Franklin residents remain upset over hiring of city administrator - The Herald Journal: Allaccess

Franklin residents remain upset over hiring of city administrator - The Herald Journal: Allaccess

Cache Valley man sent to prison after pleading guilty to child sex abuse - The Herald Journal: Allaccess

Cache Valley man sent to prison after pleading guilty to child sex abuse - The Herald Journal: Allaccess

Man Sues City For Alleged Sexual Assault By Hospital Staff | KUTV.com

Man Sues City For Alleged Sexual Assault By Hospital Staff | KUTV.com

Logan Police escorted an unconscious man to the hospital where he was allegedly sexually assaulted by hospital staff.

Now the alleged victim is holding the city responsible for negligence and has filed a civil lawsuit.

State not prepared ..... Again.

A Nibley man police say was found in possession of a trailer stolen from the U. S. Forest Service and charged with numerous drug charges was scheduled for a preliminary hearing Wednesday, where the state would have been required to present evidence in the case against him.

However, Thomas MacElwee, 31, waived his right to that hearing but has not entered a plea. His attorney, Shannon Demler, is still working with prosecutors on a resolution to the case.

In August, MacElwee was arrested at his Nibley home after police obtained a search warrant because they believed they might find some of the items stolen from the U.S. Forest Service inside the residence.

During the search, police reportedly found what they called a sizable drug distribution operation, including cocaine, meth, marijuana and mushrooms.

They say they also found the stolen trailer in the yard with Forest Service markings partially removed.

MacElwee has been charged with three felony counts of possessing a controlled substance with the intent to distribute within 1,000 feet of a drug-free zone. He was also charged with possessing a controlled substance, theft by receiving stolen property, and having vehicle parts without identification numbers.

Police also arrested Michael Kevin Keller, a 31-year-old man formerly of Hyde Park.

He has been charged with theft in connection with this case. His preliminary hearing was delayed in November after one of the witnesses in the case did not show up to court.

Both men were arrested after the theft of a snowmobile trailer was reported by the Forest Service in August.

According to Logan Assistant Police Chief Jeff Curtis, police had video from the Aug. 20 theft showing a white GMC Yukon with two males inside casing the area before the trailer — loaded with a snowmobile and assorted rescue gear — was stolen from Forest Service property in the area of 200 South and 700 West.

The vehicle was traced to Keller, who was residing in Eugene, Ore., at the time of his arrest.

Both MacElwee and Keller will return to court Jan. 28.

———

New Utah alcohol laws for minors under 21

Beginning July 1, 2011, the Utah laws have changed with regards to alcohol convictions for Minors in Possession of Alcohol.  Previously, the courts lacked any discretion to allow a minor to regain a suspended drivers license.  Now, a minor may be eligible to motion the court to reinstate his or her license after completing counseling and if the Minor meets other qualifications.

The purpose of Utah's MIP (minor in possession/consumption) law is to deter minors (under 21) from engaging in alcohol-related criminal acts which may later result in serious consequences. The Penalties for MIP violations are determined by the statutes below and the date of the offense.
For offenses committed on or before June 30, 2011:
32A-12-209 (Repealed 07/01/11). Unlawful purchase, possession, consumption by minors -- Measurable amounts in body.
(1) Unless specifically authorized by this title, it is unlawful for a minor to:
(a) purchase an alcoholic beverage or product;
(b) attempt to purchase an alcoholic beverage or product;
(c) solicit another person to purchase an alcoholic beverage or product;
(d) possess an alcoholic beverage or product;
(e) consume an alcoholic beverage or product; or
(f) have measurable blood, breath, or urine alcohol concentration in the minor's body. (***This means any detectable amount)
(2) It is unlawful for the purpose of purchasing or otherwise obtaining an alcoholic beverage or product for a minor for:
(a) a minor to misrepresent the minor's age; or
(b) any other person to misrepresent the age of a minor.
(3) It is unlawful for a minor to possess or consume an alcoholic beverage while riding in a limousine or chartered bus.
***Enhancement
(4) If a minor is found by a court to have violated this section and the violation is the minor's second or subsequent violation of this section, the court:
(a) shall order the minor to participate in an educational series as defined in Section 41-6a-501; and
(b) may order the minor to participate in a screening as defined in Section 41-6a-501.
***Sentencing
(5) (a) When a minor who is at least 18 years old, but younger than 21 years old, is found by a court to have violated this section, except as provided in Section 32A-12-223, the court hearing the case shall suspend the minor's driving privileges under Section 53-3-219.
(b) Notwithstanding the provision in Subsection (5)(a), the court may reduce the suspension period required under Section 53-3-219 if:
(i) the violation is the minor's first violation of this section; and
(ii) the minor completes an educational series as defined in Section 41-6a-501.
(6) When a minor who is at least 13 years old, but younger than 18 years old, is found by the court to have violated this section, Section 78A-6-606 applies to the violation.
(7) When a court issues an order suspending a person's driving privileges for a violation of this section, the Driver License Division shall suspend the person's license under Section 53-3-219.
(8) When the Department of Public Safety receives the arrest or conviction record of a person for a driving offense committed while the person's license is suspended pursuant to this section, the Department of Public Safety shall extend the suspension for an additional like period of time.
(9) This section does not apply to a minor's consumption of an alcoholic beverage or product in accordance with this title:
(a) for medicinal purposes if:
(i) the minor is at least 18 years old; or
(ii) the alcoholic beverage or product is furnished by:
(A) the parent or guardian of the minor; or
(B) the minor's physician or dentist; or
(b) as part of a church's or religious organization's religious services.
For offenses committed on or after July 01, 2011:
32B-4-409 (Effective 07/01/11). Unlawful purchase, possession, consumption by minor -- Measurable amounts in body.
(1) Unless specifically authorized by this title, it is unlawful for a minor to:
(a) purchase an alcoholic product;
(b) attempt to purchase an alcoholic product;
(c) solicit another person to purchase an alcoholic product;
(d) possess an alcoholic product;
(e) consume an alcoholic product; or
(f) have measurable blood, breath, or urine alcohol concentration in the minor's body ***(this means any detectable amount).
(2) It is unlawful for the purpose of purchasing or otherwise obtaining an alcoholic product for a minor for:
(a) a minor to misrepresent the minor's age; or
(b) any other person to misrepresent the age of a minor.
(3) It is unlawful for a minor to possess or consume an alcoholic product while riding in a limousine or chartered bus.
***Enhancement
(4) If a minor is found by a court to have violated this section and the violation is the minor's second or subsequent violation of this section, the court:
(a) shall order the minor to participate in an educational series as defined in Section 41-6a-501; and
(b) may order the minor to participate in a screening as defined in Section 41-6a-501.
***Sentencing
(5) (a) When a minor who is at least 18 years old, but younger than 21 years old, is found by a court to have violated this section, except as provided in Section 32B-4-411, the court hearing the case shall suspend the minor's driving privileges under Section 53-3-219.
(b) Notwithstanding the provision in Subsection (5)(a), the court may reduce the suspension period required under Section 53-3-219 if:
(i) the violation is the minor's first violation of this section; and
(ii) the minor completes an educational series as defined in Section 41-6a-501.
(6) When a minor who is at least 13 years old, but younger than 18 years old, is found by the court to have violated this section, Section 78A-6-606 applies to the violation.
(7) When a court issues an order suspending a person's driving privileges for a violation of this section, the Driver License Division shall suspend the person's license under Section 53-3-219.
(8) When the Department of Public Safety receives the arrest or conviction record of a person for a driving offense committed while the person's license is suspended pursuant to this section, the Department of Public Safety shall extend the suspension for an additional like period of time.
(9) This section does not apply to a minor's consumption of an alcoholic product in accordance with this title:
(a) for medicinal purposes if:
(i) the minor is at least 18 years old; or
(ii) the alcoholic product is furnished by:
(A) the parent or guardian of the minor; or
(B) the minor's health care practitioner, if the health care practitioner is authorized by law to write a prescription; or
(b) as part of a religious organization's religious services.

If you or someone you know has been charged with a Minor in Possession of Alcohol you need to contact an attorney and learn your rights and possible consequences.  Call Wayne Caldwell at Bearnson & Caldwell for your free consultation now.  435-752-6300.

New Expungement Laws Makes Expungment More Difficult.

Utah's new expungement laws make it more difficult to clean up minor, youthful indiscretions.  To be eligible for expungement, the case now has to be explicately has to be dismissed with prejudiced, meaning it cannot ever be filed again.  Historically this has never been the case that a case was dismissed with prejudice.  So it used to be that if a case was dismissed without prejudice, the citizen could file for expungement after 30 days.  Now, the person must wait as if convicted of the charge unless the citizen gets the dismissal with prejudice from the judge in an order.  Here is the new eligibility statute:

Utah Code
Title 77 Utah Code of Criminal Procedure
Chapter 40 Utah Expungement Act
Section 104 Eligibility for expungement of records of arrest, investigation, and detention -- Requirements.
77-40-104. Eligibility for expungement of records of arrest, investigation, and detention -- Requirements.
(1) A person who has been arrested with or without a warrant may apply to the bureau for a certificate of eligibility to expunge all records of arrest, investigation, and detention which may have been made in the case, subject to the following conditions:
(a) at least 30 days have passed since the arrest for which a certificate of eligibility is sought;
(b) there have been no intervening arrests; and
(c) one of the following occurred:
(i) charges were screened by the investigating law enforcement agency and the prosecutor has made a final determination that no charges will be filed;
(ii) the action against the person was dismissed with prejudice;
(iii) the person was acquitted at trial; or
(iv) the statute of limitations has expired on the offense.
(2) Notwithstanding Subsection (1)(a), a petitioner seeking expungement under Subsection (1)(c)(iii) shall be issued a certificate of eligibility on an expedited basis.

If you are convicted of the crime, or the case was dismissed without prejudice, you must wait the time periods listed below before you can expunge:  (77-40-105)
i) 10 years in the case of a misdemeanor conviction of Subsection 41-6a-501(2) (DUI) or a felony violation of Subsection 58-37-8(2)(g);
(ii) seven years in the case of a felony;
(iii) five years in the case of a class A misdemeanor;
(iv) four years in the case of a class B misdemeanor; or
(v) three years in the case of any other misdemeanor or infraction.

Utah Supreme Court rules in Favor of Preliminary Hearings on Class A Misdemeanors The Utah Supreme Court ruled Tuesday that defendants charged with class A misdemeanors — not just those accused of felonies — have a right to a preliminary hearing under the state’s constitution.

The Utah Supreme Court recently ruled that defendants charged with class A misdemeanors — not just those accused of felonies — have a right to a preliminary hearing in the State of Utah.

The Salt Lake Tribune reported:

"The decision, made in the case of a 50-year-old Salt Lake City man charged with providing alcohol to a teenager who later died after falling down a stairwell, has raised concerns about the burden of its implementation.

Salt Lake County District Attorney Sim Gill said he anticipates as many as 3,000 additional hearings to be placed on court calendars in 3rd District Court alone. The move could tax an overburdened system, he said, although it’s unclear exactly how much additional work for attorneys — and how big of a price tag for the courts — the ruling brings."

This is good news for the accused in Utah.  Historically, in the state of Utah, only defendants charged with felonies were afforded a preliminary hearing before a judge.  The purpose of this hearing is to make the prosecution prove to the court that there is enough evidence to proceed to trial on the charges.  The preliminary hearing also allowed the Defense to "test" the State's witnesses and determine the strengths and weaknesses of the prosecutor's case.  

But, if a defendant was charged with a misdemeanor crime, the prosecutor was not required to show any evidence or allow the Defense to test the witnesses until the day of trial.  For most accused this comes much too late to really ascertain the strengths or weaknesses of a case.  By the time a case gets to trial the chance to plea bargain a case has passed and accused faces conviction to all the charges alleged by the prosecutor.  

Not anymore, The Defendant now has an opportunity to test the prosecutors witnesses early in a case a determine if a case needs to be plead out or proceed to trial. 

The prosecution is not happy about this as evidenced by comments made to the Salt Lake Tribune by the Salt Lake County District Attorney:  “It’s going to have a fairly dramatic impact on the court system,” Gill said. “Technically speaking, it’s going to be adding one more step in the process, and, of course, it is going to mean other things are not going to be moving through the system as fast. Justice delayed is justice denied.”

Class A misdemeanor defendants were previously arraigned and entered a plea — in some instances, receiving a sentence at that time. If a defendant entered a not-guilty plea, the case was set for trial. Now defendants can ask a judge to hold a preliminary hearing to decide if the case against them is strong enough to be scheduled for trial."

"Kent Hart, executive director of the Utah Association of Criminal Defense Lawyers, called the justices’ ruling a victory for defendants’ rights. Hart said class A misdemeanors are serious to many defendants: the offenses are punishable by up to a year in jail, and convictions can serve as sentencing enhancements for other crimes. For example, if a person is convicted of a class A misdemeanor driving under the influence, a second DUI could be elevated to a felony offense.

“A preliminary hearing does not require a lot of effort from a prosecutor,” Hart said. “The formality of having to present a case to a judge requires a prosecutor to make sure their case is solid.”

But Hart acknowledged the high court’s ruling will have a fiscal impact."

I have personally set several class A misdemeanor cases for preliminary hearing in the past couple of weeks since this decision came down from the Utah Supreme Court.  No longer can the prosecution "hide-the-ball" with their witnesses.  This is a big win for the little guys in the criminal justice system