go on your record.

Even if a criminal defense lawyer is able to get an offer for a plea in abeyance from a prosecutor, where a person representing themselves would not, it is debatable whether hiring an attorney is “worth it”. That is, until you take a look at some of the other, hidden consequences: 

First hidden consequence: drug paraphernalia charges

The way that the Utah law is written, drug paraphernalia can be almost anything. It can be defined as anything that a drug is contained in, or used to ingest, or produce. So even a ziplock baggie, or breath mints tin can be drug paraphernalia under the language of the Utah drug paraphernalia act. An offense of possession of drug paraphernalia is also a class B misdemeanor, and will likely carry a similar fine and jail sentence. Thus, any time you are facing drug possession charges, you are almost certainly facing a “double duty” of paraphernalia charges at the same time. Thus, your several hundred dollar fine can easily become close to $1000. 

Thus the skin in the game is greater than you might think, as is the need for a criminal defense attorney to protect your rights. 

Second hidden consequence: driver license suspension

Even though having to pay hefty fines is hard on most people, what really drives the screws into my clients is the impending license suspension. If you’re not a Utah attorney, and you haven’t been through this before, you may not realize, but there is actually a 6 month driver license suspension for a conviction of drug possession! If you are like most people, not being able to drive for six months will put a real hitch in your giddy-up. 

This is where having a knowledgeable Utah defense attorney can really pay off for you. First of all, with the added consequence of a six-month license suspension, on top of $1000 dollars or so in fines, you should be thinking it may be a good idea to have someone to help you fight these charges. Second of all, there are some tricks of the trade that a good attorney like myself should know that can allow you to avoid that license suspension – even if you end up taking a conviction for the underlying possession charges! Of all the things you can do when you’re representing yourself in Court (not many), this is almost certainly something that you will not be able to pull off by yourself. 

The bonus multiplier: extra consequences for minors 

If you happen to have been under the age of 21 at the time of your conviction, you are really facing some serious trouble because the law in Utah says that your license will be suspended for one year – twice as long as your elderly counterparts – upon conviction of drug possession. 

I’m assuming you’d like to not be bumming rides from friends for the next year. So again, it is extremely important that you have a Salt Lake City drug defense attorney helping you out. First of all, you are many times more likely to be able to successfully defend yourself against the charges than if you try to represent yourself. And second, an attorney familiar with Utah criminal statutes is likely to have some “work arounds” to either avoid a suspension all together, or reduce the length to something more manageable. 

I’m Court Koehler, and I’m an attorney practicing criminal defense and DUI defense in Salt Lake City, and throughout the great state of Utah. If you’re facing criminal charges PLEASE CALL ME and mention this article for a phone consultation, free of charge. 801.200.3795

Experience might be the worst thing you can look for in an attorney.

You're doing it wrong.

If I asked you what qualities you think make the best attorney. (We’ll use the attorney example in this post because this blog is ostensibly about criminal law; but lest you should feel excluded, my point applies to any profession, art or technique.) You would probably list off a few qualities, and I bet one of them would be ‘experience’. 

This seems reasonable, right? People trust experience. Experience begets wisdom. Well, this is true, but it only begets one kind of wisdom: conventional wisdom. And sometimes, the conventional wisdom of today is the idiocy of tomorrow.

The Forsbury Flop

Before the 1968 Summer Olympics, high jumpers used a few different techniques: the straddle technique, the western-roll, the scissor jump, etc. All of them were similar in that they involved the athlete running up to the bar and jumping over it forward and mostly upright.

Dick Forsbury changed the sport forever when he took the gold medal in the 1968 games despite being ranked only 61st in the world, and not considered likely to medal. He did so with an unconventional technique that caused a river of hater-ade at the time, but has since become overwhelmingly dominant. It is the technique that you would recognize if you have ever watched high-jumpers in the Olympics, where the athlete approaches the bar at an offset angle and launches backwards over the bar, flopping down on the other side. Oh, and I forgot to mention my favorite part of this story: during his early jumps in those games, the crowd laughed at him.

My point, of course, is that if you saw a high jumper execute a perfect straddle technique in the 1964 Olympics, you might say that he was an “experienced” high jumper; but if you saw him do that today, you would call him an idiot. 

Ergo: you want your attorney to be Dick Forsbury.

That is, you want your attorney to be able to think outside of the box, and to be willing to try something different, even at the risk of looking foolish. You don’t want him to be burdened by the conventional wisdom he or she has gained through decades of practice.

Unconventional Success 

There are examples of Forsbury-like revelations all over. How about how when Ingvar Kamprad realized that disassembled furniture could be packaged in flat containers and shipped for cheaper? IKEA, as we know it today, was born. When Henry Ford perfected the assembly line? When a garbage man in Iowa figured he could charge people to lend them movies? Boom! Blockbuster.

In fact we need look no further than last season’s Super Bowl Champion Seattle Seahawks for examples of unconventional wisdom in action. 

“I don’t know if you’ve noticed, but we’re not too concerned with doing things the conventional way around here.”  -John Schneider, Seahawks General Manager speaking about his soon-to-be world champion team in the preseason of 2013.

Oversized cornerbacks and safeties, undersized linebackers and ends, defensive lineman converted to offensive lineman, and competition at all levels-where once highly touted draft picks have been unceremoniously cut in favor of unknown upstarts; but their break with convention is perhaps most evident in the extremely under-sized quarterback who they selected in the 3rd round of the 2012 NFL Draft. The “experienced” sports pundits panned them. The talking heads graded their draft at a D+. Now, Russell Wilson is one of the most valuable players in the league, and the Seahawks are World Champions. 

But is experience a bad thing?

Well, maybe, and maybe not. You gain experience with time, whether you like it or not. In turn it begets wisdom, of a sort. If you exploit that wisdom, then it aids your strategy, so it is good. But if that wisdom causes you to be set in your ways, prevents you from innovating, tells you that a certain Judge will not like an argument, or that attorneys don’t do things ‘that way’, then experience is only holding you back. 

So, in the end, experience might be the best quality your attorney has. Or then again…

I’m Court Koehler, and I’m an “experienced” DUI defense, criminal defense, bankruptcy and family attorney in Salt Lake City, Utah. Click HERE, or call me at: 801.200.3795 if you have a legal problem, and you want an attorney that is not afraid to explore all the options, even if they’re unconventional.

If I put a picture of my son on here, will you guys click the link?

For the past few weeks I’ve been posting something “lighter” every Saturday morning. I’m trying to figure out what to write about that is related to law, but “regular” folks like yourself would still be interested in. Hey, if Dan Carlin can suck people in with 4 hour podcasts about history…

Well, so far, I have been wildly unsuccessful. I spend an hour or so trying to write something y’all might get a kick out of, and for every 100 friends that see my posts on Facebook, I get about 3 clicks. I can’t even get my wife to read them!

It’s funny though, if I post a cute picture of my 6 month old son on Facebook, suddenly people I haven’t talked to in a decade, and friends of distant in-laws I’ve never met before, are raving for days. You’re all a bunch of trout biting at the first shiny object that passes by your news feed aren’t you?

So I decided to try this experiment to see how many of you would click if there was a cute baby involved. For future reference, in addition to my usual information posts about criminal law in Utah, I’ll be writing law-related posts each Saturday that may be interesting to people whether they need a lawyer or not. Come by and check them out. Also, if you haven’t already, please like us on Facebook (it’s as easy as clicking the link on the right), follow me on twitter @courtkoehler, and follow this blog if you’re a wordpress reader. And for heaven’s sake, SHARE THIS CUTE BABY PIC WITH YOUR FRIENDS!!!

Cheap Trick

Cheap Trick

 

I’m Court Koehler, and I’m a DUI, Criminal Defense, Bankruptcy and Family Lawyer in Salt Lake City, Utah.

Illegal Jargon: Hemlock Grove gets it all wrong.

Hey, I can’t get enough of these werewolf/vampire TV dramas, call me out on it all you want. My latest favorite is a Netflix original series called “Hemlock Grove”.  Season 2 was recently released and I couldn’t wait to start watching.

<<Spoiler Alert for the following>>

…but…they really need to hire a legal consultant. In season two the story line has Peter’s mother Lynda getting arrested during a police raid on a family funeral. The charges? Racketeering!

Wow, serious stuff Lynda. Racketeering is not really the type of thing the average person gets charged with. You definitely need an attorney, if you were in Utah, I’d suggest you call me (wink wink).

But wait, what is racketeering? Well, don’t ask the writers of Hemlock Grove, they seem to be confused. And for that matter, if you’re wondering about the legal particulars of warrants, don’t ask them about those either.  But fear not, the Hemlock Grove writers’ questionable legal research provides a teaching moment. So, here’s how Hemlock Grove got it wrong:

“The statutes on some of the warrants are expired”

Meat expires, statutes do not

Meat expires, statutes do not

The first thing Peter does after his mother gets arrested is he gets a consultation with a criminal defense attorney, which is a really smart thing to do. He ultimately forks over a hefty retainer, and relays some good news about the case to his cousin over the phone, “the statutes on some of the warrants are expired.”

I’m not sure that statement makes any sense. As you probably know from your high school federal government class, the Fourth Amendment (my personal favorite) protects individuals from unreasonable searches and seizures without a warrant based on probable cause. If you’re facing criminal charges involving a warrant (or a warrantless search for that matter), law enforcement’s failure to follow protocol according to fourth amendment constraints often provides some of the best material for your defense.

A good criminal defense lawyer should investigate the warrant in your case. But checking the deadlines on the statutes in the warrant is not really part of that investigation. Why? Well, it would be unusual for a statute to have an “expiration date”. While a statute can be “superseded” by new legislation, it does not normally “expire” on its own.

It is true that warrants are supposed to be fairly particular as to the persons, places and things to be searched. And they are fairly particular about how they are served. The warrant itself may well expire. But not the statutes it refers to.

Now it’s possible that this is some commonly used legal term of art in Pennsylvania, and if so, it might mean something like, “the statute of limitations have run on some of the crimes alleged in the warrant.”

But even giving them the benefit of the doubt, it still doesn’t make sense to me because if there were a problem with the statute of limitations for crimes Lynda was charged with, it wouldn’t be a problem with the warrant, the charges would be dismissed because the statutes had run, not because of anything having to do with a warrant. And while we’re at it, when you’re discussing statutes of limitation, the commonly used lawyerly phrase is that the “statute has run” not that the “statute has expired”. This has to do with what I mentioned earlier: although a period for filing an action under a statute might run out, statutes themselves don’t usually expire.

So the line of dialogue about statutes in the warrants expiring must have been pulled from the nether-regions of one of the creative writers on the show’s staff. Which is sad because it would have been easy enough to just ask an attorney that knows what they’re taking about how to explain that there may be a problem with the warrant in a case. There are several basic things that could be wrong with a warrant that are commonly contested, so there’s no need to invent strange things like statutory expiration dates.

“They’re trying to get your mother on RICO charges.”

Plainly: no they’re not. They can’t be, it would be ridiculous. Why? Because the RICO Act (Racketeer Influenced and Corrupt Organizations Act) is used to charge large crime syndicate leaders who cannot necessarily be proved to have committed crimes themselves, but may have been involved in the overall organizing of lots of individual but related crimes.

Basically, it’s meant for mob bosses. And if you want to see a realistic treatment of RICO, check out another of my favorite TV shows, Sons of Anarchy. You have to respect SOA for taking the time to get the legal particulars right. Kudos!

As far as Peter’s mom is concerned, the charges had to do with various counts of receiving stolen property, and selling muskrat meat as USDA inspected beef (clever!). Yes, they may have been separate but related criminal acts, but there is no need for RICO because Linda is alleged to have committed the crimes herself.

So, come on guys, I love your show – but take 15 minutes to google “warrant defects” and “racketeering” next time. Really.

I’m Court Koehler, and I am a criminal defense and DUI lawyer in Salt Lake City, Utah. Contact me here if you’re facing criminal charges.