The Utah Legislature has created the plea of guilty with a mental condition because it has determined that in certain instances, application of the law should be more lenient. Specifically, the Legislature has determined that there are individuals with certain mental illnesses who should be treated differently when they break the law than those who do not suffer from those cognitive disabilities.

In such a plea, the defendant still pleas guilty, but that individual becomes eligible for specific benefits available only to those who quality for such a plea.

What is a Qualifying Mental Condition?

There are three enumerated mental illnesses which qualify for a plea with a mental health condition and one “catch all” illness: (1) schizophrenia spectrum and other psychotic disorders, (2) bipolar I disorder, (3) post-traumatic stress disorder, and (4) other serious mental health conditions with psychotic features.

How is it Determined that an Individual Has a Qualifying Mental Illness?

In order to determine that one has a qualifying mental illness one of two things must happen. First, the prosecutor can stipulate, that is, agree, that the defendant has a qualifying mental illness. This can occur by providing the prosecutor with diagnosis documents from a healthcare provider.

Second, if the prosecutor will not agree, then at the defendant’s request the court can order the defendant to submit to an examination by a forensic evaluator. The forensic evaluator will conduct an examination that determines whether: (1) the defendant had a mental condition at the time the crime was committed; (2) the defendant could benefit from supervision or treatment; or (3) the defendant currently is competent to enter a plea. The forensic evaluator’s report will provide findings on these factors. The court must make a positive finding to both numbers (1) and (2) for the defendant to be able enter a plea with a mental health condition.

What Happens After a Defendant Enters a Plea of Guilty with a Mental Condition?

Once the plea is entered, the court will order Department of Health and Human Services to put together a treatment plan. A defendant also has the option to have a private provider create the treatment plan. The court will then set a review hearing 30 days out to go over the treatment plan, make changes if needed, and then order the defendant to follow that treatment plan.

In ordering a treatment plan, the court has to determine if the defendant should be placed in a secure setting, such as a prison or state hospital. The court can make such an order if it is in the best interests of the defendant, a victim, or the public in general.

The court will then hold period review hearings to follow up on the defendant’s treatment progress. The court can defer sentencing for up to a year if the defendant consents and then after one year the defendant will be sentenced.

What are the Benefits of a Plea of Guilty With a Mental Condition?

A defendant who complies with his treatment plan is eligible for a significant reduction in his conviction. By default, the conviction will be reduced by two degrees, meaning that if the offense was a second degree felony, it will be reduced to a class A misdemeanor. If the prosecutor agrees, however, the conviction can be reduced by up to three degrees (e.g., first degree felony becomes a class A misdemeanor).

If you have been charged with a serious crime and you believe you may qualify for a plea with a mental health condition, give us a call at 801-413-1753. We are experienced in navigating the process of such pleas and know how to give you the best chance of protecting your criminal record.

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When a criminal defendant is facing allegations of rape, sexual assault, or other sexual crimes, the prosecutor and his investigators will do everything they can to find out if the defendant has any past convictions or even allegations of other sexual misconduct. This information very often times comes from ex-spouses or former sexual partners.

Upon discovering any such past bad acts, the prosecutor will do everything possible to be able to admit it into evidence at trial, because prosecutors know that if the jury can see that the defendant has been accused before, then he must have done it this time. That logic, however, is exactly what the Utah Rules of Evidence seek to avoid.

Rule 404(b) Prohibits Using Past Sexual Misconduct…With Exceptions

Rule 404(b) of the Utah Rules of Evidence prohibits prosecutors from using evidence of past sexual misconduct “…to prove a person’s character in order to show that on a particular occasion the person acted in conformity with the character.” This seems rather straight forward, but the rule continues on with the exceptions for allowing such evidence to prove “…motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

Without fail, prosecutors will argue that the past allegation of sexual misconduct is going to be used to show that the defendant did this by lack of accident, without mistake, and it shows he had a motive to do it again.

Rule 403 Permits Excluding Even Relevant Evidence

Even if the prosecutor tries to categorize the past sex crime under one of the 404(b) exceptions, he has to be able to show that there is a proper non-character purpose for introducing the evidence. That is hard to do. Further, the defendant is protected by Rule 403, which prohibits the use of even relevant evidence if its relevance is “substantially outweighed by a danger of…unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

Fortunately, using Rule 403, several Utah appellate courts have made it more difficult for prosecutors to get this type of evidence admitted under the 404(b) exceptions. That is because it is difficult for prosecutors to give a logical and valid reason why evidence of past sexual misconduct would not create an unfair prejudice against the defendant. In other words, what would be the proper non-character purpose of the evidence?

At Salcido Law Firm we have some of the most experienced defense attorneys in Utah for sexual misconduct charges and we know how to protect our clients against the State’s attempts to confuse juries by introducing evidence of past sexual misconduct. Get Protected! by giving us a call today at 801-413-1753.

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A Justification Hearing May Get Criminal Charges Dismissed

In Utah, a criminal defendant who has been charged with a violent crime may be able to prove that his use of force was justified by requesting and prevailing in a justification hearing.

The justified use of force is codified in Utah Code 76-2-401 through 76-2-409. Generally speaking, the use of force is justified when used in defense of person and property so long as the person using the force reasonably believes that it is necessary to defend the individual or his property against another’s imminent use of unlawful force. There are of course specific differences in what type of force can be used depending on the unlawful force at issue and whether it is an individual or property that is being attacked, but that is the general rule of thumb.

Being a pro-self-defense State, Utah has recently added a procedural mechanism in the form of a justification hearing to streamline criminal defense and save the time and resources that go along with holding criminal trials.

A Mini Self-Defense Trial

When a criminal defense believes that his use of force was justified, he can file a Motion to Hear Evidence on the Issue of the Justified Use of Force. The criminal defendant is required to make a prima facie showing, that is, a basic showing that his use of force was justified. This is usually satisfied by merely asserting that he felt imminently threatened by another’s unlawful use of force and so he use force to prevent or protect against that force.

Once a prima facie showing is made by the defendant, the burden shifts to the State to show clear and convincing evidence that the defendant’s use of force was NOT justified. The prosecutor attempts to do this through calling witnesses to testify. The defendant can call his own witnesses as well. The judge then decides whether the use of force was justified. If it was justified, the case is dismissed with prejudice. If it was not justified, the defendant can still present his case of self-defense to the jury.

Salcido Law Firm has some of the most experienced attorneys in Utah in justification hearings. Call or text us at 801-413-1753 to discuss your case and whether you have a claim for justification.

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A plea in a criminal case is when the prosecutor makes an offer to a criminal defendant to plead guilty or no contest to a crime, usually a lesser offense, in order to persuade the defendant to avoid going to trial. When a defendant enters into a plea agreement with the State, the defendant gives up certain constitutional rights.

What constitutional rights does a defendant give up?

When a defendant decides to accept an offer for a plea arrangement he gives up the following constitutional rights:

• To have a jury trial.
• To confront and cross-examine witnesses.
• To compel witnesses to testify at trial.
• To refuse to testif.
• The privilege against self-incrimination.
• Your presumption of innocence.
• To force the State to prove you are guilty beyond a reasonable doubt.
• To appeal your conviction.

In many cases a defendant is required to sign a written plea that can be filed with the court. In that document the defendant’s constitutional rights are laid out in detail. Below is an example of the type of written statement concerning a defendant’s constitutional rights that a is required to sign in order for a judge to accept his plea:

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A Minor Can Be Criminally Charged As An Adult

The Utah Juvenile Justice System promotes keeping minors in the juvenile court system even up to the age of 25 in some cases. This is because statistically minors who are able to successfully complete the services provided through the juvenile court system are more likely to avoid becoming part of the adult prison and jail system. There are, however, times when the State of Utah has deemed it necessary and appropriate for certain juvenile offenders to be charged and as an adult.

When Is It Mandatory?

There are only a couple of scenarios in which a prosecutor must charge a minor as an adult. Specifically, the minor must be either 16 or 17 years old and be charged with either aggravated murder or murder. The primary difference with a 16 or 17 years old who is being charged murder or aggravated murder and an individual who is 18 years or older is that that 16 or 17 year old is not subject to the death sentence or to life without parole.

When Is It Discretionary?

There are also a number of crimes in which a minor, in a prosecutor’s discretion, can be charged as an adult. Again, the minor must be either 16 or 17 years old and those crimes include: aggravated assault resulting in serious bodily injury, attempted aggravated murder, attempted murder, aggravated kidnapping, aggravated sexual assault, aggravated arson, aggravated burglary, aggravated robbery, and felony discharge of a firearm.

Additionally, a 14 or 15 year old can be charged as an adult for aggravated murder, murder, or an attempt to commit those crimes.

Even if a prosecutor exercises his discretion to charge a minor as an adult for one of these crimes, a defense attorney can petition the juvenile court to retain its jurisdiction so that the minor can take advantage of the services provided by the juvenile court system rather than be put in an adult prison facility.

We are experienced juvenile criminal defense attorneys who know how to keep kids from being forced through the adult criminal system. Give us a call if your child may be facing getting charged as an adult.

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Every Hunter in Utah is Subject to the Rules

Utah is a great place to hunt and for the most part has a system set up that allows sportsmen enough game to pursue while at the same time protecting game for future generations of hunters. The State of Utah has preserved game through its creation of the Division of Wildlife Resources and the Wildlife Board which are entrusted with protecting, propagating, managing, conserving, and distributing protected wildlife.

The Utah Legislature has given the Wildlife Board broach policymaking authority to carry out its purpose and has designated all wildlife that is not privately owned “property of the state”. Utah Code 23-13-3. Under its granted authority to govern wildlife, the Division of Wildlife Resources has the power to bring both criminal and civil proceedings for violations of state wildlife law and the rules, proclamations, and orders of the Wildlife Board.

Anybody who wishes to hunt or fish in Utah is subject to Utah’s statutes that govern the State’s Wildlife Resources and to the Wildlife Board’s rules…and there are a lot of them.

Where Can I Find the Statutes and Rules?

The Wildlife Board has done a pretty good job in compiling state law and its own rules and regulations into guidebooks. Hunters and fishermen should know those guidebooks like the back of their hand before heading out to pursue their game or catch their fish. The reason is because violating even the least serious of these rules is a criminal infraction and for more serious violations individuals can be convicted of a felony, serve time in jail or prison, and lose their hunting and fishing privileges.

In addition to the guidebooks release each year by the Wildlife Board, sportsmen can read the laws and rules as written. The statutes that govern wildlife in Utah are located in Utah Code Title 23. The administrative rules written and enforced by the Wildlife Board can be found conveniently on its website and are located in Utah’s Administrative Rules > Natural Resources > Wildlife Resources.

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Generally speaking, law enforcement officers cannot enter your home to conduct a search without a warrant. Such searches are per se unreasonable, unless there is an applicable exception. Over the decades, the Supreme Court of the United States has carved out a number of exceptions to the warrantless search rule. One such exception is the “protective sweep.”

A protective sweep “is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others.” State v. Grossi, 72 P.3d 686, 689 (UT App. 2003). In order for a police officer to be able to conduct a justifiable protective sweep, he must have a reasonable belief based on evidence that there is an individual or individuals present in the home or on the premises that may pose a danger to the officers.

What Evidence Justifies This Type of Search?

You can imagine that anytime law enforcement is called to a home based on allegations of violence, possession of controlled substances, or other crimes that the officers may have in the back of their minds that there exists a possibility of danger to themselves and others. The “mere possibility” that there are other individuals in the home is not sufficient to justify a warrantless search. Law enforcement does not have to have “probable cause” to conduct a protective sweep but they must have “specific and articulable facts” supporting their conclusion that the premises harbors individuals who may pose a danger to the officers.

In our experience, more often than not, police officers don’t understand when they can lawfully conduct a protective sweep. Most officers we have questioned believe that the “mere possibility” that they could be in danger is enough to justify a warrantless search. This is understandable considering police officers continually put themselves in harms way in enforcing the law and naturally they would be anxious anytime they are called to a home where there have been reports of violence, but the law is clear that they cannot conduct such a search merely on their own fears and they must have real facts which support that there may be someone inside who poses a danger to them.

If your case involves a protective sweep it is important that you have an experience Utah criminal defense attorney take a look at your case to see if law enforcement acted properly. If you’d like to talk to us over the phone at no cost to you, give us a call at 801-413-1753.

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One of the rights afforded an adult criminal defendant in the State of Utah is to have a preliminary hearing, which is a hearing in which the prosecutor is required to present evidence to the judge which establishes probable cause. It is in a limitation on the government’s power to criminally charge individuals unfairly or for improper reasons.

What Forms of Evidence Are Permitted?

The burden is very low for the State to establish probable cause and the court makes all inferences in a light most favorable to the State. So long as the prosecutor is able to present evidence showing that it is “more likely that not” that the crime was committed and that the defendant committed that crime, that is enough to bind the case over for trial.

Currently, Utah appellate decisions and the rules of evidence allow the prosecutor to present witness testimony in the form of sworn declarations or affidavits, making the State’s need to present witnesses in person, for all intents and purposes, void. See Utah Rules of Evidence 1102. Up until 2020, defendants could attempt to rebut these sworn declarations from witnesses by calling the witnesses themselves to testify at the preliminary hearing and questioning them on the stand, but in August of 2020 the Supreme Court of Utah limited defendants ability to compel alleged victims to testify at the preliminary hearing.

State v. Lopez

In State v. Lopez, 474 P.3d 949 (UT 2020), the Supreme Court of Utah addressed the issue of whether a criminal defendant in Utah has the “right” to subpoena witnesses to a preliminary hearing. Specifically, whether there exists that right to subpoena an alleged victim to testify at the preliminary hearing. After careful analysis the court ultimately found that yes a defendant can subpoena witnesses to testify at a preliminary hearing, but that right to compel witnesses to testify is limited by the reasonableness standard set forth in Utah Rules of Criminal Procedure 14. Based on this rule the court further held that “…a subpoena compelling alleged victims to testify is per se ‘unreasonable’ when it seeks testimony that is immaterial to the probable-cause determination, would obviate the legal sufficiency of hearsay evidence, and would unnecessarily intrude on the rights of victims.” Lopez, 474 P.3d at 965.

If a court determines that an alleged victim’s sworn declaration satisfies the probable cause standard, then the burden shifts to the defendant to show “that additional, live testimony from the victim is necessary to present evidence on a specific point material to the probable-cause determination, and that is reasonably likely to defeat the State’s prima facie showing of probable cause.” Id. This is a very high standard for a defendant to meet simply because the probable cause standard is so easy to satisfy. To put another way, the defendant would have to show that the sworn affidavit is a fabrication and that the alleged victim if called as a witness would testify that he/she never said those things, never read the sworn declaration, and/or never knowingly signed that sworn declaration.

State v. Lopez, therefore, ultimately made it impossible for defendants to call alleged victims as witnesses at preliminary hearing.

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The Utah Legislature has passed a new statute addressing criminal defendants’ right to bail. One of the most important changes addresses who has a right to bail and who does not. Those who do not have a right to bail include the following:

• Capital crimes – Individuals charged with capital felonies (i.e., first degree murder) so long as there is substantial evidence supporting the charge;
• Felony while on probation or parole with substantial evidence that the felony was committed;
• Felony on felony – if someone is already out on bail awaiting trial on a felony charge and then is charged with another felony, he will not have the right to bail on the subsequence felony charge so long as there is substantial evidence for the subsequent felony charge;
• Flight risk – If charged with a felony and the court finds that the defendant is likely to flee Utah’s jurisdiction;
• Danger to others –  If charged with a felony and the court finds that the defendant present a substantial danger to the community or another;
• Violating the terms of bail – If charged with a felony, out on bail, and the defendant violates the terms of his bail he can be held without bail for the duration of pretrial;
• Domestic violence – any charge of domestic violence, misdemeanor or felony, and the court finds that the defendant constitutes a substantial danger to the alleged victim and there is substantial evidence to support the charge.

If a prosecutor believes the defendant is not entitled to bail, he must file a motion to detain the defendant. The court will then schedule a detention hearing where the defendant can argue against detention.

What Happens When Bail is Granted?

When a defendant is allowed bail, the court must impose the “least restrictive reasonably available conditions of release” to ensure that the defendant will show up to his court hearings, alleged victims, witnesses, and community are safe, and that the defendant will not obstruct the proceedings.

“Least restrictive” can take many forms depending on the allegations. For example, in any felony crime where there is an alleged victim of physical or sexual abuse, the defendant may be ordered to wear a GPS ankle bracelet, ordered to not go within 1000 feet of the alleged victim, ordered to have no contact with the alleged victim, etc. Defendants charged with DUIs will likely be ordered to not consume alcohol or drugs.

The court may rely on a number of factors in determining what constitutes the least restrictive means including:

• Whether there is a pretrial services provider that can monitor the defendant;
• Whether the charge is violent;
• The individual’s family life, employment status, mental health, etc.;
• The potential danger the defendant imposes on others;
• Whether the defendant was already on probation or parole;
• Whether the defendant has others who are willing to help him make his court dates;
• Whether the defendant is willing to attend treatment programs;
• The likelihood of fleeing;

The court can then impose a number of restrictions if it finds it necessary for allowing the defendant to be released pretrial.

The post Recent Changes to Utah’s Right to Bail Statute appeared first on Salcido Law Firm.

If you are thinking of placing a GPS unit in your car by affixing it to the windshield, think again, as this is likely to make you vulnerable to being pulled over and issued a citation. Police don’t care so much about a violation of that minor traffic offense as they do about using it as an excuse to pull people who over who they suspect may be involved in some kind of other illegal activity. Police will profile drivers and vehicle occupants to see if they look like the type of people who may be using drugs, driving while impaired, or doing something else criminal. If any of those poor profiled people have an object on their on their car’s front window, that’s typically all the police officer needs to make the stop.

In Utah, you cannot have any “nontransparent material on the windshield” unless it is “along the top edge of the windshield” but not down “more than four inches from the top edge” or it is “in the lower left-hand corner…provided they do not extend more than three inches to the right of the left edge or more than four inches above the bottom edge…” Utah Code 41-6a-1635.

Most people who attach a GPS unit to their car do so by affixing the sticky part to some part of the windshield that does not fall within the very narrow four inch and five inch exceptions included in the statute. So generally speaking, yes a police officer in Utah can pull you over for objects on your windshield.

The Rearview Mirror is Different

Law enforcement, however, cannot stop you for having something hanging down from your rear view mirror. There is nothing in the Utah Code that prohibits hanging items from the rearview mirror, yet cops are often pulling people for that very reason. If you get pulled over for having something hanging from your rearview mirror, challenge it. At Salcido Law Firm we have been successful in making such challenges and getting evidence suppressed and the case dismissed as a result. Contact us if you think you were unlawfully stopped by the police for having a windshield violation.

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Yes. A court is granted the sole authority for determining whether joint physical custody would be in the best interests of a child, but it is not solely at a court’s discretion. Instead, the court must carefully consider a number of statutorily prescribed custody factors to determine whether joint physical custody would be appropriate. Those factors are found in Utah Code 30-3-10.2 and include the following:

• The physical, psychological, and emotional needs of the child;
• The parents’ ability to work together and give the child’s needs priority. This includes the parents’ ability to communicate with one another, encourage the child to share love and affection with the other parent, and be willing to allow the child to have continuous contact with the other parent;
• Whether the parent was involved in raising the child before the divorce;
• How close the parents live to one another;
• For older children who are mature enough, whether the child prefers joint or sole custody;
• The parents’ ability to protect the child from conflict that arises between the parents; and
• The parents’ ability to make joint decisions regarding the child;

More often than not a court does not make a determination as to the custody factors above alone. Instead, in contested cases that are expected to go to trial, the court orders the parties to undergo a custody evaluation by a licensed custody evaluator. The custody evaluator will meet with the parents, spend time with the parents and children, interview the parents to determine their mental well-being, and conduct other research into the parent/child relationship to make a helpful recommendation to the court.

What it comes down to is the best interest of the child. The court is obligated to protect children and is not terribly concerned with the divorcing parties except to make sure a party is protected from abuse and given his or her equitable portion of the marital estate. But even then, the court will put the children of the marriage above the parties to the divorce if the choice comes down to that.

Does the Statute Create Any Presumptions in Favor of One Parent Over Another?

No. There is no presumption in favor of awarding divorcing parents joint or sole physical custody. Furthermore, there is no presumption in favor of a parent simply because of the parent’s gender. See Utah Code 30-3-10. The court looks at the issue with a clean slate without any predetermined judgments based on the parties simply because of who they are.

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In an effort to stymie the increase in gang related crimes the Utah Legislature added an additional penalty known as the “gang enhancement” – which increases any charge by one full degree – to crimes committed by gang members…or at least that was the intention.

In reality, the statute as written is extremely broad and does not actually limit the gang enhancement to gang members. Instead, a crime committed “in concert with two or more persons” is all that is needed. And what does that mean? It requires only that an individual be “aided or encouraged by at least two other persons in committing the offense and was aware of this aid and encouragement” and that the other people were either “physically present” or “participated” in the crime. See Utah Code 76-3-203.1.

The statute, therefore, extends far beyond the “criminal street gangs” it was supposedly attempting to punish and instead reaches any group of three or more persons who commit any number of listed crimes.

What are the crimes that are subject to gang enhancement?

Anyone who commits the following crimes with the aid or encouragement of two or more other persons can have his charges increased by a full degree:

• Drug production, distribution, or possession;
• Possession of drug paraphernalia;
• Assault;
• Criminal homicide;
• Kidnapping;
• Felony sexual offenses;
• Child pornography;
• Property destruction;
• Burglary;
• Criminal trespass;
• Robbery;
• Theft;
• Fraud;
• Obstructing government operations;
• Witness tampering;
• Extortion or bribery to dismiss criminal proceedings;
• Explosives offenses;
• Weapons offenses;
• Pornographic and harmful materials and performances;
• Prostitution;
• Bus passenger safety violations;
• Pattern of unlawful activity;
• Communications fraud;
• Money laundering; and,
• Burglary of a research facility.

If the gang enhancement applies to any of these crimes a second degree felony becomes a first degree felony, a third degree felony becomes a second degree felony, and so on.

The “Criminal Street Gang”

Given the broad nature of the gang enhancement penalty it’s a wonder the Legislature even needed to specifically target the “criminal street gang” which is what we typically think about when we think about gangs. Nonetheless, the Legislature sets forth a long definition of what constitutes a “criminal street gang” in Utah Code 76-9-802. If by some miracle the gang enhancement does not apply to a person under the three or more persons standard but it would under the “criminal street gang” definition then apparently that is why it was included.

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