Natty Shafer Law

Utah lawyer for criminal and immigration cases

Monthly Archives: February 2012


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Derivative Citizenship; or How You Can Be a U.S. Citizen and Not Know It

Several years ago, Luis Fernando Juarez wanted to buy a firearm. At the time of purchase he filled out what is called a “Firearms Transaction Report.” Among the questions asked was whether or not he is a U.S. Citizen. Federal law makes it a felony for anyone to lie about being a U.S. Citizen on official documents. Mr. Juarez believed he was not a U.S. Citizen when he completed the form, but, as Mr. Juarez found out later, he may actually be a citizen.

Derivative citizenship is a method of citizenship that has not yet made its way into popular culture. It’s citizenship that children receive after their parents are naturalized, provided certain conditions are met, or to foreign-born children adopted by parents who are already U.S. citizens. Mr. Juarez may be a derivative citizen of the United States. His mother became a U.S. citizen when he was 16 years old, which is important because only immigrants under the age of 18 can gain derivative citizenship. Mr. Juarez’s father was already dead, and he intended to live in the United States permanently at that time, so Mr. Juarez may have met the conditions for derivative citizenship. Obviously if Mr. Juarez is a U.S. Citizen, he can’t have lied on the Firearms Transaction Report about being a U.S. citizen.

Unfortunately for Mr. Juarez, he discovered this after he had already pleaded guilty. His lawyer candidly admits that he had never heard of derivative citizenship. He appealed his case to a federal court, which initially denied his appeal, but last Friday, the Fifth Circuit Court reversed and remanded the case to the district court.

Utah is not a part of the Fifth Circuit, so last weeks decision is not binding on the federal courts here. Nevertheless, the derivative citizenship law is applicable to the whole country, but the derivative citizenship defense is one that trips up even seasoned immigration counsel.


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Do DUI Roadblocks Work for Their Intended Purpose?

Last week I mentioned that Utah may ban DUI checkpoints. Lawrence Taylor, an attorney in California, picked up on that development and blogged about it on his blog. He argues that the real reason that police use DUI checkpoints is to raise revenue. Most DUI checkpoints catch very few drunk drivers, but they do make a lot of money for the local government. Although the police are supposedly looking for intoxication, they end up issuing citations to drivers for not having their license, registration, insurance or for equipment violations—citations that likely would not be issued otherwise.

Let’s hope Utah joins the ranks of other states who have banned this invasive practice.


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Utah’s Immigration Law Still in Limbo

On Tuesday, U.S. District Judge Clark Waddoups announced that he will keep an injunction in place keeping Utah’s 2011 immigration law from taking effect. Judge Waddoups heard oral arguments on Friday, February 17, but he declined to make a ruling until he receives “additional guidance” from the United States Supreme Court. The Supreme Court is set to hear oral arguments on Arizona’s similar immigration law sometime in April and should issue its opinion in June.

For undocumented aliens, this means that Utah’s law may never take effect. As I mentioned last month, immigrants living in Utah are unlikely to notice any changes to their daily lives. Among the people I have interacted with, however, it does appear to have increased the urgency for permanent resident status.

If the Supreme Court rules against Arizona, it should dampen the enthusiasm of other states in passing immigration laws. If, however, the Supreme Court upholds Arizona’s law, we’re likely to see many more states pass some sort of immigration law.


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Utah May Ban DUI Checkpoints

Today, the Utah House of Representatives passed a bill to prohibit the police from conducting DUI checkpoints. The Utah State Senate must also pass HB140, and then the governor would need to sign it for it to become law.

Police use DUI checkpoints by placing roadblocks on a public roadway and then they stop every vehicle or random cars and look for signs of alcohol or other impairment. The Utah bill would not affect law enforcement’s ability to look for fugitives, such as during an Amber Alert, nor would affect their ability to look for “invasive species.”

The United States Supreme Court deemed random DUI checkpoints as constitutional in the case Michigan Dept. of State Police v. Sitz. Michigan’s high court then found such checkpoints to be illegal under Michigan’s Constitution. Several other states have banned them as well.

UPDATE: HB140 never made it out of the Utah State Senate, so as of the close of the 2012 legislative session, Utah remains one of the states that allow DUI checkpoints.


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Police Interrogation Is Not for Amateurs

The Supreme Court once again narrowed the Miranda rule with a decision released on Tuesday. In Howes v. Fields, the Court ruled that prisoner Randall Fields did not have to be given Miranda warnings, even though he was in jail for disorderly conduct when the police started interrogating him about his involvement in a possible sex crime. The Court, strangely enough, concluded that this interrogation was voluntary, even though Mr. Fields did not consent to the interview, he was not told he could remain silent, and he was denied his evening medications.

The Court said that it was reasonable for Mr. Fields to believe he could end the interview because the police told him that he was free to go back to his cell, but, as Mr. Fields testified, he did not believe them. Since the interrogation was involuntary from the beginning, I tend to believe Mr. Fields as to whether or not he could have really ended the interrogation. Obviously, the Supreme Court disagrees with me.

This Court decision underlies how important it is to request a lawyer anytime a police officer questions you. If it takes a lawyer to figure out whether or not you are actually “in custody,” I have no idea how a layperson is going to know. Despite what police officers may tell you, their goal is to get a confession. They are not there to help you, and they will work hard to avoid giving you a Miranda warning.

I have previously mentioned that there are a few questions you need to answer if a Utah or Salt Lake City police officer questions you. You need to provide your name and possibly some identification. Otherwise, invoke your right to silence and request a Utah State licensed lawyer familiar with criminal laws before you answer anything.


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Anyone Can Need a Criminal Lawyer

I write my blog from the prospective of a regular person searching out a criminal lawyer, but a lot of my advice would be most helpful for someone to know before they get into trouble. Almost everyone will have some interaction with the criminal justice system sometime during their life. Whether it’s a routine traffic stop, being an innocent witness to a crime, or something far more serious, chances are that at some point you could benefit from a little criminal law advice.

Last week, this point was driven home when a warrant was issued for John Copacino, a law professor from my law school. One Vivianne Pommier alleges that Professor Copacino and she were in a traffic accident during January, but that he left the scene before authorities arrived.

While I don’t want to comment on the credibility of the charges, it should be noted that if a professor at Georgetown University Law Center can be accused of criminal misconduct, none of us are immune. Even exemplary citizens can be accused of wrong-doing, and in those times, it is best to get a lawyer. Hiring a lawyer in no way implies guilt, but instead acknowledges the complexities of the criminal justice system. Even as a criminal lawyer, I would want an independent evaluator advising me if I were ever arrested.


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The Official Name of Presidents’ Day

Or is it President’s Day or maybe Presidents Day? As Hendrik Hertzberg explained a few years ago, it’s none of the above:

Ever since 1968, when, in one of the last gasps of Great Society reformism, holidays were rejiggered to create more three-day weekends, federal law has decreed the third Monday in February to be Washington’s Birthday….Just to add to the Presidential confusion, Washington’s Birthday is not Washington’s birthday. George Washington was born either on February 11, 1731 (according to the old-style Julian calendar, still in use at the time), or on February 22, 1732 (according to the Gregorian calendar, adopted in 1752 throughout the British Empire). Under no circumstances, therefore, can Washington’s birthday fall on Washington’s Birthday, a.k.a. Presidents Day, which, being the third Monday of the month, can occur only between the 15th and the 21st. Lincoln’s birthday, February 12th, doesn’t make it through the Presidents Day window, either.

So I hope you enjoyed Washington’s Birthday (Observed).


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Permanent Residents Can Legally Change Their Names

It’s incredible, but 11 years later, and even judges irrationally invoke September 11 as a means to enact their own agendas. A New Jersey parent requested, under New Jersey state law, to change the name of his daughter from “Honghong Zhan” to “Michelle Zhan.” According to the New Jersey appellate court, the judge denied the request, “without citing any specific statutory provision or case law” because “the federal ‘Immigration and Naturalization Control Act’ pre-empted state law on the issue of name changes, and stated his view that for security reasons, ‘the Country needs to identify who [is] here under the names that they have.'” However, as the appellate court noted in its reversal of the lower court, the name change process creates a paper trail of the name change.

Utah has a similar law to the New Jersey rule. Utah Code §42-1-1 through §42-1-3 and §77-27-21.5(20) governs name changes for Utah residents, and there is no requirement that the petitioner be a citizen of the United States. Unless the name change is requested for an illegitimate reasons—such as to avoid debts or commit fraud—residents of Utah are free to change their names. As Eugene Volokh noted, name changes can help immigrants Americanize, if that’s what they desire.


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Police Questions You Need to Answer

When you encounter a police officer, most of the questions he asks, you are not required to answer. This post is going to focus on the few questions that you need to answer. The rules vary a little from state to state, but the same general rules apply. In almost every state, including Utah, you need to provide police with your name and identification if you are involved in a traffic stop. You also need to provide proof of insurance. You can invoke your right to silence for all other questions, and if you haven’t been formally arrested police are not going to volunteer that you can remain silent.

Many states, including Utah, also have what are called “stop and identify” laws. If you are found loitering, or if an officer has reasonable suspicion that you are in the process of committing a crime, the officer may demand your name. If you are in one of the states with a stop and identify law, you are required to truthfully answer. Either refusing to answer or lying to the officer can lead to criminal punishment.

The Supreme Court has not recognized any other situations where the government can require citizens to answer police questions. After an officer’s initial questions establishing your identity, you should invoke your right to silence.


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Voluntary Police Questioning

Sometimes, police officers may want to question you before they arrest you. Such “voluntary” questioning can be problematic for a suspect because police do not need to give you a Miranda warning until arrest. However, the government will still use any incriminating statements made before arrest in court. The government does not have to provide an attorney for indigent individuals, and those that could afford an attorney might not realize they really should have one.

It’s a common misconception that anything said before a Miranda warning is inadmissible. For example, here in Utah, a friend of mine was with a group of people on a school playground late at night drinking alcohol. When someone spotted the police, everyone scattered. Some time later, an officer saw him on the street and asked him if he was among the people who had been drinking. My friend said that he was. When he represented himself in a Utah court, his admission was the key evidence against him. He tried to tell the judge that the officer never gave him a Miranda warning, but, of course, the judge didn’t care because he hadn’t been arrested when he said it. And my friend is the son of a (non-criminal) attorney.

It’s important that anyone detained by the police ask if they are free to leave. Police can only detain a suspect for a short time—not much more than the average traffic stop—before a judge will conclude that the suspect was in custody, and thus under arrest. When police officers say you are free to leave, you should take advantage of their offer. To circumvent Miranda, police will sometimes tell suspects that they are free to leave when they really aren’t. Judges are skeptical that questioning occurred under voluntary conditions, if, for example, the police arrest you immediately after you decide to leave. Courts examine whether the questioning constituted “custodial interrogation,” and the fact that someone was not formally arrested does not necessarily mean that police do not have to give Miranda warnings.

Suspects who haven’t been formally arrested need an attorney just as much as someone who has. As I previously mentioned, it is paramount that you speak to an attorney if you are in custody.