Natty Shafer Law

Utah lawyer for criminal and immigration cases


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Utah’s Same-sex Marriages Eligible for Immigration Benefits

Last Friday, the Department of Justice released a video (embedded below) that states explicitly the federal government will treat Utah’s same-sex marriages as “lawful and considered eligible for all federal benefits.” Currently, same-sex marriage licenses are not being issued in Utah, but couples that are already married are eligible for immigration benefits. Among those benefits are a higher priority for the receipt of green cards (i.e. permanent resident cards) and a shorter wait time to become a U.S. citizen.

For couples who can no longer become married in Utah but would like to be, it is possible to be married in other states. New Mexico and California are the closest states that currently perform same-sex marriages. Although Utah will not recognize those marriages either, the federal government will. The federal government recognizes marriages that were legal at the time the were performed, regardless of where the couples move or travel afterward.


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Utah Considering Lowering Legal Alcohol Limit

The Utah legislature is considering a bill that would lower the legal blood alcohol content (BAC) to .05, KUTV’s Rod Decker is reporting. It was inevitable that Utah would be among the first states to consider the change once the National Transportation Safety Board (NTSB) announced last May it was recommending a .05 BAC legal limit. Utah legislators are always quick to act whenever it allows them to appear more moral than their peers. With NTSB’s endorsement, Utah may not pass the law this legislative session, but you can bet that in the coming years it will happen.

Even though the change may be inevitable, that does not mean it is good policy. To borrow a term from economics, this is not the “lowest hanging fruit.” Utah consistently ranks among the bottom states in per capita DUI fatalities. To promote driving safety, Utah would have better results if it attacked other unsafe driving practices first: speeding, drowsy driving, or cell phone use. Every time a police officers pulls over a motorist, their attention is diverted away from policing anyone else. If officers start using resources to arrest someone with a BAC between .05 and .08 (the current legal limit), they may be missing out on a more serious offender. We have likely reached the point of diminishing returns where each incremental increase in DUI laws no longer yields a significant improvement in driver safety.


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Handling the Traffic Stop

At one time or another, nearly everyone will have a police officer pull their car over. While it is never going to be a great experience, there are steps you can take to prevent it from becoming a disastrous experience.

The most important step is that you remain cordial and polite to the officer. Address them as “officer” or “sir/ma’am.” The best case scenario for every traffic stop is that the officer lets you go with a warning. Politeness never hurts when a police officer is deciding whether or not to ticket you, and a police officer can nearly always find more citations to add. Do not give an officer reason to do so.

Next, to the extent possible, you want to decline to answer any questions. Yes, this can be done in a polite manner. You are required to give your driver’s license and proof of insurance when you are pulled over, but you are not required to answer questions. Almost immediately an officer will start asking questions, such as, “Do you know why I pulled you over?” Or, “Where are you coming from? Where are you heading?” Regardless of how you answer, the police officer is going to enter it into the computer and it will appear in their police report. If you have any intention of fighting the underlying charge, you do not want the officer to remember your answers. It will help the officer to distinguish you from the many other people they have pulled over. Months can pass between a citation and the trial, and it is quite possible that an officer will not remember anything about you. If an officer is honest with the judge, the case may have to be dismissed due to lack of evidence. Also, you do not want to help the prosecutor with your answers. The answers you give will help the prosecutor tell a narrative about how the traffic incident occurred. Without that narrative, a prosecutor has to tell a very boring story that begins and ends with the traffic citation. Neither judges nor juries give such stories much weight.

It should go without saying that you never impugn an officer’s motives. Most officers are just doing their jobs. Even if they are wrongly accusing you, chances are that it was an honest mistake.

Finally, you do not want to do anything to add further charges. Remain in your seatbelt, and turn off the car engine while you wait for the officer to approach. Do not consent to have the officer search the car; you are not required to consent and nothing an officer finds is going to help you. For the same reason, do not submit to field sobriety tests. You do, however, have to submit to a chemical test if an officer arrests you for a DUI. You will know you are under arrest after the officer tells you. Refusing to take a chemical test (a breathalyzer, urine analysis, or blood test) carries harsher penalties than the underlying DUI.

Following these simple steps may not prevent you from receiving a traffic ticket—the severity of the alleged offense will be taken into account—but they will improve your chances at prevailing during a trial and reduce the likelihood of additional charges being added.


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Meeting People on Their Worst Days

Compassion is a necessary part of being a criminal defense lawyer. We meet people on some of the worst days of their lives. Regardless of whether or not they are guilty, being charged criminally is a scary situation. My first job when meeting a new client is to reassure them that all hope is not lost, and they are taking the right steps to secure the best outcome possible for their case.

The next step is to dispel misconceptions. Criminal law is unusual in that unlike other legal fields, most people think they have a pretty good handle on the legal process. TV shows generally cut out the tedium of court appearances, filing motions, or waiting for the next court date. TV shows also tend to focus on the most serious crimes, which are a small percentage of all criminal cases prosecuted. I see it as my job to explain the law to my clients and explain possible outcomes to them with compassion and understanding.

During that conversation about the law, I let my clients explain to me about their personal lives. There is no greater expert on what clients want than the clients themselves. People have different expectations and desires when they hire an attorney. Some clients want to see a case concluded as soon as possible. It is my job to explain the possible drawbacks and balance their desires against the need to have a favorable outcome. Other clients want to fight every step of the way. Because I enjoy going to trial, that is a desire I am willing to accommodate. All people charged with a crime should make sure they hire a lawyer willing to listen and willing to walk them through the legal process. A good lawyer has the ability to make the worst day of someone’s life just a little bit better.


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Same-sex Marriage in Utah

At least for the time being, Utah now has same-sex marriage. Federal Judge Robert Shelby ruled that Utah’s ban on same-sex marriage is unconstitutional. He wrote, “Applying the law as it is required to do, the court holds that Utah’s prohibition on same sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process under the law. The State’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional.”

Judge Shelby did not put a stay on his order, which means it is effective immediately. You can bet that the state of Utah will appeal to the United States Court of Appeals for the Tenth Circuit, but same-sex marriages are being performed today. That complicates any appeal and will make it interesting to see how this case develops. The logic of Judge Shelby’s opinion could apply equally to every state. The Tenth Circuit is generally considered a conservative appeals court; Judge Shelby was appointed to the federal court by President Obama.

On a personal note, I am pleased that there is a little more love in this world. Congratulations to all the newlyweds and best wishes moving forward.


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The Slow Wheels of Justice

It can take a significant period of time for a criminal case to resolve. The initial appearance in court can be weeks after an arrest, and then there may be several more dates after that (preliminary hearings, pretrial conferences, and suppression hearings are among the more common pretrial court appearances in Utah). Each court date can be weeks or months apart, meaning months or years can pass between an initial arrest and the final disposition of the case.

Crime shows on TV often say, “delay is always good from the defense.” I am not so sure. That may be the case in certain types of cases that require a lot of witnesses the government needs to contact and ensure they remain willing to testify. Most cases have just a few witnesses, which usually include government employees, such as the arresting officer, and the prosecutor can easily contact all of them. Many cases have just one civilian witness and some cases, like a DUI case, might involve no civilians. Government employees are often paid their normal salary to testify, especially if it is part of their work description as lab technicians or law enforcement officers.

Many prosecutors are in no particular hurry to resolve cases. The more populated counties in Utah have multiple prosecutors in each department and a different prosecutor might handle each court hearing for an individual case. Prosecutors are evaluated on the outcomes of cases and not necessarily on how long it takes for each case to resolve. Consequently, a prosecutor has less incentive to hurry and close a case than to make sure each case sees a favorable outcome for the government; a prosecutor could get in trouble for giving a favorable settlement to the defendant, but prolonging a low profile case for many months is rarely going to be an issue for the bosses.

Defendants, on the other hand, have every reason to want a case to come to a close. The defendant is expected to appear at each court date, possibly requiring time off work. Each appearance involves some degree of stress because it is impossible to know what will happen in court. I try to reassure my clients about the most likely outcomes, but it is hard for people to stay positive in an unfamiliar situation. I have had some clients lose their motivation to fight any longer, particularly in misdemeanor cases. Often their lives have more or less remained unchanged after the arrest, but they are tired of the hassle of repeated appearances in court. (Unfortunately, many consequences of a misdemeanor conviction do not manifest until many years later.) For defendants who are in police custody, taking a plea deal will mean there is a definitive end to incarceration instead of endless court dates eroding morale.

A client has the constitutional right to decide whether or not to accept any given plea deal. A lawyer must abide by that decision, but I will encourage a client to keep fighting if I think it is in the client’s best interest. The bottom line: patience will help get the best outcome.


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Shoplifting in Utah

Shoplifting is a crime that is most often committed by young, middle class people so it is fairly common for the accused to worry that it is going to affect the rest of their life. Utah’s Retail Theft law lists a number of different ways that someone can “deprive the merchant” of property and thus be accused of shoplifting. In plain English, those ways include:

    1) Taking merchandise from a store without paying
    2) Swapping price tags on items to reduce the cost
    3) Hiding merchandise in another container to avoid paying for it
    4) Intentionally under-ringing at the checkout
    5) Stealing shopping carts

More than any other crime, people accused of shoplifting are quick to admit that they did it. Usually they preface it with, “I did something really foolish…” and then they want to know what penalties they are facing. The good news is that a first time offender can often avoid jail time, but that bad news is that any criminal record carries long term consequences and may affect a person’s employment, present or future.

The best way to avoid a record is to avoid a conviction—having a lawyer substantially helps—but that is not always possible. In Utah, there are other ways to avoid having the shoplifting charge appear on a background check. The most common way is a “plea in abeyance” which means the court takes a person’s plea and then holds the plea in a suspended state (i.e. “in abeyance”). If the person complies with the terms of their plea agreement, at the end of the probation period, the charges are dismissed. The probation period can be up to 18 months under Utah law, but most prosecutors prefer terms of 12 months or 6 months. After the charges are dismissed, a person can have their record expunged so that the charge no longer appears on a background check if a potential employer or anyone else looks.

For anyone accused of shoplifting in Utah, hire a lawyer immediately that has handled such cases. It is the best option to avoid a black mark on an otherwise clean history.


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On the Phrase ‘Not Guilty’

For at least a few people, there is an initial reluctance to say they are “not guilty” at an arraignment. They are not interested in going to trial and have hired a lawyer just to mitigate the damage. They feel it is dishonest to say they are “not guilty” when they are guilty, but, legally speaking, when people say they are “not guilty,” they are not necessarily asserting their innocence. It is a little more nuanced than that. Instead, it means that someone is putting the government to their burden of proof and making them prove everything that a charge entails.

A plea of not guilty can later be amended to a guilty plea, but the reverse is not true. Once a guilty plea has been entered, there are limited situations where a guilty plea can be undone. Even if the ultimate goal is to take a plea offer, a defense lawyer needs something to negotiate. A potential guilty plea often is the best bargaining chip.

Incidentally, saying “not guilty” does not have to be limited to courtroom settings. Interactions with police officers could also be an occasion for saying, “not guilty.” Whether it stems from a simple traffic stop or a more serious allegation, the phrase is different than an outright denial. There are numerous laws, covering many situations, which make it illegal to lie to police officers. The technical meaning of the phrase leaves open the possibility that someone is not actually denying the allegation. Some people find this more comfortable to say than asserting the right to silence, which they believe makes it sound like they are hiding something. Regardless of which option people choose, it is a good idea to choose one and let the officer know that they heard the question. Also, the Supreme Court has said that people must affirmatively assert their right to silence if they have not been arrested yet.


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What to Expect at the DLD Hearing

Earlier, I wrote about requesting a hearing at the Utah Driver’s License Division and how it is necessary for anyone cited for a Utah DUI to keep their driver’s licence. This post addresses what to expect at the actual hearing.

The hearing will be right at the DLD, the same place where people are standing in line to receive their driver’s licenses. Each office in Utah is a little bit different, but it is usually off to the side, with several offices for the “hearing examiners.” The attorney lets someone know that the defense is ready. Before the hearing begins, the hearing examiner may give various documents to the lawyer. For suspects who had their blood drawn, a toxicology report may be among them. Toxicology is a preliminary report that shows alcohol content, as well as the presence of certain narcotics that could lead to a Metabolite DUI.

The arresting officer usually telephones into the hearing instead of appearing in person. Once the officer has alerted the DLD they are ready, the hearing officer will usher everyone else into their office. If the officer is on the phone, the hearing examiner will put them on speaker phone so everyone can hear. Remember though, in about one-fifth of all Utah DLD hearings, the police officer fails to appear and the accused wins by default.

The hearing will observe some of the rules of a courtroom, but it is going to be a lot less formal. Usually, everyone is sitting around a desk with a land-line telephone in the middle of it. The questions do not follow the strict protocol required of courtrooms. The hearing examiner—who works for the DLD—will act as both the judge and jury. They are in no way impartial. Their bosses at the DLD review their decisions and are in charge of promotions and other incentives. The hearing examiners are inclined to believe the arresting police officers.

During the hearing, the officer needs to establish 2 things: 1) the suspect was “in actual, physical control” of the vehicle; and 2) the basis for believing the suspect was under the influence. Usually, the officer will establish the suspect was in actual, physical control by testifying the suspect was driving when they pulled them over. Other times, the officer will need to testify their basis for belief the suspect was in control, such as that they came to the scene of an accident or they approached a car with someone asleep with the keys in the ignition. To establish that someone was under the influence, officers will introduce a chemical test: a breathalyzer, blood test, or urine analysis. The officer may also testify about any field sobriety tests that were conducted.

After the police officer has given their narrative, the hearing examiner may ask some clarifying questions. The attorney will have the opportunity to question the officer next. Then the hearing examiner will give the suspect a chance to testify. Generally, it is not a good idea for the suspect to testify because hearing examiners rarely give such testimony any weight. Any discrepancies between the police officer’s testimony and the suspect’s testimony are usually resolved in the officer’s favor.

Assuming the officer does call-in to the hearing, having a lawyer is really critical for you to have any chance of prevailing at the DLD hearing. Laypeople frequently hurt themselves at the DLD hearing. Their testimony will be under oath, so anything they say could be used in a later court proceeding. Furthermore, laypeople tend to let irrelevant issues cloud their emotions and miss the pertinent issues. Only a lawyer who has seen a Utah DLD hearing before will be familiar with the facts that could decide the case in your favor. No one wants to have their driver’s license suspended for four months.


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Robbery Suspect Cleared after Real Perpetrator Strikes Again

The Layton, Utah police department had a Utah man in custody who they suspected of robbing his former employer, a gas station and convenience store, according to the Deseret News. Undoubtedly, he would still be a suspect if the real perpetrator had not robbed the store while he was in jail.

Their suspect apparently told them that he had “talked” about robbing the Layton, Utah store before, but he denied actually robbing the store. The store surveillance video showed a man with the same height and build robbing the store, but the face was not clear on camera. The person working at the Layton store identified him from a photo lineup. Add to those facts that he used to be an employee of the store, and a prosecutor could have easily obtained a conviction. His “confession” would be just too much for many Utah jurors to get past.

Never talk to the police without a lawyer present. They already think you are guilty or they would not be questioning you. You need a lawyer with experience in Utah. Hire an attorney who understands Utah’s courts.