I’m being charged with a felony! How can I get this off my record?

Although many people come to a criminal defense attorney for help when charges are first filed, a knowledgeable and skilled defense lawyer can provide other valuable services as well.

One option available in Utah that often surprises people with convictions is the option to have the level of an offense reduced, even after your sentence is completed. Utah Code 76-3-402 allows the court to reduce an offense by up to two degrees of severity. This means that if someone was convicted of a Class B Misdemeanor, they can have the charge reduced to a Class C Misdemeanor or even an Infraction. If the person was convicted of a Class A Misdemeanor, he or she can get it reduced to a Class B or C Misdemeanor. A person can even get a 2nd or 3rd Degree Felony reduced to a Class A or B Misdemeanor this way.

There are some restrictions to what you can do under 76-3-402, so consult a knowledgeable attorney to find out more.

Another option that is even better than getting charges reduced is getting them expunged. Utah Code 77-40-101 et seq. describes how expungement works. After a time, a person can have their criminal record sealed. This includes restricting access to the person’s record of arrest, investigation, detention, or conviction. Although the requirements are strict and the process is not easy, expunging a criminal record is a worthwhile goal for anyone accused of a crime.

These two processes, when combined with other criminal defense techniques, provide the accused with a clear and effective way forward through the difficulties they are facing. They are limited in what they can do, however, so speak with a knowledgeable and experienced defense attorney to see how you can use these options to the best effect.

Alcohol or Drugs + Driving = A Very Bad Idea

As a public service announcement, we at Freedom Legal unite in asking everyone in Utah to be extra careful while driving and while drinking this holiday season. This request is not at all altruistic; the life you save may be one of ours.

In the United States, the day before Thanksgiving is sometimes known as "Black Wednesday," in part because it is unofficially the busiest day of the year for bars and in part because it is the single biggest travel day. This combination can be deadly.

One thing that many in Utah do not consider before they drink and drive is the possible penalty for Driving Under the Influence (DUI). These penalties are always severe.

For a first DUI conviction, you face the following:

• A MANDATORY two days in jail, with the possibility of up to six months
• A minimum fine of $1,295.00 that could easily range up to around $2,000.00
• Assessment for drug or alcohol problems, with court ordered follow-through on all recommended treatment
• PRIME for Life, a drug and alcohol class
• Having your license suspended for 3-24 months
• Possibly being required to have an ignition interlock device on any vehicle you drive for 36 months
• Possible supervised probation

For a second DUI conviction, the penalties are increased from the first as follows:

• The jail sentence is a minimum of ten days
• The fine is a minimum of $1,550.00
• Probation will be supervised (where you report to a probation officer)
• You will almost certainly have an ignition interlock device requirement as well

For a third or subsequent DUI conviction you will be charged with a FELONY. The penalties are as follows:

• 62.5 days jail at a minimum, with the possibility of 0-5 years in prison
• $2,775 - $9,250 fine
• Assessment for drug or alcohol problems, with court ordered follow-through on all recommended treatment, with intensive treatment or inpatient and aftercare of 240 hours
• Supervised Probation
• 1 year minimum Driver License suspension
• PRIME for Life, a drug and alcohol class
• Ignition Interlock Device
• Submit a DNA sample to the State at your expense
• You lose certain rights based on a felony conviction, including the right to vote and the right to possess a firearm

We sincerely hope you enjoy this holiday season. Please be careful and considerate of others, and be safe while on or near the roads.

What can I expect at court in my criminal case?

In Utah criminal cases, the defendant (the person accused of the crime) has several kinds of hearings before going to trial. The exact process depends on whether a person are accused of a misdemeanor (with penalties up to 365 days in jail) or a felony (where the penalty can exceed 365 days).* District Courts handle felony and class A misdemeanor cases (and class B and C misdemeanor cases that arise from the same events),  while class B and C cases are initially handled in Justice Courts.

Much of this information is available at the Utah Courts website.

First Appearance/Initial Appearance

In felony (and possibly Class A Misdemeanor*) cases, the defendant’s first hearing is an initial appearance. At this first appearance, the defendant is notified of the charges and may be advised of his or her rights by a magistrate. The court also sets a date for a preliminary hearing, which the defendant may waive (choose to give up). An initial appearance can be treated as a roll call hearing as well.

Roll Call

Also in felony cases, defendants have what is called a “roll call” hearing. Traditionally this was used to ensure that the person being charged was in fact the same person who should be charged. As an example, there are probably several people named “Mary Smith” or “Jon Anderson” in a given jurisdiction, so the court wants to be certain that the right person is charged. In more modern terms, a roll call gives defendants and their attorneys an opportunity to negotiate a settlement with prosecutors before a preliminary hearing.

Preliminary Hearing

In felony and class A misdemeanor* cases, a preliminary hearing is held. In some ways, a preliminary hearing is like a “mini-trial” to determine whether probable cause exists (whether it is more likely than not) that (1) a crime was committed and (2) the defendant is the person who committed the crime. At the hearing, the judge hears witness testimony and evidence and makes a decision. If the judge decides there is not probable cause, the case is dismissed. If the judge decides there is probable cause, the defendant is “bound over” for trial, and the case is set for arraignment.

Arraignment

This is the first hearing for class B and class C misdemeanors. In felony and class A misdemeanors, this happens after the preliminary hearing is either held or waived by the defendant.

At an arraignment, the judge reads the charges to the defendant, who must then enter a plea of “guilty,” “not guilty,” “no contest,” or an “Alford plea.” As theUtah Courts website explains, “If the plea is ‘guilty,’ the defendant will be scheduled for sentencing. If the plea is ‘not guilty,’ a pretrial conference and trial dates are usually scheduled. A ‘not guilty’ plea preserves all of the defendant's options.” Further, a “no contest” plea “has the same procedural effect as a guilty plea, but rather than admitting guilt, the defendant admits that the prosecutor would likely prevail at trial.” Finally, an “Alford” plea “may be used when the defendant wants the advantage of a plea bargain, but cannot or will not admit guilt. Instead, the defendant pleads to avoid the potential consequences of going to trial, and pleads without admitting guilt.” Some judges will not accept "no contest" pleas and/or "Alford" pleas.

Pre-Trial Conference

At this hearing, the prosecutor and defense attorney attempt to negotiate an agreement. Often, this is a plea bargain of some kind where the charges or the recommended penalty are reduced. The plea bargain cannot go forward unless the defendant agrees to it. The judge is not involved in the negotiation process, but decides whether to approve the proposed plea bargain. If the prosecutor, the defendant, and the judge all accept the plea bargain, the defendant enters a plea (either at a new arraignment, a change of plea hearing, or at a disposition hearing, which are very similar things) and the case is set for the defendant’s sentencing. If a case is not settled, it is set for trial.

Trial

A criminal trial comes down to a few key parts. First, if there is a jury, the jurors will be selected. Then the prosecutor and defense can give opening statements. The prosecutor presents evidence and witnesses to prove their case, and then the defendant presents evidence to disprove the prosecutor’s case. The prosecutor can try to present proof to overcome the defendant’s claims and witness statements; this is called “rebuttal.” The judge may allow the defendant to try to rebut the rebuttal as well. After the witnesses and evidence are presented, the judge gives instructions to the jury, then the prosecutor and defendant give their closing arguments. The jury deliberates (considers the evidence and jury instructions) and makes a decision called a verdict. In a criminal case, the verdict must be unanimous. If the verdict is “not guilty,” the case is dismissed. If the verdict is “guilty,” the case is set for sentencing. The verdict may also be “guilty and mentally ill” or “not guilty by reason of insanity.” If the jury cannot come to an agreement, the judge can declare that it is a “hung jury,” declare that there is a problem with the trial that invalidates it (a mistrial), and order a new trial.

Sentencing

After a guilty verdict or plea, the defendant has the right to be sentenced in no less than two days or more than 45 days after conviction. The defendant has the option to give up that right and be sentenced on the day of conviction.

* In the recent case of State of Utah v. Victor Hernandez (link to pdf), the Utah Supreme Court stated that defendants for class A misdemeanor cases also have the right to a preliminary hearing. How this ruling affects the procedure for handling class A misdemeanors is not yet clear, however.