Natty Shafer Law

Utah lawyer for criminal and immigration cases


by 1 Comment

Getting a DUI Hearing in Utah

Photo: Landi

Photo by Landii

People arrested for a DUI in Utah could have their driver’s licenses suspended from the Driver’s License Division (i.e. the DMV), in addition to facing criminal charges. To avoid this, they must request a DUI hearing. Otherwise, the license is suspended automatically, regardless of how frivolous the arrest may seem.

Utah law says anyone arrested for a DUI has 10 calendar days to request a DUI hearing. No exceptions are made for weekends, holidays, or any other non-business days. If the DLD does not receive the request before close-of-business on the 10th day, they will deny the request for a hearing. It is very important that the arrestee send in the request as soon as possible. The request can be faxed or mailed, and it is available from Utah Department of Public Safety at this link.

Generally, it is difficult to win the hearing, but it is not impossible. Sometimes people win by default. According to the Utah Department of Public Safety, there were 5,020 DUI hearings during the 2012 year, and in 1,079 of the hearings, the officer failed to appear (a little over one-fifth of the time). Another 644 people won their hearings despite the officer showing-up. The Utah Department of Public Safety does not say, but I bet nearly all of those 644 had a lawyer helping them. Altogether, someone has about a 1 in 3 chance of winning the hearing. Those are not the greatest odds, but without a hearing there is a 100% chance the DLD will suspend.

The length of the suspension depends on the particular charge and whether a person has had previous DUIs. A first time DUI usually carries a 120-day suspension, and the penalties increase from there.

If this sounds a bit complex, well it is. That why you should hire a lawyer to do it for you. A lawyer can do all the work of submitting your request to the Utah Driver’s License Division, as well as preparing for the hearing, and giving you the best chance to keep your driver’s license.


by Leave a comment

Warrant Exceptions: Stop and Frisk

An officer is allowed to conduct a stop and frisk (sometimes called a “Terry Stop” after the Supreme Court case that established their legality, Terry v. Ohio) when it is reasonable to believe that criminal activity may be taking place or is about to take place. The Court authorized the practice with the intention of improving police officer safety. Many crimes involve the use of dangerous weapons, and so, the rationale goes, it is reasonable to search for weapons when a person may be committing a crime.

Because a stop and frisk is supposed to be a search for dangerous weapons, an officer is not supposed to investigate further into objects which are obviously not weapons. A soft, powdery substance encased in a plastic bag, for example, could not be investigated further because the officer does not have reason to believe that the object could be a threat to officer safety.

The problem comes with how nebulous an officer’s suspicions can be. The Supreme Court has specifically said the standard for whether an officer can conduct a stop and frisk is lower than probable cause (which is low to begin with). The even lower standard is a “reasonable articulable suspicion” that a crime is taking place or is about to take place.

In plain language, officers must be able to explain to judges why they believe a specific person was about to commit a crime or was in the process of committing a crime. However, the Supreme Court has not required a particularly high threshold for what amounts to reasonable suspicion. In Illinois v. Wardlow , the Court held that running away from an officer in a “high crime area” was enough to arouse reasonable suspicion. With such a low threshold, judges often find in the officer’s favor.


by Leave a comment

Getting a Public Defender

You may not know that getting a public defender in Utah is not easy. First, it has to be a criminal case, not a civil case. Second, you have to face actual jail time or imprisonment. In Utah, it is common for a prosecutor to amend the charges so that they are only seeking an “infraction” instead of a misdemeanor. Third, you have to meet eligibility guidelines based on income, which are are surprising low.

The Sixth Amendment guarantees a defendant the right “to have the Assistance of Counsel for his defence.” For over fifty years now, the Supreme Court has held that defendants who cannot afford a lawyer must be appointed counsel, but there are a few exception.

Many are not aware that you will not be appointed a lawyer in a civil case. If, for example, a person sues you for breach of contract and says you owe them $150,000, no counsel will be appointed for you. You will either have to defend yourself or figure out a way to raise the funds for an attorney. Civil cases can have severe consequences such as losing your car or home.

Second, you have to face actual jail time. A 1970 case, Scott v. Illinois, said that although a charge may be criminal, counsel does need to be appointed if the defendant is not facing jail time. Most criminal charges have at least the possibility of jail time, but prosecutors are allowed to tell judges they are not seeking jail time. A defendant’s opposition decides whether or not counsel will be appointed. Utah Prosecutors frequently amend charges down to infractions, which are lesser charges than misdemeanors. Infractions are usually small offenses like speeding, but there are real world consequences to being convicted of an infraction. A background check will often reveal convictions for infractions, and many prospective employers now routinely use background checks. A background check could easily show, say, an assault conviction from a bar fight, but the defendant is never going to get the opportunity to explain that it was “just an infraction.” Employers just hire someone else.

Finally, financial eligibility for a public defender has a lower income threshold than most people realize. In Utah, the judge should appoint a public defender for people who are at 150% or below of the federal poverty guidelines. For 2013, a single person with no dependents needs to make less than $17,235 to be appointed a public defender in Utah. Many lawyers, myself included, will lower fees for someone in such a situation, but it will not be easy to pay if you are just above the threshold.

Nonetheless, if you are in that boat, it is imperative that you get the money, perhaps borrowing from family and friends, because even a case that is “just a misdemeanor” will affect your life for years to come. Once a charge is in a computer system, it will always be there.


by Leave a comment

Warrant Exceptions: Plain View

The police are allowed to look at anything else that a regular citizen can look at. Officers legally in a place do not need a warrant to observe everything around them. While this is generally called the “plain view doctrine,” nothing prevents officers from using all of their senses to listen, feel, or otherwise observe, and if the incriminating nature of the object is obvious, seize it. (For the rest of this post, I will use the sense of “sight,” as a shorthand for any of the senses.)

Once officers see contraband, assuming they are legally present, they can seize it. The incriminating nature of the evidence has to be immediately apparent. Any further sleuthing by the officer is not allowed, such as moving a stereo to check its serial numbers. But something like illegal drugs, which are always illegal, can generally be seized.

An officer can even seize contraband in situations where they are on private property. For example, an officer does not need a warrant to seize a marijuana plant growing on someone’s property, even if there is a wooded fence keeping intruders out. Because anyone could see the plant, the police can also seize it or use the information for an arrest warrant.

The phrase “plain view,” can be a little misleading. Often, the incriminating item is not in “plain” view, but it is visible. For example, officers can press their noses to a car window and contort their heads to look for evidence. If an officer saw a loaded firearm, that would qualify for the plain view exception, even though most people would believe that the officer’s necessary contortions show that the firearm may have been in view, it was not in plain view. The bottom line is that an officer is not forbidden from seeing what anyone else can see, and anyone else could do the same thing, obnoxious manners though it would be.


by 2 Comments

The Date of Independence Day

Lee's Resolution, which declared, "these United Colonies are... free and independent States...."

Lee’s Resolution, which declared, “these United Colonies are… free and independent States….”
(click to enlarge)

Tomorrow is Independence Day, and Utah, like every other state, will participate. However, the fourth day of July, in terms of American Independence, is not particularly important. The Continental Congress declared independence on July 2, 1776 when it finally voted on and passed the Lee Resolution. Contemporary newspapers immediately reported the news, making the delivery of a written declaration a mere formality, which did not even happen until November 1776.

Indeed, John Adams thought July 2 was the day that would be celebrated. In a letter dated “Philadelphia July 3d. 1776,” Adams wrote to his wife, Abigail:

The Second Day of July 1776, will be the most memorable Epocha, in the History of America. I am apt to believe that it will be celebrated, by succeeding Generations, as the great anniversary Festival. It ought to be commemorated, as the Day of Deliverance by solemn Acts of Devotion to God Almighty. It ought to be solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations from one End of this Continent to the other from this Time forward forever more. 

To his credit, Adams more or less foretold how we would celebrate Independence Day, but he selected the wrong date. So why do we celebrate July 4? The date of July 4 is the day the draft of the Declaration of Independence was approved. Thomas Jefferson was such an elegant and moving writer that the Declaration of Independence, instead of being a mere legal formality, turned out to be one of the most important political documents ever. When the date July 4, 1776 was affixed to the top and copies circulated throughout the colonies, July 4 became the date the public remembered. In 1870, when Congress first declared several days as national holidays, it selected July 4 as the day for Independence Day.


by 3 Comments

Another Reason Not to Talk to Police

With yesterday’s decision, Salinas v. Texas, the Supreme Court has unwittingly shown once again why you should never talk to the police. The defendant in that case, Genovevo Salinas, went into the police station with the understanding the police were trying to clear him as a suspect. As should be clear from the record, the police had no intention of clearing him. They wanted him to incriminate himself. Salinas continued answering their questions until the police asked if the shotgun in his home “would match the shells recovered at the scene of the murder.” At that point Salinas stopped talking.

At his trial, the prosecutor used Salinas’ silence as proof he was guilty. He asked the jury to infer that an innocent person would have protested their innocence. It should go without saying that for the privilege against self-incrimination to mean anything, silence cannot be proof of a person’s guilt. With yesterday’s decision, the Supreme Court said there was nothing improper about the prosecutor’s comments. According to the Court, Salinas needed to specifically state the magic words, “I’m going to exercise my right to remain silent.”

How a non-lawyer is supposed to know what magic words to utter is beyond me. There are just too many things a layperson cannot know and therefore should never attempt to talk to the police without a lawyer. This is equally true if you are innocent. Remember, the police already think you are guilty, or they would not be investigating you. No matter how eloquent you think you are, the police have more practice at interrogation.


by Leave a comment

Warrant Exceptions: Automobiles

Another category of exception to the warrant requirement is the automobile exception. Generally, a police officer can search any part of the car that they have probable cause will uncover evidence of a crime.

It dates back to the 1925 case Carroll v. United States. Despite its rather long history, it is is one of the more frustrating exceptions. The Court originally created the exception because of the mobility of cars and how easy it would be to make evidence disappear if officers waited for search warrants. The exception has expanded so now officers do not have to show there was a risk of evidence being destroyed, and an officer can search areas a weapon could conceivable be reached.

Back in 1925 when the Court crafted the exception, automobiles where a luxury that only a few people owned. Now, they are so ubiquitous that most adults own one. Many people treat their cars similarly to how they treat their homes. They keep clothes, food, toiletries, and countess other personal belongings inside. The Court, however, still treats the automobile as a unique technology that requires a special area of the law. Indeed, even mobile homes someone currently lives in are subject to the automobile exception.

Because a judge may second guess whether the officer had probable cause at the time the search, it is standard practice for officers to ask for consent to search a car; a warrant is never needed if a person voluntarily consents to a search. Even without consent, an officer with probable cause can use the automobile exception.

One may ask themselves at this point, “What difference does it make if I refuse consent, if the police officer can just search my car anyway? First, assuming the person is innocent of any wrongdoing, then the encounter ends sooner. For people who are completely innocent, it is more likely that the police lack probable cause to search the car and will have to let them go. If someone tells the police to go ahead and search, the search can last for upwards of an hour. Second, for people who do have something to hide, by refusing consent they have given their lawyer something left to argue: namely the officer lacked probable cause to search the car.

Consider the most common form of police encounter: the speeding ticket. When an officer stops someone for a speeding ticket, the chances of there being probable cause to search the car are very low. An officer can search a person to secure their safety, but they will need some evidence to show that they had reason to fear for their safety. Furthermore, the officer is not going to be able to search the trunk, a locked glove box, or other areas where neither the driver nor passengers can reach because there will be no evidence to uncover. All the evidence of speeding has already happened. If the officer searches anyway, there is a good chance a judge would suppress the evidence.

There have been some hopeful steps recently. A 2009 case, Arizona v. Gant, was the first case in a long time that narrowed the exception. The defendant in that case had already left his car when the police approached him and arrested him. The Court ruled it was illegal to search his car under those circumstances. It was a small step, but generally the Court had a history of making the automobile exception larger and larger.


by 1 Comment

DNA Can Be Taken for ‘Serious Crimes;’ What’s Next?

This Monday, the Supreme Court ruled that states may collect DNA from people who have been arrested for “serious crimes.” By itself, the case of Maryland v. King is only somewhat concerning if the Court stays true to its word, but, as with many precedents, the Court could build on it. The Court did not define what “serious crimes” are, which leaves open the possibility of nearly any crime being defined as “serious.” After all, our elected leaders thought the crimes were serious enough to make them illegal. In the future, public intoxication might be considered serious.

Incidentally, I do not take a “slippery slope” argument lightly. Sometimes people see a slippery slope where there really is not one. There can be many intermediate points before a supposed inevitable conclusion. What do I mean? Consider a hypothetical city considering raising its speed limit by five miles per hour on a 4 lane thoroughfare. Those in favor of the increase argue that it can be done safely and improve traffic flow. Those against it argue that if they raise the speed limit 5 mph, there is no end to how high it can be raised, and pretty soon people will be driving 65 mph on a city street. Here, the slippery slope argument is fallacious because each time the city raises the speed limit, a new assessment of safety and speed would be in order.

On this particular issue, however, I believe I am on safe ground to wonder if the Court is treading on a slippery slope. The only guidance the Fourth Amendment gives on the issue of search and seizure is that it must not be “unreasonable.” With such flimsy guidance, the Court has walked down the slippery slope before and in essence said, “we took a step along this path before and that was not unreasonable so it is not unreasonable to take one more step.”

The new rule only negatively affects the people who would have been acquitted of their crimes. In Maryland v. King, the defendant Alonzo King was convicted of assault. It was only a matter of time until Maryland took his DNA as a result of his conviction. Now, everyone who is arrested for a serious crime—whatever that is—might have their DNA information permanently on file. Soon, it will be possible to use that information to implicate a family member as well as the arrestee. Since people related biologically share several DNA markers, it is only a matter of time until someone is held on a serious crime, acquitted, and then unknowingly implicates their loved family member. It is a good bet that a judge will find “probable cause” to take DNA samples of everyone who could be guilty.


by 1 Comment

Warrant Exceptions: Exigent Circumstances

Another exception the search warrant requirement is “exigent circumstances.” Exigent circumstances are situations where immediate action is necessary because a delay would result in irrevocable harm. It would take too much time for an officer to get a search or arrest warrant. Such situations include: imminent danger to life, serious damage to property, possibility of a suspect escaping, or destruction of evidence. Of these four broad categories where exigent circumstances could be said to exist, it is the last one that is problematic. Most people, I believe, would not object on principle to officers going into homes where they hear gunshots being fired. The “destruction of evidence” category is so broad that far too many situations can become exigent circumstances.

When officers use the exigent circumstances exception to enter property, they are only supposed to take steps to end the emergency. The officer can retrieve and secure any evidence found in plain view, but cannot conduct a full search. Once the situation is stabilized, the officer is required to obtain a search warrant to continue searching for evidence. However, if the exigent circumstance is the destruction of evidence, the situation is not stabilized until the officer has secured the evidence. The officer is going to search the area around all the suspects and examine what they were hiding or how they were planning to destroy evidence.

Since illegal drugs are easily destroyed, exigent circumstances can occur in too many situations. In Kentucky v. King, the Supreme Court held that the exigent circumstances doctrine applies when the police do not “violate the Fourth Amendment or threaten to do so.” In other words, if the police have not conducted an illegal search before they knock on your door, anything that happens afterward could potentially fall within the exigent circumstances exception.

In King, the police broke down the door—without a warrant—of the defendant’s apartment. The police said they smelled burnt marijuana and knocked on the door, at which point they heard things being moved inside the apartment. If that is all it takes to create exigent circumstances then the police really have license to break into many people’s homes. All they have to do is testify that they smelled a narcotic and heard something moving inside. One can imagine a completely innocent person using a toilet for its intended purpose and hearing a knock on the door. If the officers suspect the occupant of committing any crime that would leave behind concealable evidence, flushing the toilet, presumably, would give police license to break down the door.

I’m not sure how to keep the police from breaking down your door once they have knocked on it. All I can tell you is that I would not make any quick movements.


by 4 Comments

Warrant Exceptions: Consent

Perhaps the largest category of exceptions to the warrant requirement is consent. If you voluntarily tell police officers that they can search you or your belongings, that is all the permission they need. They can search anything and everything if you allow them. On an intuitive level, there is nothing really wrong with this. If we tell someone they can search us, we cannot really complain about what they find. To the degree that the consent it truly voluntary, I agree with the consent exception. However, I am skeptical about how voluntary it is and am skeptical that people consent as often as police officers claim.

An officer is under no obligation to tell someone that they can say, “no” to a request to search. At the outset, this makes it questionable about whether a person has truly consented to be searched, and most police officers endeavor to make it sound as though they are just being polite when they ask for permission. Before officers ask for permission, they will frequently ask a somewhat incriminating question, such as, “you don’t have any weapons or drugs on you?” After the person denies possession, the officer will say, “so you won’t mind if I look around your car for a bit?” Most people would answer a bit differently if they knew what was really being said: “Before I can search you for illegal items, I need your permission so please give it to me.”

Suffice it to say, you do not want to give an officer permission to search you or your belongings. I do not let strangers rifle through my belongings or search my pockets, no matter how well meaning they are. Neither should you. Politely tell the officer that you will not consent to a search and you would like to leave. The officer might not let you go, but it is important to make your lack of consent clear. You give yourself a chance to end the encounter sooner and the majority of officers feel constrained by your refusal. There are times that officers can think of other warrant exceptions, but by refusing consent, your lawyer can argue the legality of the exception. There are also times officers believe probable cause exists for a judge to issue a search warrant, but then you have a third party deciding the legality. There is not much left to argue once a citizen gives consent.

Unfortunately, some officers will ignore a person’s refusal entirely and plow ahead as though the person had given consent. Equally problematic, judges give officers the benefit of the doubt during a suppression hearing. When a police officer says that a person consented, judges tend to believe the officer, regardless of how illogical or implausible the story is. This is despite the burden of proof ostensibly residing on the government to show that there was consent for the warrantless search.

To some degree, smart phones are able to combat this problem. The ACLU chapters in some states offer apps that record police interactions. The app hides the record icon and makes it difficult to find the recorded file so an officer cannot just delete it. A user can send a copy of the file to the ACLU for backup. I hope that this app or a similar app will spread to Utah, and that the possibility of recording will deter officers from lying about consent.