Art credit:Chuchy5
When I was a teenager with a brand-new driver’s license, my only form of rebellion was to straddle the lane dividers and drive in both lanes late at night when there weren’t any other cars (especially police cars) around. Clearly, I was not a rebel. I did it because I was taken by the idea that I could choose to drive outside of my lane, in violation of the law and in spite of what my driver’s ed teacher had pounded into my head, and there weren’t any consequences. The moment I crossed the dividing line, I would tense for a moment, expecting flashing red lights and a bullhorn telling me to get back in my lane immediately before something exploded and people died. In reality, of course, it doesn’t matter where you drive on the road unless there are other cars around.
This is a metaphor for the power of the law; which is astounding in some ways, but impotent in other ways. Much like the Dollar, the law has no power except in our mutual respect for it. It is important to understand this when you are looking for a lawyer to get you any kind of civil, domestic, or protective order. Clients tend to think that I can fix their problems by getting a judge to tell their bullies to knock it off. They are not completely wrong, but they are not completely right either.
If someone is unlawfully bothering you, putting you in danger, owes you money, or is threatening your property, then a lawyer can probably get a judge to tell them to stop – but what does that mean? All you would have at that point is a piece of paper. And that paper doesn’t mean much more than the lane dividers on the road. Which is to say that if it’s late at night, and there aren’t any police around – it’s useless.
This realization has come to me gradually throughout my practice as an attorney. But I’ve really been thinking about it recently because of a few cases I’ve had. Without going into any detail that would infringe on attorney-client privilege, these cases are as follows: a stalking case in which a very dangerous individual with extensive criminal history would not leave a young woman alone; a custody dispute in which the non-custodial parent kept the kids at their residence out-of-state and plainly refused to let them come home; and a divorce case in which an enraged spouse showed up at my client’s house during Christmas dinner, causing a scene and refusing to leave.
These cases exhibit the terrifying situations my clients face. And sadly, my efforts to alleviate them are insufficient in themselves. An order from a judge will not physically prevent a stalker from watching you. It will not keep your soon-to-be ex-spouse away from your house. And it will not magically pull money out of your debtor’s bank account and put it into yours. The order relies on other agencies, namely the police, to execute it. The sad truth is that most times it will not be enforced the way you want it to be. The police will not, for example, circle your house looking for your ex, no matter how legitimate a threat they pose to your safety, and any lawyer that makes you feel differently should be avoided.
No one knows how useless the law can be better than lawyers. In many ways we really do live in the wild-west where others can take what they want from you, unless you physically prevent them from doing so with fences, locks and watchful eyes. So when you’re looking for an attorney, be wary of the ones that promise the moon and stars, or act as though a word to a judge will stop your tormentors – they cannot deliver on these promises. Buyer beware: when it comes to enforcing a judge’s order, you may be on your own in some cases.
This does not mean that the legal system is useless, it just means that it is not a complete defense. Often times you need a lawyer to help you get an order from a judge. It is just that this is the first step to protecting yourself, not the last. In the meantime, you also need to temper your expectations of what a judge’s order can do for you, and take the initiative to cover your interests in other ways.
I’m a criminal defense, family, and bankruptcy lawyer located in Salt Lake City, and serving clients throughout Utah. Please give me a call at (801)200-3795 if you have legal concerns such as the ones discussed in this post.
So, yeah it only took like 3 years or so for them to finally do this…but it looks like UHP is finally going to fire Lisa Steed. Greg Skordas says she wants to keep her job, and is “willing” to be transferred. Believing in second chances is sort of part of the job description for a criminal defense attorney, but even I get sick to my stomach thinking about what the chances are that UHP is going to reconsider their fist logical decision in the last 36 months.
The story is all over the smaller Salt Lake valley and Ogden area newspapers, but it can also be found here in the San Francisco Chronicle. Now how ’bout that, the corruption and incompetence of UHP is national news! Maybe it will help us get the Olympics again.
The Chronicle story states that Steed’s credibility has been questioned since the ruling in April…but this has been going on for much longer than that. In fact, the ruling in April was the result of her ever increasingly questionable credibility.
I defend DUI charges, and other Criminal charges in the Salt Lake City area, and throughout Utah. If you’ve been charged with a DUI give me a call at 801.200.3795, or click here to visit my website.
For all the advocating I do for criminal defendants, and all the debate I get into about the problems with politically charged drunk driving laws, these kind of statistics are scary. These numbers militate against what I talk about on this blog on a daily basis, but I think it would be irresponsible for me to ignore them. The truth is that part of the reason fighting DUIs is such an uphill battle is because people are afraid of safety risks involved with them. Which is why I was so disappointed when I read the headline in the Tribune: DUI deaths rise in Utah.
The thing that is particularly troubling about these statistics is why they rose, because “The Utah Highway Patrol last year shifted from a year-long special focus on catching drunken drivers to enforcing speed limits and seat-belt use instead.” I.E. more drunk drivers on the road suggests more deaths – 56% more according to the numbers.
I’m not going to question the accuracy of this article. The usual arguments are irrelevant. It doesn’t matter how the statistics were gathered, what constitutes “drunk” driving, whether the statistics take into account which party (the drunk, or the non-drunk?) was at fault, whether the breath tests are accurate, or whether .08 is a logical place to draw a line between impairment and safety. The point is very simple: when the cops arrest less people for DUI, more people die in alcohol related accidents.
As a Salt Lake City DUI defense lawyer, this troubles me. But I still believe in what I do. My job as a criminal defense attorney is not to keep drunk drivers on the road, it is to make sure that people who aren’t drunk, don’t get punished for driving drunk, and to make sure that those that are driving drunk have an advocate so that they are punished fairly and according to the law – not burned at the stake.
Moving forward, there are some things you should be aware of. If you are a drinker, and you ever drive with any amount of alcohol in your system, this news will affect you. I know, you think that you are safe and responsible, and you’ll never get arrested for a DUI. Well, I hate to say it, but my bills are paid by people who thought the same thing. I’ve said it before, and I’ll say it again: if you’re driving late at night, you’ve had anything to drink at all, and you get pulled over, you are very likely to end up getting a DUI, whether it’s justified or not.
This is doubly true in light of the rise in DUI fatalities this year. DUI deaths are not good for politics. Law enforcement in Utah will now be returning their focus to DUI arrests. In fact, they will probably be arresting more people than ever before. And, really, can we blame them? I would be astounded if we don’t see more DUI arrests in 2013 than we did in 2011, when they focused heavily on DUI enforcement. So consider yourself warned!
I defend DUI charges, and other Criminal charges in the Salt Lake City area, and throughout Utah. If you’ve been charged with a DUI give me a call at 801.200.3795, or click here to visit my website.
I swear I’m not trying to turn this into a Lisa Steed fan blog. But I just can’t help writing about the new ridiculousness that just surfaced.
So, I’ve talked before about embattled UHP trooper Lisa Steed. To sum it, Lisa started this journey as golden child UHP Trooper of the Year (from what I hear this is not as cool as Playmate of the Year, but pretty close) who arrested orders and magnitudes more drunken drivers than her fellow law enforcement agents.
After a while, concerned people, defense attorneys in particular, started getting suspicious about Steeds massive arrest numbers.
Meanwhile, she tased a kid who was sitting in his car because he asked to speak to a lawyer, and for some reason the public started to wonder about her.
As it turns out, there was quite a bit of shadyness surrounding many of her arrests. For instance, her microphone would be turned off, or she would take suspects outside of the view of her patrol-car camera during DUI investigations. The more Utah defense attorneys learned, the more they attacked her credibility, and her arrests.
It all came to a head earlier this summer when prosecutors offices started refusing to charge people she arrested, and the Salt Lake County Prosecutor’s Office started reviewing dozens of her previous cases. To put the icing on the cake, she was forced to admit – in open court, and on the record – to lying, and purposefully disobeying UHP DUI arrest procedures.
Well, I thought we were pretty much done with the Lisa Steed saga, but lo, behold what has happened now: a internal UHP memo has surfaced, evidencing that Utah DUI attorneys were not the only ones freaking out about Lisa Steed. Take a look at the memo, it’s short, and enraging.
It looks like a fellow UHP trooper became suspicious about Steed’s DUI arrests – particularly the ones involving marijuana – and started looking into it. He was nervous because Steed’s arrest reports repeatedly claimed that suspects exhibited the same signs: dilated pupils, tremors, lack of convergence, and red conjunctiva; and yet, many (more than half) of the chemical tests performed during these arrests were coming back either negative for marijuana, or positive only for its metabolites (meaning the drug would have already gone through the suspects system).
The best part of the memo is where the author states, “This is something that needs to be addressed before defense attorneys catch on and her credibility along with the DUI squad’s credibility is compromised.” Well, this memo is dated May of 2010…so UHP had months before defense attorneys started ‘catching on’ and the buzz around Steed started really heating up…and they.blew.it. In fact, she was still on street patrol until earlier this year! Nice job guys.
If true, the allegations against Steed are terrifying. All of the symptoms that Steed was continually reporting on her DUI drug cases were subjectively based. The prosecutors charging defendants, and the Courts hearing cases put their trust in the credibility of police officers because, with DUIs in particular, almost all of the evidence against a person comes from the subjective opinion of the arresting officer. What this means is that it is very easy for officers to lie, and get people convicted of DUI. In Steed’s case, it seems that she had a tendency to decide (assume?) that someone was too impaired to safely operate a motor vehicle whether or not the evidence showed this to be the case—so she would just lie if she had to.
This is the ultimate example of police abuse and misconduct, and it is the very thing that landmark Constitutional rulings such as Miranda, Brady, Terry, etc. are concerned with preventing.
Court Koehler is a Criminal Defense and DUI attorney located in Salt Lake City, Utah. You can check out his website here.
When I was a kid I used to love the “you make the call” segments on Monday Night Football. For those of you who aren’t football fans, “you make the call” was a segment where they would show a play involving either a close call, or an obscure rule at the beginning of a commercial break, and they would challenge the viewers to become the officials and identify the correct call. Then at the end of the commercial break they would come back and tell everyone the correct answer.
I really wish that they still did this segment – this season especially. Given the current state of the officiating with the replacement refs, I bet we could come up with some real gems. But I digress.
I just read a decision that I love. It came down earlier this year, but I hadn’t heard about it until now. Anyway, I want to do a “you make the call” with this decision, because as a criminal defense attorney, I find myself arguing the minority point of view far more often than I think I should. It usually happens when a case involves the infringement of a defendant’s Constitutional rights to things like freedom from unreasonable search and seizure, or the right to remain silent. I wonder if people see things differently than I do because they are more likely to side with the arguments of police officers, and prosecutors, and assume that defendants “probably did it” – so whatever Constitutional rights they should have shouldn’t allow them to go free on a “technicality”. [as an aside, I’d be real real careful about referring to our Constitutional rights as a “technicality”…but that’s just me I guess]
Anyway, my thinking is that if I put you all in the Judge’s seat, that you can look at things more objectively. At then end, I’ll tell you what the Judge decided – although, as I’ve already said that I loved the decision, so you can probably figure out which side I’m going to come down on. (rats, I’ve foiled my own strategy to elicit your objective assessment!)
So here’s what happened: police get a tip that an individual is engaging in criminal activity – specifically, the buy, sell, and trade of controlled substances. They have no other evidence that this is actually occurring. And I won’t bore you with the law of unreasonable searches because I’m not concerned with the technical Constitutional legality of this police action – as much as I am concerned with the substance, meaning, and future implications of what they’ve done. I other words, you don’t need a law degree to decide whether what the police did here is out of line.
What they did was show up at the house where said illegal activity is alleged to have taken place (this all happened in Flordia, by the way – although I can tell you from personal experience that things similar to this happen in every state, all the time) and they lie in order to gain access to the house. The defendant’s mother answers the door, and they tell her an absolute fib that they are investigating a 911 disconnect, and they want to look around in her house in order to ensure her safety. (yes, prey on the unsuspecting mother’s fear, classy) Predictably, mother allows police to enter the house and they proceed to search and find more evidence of illegal activity.
So, you make the call. Is it ok for law enforcement to lie in this way in order to obtain evidence? Well the Judge said, NO! And here is a link to the order.
And, lest you should think this is an isolated incident, it’s not. It even has a name, its called a “knock and talk” – it’s even standard curriculum for second year law student. (of course, a knock and talk doesn’t have to include police lying…and I think that’s the very point. Knock and talk all you want guys, just don’t tell lies to people to fool them into consenting to searches!)
I see this sort of thing literally all the time in my DUI defense practice. (You can find a link to my Salt Lake City DUI attorney website here) In the case of DUIs it happens with field sobriety tests and portable breath tests. You are not required to submit to field sobriety tests, or portable breath tests. But the cops don’t ask your permission, they tell you to get out of the car and blow into the device. They know that you rely on the honor of their position of authority, and assume that you have to obey them, unless they tell you that you have a choice…and they use that knowledge against you.
A few words for “Tech Geek”, who commented on my update on Lisa Steed earlier. First of all, thanks for reading and commenting – even if you don’t agree with me. In fact, especially when you don’t agree with me.
Second of all, I’d like to point out that your assertion that “the bottom line is that these people were impaired” is patently false in these Steed cases. For instance, in the famous “tasing in the car” case, the driver’s BAC tested at .03…well below the legal limit for DUI in Utah
Third, it is also patently false that Trooper Lisa Steed simply failed to follow “…the guideline correctly of how to arrest someone”. No, no, she did the arresting part just fine. Great job with arresting people Lisa! What she did wrong was the part where she is supposed to investigate the suspected crime and develop probable cause to arrest the person without infringing their Constitutional rights.
It is clear that Tech Geek doesn’t realize the number of times innocent people are arrested. Yes, it does happen.
So the bottom line here, Tech Geek, is actually that when police are allowed to get away with arresting people without probable cause, and while violating our rights against unreasonable search and seizure, innocent people get charged with crimes.
Back in November I wrote about how prosecutors in Salt Lake County were looking into DUI arrests by now-infamous DUI busy bee UHP trooper Lisa Steed. Since then the Davis County Attorney’s Office has said that they will not prosecute cases in which Steed was a “significant witness”. Of course, it took all the way til April of this year for the Utah Highway Patrol to take Steed off of road duty – and that was something like two years after the Salt Lake City Weekly wrote a damaging article about the constitutional liberties she had been taking in recent Utah DUI arrests.
A number of things about this fiasco are upsetting. First, that Steed ignored the Constitutional rights of Utah citizens by doing things like tasing them while they were sitting in their cars, turning off her microphone before talking to DUI suspects, performing field sobriety tests outside of the view of her patrol car’s dashboard camera, taking unauthorized blood draws, and lying in court.
Second, that the obscenely large number of DUI arrests she made were greeted with praise and a trooper of the year award, rather than a raised eyebrow of suspicion and follow-up investigation. What is that all about? That Chinese swimmer almost beat Michael Phelps’ time in an Olympic swimming competition last week and everyone is insisting that she must have been doping – but you get someone booking multiple times more DUIs than the average UHP trooper and nobody other than the DUI defense attorneys in Utah blink? Really?
Third, that it took prosecutors two years to come around and admit that this UHP trooper was probably really infringing on a lot of people’s 4th Amendment rights.
Fourth, that it took the UHP another several-plus months to admit she’s a rogue outlaw and pull her off the road!
Fifth, that she still has a job as a UHP trooper. Makes you wonder what you have to do to get fired from the UHP…rob a bank?
…and finally, this most recent and discouraging news: UHP Trooper Lisa Steed will NOT face criminal charges for all of this monkey business. She admitted she lied in court, the Salt Lake County Attorney investigated the case, we have all this other crap she’s done as well…and she’s not even going to have to face charges. It absolutely boils my blood when, as a criminal defense attorney in Salt Lake City, I have seen prosecutors charge my clients with crimes where there is really, really, really lame evidence – if any evidence at all – against them. It seems to be no problem to ask the average, low-profile citizen to be charged and brought in to court, and to make them hire a defense attorney to get rid of ridiculous charges. But as soon as there is a high-profile case that could make a law enforcement agency look bad, they all of a sudden start getting really careful with making sure they have probable cause to arrest someone.
Image courtesy of cityweekly.net
As a Salt Lake City Criminal Attorney, you can imagine, I have a pervasive obsession with protecting the general public’s Constitutional rights. I do not “defend guilty people” as some would suggest. I protect the Constitution. And in light of that pursuit, I thought that I should tell you all about a recent trend I’ve noticed with local prosecutors.
Lately, local prosecutors at preliminary proceedings such as pretrial conferences, have been asking defendants, and their attorneys, whether the offense they are charged with is their first offense. The reason that prosecutors want to know is that prior offenses have a big impact on sentencing. With certain crimes, Utah DUIs for example, subsequent offenses trigger higher minimum sentencing requirements.
Now, you should bear in mind that finding out whether a defendant has a prior conviction is usually as simple as looking at the criminal background check, which is, as a rule, printed out for the prosecutor’s file. But with some cases, I’ve seen prosecutors literally just fail to look at the report. It’s sitting right there in the file, it takes thirty seconds to check, but they just.don’t.bother.
It is my position that in a preliminary proceeding, neither a defense attorney, nor a defendant should respond to a question about their prior convictions.
For a defense attorney, I believe that answering this question would be unethical due to the attorney/client privilege. Where the attorney has knowledge of a client’s prior convictions that the prosecution is unaware of, the attorney’s disclosure of that information would be against the interests of the client, and thus a violation of the Utah criminal lawyer’s code of professional responsibility. If you think that sounds crazy, I will tell you that I am not alone. In Utah Ethics Opinion 05-02, the ethics committee of the Utah State Bar considered what an attorney should do in this position, and stated that it would be an infringement of the attorney/client privilege for the attorney to answer the question. You might be thinking that this is one of those “technicalities” that you’ve heard about on NYPD Blue. The “technicalities” that lawyers like me use to get “get guilty people off”.
It is not a technicality, it is a cornerstone of your Fifth Amendment right to remain silent, and of the burden that the State has to prove its case against you.
In fact, it is the prosecution’s duty to produce evidence to substantiate the charges against you, and prior convictions are no exception. If a defendant does not admit to having prior convictions, the state must actually go through and PROVE that there are prior convictions in the same way that it must prove the defendant was at the scene of the crime, or any other element necessary to secure a conviction.
What the prosecution is doing by asking the defendant and their lawyer, on the record during the proceeding, is to get out of doing the work that the Constitution mandates they perform. And god forbid that an attorney answers this question, or allows his client to answer it when he can simply invoke his 5th Amendment right to remain silent.
Now, if it were as simple as invoking the 5th amendment when such a question is asked, then I would not be so upset about this recent trend. However, it gets sticky whenever the question is even asked. Imagine that you are in court, waiting to plead guilty or no contest to a DUI pursuant to a plea agreement with the prosecutor; If this is your first DUI, and the prosecutor or the court asks you whether you have any prior DUIs then you have nothing to worry about. You and your lawyer simply say “no”. Right??? Er……well Imagine that you DO have a prior DUI, and that the prosecutor has failed to properly perform his or her job and has not discovered this prior DUI, but instead has decided that they will just ask you if you have a prior conviction in the hopes that you’ll be honest. Well, now it’s not so simple. Now you don’t want to tell the truth because it will mean a significant increase in penalties. And you don’t have to tell the truth because of the 5th amendment right you have against self-incrimination. However, you also cannot LIE, and neither can your attorney.
So you wont say that you have prior offenses, and you can’t say that you don’t. What do you say? You have to say something like “I refuse to answer that question on the grounds that it may incriminate me.” Ah, but that is no good, because it’s very suspicious. Now the court and the prosecutor are on notice, and they’re going to go and do what they should have done in the first place, and look at your record to see if there’s anything there. At that point you may as well just tell them about your prior conviction.
For that reason it is my opinion that it is improper for the court or the prosecutor to even ask the question. It is the legal equivalent to asking your spouse, “does this outfit make me look fat?” – you can’t tell the truth, and yet you can’t lie…no one comes out happy.
However, improper as it may be, the courts and prosecutors that are starting to do this don’t seem to realize. They apparently have not read ethics opinion 05-02, and they don’t seem to care about attorney/client confidentiality. And that is why I have a simple solution to this problem. We as Salt Lake City criminal attorneys, and you as defendants and citizens with Constitutional rights to protect, must always refuse to answer this question on the basis of the 5th Amendment. That way, it will no longer appear suspicious when the defendant refuses to answer the question, and if the prosecutor is concerned they will be forced to do the work to find evidence that proves that the defendant has prior convictions – as they are supposed to anyways.
This is a pretty big deal.
31 cases they’re looking at?!?!?! That’s probably like an entire Friday night shift of DUIs for Lisa Steed!
It is true that Utah Highway Patrol Trooper Lisa Steed was anointed “Trooper of the Year”. It is also true that trooper Lisa Steed has been repeatedly criticized for her unjust tactics. Utah Highway Patrol Trooper Lisa Steed’s antics have been discussed here, and in numerous other places.
If you don’t trust the media, you can see for yourself here:
The wrong is so palpable that I don’t even feel I have to say anything about it. It’s one of those stories where anyone who reads these articles will sense the injustice. It’s like the “Harman’s cat” of Utah DUI law.
In fact, this is so bad that I actually feel compelled to defend police officers for a change. Being a DUI and Criminal Defense Attorney in Salt Lake City, I talk a lot of crap about police officers. But I don’t mistrust cops in general. There truly are a lot of good cops out there who follow the law and protect our rights while keeping the streets safe for our families. Hats of to them. It’s the ones like Lisa Steed that made me want to be a DUI and criminal defense attorney.
The bad seeds are the exception, not the rule. But then again, Lisa Steed isn’t the only bad seed out there.
As yesterday’s Halloween festivities took place, Copper Canyon Elementary in our very own Jordan School District wanted to keep things safe at school so that all the little boys and girls could have a fun costume party day. So, the principal at Copper Canyon sent home a letter to parents last week, just to remind them of the school district’s costume policy. The memo gave an overview of the usual safety restrictions, designed to prevent kids from doing anything dangerous. For example, the school’s principal reminded parents that kids are not supposed to cross-dress for Halloween…you know, cuz someone could really get hurt if a 5th grader showed up as Lady Gaga.
OMG dude…
I love this state, it’s the people in the state that drive me crazy. I mean look, obviously this has to do with a very specific religious/moral concern. Now, I don’t really see what’s so bad about an elementary school kid “cross dressing” for Halloween. In fact, I don’t even think it’s “cross dressing” if it’s done on Halloween, that’s just “dressing up”, isn’t it? And in defense of “the Mormons”, I honestly doubt that many of them would worry too much about it either…it’s just that lunatic fringe few that give Utah a bad name. But if it shakes your soul to the core to know that your little boy might be skipping to school singing “I kissed a girl, and I liked it” with a pink wig on, then by all means…ground him for his moral trespasses. Anyway…and this is so obvious that I’m debating whether to waste the time and energy to type it out…but, you can do what you want with your own kid, don’t tell me what to do with mine.
I’m pretty sure (although, who really knows these days…) it is unconstitutional for Jordan School District to enforce such a policy…at least on Halloween, if not in general. Which might be why the School District started back pedaling like Nelson Cruz chasing a fly ball when some eminently reasonable parents called BS on Copper Canyon’s memo. A district official said that it was all due to a big “misunderstanding”.
Yeah, whatever.
Anyway, I heard a rumor that the school came to its senses and told the kids they could in fact dress like a drag queen if they so desired. I like to imagine a very angry phone call from the District Superintendent to the Principal telling her she was going to lose her job if she didn’t get right and quit robbing her kids of basic civil freedoms, but I doubt that’s how it really went down.
defendingtheconstitution 