Many counties are authorizing police agencies to arrest smoke-shop owners and others for selling an Incense known as SPICE claiming that such can make a person high.  For example, the Herald Journal in Logan, Utah, recently reported a story where undercover police came in and tried to get the smoke-shop owner to admit the SPICE he was selling to them was for getting high.  The shop owner denied that the chemicals were for inhalation.  According to the shop owner, two undercover officers entered Timberline’s south Main Street location. They asked the clerk about the affects of spice.  The clerk said the product was not for human consumption, that it was an incense. The officers bought some spice and left. They returned about three hours later and said the spice they purchased wasn’t as strong as they had hoped and asked if there was anything stronger. The clerk said yes.  Around this time, an officer said something like, “I’m going to get high tonight.”  The clerk sold the officers a different brand of spice that he said he liked better.  The officers then identified themselves and drove the clerk to a hotel parking lot where they cited and released him.  See the full SPICE drug story.

Many people are being prosecuted for this throughout the state.   But is it unfair to target individuals in possession of this incense?  Utah Code, section 76-10-107, states:

Abuse of psychotoxic chemical solvents.

(1) A person is guilty of abuse of psychotoxic chemical solvents if:
(a) for the purpose of causing a condition of intoxication, inebriation, excitement, stupefaction, or the dulling of his brain or nervous system, he intentionally:
(i) smells or inhales the fumes of any psychotoxic chemical solvent; or
(ii) possesses, purchases, or attempts to possess or purchase any psychotoxic chemical solvent; or
(b) the person offers, sells, or provides a psychotoxic chemical solvent to another person, knowing that other person or a third party intends to possess or use that psychotoxic chemical solvent in violation of Subsection (1)(a).
(2) This section does not apply to the prescribed use, distribution, or sale of those substances for medical or dental purposes.
(3) Abuse of psychotoxic chemical solvents is a class B misdemeanor.
(4) As used in this section, psychotoxic chemical solvent includes any glue, cement, or other substance containing one or more of the following chemical compounds: acetone and acetate, amyl nitrite or amyl nitrate or their isomers, benzene, butyl alcohol, butyl nitrite, butyl nitrate, or their isomers, ethyl alcohol, ethyl nitrite or ethyl nitrate, ethylene dichloride, isobutyl alcohol, methyl alcohol, methyl ethyl ketone, n-propyl alcohol, pentachlorophenol, petroleum ether, propyl nitrite or propyl nitrate or their isomers, toluene or xylene, or other chemical substance capable of causing a condition of intoxication, inebriation, excitement, stupefaction, or the dulling of the brain or nervous system as a result of the inhalation of the fumes or vapors of such chemical substance. Nothing in this section shall be construed to include any controlled substance regulated by the provisions of Title 58, Chapter 37, Utah Controlled Substances Act.

The question becomes whether the smoke shop owner knows that the person he is selling the chemicals (spice) to are doing it in order to become become intoxicated, inebriated, etc.  Obviously, if the smoke-shop owner tells someone that the spice can get them high and it is the best stuff to do that, the state will have enough to convict the shop owner.  On the other hand, a shop owner that sells these chemicals and has had no conversation with the purchaser should not be held liable for selling a chemical that has a legitimate and lawful use: i.e. used as incense.

Another article recently written out of New Jersey reports that SPICE is an incense and may or may not even contain the ingredients to properly classify it as a controlled substance.

According to this article, some SPICE contains a substance that, when ingested, can cause one to become high.  But some SPICE does not even contain this.  So another issue is that the SPICE in question may not even contain the harmful substance that would result in one becoming high.  And even if it did, the prosecutor would have to prove that the shop-owner knew the customer was using it to ingest, inhail, etc.  Prosecutors believe that shop-owners “know exactly what they are doing”, as this article indicates, and assume they are just selling it for illegal purposes because the drug can have that affect.  I believe this approach is cynical towards the human race:  it assumes that someone is guilty instead of presuming they are innocent.

In sum, many individuals throughout Utah and this country are being targeted for possession of the incense known as “Spice.”  Some of this Spice may have ingredients in the Controlled Substance, Category I classification, making possession akin to heroin, which could land a person in the slammer as a felon for up to five years, or even up to fifteen years if they charge it within a drug free zone, which is virtually most places within the city limits.  And the penalty could be even as high as a first degree felony if they charge you with possession with intent to distribute, which carries with it a prison sentence of 5 years to life!

If you have been charged with this contact Utah criminal defense attorney, Sean Druyon, immediately in order to begin preparing to have these charges dismissed.  You should be presumed INNOCENT until proven GUILTY.  And until the legislature specifically enumerates SPICE as a controlled substance, possessors of this incense should not have their constitutional rights trampled on by being presumed guilty.  I have represented hundreds of similar drug cases over the years and will aggressively fight to ensure your rights, like the right to the presumption of innocence, are not pushed aside.

Many people ask me whether they can obtain a deal wherein the DUI charge they are faced with will not be a part of their permanent record.  My answer, of course, is YES!  Apart from taking the matter to trial and prevailing, there are several ways in which a person can enter a plea bargain where the matter will not be a part of their permanent record if they stay out of trouble for a period of time and jump through a few hoops in order to get this sweet deal.

A plea in abeyance is just the right tool:  a plea in abeyance is when a defendant accepts responsibility for his/her actions and, as a result, the prosecutor agrees to recommend that the court hold the plea in an abeyance period, which basically means that it will not be entered on his/her record unless that person screws up on probation. The probation is typically court-probation, also known as “good behavior” probation.  The terms of this agreement are negotiable.

On a DUI case, a plea in abeyance can save one’s license from being suspended, and can avoid minimum jail time and even other negative collateral consequences such as the installation of an interlock device and supervised probation.

It is true, however, that pleas in abeyance for DUI charges were outlawed in 2008 by the legislature.  Utah Code 77-2a-3 states:

Manner of entry of plea — Powers of court.
(1) (a) Acceptance of any plea in anticipation of a plea in abeyance agreement shall be done in full compliance with the provisions of Rule 11, Utah Rules of Criminal Procedure.
(b) In cases charging offenses for which bail may be forfeited, a plea in abeyance agreement may be entered into without a personal appearance before a magistrate.
(2) A plea in abeyance agreement may provide that the court may, upon finding that the defendant has successfully completed the terms of the agreement:
(a) reduce the degree of the offense and enter judgment of conviction and impose sentence for a lower degree of offense; or
(b) allow withdrawal of defendant’s plea and order the dismissal of the case.
(3) Upon finding that a defendant has successfully completed the terms of a plea in abeyance agreement, the court may reduce the degree of the offense or dismiss the case only as provided in the plea in abeyance agreement or as agreed to by all parties. Upon sentencing a defendant for any lesser offense pursuant to a plea in abeyance agreement, the court may not invoke Section 76-3-402 to further reduce the degree of the offense.
(4) The court may require the Department of Corrections to assist in the administration of the plea in abeyance agreement as if the defendant were on probation to the court under Section 77-18-1.
(5) The terms of a plea in abeyance agreement may include:
(a) an order that the defendant pay a nonrefundable plea in abeyance fee, with a surcharge based on the amount of the plea in abeyance fee, both of which shall be allocated in the same manner as if paid as a fine for a criminal conviction under Section 78A-5-110 and a surcharge under Title 51, Chapter 9, Part 4, Criminal Conviction Surcharge Allocation, and which may not exceed in amount the maximum fine and surcharge which could have been imposed upon conviction and sentencing for the same offense;
(b) an order that the defendant pay restitution to the victims of the defendant’s actions as provided in Title 77, Chapter 38a, Crime Victims Restitution Act;
(c) an order that the defendant pay the costs of any remedial or rehabilitative program required by the terms of the agreement; and
(d) an order that the defendant comply with any other conditions which could have been imposed as conditions of probation upon conviction and sentencing for the same offense.
(6) A court may not hold a plea in abeyance without the consent of both the prosecuting attorney and the defendant. A decision by a prosecuting attorney not to agree to a plea in abeyance is final.
(7) No plea may be held in abeyance in any case involving a sexual offense against a victim who is under the age of 14.
(8) Beginning on July 1, 2008, no plea may be held in abeyance in any case involving a driving under the influence violation under Section 41-6a-502.

A good attorney will be able to structure a deal so as to not violate this section of the Utah Code by reclassifying the charge to a non-DUI offense.   I have done this many times and, although the prosecutor is typically not going to jump up and down at the idea of giving a defendant this good of a deal, if they are convinced that there are evidentiary problems with their case, or that there is a REASONABLE LIKELIHOOD THAT A PROPOSED SUPRESSION MOTION WILL SUCCEED, then they are much more likely to “get creative” with reclassifying than they normally would.  If you or a loved one has found yourself stuck in a DUI charge, call an experienced Utah DUI attorney at 801-397-2223 today to set up your free, no obligation consultation.

Sometimes law enforcement gets a report from an individual alleging that someone has raped them.  The police come out to investigate, hear the alleged victim’s side of the story, and then, whether intending or not, draws a conclusion that my client has forced his hand on her.  Then law enforcement either sends the matter to the prosecutor’s office for “screening” (where they review the evidence and determine whether or not there is probable cause to issue an arrest warrant or whether there is enough to actually win the case should the matter proceed to trial.

Many times prosecutors will file a case knowing that it is not a winning case should the matter proceed to trial, because the legal evidentiary standard is Beyond a Reasonable Doubt, not simply Probable Cause, the standard that is required to merely file a case.  If the police do not initially send the matter to the prosecutor’s office for screening, they usually will investigate the case until they feel they have enough evidence to meet the probable cause standard, at a minimum, and, if they are wise, they will not turn a matter over to the prosecutor’s office for screening unless they have met a much higher evidentiary standard, otherwise they may lose credibility with the prosecutor’s office should they refer too many cases to them that are weak from an evidentiary standpoint.   When the police go out to investigate a crime such as rape, they often interview a number of witnesses, including the alleged victim and her friends and associates.  This investigation is supposed to be objective, where the police officer reserves judgment until all witnesses are interviewed.  Unfortunately what often happens is after the alleged victim is interviewed, the police come to a conclusion before interviewing the suspect or his friends and associates in order to get the other side of the story.  Until the police see the other side of the story, any conclusion they arrive at is premature.

I had one such incident just this past week:  client accused of raping a female he was acquainted with.  She was at his house, with his wife, just prior to the alleged incident.  My client’s wife left the house to do some shopping and left them together.  The alleged victim claimed the sex was not consensual.  My client claimed it was.  He admitted that he should not have had an extramarital affair, but RAPE!  Never!!!  He hired me to assist.  My only objective was to get the facts to the police and the prosecutor so the investigation was FAIR and BALANCED!  I interviewed his wife and some of the other individuals that were present prior to the wife leaving.  They informed me that the alleged victim had made several sexual innuendos and suggestions to both the suspect/client of mine as well as to his wife suggesting sexual activities between them all.  My client’s wife left the apartment not believing that this women would actually carry out these comments, but when she left, her husband and this alleged victim engaged in sexual activity. Alcohol was also involved, which also made the prosecutor feel uncomfortable with the added burden of proving that my client forced himself upon this woman.

All in all, after several telephone calls with law enforcement, with several witnesses, and finally with the prosecutor’s office, I was able to convince the prosecutor’s office that it was a loser case and that they should not file the charges.  The case was dropped and my client now can sleep again (with his wife!).  He has learned important lessons from this.  From a moral standpoint:  don’t drink (it only inhibits one’s judgment), don’t engage in extra-marital sexual activity, and don’t be alone in the apartment with another female, especially when they are making sexually suggestive comments.

From a legal standpoint: police can rush to judgment without interviewing witnesses from BOTH sides of the case, prosecutors can believe law enforcement even though they may have only one side of the story, and a competent and experienced criminal defense attorney can play a HUGE role in PROACTIVELY preventing charges from being filed by digging a little deeper to present fair and balanced evidence to law enforcement and the prosecutor’s office.  If you or a loved one has found yourself in a similar situation,  you know how frustrating it can be to watch the police make a conclusion based on an unbalanced investigation.    Let us help you, contact Salt Lake City criminal defense attorney Sean Druyon at 801-532-1717 to set up your free consultation today.

If you have been charged with a serious crime such as Aggravated Rape of a Child, and have shopped for an attorney to represent you, you may have received price quotes ranging from $15,000-$50,000 for the legal fee.  Many of these quotes do not even cover the expense for forensic experts and/or private investigators, which are essential on most cases of this nature.  These additional expenses may make obtaining an adequate defense unrealistic and even impossible, even when family is willing to help, to some extent, pay for the legal services and/or experts.

The prosecutors have virtually unlimited resources to pay for experts and private investigators.  And yet many times a defendant, due to financial difficulties, cannot obtain necessary defense resources and, as a result, is not given a fair opportunity to present an adequate defense.

I have successfully persuaded judges that under the Sixth Amendment to the United States Constitution, Article I, sections 7 and 12 of the Utah Constitution, as well as the Utah Indigent Defense Act and Rule 15(a) of the Utah Rules of Criminal Procedure, that a defendant, although represented by privately retained counsel, is still entitled to have the county and/or State provide funding to a Defendant so that he can obtain necessary experts in order to have a fair trial.

Some judges will disagree, however, believing that just because someone’s family has retained private counsel, they should not be entitled to county/state funding for experts.  These judges need to be corrected.  In such cases there is always an appeal process to a higher authority:  either the Utah Court of Appeals or Utah’s highest court, the Utah Supreme Court.

I have one such case where the trial judge did not believe that my client was entitled to funding for experts since his family had retained private counsel.  I respectfully disagreed and then appealed to the Utah Supreme Court.  They were convinced by my Petition to have them review the matter.  They asked all parties to submit briefs on the issues, and I just filed my Supreme Court brief on Tuesday.

We’ll keep you posted on the results. In the meantime, we can learn a few things: 1) defendant’s should not be denied necessary resources simply because they don’t have enough money for experts and/or private investigators, 2) judges are sometimes wrong, 3) prosecutors have a disadvantage in unlimited resources, and 4) there is an appeal process that should be utilized in order for justice and fundamental fairness to prevail.