Monday, May 20, 2013

How to Change Your Felony Conviction to a Misdemeanor - 402 Motions

A felony conviction can change your life. Consequences of a felony conviction can include:

1.  Losing the right to hold public;
2.  Losing the right to vote;
3.  Losing the right to serve on a jury;
4.  Losing the ability to have a firearm;
5.  Losing the ability to hold certain licenses and certificates;
6.  Losing job opportunities;
7.  Embarrassment, loss of reputation, and more.

When someone has been convicted of a felony, there is hope of having that felony reduced to a misdemeanor.  In the State of Utah, a felony conviction can be reduced to a misdemeanor either at the time of sentencing, or at the successful completion of probation.  The rules for obtaining this kind of reduction are found in Utah Code Annotated section 76-3-402.  A motion to reduce the offense level of a conviction is commonly referred to as a "402 motion."

In a 402 motion, a person can ask a court to reduce the offense level of a conviction by one level.  For example, someone convicted of a third degree felony could ask to have the conviction reduced to a class A misdemeanor.  With the agreement of the prosecutor, a conviction can be reduced by two levels (i.e. from a 2nd degree felony to a class A misdemeanor.)  Misdemeanor offense levels can also be reduced using this law (i.e. a class A misdemeanor can be reduced to a class B misdemeanor.)

A 402 offense level reduction has many benefits.  In addition to the benefits gained from removing an embarrassing felony from one's record, it can also pave the way for expungement qualification, to remove the conviction completely.  The more serious the conviction level, the more difficult it is to expunge a conviction, and the longer a person has to wait to qualify.  One or two offense level reductions can speed up the expungement process by years.

I have been successful in assisting clients in reducing the offense levels to their convictions using 402 motions, and in helping them expunge their convictions.  If you have questions about this process, give me a call.
(435) 654-9529

Thursday, May 9, 2013

Public Defender v. Private Attorney?

Should I hire a private lawyer or just go with a public defender?  What's the difference between the two?  What advantage would a private attorney give me over a public defender?   These are important questions to ask yourself when charged with a crime.  Naturally you would want the best representation possible.  But is it worth paying thousands of dollars to a private attorney when a public defender is free?

To begin with, let's define the two.  In Utah, counties and cities open a bidding process to fill the position of Public Defender.  Bids come in from various attorneys with different levels of experience and expertise.  The Public Defender contract is often given to the lowest bidder, sometimes resulting in an attorney with less experience as compared to the higher bidders.  Once the public defender is selected he or she is inundated with cases, appointed by the court, for defendants who qualify for free representation.  The case load is always very large, and very limited of time is given to each case because of the volume of cases.

Public defenders work with the city and county prosecutors to resolve each case as quickly as possible.  Because of the huge demand on the public defenders, defendants do not always get the best representation or defense in their cases.  I have heard many defendants upset and frustrated that their public defender has no time to return phone calls, refuse to prepare a suppression  motion, do a preliminary hearing, or take their case to trial, because they don' have the time.

A Private Attorney is a lawyer who is hired by a defendant to represent them in court.  Private attorney's have much smaller case loads, thus they have more time to work on a case, interview witnesses, investigate and meet with the client, even return phone calls.

Hiring a private attorney allows you to shop around, get referrals, research which lawyer has experience in criminal law, and which one is a general attorney, knowing a little bit about a lot of different areas.  Most private attorneys will allow you to come into their office for a free initial consultation.  This way, you can find out how experienced the attorney is, his or her feelings about your case, and the fee you would be charged.

The saying "You get what you pay for" is often very true when hiring an attorney.  The more experience, the better the representation and defense.  If you are charged with a crime, give me a call.  You don't want to chance your future with anyone else.
(435) 654-9529

Tuesday, May 7, 2013

When Should a Juvenile be Punished as an Adult?

On April 27, 2013, a bunch of kids were playing soccer in Salt Lake City.  During the game, the referee gave the goal keeper, a 17 year old boy, a warning called a "yellow card."  This ruling by the ref upset the boy, and he punched the 41 year old referee.  The unexpected consequence of the punch was that the referee went into a coma, and a few days later, he died.

The Salt Lake County District Attorney now has the unenviable decision of whether to charge the boy as a man.  Typically, crimes committed by individuals 17 and younger are handled in the juvenile court justice system.  The focus is on reform.  Juveniles are adjudicated, not convicted.  They admit allegations, they don't plead guilty.  They go to detention, not jail or prison.  But sometimes, when a juvenile commits an adult crime, they get treated as an adult.

When I have a juvenile client who is charged with a serious crime, I do all that I can to keep their case in the juvenile justice system.  I once knew a young man who was charged with a serious crime, was tired of the juvenile system and wanted to be tried as an adult.  He thought he would get less time.  Against the advice of his attorney, he had his case moved to the adult court.  He ended up being sent to prison as a teenager.  When I saw the result of his case, I felt it was a foolish tragedy.  Except in the most unusual cases, children should not be treated the same as adults.

If you have a child with juvenile charges, call for a free initial consultation.

Thursday, May 2, 2013

Will Juries Continue to Trust the Police

In almost every jury trial I've been involved in, one of the questions asked during jury selection involves whether the perspective juror would give police officer testimony greater weight and credibility than a civilian witness.  On many occasions, perspective jurors would honestly report that they would trust police officer testimony more due to their extensive training and their sworn duty to uphold the law.  That perspective is beginning to change.

In the wake of the West Valley Police Department scandal, that resulted in over 100 cases being dismissed, Officers being put on leave pending investigation and the entire drug unit being disbanded, and the Utah Highway Patrol scandal involving Officer Lisa Steed falsifying evidence to get convictions, resulting in the review of over 1000 cases, people are beginning to distrust the police.  A recent KSL News poll revealed that after these events, 66% of those polled indicated that they now trust the police less, while 26% said the recent news did not change their opinion, and 3% said that they were not sure if these events effected their perception of police.  The poll also reported that 6% stated that they now trust the police more . . . I wonder who they work for.

The results of this public perception of police poll may have a positive effect on those charged with crimes, who take their cases to trial.  I believe that juries are going to evaluate police investigations and evidence presented by law enforcement more critically than ever, rather than blindly accepting propositions proposed by the prosecution.  In the end, more innocent defendants should be acquitted, and those who are guilty will have received a fair trial.
(435) 654-9529