Divorce Bountiful

November 14, 2020Eve Hopkins Leave a comment

First things you need to make sure is that you must meet your state’s residency requirements before you file your petition (formal written request) for divorce in Bountiful, Utah. If you don’t, you won’t be able to start the divorce process. Each state sets its own laws regarding residency. The main factor in residency requirement laws is the period of time you’ve lived within the state where you plan to get divorced. Some states will let you file for divorce without a waiting period, if you currently live in the state. Others may require you to be a resident for anywhere up to a year before you can proceed with a divorce.

Grounds for Divorce In Bountiful, Utah

Divorces grounds are the legal reasons on which you’re basing your request that the court end your marriage. Grounds fall into two categories: fault-based and no-fault.

Fault-based grounds are those that require you to prove that your spouse did something wrong, which caused the divorce. Some typical grounds in this category are adultery, extreme cruelty (physical or mental), and desertion. Today, there aren’t many benefits to filing for a fault-based divorce. However, if your state views fault as a factor in determining alimony or division of marital property, it’s something to consider.

No-fault divorce is primarily based on “irreconcilable differences” or the “irretrievable breakdown of the marriage.” In short, these basically mean that you and your spouse can’t get along anymore, and there’s no reasonable prospect that you’ll reconcile. No-fault has become the avenue of choice in most divorces. There are various reasons for this. Because you don’t have to prove your spouse did something wrong, there’s typically less anxiety and tension during the divorce process. This is a big benefit, especially if there are children involved. Also, when you don’t have to fight about fault, the divorce may move more quickly. And, less arguing almost always translates into lower legal fees.

Child Custody and Parenting Time (Visitation) In Bountiful, Utah

Custody is frequently a hotbed issue in a divorce in Bountiful, Utah. But it’s important to note that custody isn’t the all-or-nothing proposition many people think it is. In deciding custody and parenting time issues, the law requires judges to think in terms of “the best interests of the child.” To the degree possible, that usually means having both parents actively involved in the child’s life. In light of this, “joint legal custody” is often the ideal outcome of a custody case. In this scenario, both parents have a say in the most important decisions in a child’s life, such as education, religious upbringing, and non-emergency medical treatment. “Sole legal custody” means only one parent is the decision-maker, but that’s much more the exception than the rule today. Joint legal custody doesn’t necessarily translate into “joint physical custody,” where a child lives with each parent anywhere from a few days a week to literally six months a year. For any number of reasons, joint physical custody may not be feasible or advisable. In that case, a court will award physical custody to one parent (“sole physical custody”), but normally provide the other parent with a parenting time schedule. A typical parenting schedule will have a parent spending time with the child one or two evenings a week, and every other weekend, perhaps with extended time during the summer. But judges will look at parenting time on a case-by-case basis, and try to tailor a plan that best suits both parents’ schedules.

Bountiful Utah Divorce and Child Support

Both parents are responsible for financially supporting their children. Bountiful, Utah utilizes child support guidelines to calculate how much money a parent must contribute. The amount of support owed is primarily based on a parent’s income, as well as the amount of time the parent will be spending with the child. Child support will usually also encompass other elements, such as a child’s medical needs (like health insurance and medical bills not covered by insurance).

Bountiful Utah Alimony in a Divorce

The laws regarding alimony, which is also known as “spousal support” or “maintenance,” have evolved over the years. The current trend is away from lifetime or permanent alimony, which is now typically reserved only for long-term marriages generally considered to be anywhere from 10 to 20 or more years, depending on your state. For example, one type of limited spousal support is called “rehabilitative” alimony. Judges will award this for a period of time they believe will allow a spouse to viably enter the workforce, or perhaps learn certain skills that will make the spouse more employable. The object is to have the spouse become self-sufficient. Another type of short-term spousal support is “reimbursement” alimony, often awarded in short marriages where one spouse contributed to the other’s pursuit of a college or graduate school degree. The theory is that contributing spouses deserve to be repaid for the effort and costs they expended in furthering the other spouse’s education.

Some common factors a court considers when awarding alimony in Bountiful, Utah are:
• a spouse’s actual need, and the other spouse’s ability to pay
• the length of the marriage
• each spouse’s age and health (both physical and emotional)
• each spouse’s earning capacity and level of education
• parental responsibilities for the children
• the division of marital property between the spouses, and
• income available to either spouse through investment of that spouse’s assets.

Distribution of Property in a Divorce Bountiful Utah

In most divorces in Bountiful, Utah couples will have to divide property and debts. The general rule is that family courts will divide a couple’s marital property meaning property they acquired during the marriage. This would include assets such as real estate, bank accounts, and so forth. How a court goes about doing this depends on whether you live in an “equitable distribution” state or a “community property” state. Most states follow the principle of equitable distribution. This means that the court will divide the marital property between you and your spouse based on the facts of your case. Whatever the judge feels is fair in your particular set of circumstances will determine how the judge distributes the property, it’s not guaranteed that each spouse will get an equal amount. In a community property state, the court will divide all marital assets on a 50-50 basis, unless there is some reason to deviate from this standard rule. In both equitable distribution states and community property states, you usually get to keep any property that you own separately. Separate property generally includes any assets you owned before the marriage and some types of property you may have acquired during the marriage, such as gifts and inheritances. If something is confirmed as “separate property,” it will remain exclusively yours and won’t be divided between you and your spouse during the divorce.

The Divorce Process In Bountiful, Utah.

A divorce starts with a divorce petition. The petition is written by one spouse (the petitioner) and served on the other spouse. The petition is then filed in a state court in the county where one of the spouses resides. It does not matter where the marriage occurred. The petition includes important information regarding the marriage. It names the husband, wife and any children and states if there is any separate property or community property, child custody, and child or spousal support.

Serving the Divorce Petition In Bountiful, Utah.

The petition (or the divorce papers) must be served on the other spouse. This phase of the process is called “service of process.” If both spouses agree to the divorce, the other spouse only needs to sign an acknowledgement of the receipt of service. However, if the other spouse refuses to sign or is difficult to locate, you can hire a professional process server to personally deliver the papers. Completing service of process starts the clock running on your state’s waiting period. It also sets automatic restraining orders on the spouses and helps establish the date of separation. At this point, the spouses are not permitted to take any children out of state, sell any property, borrow against property, or borrow or sell insurance held for the other spouse.

Divorce Petition Response

The other spouse is known as the “respondent.” Although it’s not required, the respondent can file a response to the petition saying he or she agrees. Filing a response shows both parties agree to the divorce. This makes it more likely the case will proceed without a court hearing, which could delay the process and cost more. Generally, if a response is not filed within 30 days, the petitioner can request that a default be entered by the court. The responding spouse can also use the response to disagree with information presented in the petition.

Final Steps of a Divorce

Both spouses are required to disclose information regarding their assets, liabilities, income and expenses. If the divorce is uncontested and the spouses can agree on the terms of the divorce, there is only a bit more paperwork to file. Once the court enters the judgment, the divorce is final. However, the marriage is not formally dissolved and the spouses cannot remarry until the end of the state’s waiting period. If there are disputes that cannot be resolved, court hearings and maybe even a trial will be required.

The Different Kinds of Divorce In Bountiful Utah.

There’s not just one way to divorce. The differences can be in the law, like fault or no-fault, or in the way you and your spouse approach it, like uncontested, contested, or default. No matter how you slice it, divorce is expensive and time-consuming. The most important variable is how well you and your spouse are able to put aside your anger and grief and cooperate on the big issues of money and children. The better you are at working together to make decisions for your changing family structure, the better for your bank account and for your chances of emerging from the divorce with a decent relationship with your ex.

Uncontested Divorce

The best choice, if you can make it happen, is an uncontested divorce. That’s one in which you and your spouse work together to agree on the terms of your divorce, and file court papers cooperatively to make the divorce happen. There will be no formal trial, and you probably won’t have to ever appear in court.

Default Divorce

The court will grant a divorce by “default” if you file for divorce and your spouse doesn’t respond. The divorce is granted even though your spouse doesn’t participate in the court proceedings at all. A default divorce might happen, for example, if your spouse has left for parts unknown and can’t be found.

Fault and No-Fault Divorce

In the old days, someone who wanted a divorce had to show that the other spouse was at fault for causing the marriage to break down. Now, every state offers the option of “no-fault” divorce. In a no-fault divorce, instead of proving that one spouse is to blame, you merely tell the court that you and your spouse have “irreconcilable differences” or have suffered an “irremediable breakdown” of your relationship.

Mediated Divorce

In divorce mediation, a neutral third party, called a mediator, sits down with you and your spouse to try to help you resolve all of the issues in your divorce. The mediator doesn’t make any decisions; that’s up to you and your spouse. Instead, the mediator helps you communicate with each other until you can come to an agreement.

Collaborative Divorce

Collaborative divorce involves working with lawyers, but in a different way from the usual expectation. You and your spouse each hire lawyers who are trained to work cooperatively and who agree to try to settle your case. Each of you has a lawyer who is on your side, but much of the work is done in cooperation. Each of you agrees to disclose all the information that’s necessary for fair negotiations, and to meet with each other and both lawyers to discuss settlement. You all agree that if your divorce doesn’t settle through the collaborative process, your original attorneys will withdraw and you’ll hire different attorneys to take your case to trial.

Divorce Arbitration

In arbitration, you and your spouse agree that you’ll hire a private judge, called an arbitrator, to make the same decisions that a judge could make, and that you will honor the arbitrator’s decisions as if a judge had made them.

Contested Divorce

If you and your spouse argue so much over property or child custody that you can’t come to an agreement, and instead take these issues to the judge to decide, you have what’s called a contested divorce. You’ll go through a process of exchanging information, settlement negotiations, hearings, and, if you can’t resolve the case after all that, a court trial. If this sounds like your situation, you’ll want to talk to a lawyer.

Divorce In Bountiful Utah

When you need to get divorced and you live in Bountiful Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

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ASL Lawyer

November 13, 2020Eve Hopkins Leave a comment

These Guidelines are designed to help judges, lawyers, and others involved in the Utah Judiciary
• Understand the unique communication needs of Deaf people who use a sign language of another country (i.e., not American Sign Language [ASL]) or who are not able to communicate successfully in ASL and
• Provide guidance for improving the odds of successfully accommodating those needs. These are Deaf persons who have little or no mastery of American Sign Language and for whom the traditional accommodation of providing the services of American Sign Language interpreters alone is insufficient for ensuring equal access to court and other judicial proceedings and services, or satisfying ADA requirements for accommodating disabilities.

Background on Two Classes of Deaf Persons Having Special Needs
There are two classes of Deaf persons generally considered to need the kinds of special accommodations. The first consists of those who are immigrants, migrants, or refugees who have come to this country from abroad and are fluent in their native sign language (e.g., British, Polish, or Spanish Sign Language), but who have acquired little or no American Sign Language. Thus the use of an American Sign Language (ASL) interpreter is not a sufficient accommodation to secure satisfactory communication. The second class consists of Deaf persons who, due to numerous environmental factors combined with physiological deafness, can result in a juvenile or adult who has limited communication skills and has either limited or no facility communicating in ASL. These factors include:
• Limited opportunities for acquisition of ASL. Some Deaf people do not interact with the signing community and this inhibits their exposure to and acquisition of ASL.
• A bilingual home/school environment, e.g., deaf children born into Spanish-speaking homes who lip-read and hear Spanish until entering public school where they are exposed to lip-reading and hearing English accompanied by signs.
• The presence of a secondary handicapping condition such as mental retardation, a learning disability, or mental illness.
• A lack of natural language development during the crucial ages of 0-5 years, e.g., a deaf child born into a hearing family in which no one signs.
• Limited or no formal education.

• Social isolation. Some Deaf people lead their lives isolated from both the hearing and Deaf worlds. They may lack the general social and cultural knowledge necessary for communication in any language.
Deaf-Hearing Interpreter Team Required
A team of interpreters should be formed which includes one or more of each of two kinds of certified interpreters. First, one or more certified interpreters of American Sign Language (ASL) is essential. These are persons who meet requirements established in Utah law and the Standards for Using Interpreters in Utah and who provide the link between what speakers say in English and the Deaf interpreter. Second, one or more Certified Deaf Interpreters (CDI) is required. The CDI is a Deaf person who holds a valid Certified Deaf Interpreter (CDI) certificate from the National Registry of Interpreters for the Deaf, Inc. and who brings to this challenging interpreting situation native ASL fluency, professional training as an interpreter, and a lifetime of personal experiences as a Deaf person. CDIs share with Deaf individuals the experience of sometimes having to mime and gesture their way through life with the non-signing public. This professional interpreter provides the link between the ASL interpreter and the Deaf party or witness who has limited or no ability to communicate in ASL.

Consecutive Mode Required

Working with a Deaf-Hearing interpreting team requires the strict use of the consecutive mode in all situations. This means the ASL interpreter begins interpreting into ASL only after the English speaker has completed an utterance. Once that interpretation is completed, the CDI then begins interpreting to the Deaf person using a variety of visual/gestural communication techniques. The process will be repeated in the reverse when the Deaf person is the source of the message to be interpreted. This means that simultaneous interpretation is not viable in this context.

Understanding Silent Communication

The process of communication in these situations will not always be as linear. Persons who communicate in ASL continuously exchange signed and non-verbal feedback in order to monitor the success of the communication. To the inexperienced observer, these exchanges could appear to be inconsistent with the unbiased role of the interpreter; however, they are in fact essential for successful communication in visual languages. The feedback exchanged between the ASL and Deaf interpreters occurs primarily to clarify a source message. For example, the ASL interpreter may ask the CDI for verification or clarification before rendering an interpretation into English. The feedback that occurs between the CDI and the Deaf party may include not only similar attempts to verify and clarify, but also a variety of strategies to convey the message and fully ascertain the response.

Tolerating Silent Communication

There will be periods of silence throughout this process. These periods of silent communication may make the court and the attorneys uncomfortable or frustrated. Judges and attorneys should understand and patient since this signing is related to communicating the question to the witness and ascertaining the witness’ response, nothing more and nothing less.
Use of Alternate Forms of Communication
The interpreters should be given wide latitude in using alternative forms of communication between themselves and the Deaf persons they are assisting who are not competent in ASL. The interpreters may need to use concrete objects such as paper and pencil for drawing, calendars, clocks, pictures, and dolls to supplement their gestures and signs. Additional space may be needed to allow the Deaf person to physically pantomime what happened.
Guidelines for Asking Questions to Deaf Persons with Limited or No Ability to Communicate in ASL
The normal process by which attorneys and judges ask questions in a court of law will not usually work successfully with either of these types of Deaf persons. The following suggestions are designed to help attorneys or judges adapt their styles of asking questions to have the best likelihood of succeeding in eliciting successful answers from these types of Deaf parties and witnesses:
• Keep questions brief and as specific as possible. For example, the Deaf person may not recognize or use any of the conventional ASL signs for the word detective. However, when permitted to act out the story of his arrest, the CDI may gesture the officer flashing his badge out from under his shirt.
• Avoid vague or abstract questions.
• Avoid double negatives.
• Present questions in sequential time order of the actual series of events in question. Switching back and forth between or among verb tenses can hamper communication.
• When the Deaf party or witness is unable to answer any other form of a question, the court should consider allowing leading questions.
• The court should be prepared for and permit the interpreters to request clarification from counsel periodically throughout questioning. The interpreters may need to know what the situation looked like visually in order to communicate the concept to the witness. This may necessitate sidebar discussions or can be part of the open court record at the discretion of the trial judge.
• The court should be prepared for the hearing interpreter to use a variety of vocal intonations when rendering the witness’ response in English. These inflections will correspond precisely to the tone and affect of the witness’ signed response.

Instructions to the Jury When a Deaf Witness Who Has Limited or No Ability to Communicate in ASL Testifies

One characteristic of the communication style of these types of Deaf persons, i.e., nodding throughout any conversation, warrants special attention by the court. Judges should advise juries of the following:
• When the Deaf witness nods, it is in no way an indication that he or she understands what is being communicated. It may merely indicate a willingness to continue the conversation.
• Similarly, nodding is no way an indication that the Deaf person is answering “Yes” or “No.”
• Ignore the nods and wait for the interpreters to render the complete response before drawing any inferences about what the witness said.
How to Become a Legal Interpreter
Legal interpreter translates spoken words from one language to another in legal settings, such as courtrooms and law offices. The work can be stressful, as interpreters need to keep pace with speakers, and their interpretations can have legal ramifications. Some interpreters have variable work hours, particularly those who are self-employed.
Steps To Be a Legal Interpreter
Step 1: Study a Foreign Language in High School
Although it’s ideal to be raised multilingual, prospective legal interpreters can also develop the necessary language skills by learning at least one foreign language in high school, such as Chinese or Spanish. Consider learning a language that might be most in demand. Aspiring legal interpreters should also focus on English classes in high school, since their career relies on precision in this language as well.
Step 2: Get a Bachelor’s Degree
Many courts and other employers require that legal interpreters have a bachelor’s degree. Students don’t have to major in a foreign language, but it can be helpful. They can also benefit from choosing legal studies as a major or minor in order to learn the legal terminology required by the profession.
Step 3: Receive Formal Training and Gain Experience
Individuals interested in becoming legal interpreters can develop their skills through training programs and workshops offered through state courts and local or national interpreter associations. Some colleges also have training programs that teach legal interpreting skills. Most programs are certificate or associate degree programs, offering courses such as legal procedure and language, linguistics, and interpersonal communication. Some of these classes may be taken as part of or in conjunction with a bachelor’s degree program. Aspiring interpreters may also benefit from internships or volunteering to gain hands-on experience in their field.
Step 4: Fulfill Court Requirements and Find Employment
Most state courts mandate that legal interpreters pass a certification exam given by the court, a professional organization, or other agency. Many states recognize certification administered by the Consortium for Language Access in the Courts. Certification is also offered by the National Association of Judiciary Interpreters and Translators. Within the federal court system aspiring legal interpreters may find work as either certified interpreters, professionally qualified interpreters, or language skilled interpreters, depending on their professional credentials.
Step 5: Seek Career Advancement Opportunities
Experienced interpreters may consider pursuing supervisory positions or even starting their own firms. Individuals interested in becoming legal interpreters should have a bachelor’s degree in a foreign language, translation studies, or legal studies, and certification is typically required by the court system.

How Much Does an Interpreter Cost?

While translators work with the written word, interpreters focus on the spoken word. Professional speech interpreters frequently work in the business, healthcare, social work or judiciary fields, according to the Bureau of Labor Statistics. Available for contract work such as guiding international travelers, interpreters may also interpret at conferences, legal trials or corporate events. Phone and video interpreting services have increased in popularity with the advancing technology.
Typical costs:
• Interpreting may take place in person, over the phone or via video phone.
• In-person interpreters typically cost $50-$145 per hour. For example, American Language Services offers interpreters starting at $100 per hour (or $125 for sign language) and a two-hour minimum is required.
• Phone interpreters typically cost $1.25-$3 per minute. Language Translation, Inc. offers a flat fee of $1.88 per minute for phone interpreting, for example.
• Video interpreters typically range from $1.75 to $7 per minute. For instance, LifeLinks offers video interpreting from $2.25 per minute for any language and $2.95 for sign language. A 15-minute minimum is common for phone or video interpreting.
What should be included:
• Interpreters may specialize in languages ranging from French to Mandarin, and agencies should offer a number of qualified interpreters representing the majority of world languages. Sign-language interpreters are specially trained to relay speech to the hearing impaired, typically in American Sign Language. In-person interpreters should be booked several days to weeks in advance, depending on the agency.
• Interpreter qualifications vary by state. For instance, Utah requires court interpreters to have some form of certification, but not for medical interpretation, according to the Utah Association of Professional Interpreters. Conference Interpreters may be active members of the International Association of Conference Interpreters.
• Phone or video interpreters working with large call centers are typically available 24 hours a day, 7 days a week. No advance reservations are needed for this service.

Additional costs:
• Travel time is typically billed extra, as an hourly rate or a set fee. For instance, interpreters working with the Utah Courts cost an additional 45 cents per mile or $40 per hour for travel outside of their county.
• A two-hour minimum is common for in-person interpreters, so clients must pay extra if less than two hours of services are required.
• It is common for sign language interpreters to switch off every 15 or 20 minutes, according to the Utah Commission for the Deaf and Hard of Hearing, because of the mental stamina required to interpret for long periods. Therefore, if an event is scheduled for longer than two hours, a second interpreter may be required.
• Unless otherwise stated, international phone calls may incur additional charges on top of the phone interpreter’s fees.
Shopping for an interpreter:
• Search the online directory at the American Translator’s Association for a list of interpreting service companies and individuals.
• The Center for the Deaf and Hard of Hearing offers a list of tips for working with a sign-language interpreter, both before and during an event.

ASL Lawyer

When you need legal help from an ASL Lawyer, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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Best 84070 DUI

November 13, 2020Eve Hopkins Leave a comment

Driving under the influence is a crime, but the idea of getting arrested for DUI for the very first time may not faze many people. After all, it’s a first-time offense, and the law is quite lenient on first-time offenders. While most states categorize first-time DUIs as a misdemeanor, the consequences, both short-term and long-term, remain serious. If ever you’re arrested for a DUI, you will need to fully understand not just the punishments that come with a DUI conviction, but it’s possible long-term impact on your life as well.

Here are the things that will happen when you’re arrested for DUI for the first time.

• You Will Be Booked: As with any other crime, you will be brought to the nearest police station or jail, where your mugshots and fingerprints will be taken. If you’re allowed to post bail, and someone pays for it, you can be released immediately.

• You’ll Be Ordered To Appear In Court: A ticket or a summons will be handed to you at the time of your arrest to inform you of the date you must show up in court for your DUI hearing.

• Your License Will Be Suspended: Depending on the state, your driver’s license will be suspended immediately after the arrest if you say no to a field sobriety test or a breathalyzer or blood test, or it will come as part of your sentence once you’re convicted of DUI.

• You Can Go To Jail: Some people believe that first-time DUI convicts are only given probation. The truth is, jail terms for first-time DUI offenders are now mandatory in an increasing number of states. As first-offense DUI is classified as a misdemeanor in all states, a conviction could mean up to six months in jail. The sentence, however, may be lengthened if there are aggravating circumstances. Typically, however, first-time DUI offenders serve shorter jail terms and spend the rest of the time on probation or performing community service.

• You Will Pay Fines: The fines that courts hand down for DUI convictions may vary from state to state. For a first-time DUI offender, you could be looking at fines of up to $1,800 depending on the state where the offense was committed.

• Your Car Insurance Rates Will Soar: Expect to see a sharp increase in your car insurance premiums once your provider learns of your DUI arrest and conviction. The hike could be a few hundred dollars, but it’s not unheard of for insurance rate hikes to reach thousands of dollars. Finding a car insurance company at an affordable rate is going to be tough if you have a DUI conviction haunting you.

• You Have To Undergo An Alcohol And Drug Education Program: A first-time DUI convict often gets ordered by the court to complete an alcohol and drug education program. Finishing this program is typically a prerequisite to getting one’s driver’s license reinstated. Under the program, you have to attend hours of drunk driving prevention classes and pay for them as well. Your drinking habits will also be assessed under this program, with a trained counselor performing the evaluation to determine if you are suffering from alcohol abuse disorder. Once the evaluation shows that you have an alcohol problem, the counselor may recommend a court-approved alcohol treatment program before your driving privileges are restored.

Does A DUI Conviction Mean You Have A Substance Abuse Problem?

The legal and financial consequences of getting arrested and convicted for a DUI are bad enough, but one thing first-time DUI convicts should think about is what it might be telling them about their own health and well-being. If you find yourself at the receiving end of a first-time DUI, it doesn’t necessarily mean that you have a substance abuse problem. It’s possible that you are just a light to moderate drinker who made a bad decision to drink and drive. Nevertheless, a DUI arrest and conviction is a serious sign that you need to contemplate your alcohol consumption. It would be great if you, like most drivers arrested for a first-time DUI, make adjustments to your behavior regarding drinking and driving. However, if you continue to drink and drive and become a repeat offender despite the negative consequences, then you are waving a big, red flag. While it’s not irrefutable proof of addiction, it’s a tell-tale sign that you may have an alcohol problem on your hands, and you will likely need professional help.

Get the Services of an Experienced DUI Attorney

Should you ever get arrested on suspicion of DUI, waste no time in hiring a skilled and experienced DUI lawyer to represent you. As a specialist in laws that covers driving under the influence offenses, a DUI lawyer is the best-equipped person to help you get the best possible result for your first-time DUI case.

What Happens When A Person Gets A DUI Or DWI?

Once a person is pulled over, and their blood alcohol concentration is analyzed, the officer will determine if they will remain in custody. Arrested individuals with a BAC of .08 or higher are typically held in jail. The terminology for drunk driving may vary per state, but some of the most common include:
• DUI: driving under the influence
• DWI: driving while intoxicated
• OWI: operating while intoxicated

Once released, the person will likely receive a court date where they will then be sentenced. Sentencing requirements for a DUI or DWI vary on a state-by-state basis; however, minimal penalties often require fines and a revoked license. As part of sentencing for a DUI or DWI, a person may be required to enroll in a court-ordered alcohol addiction treatment program. Mandated treatment means that a person must enroll in treatment as part of their sentencing requirements. If they don’t, they could face legal repercussions. In order to determine the scope and necessity of court-ordered treatment, a person is evaluated to determine if there:
• is a risk for impaired driving in the future.
• is a risk of crash involvement in the future.
• are any issues or circumstances that intervention and treatment should focus on.
Evaluating a person’s risk for continued alcohol abuse and their need for treatment generally takes place in two parts. First, just before or after a referral for treatment is made, a person will likely be screened so that the courts can determine what treatment should be required. Once a person is about to enter treatment, or just after they arrive, a more in-depth evaluation, or assessment occurs. This clinical assessment determines how severe a person’s drinking problem is, what treatments could be used to treat it and how long treatment should be.

Treatment For A DUI

The specifics of court-mandated treatment may differ per person and be dependent on the exact circumstances surrounding their arrest. First-time offenders may have a lighter sentence compared to repeat offenders who have had a previous DUI or DWI. While it isn’t necessary to hire a lawyer, legal representation could help a person during the sentencing process. Every DUI offender comes from a different walk of life, potentially experiencing varying levels of alcohol abuse. Sentencing and treatment referral may take into account other factors that could influence the odds of a person experiencing an alcohol-related traffic problem in the future. An example could include a comorbid condition, such as a co-occurring mental health disorder. From this, the court will determine the duration, frequency and intensity of treatment required for each offender. Treatment may be brief and encompass only one or two sessions, take place in an outpatient program and last several weeks or months or include inpatient treatment followed by aftercare. Treatment is often held in a basic alcohol addiction treatment program located in a person’s community, however, options out of town may be available. Additional court-ordered interventions could include:
• Alcoholics Anonymous (AA)
• educational programs
• supervised probation
• victim impact panels
While it can be vastly beneficial for a person to choose getting help on their own, research has shown that involuntary treatment, such as court-ordered rehab, can be effective. According to the National Institute on Drug Abuse, this treatment could increase:
• treatment entry
• retention rates
• a person’s measure of recovery success
Once a sentence is issued and treatment is required, many people may be quick to enter treatment just to get it over with. Though this is understandable, looking at treatment as an opportunity to regain a healthier and more balanced life, in addition to learning sober living skills, can help a person get more out of their program. Because of this, and if the court permits, it can be helpful to research treatment options, prior to selecting a treatment program.

Finding Treatment For A DUI

While it could be tempting to enroll in rehab only for the minimum amount of treatment required, or in a program offered nearby, better options could exist. Court-ordered treatment can be an excellent opportunity for a person to pursue treatment for longer or in a more specialized setting. If it fulfills the sentencing requirements, choosing an out-of-town addiction treatment program could give a person a better chance of successfully recovering from an alcohol use disorder.

How Long Does A Typical DUI Case Last?

The DMV hearing is typically scheduled about four to six weeks after the request, and the person is usually either cited in or bailed out for about three or four weeks after the arrest. On a misdemeanor DUI in Utah, the person charged with a DUI will not have to appear in court. Their attorney will make all their court appearances for them so that they don’t miss work, school or time with their family. The first court appearance is for filing the complaints and arraignments; if the district attorney’s office is ready to file the complaint, they will do so that day. Often they need more time to file the complaint. This happens when the blood test results haven’t yet been received from the lab. At that first appearance, the DA might announce to the judge that they need more time to gather information before they will be ready to file a complaint. If they are ready to file the complaint that day, then when the attorney appears in court, the DA will give them a copy of the criminal complaint as well as the police report and the test results. The attorney typically enters a plea of not guilty on behalf of his or her clients. He or she then asks the judge to set the case for a settlement conference in a few weeks. After the attorney has the police reports and a copy of the complaint, they can order additional discovery or evidence that might be needed for the case. Those might include recordings or photographs that were taken during the DUI arrest. The CHP typically records almost all of their traffic stops with a dashboard camera. That gives us an opportunity to order a copy of the video. We can also get copies of any photographs that were taken, any other audio or video recordings that were made, and copies of the calibration and maintenance records of any Breathalyzer machines that were used. If there was a blood test, we would also be able to have that blood retested by an independent laboratory.

DUI Process

The first thing an attorney should do once they are retained is request the DMV hearing so that they can try to save the person’s driver’s license from the administrative suspension. The attorney should also start gathering information from the client as quickly as possible while their memory of the event was still fresh. They will want to know everything about the DUI stop and everything about the client’s history and their particular situation that might be relevant to the DUI stop. Again, it’s important to get all this information as soon as possible.

Consequences Of A DUI

The person could face a fine. They will face DUI school for a first offense. That can be six weeks, three months or even nine months. They also face a suspension of their driver’s license for anywhere from six months to a year, depending on whether or not they refused the chemical test. A person convicted of a first time DUI can be sentenced to anywhere from two days to six months in the county jail. A typical sentence for a first-time DUI would be somewhere in the neighborhood of 2 to 30 days, depending on the circumstances. In most cases, however, the jail sentence would be served on a jail alternative program known as work release. This is where the person works one eight-hour day for the county in exchange for a day of jail. They can do this on weekends or their day off. In addition, they will be on informal court probation for three years. During that time, if they violate any law or drive when they are not licensed or insured, or if they drive with any measurable amount of alcohol in their system, they can be brought back before the court and charged with a new crime as well as violation of their court probation.

Factors Which Make the DUI Case More Difficult

Getting into an accident makes it worse in terms of the ultimate punishment, even if nobody is hurt, including the driver. The DA and the judge will treat that more severely. Other things that can make the case worse are if a person refuses the chemical test. Punishment will be harsher if the person has a high blood alcohol level. In Utah, there is an enhancement if the person’s blood alcohol level is above a 0.15. There is another enhancement if the blood alcohol level is above a 0.20. And if the blood alcohol level is above 0.20, the judge and the DMV will require a person to complete the longer term of nine months of DUI school. Excessive speeding during a DUI enhances the sentence and makes things worse. It can even be made worse if the DUI occurred in a safety or construction zone. There could be an enhancement for drinking and driving with a minor under the age of 14 in the car. In that case, a person will likely be charged with a misdemeanor or felony child endangerment. That charge carries additional penalties, punishments and probation far beyond what the DUI could impose. Someone who was under 21 can also face additional penalties, because they would lose their license for a year. And, obviously, if anyone was injured, the penalties would be more severe.

Common Mistakes By Clients

The biggest mistake people make is giving the officer too much information. It can be very difficult to negate those tests if a person said too much about how much they had to drink or when they were drinking. Having a bad attitude with the officer can make the report look even worse. Doing very poorly on the field sobriety tests would obviously also be bad.

How Do Past DUI Convictions Work?

The attorney needs to know if you have ever been arrested or convicted of a DUI before. In Utah, it is considered a second DUI if you are arrested and charged within 10 years of your last DUI. DAs typically can see a previous DUI on someone’s record, even if was more than 10 years earlier, but in that case, you would not be charged with a second DUI. Still, they will make the punishment more severe because, even if the first DUI was more than 10 years ago, the current one is not truly a first offense.

DUI Lawyer

When you need legal help with a DUI charge in Utah, please call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Ascent Law LLC

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Utah Code 57-1-4

November 12, 2020Eve Hopkins Leave a comment

Utah Real Estate Code 57-1-4: Attempted Conveyance Of More Than Grantor Owns — Effect.

A conveyance made by an owner of an estate for life or years, purporting to convey a greater estate than he could lawfully transfer, does not work a forfeiture of his estate, but passes to the grantee all the estate which the grantor could lawfully transfer.
In legal terms, conveyance refers to transferring the title of real property from one person to another. A conveyance occurs when the owner of real estate transfers the ownership of that property to another party. This could be a home, or some other property such as commercial real estate. A conveyance can occur in full, or the owner may choose to transfer only a portion of the ownership interest.

Conveyances may occur in many different ways, including but not limited to:
• Through a sale of the land or property;
• Through transfer as a gift; or
• By inheritance, such as through succession laws.
In general, statute of frauds laws require that any type of real estate sale is to be recorded in a written contract. Thus, a conveyance of title to real estate must be in writing if it involves a sale. This is to help avoid any disputes or breaches of contract in the future, as well as to establish the legal owner of the property for other purposes, such as taxes. The owner of the property, or the “grantor,” must utilize words of conveyance in order to transfer an interest in property to the person receiving the property, or the “grantee.” Words of conveyance show the intent to transfer the title of a parcel of real property and are typically required by law, although the exact words required may vary by jurisdiction. Transfer of the actual, physical deed does not need to happen, so long as the person clearly expresses their intention to make the conveyance. The deed itself must be written, signed, dated, and should contain a description of the land being transferred. Additionally, in order for a valid conveyance to occur, there should be no title defects, such as an improperly recorded title. In general, there are four main types of real property conveyances. Variations do occur within the four main types of conveyances. However, courts will not typically recognize the transfer if the language of the conveyance does not fit within one of the four main categories.
• Fee Tail: Fee tails are intended to preserve the estate in the bloodline of the person receiving the property. Thus, only the children of a fee tail holder will benefit from the fee tail. Once the holder of a fee tail dies without leaving behind any children, both the bloodline and the fee tail end, and the property returns to the original grantor. Fee tails are a type of conveyance that transfers an interest in real property to another, but restricts any further sale or transfer of the property. Fee tails are also referred to as restraint on alienation, and are abolished in nearly every state.

• Fee Simple Absolute: A fee simple absolute is a conveyance of real property that gives absolute ownership in the property. The holder of a fee simple has both the present and future interest in the property. The duration is indefinite, and the interest is not subject to any specific conditions. At any time, the holder may sell all or part of the property, or distribute the property at their death through a will. These rights are commonly thought of as simply ownership of the real property, and is the most broad category of property interest;
• Life Estate: Life estate refers to an interest in property that is measured by the duration of someone’s life, typically the person who is to receive the property. Once the life tenant dies, the property is transferred to the person who holds future interest. A life tenant is generally entitled to all uses and profits from the property; however, the life tenant does not maintain any rights to transfer the property when they die. As such, they do not have the right to commit waste (acting in any way that would cause the property to lose value, neglecting the premises, etc); and
• Fee Simple Defeasible: A fee simple defeasible conveyance may have certain conditions or limitations placed on the transfer of property. If these conditions are violated, or are not met, the property either goes back to the original grantor, or a specified third party. There are three different types of fee simple defeasible:
 Fee Simple Determinable: The interest in the property is automatically ended when a condition is violated or unmet;
 Fee Simple Subject to Condition Subsequent: Transfer where the violation of the condition would give the original owner of the property the option to take back the property; and
 Fee Simple Subject to Executory Limitation: This conveyance confers a future property interest to a third party, not the original owner.
Conveyances of property may be disputed. Disputes over real property and the conveyance of real property occur frequently, especially when the grantor fails to provide clear and legal words of conveyance. Some examples of common conveyance disputes include:
 Attempts to convey property that the grantor does not actually, legally own;
 Will or trust disputes;
 Issues with defective or improperly recorded titles, as previously mentioned; or
 Conveyances based on fraud or deceit.
If a conveyance, or failure to convey, results in a measurable loss, legal action may be taken. Examples of remedies include damages awards and court injunction, such as an order that requires the defendant to transfer the title to the property’s buyer.

Things To Know About Conveyance Deed And Why It Is Important

In the wake of the rising number of instances of fraud and bogus selling of properties, it’s the conveyance deed or the sale deed that gives legal protection to the ownership of your property. By understanding the basics of a conveyance deed, you can guard yourself against getting duped.
 There is a little difference between the sale deed and the conveyance deed. All sale deeds are conveyance deeds but not vice-versa. Gift, mortgage, exchange and lease deeds are also types of conveyance deed.
 Governed under the Registration Act, a conveyance deed is an important document for a buyer as well as the seller because a purchase is not legally complete until it is signed by both the parties.
 A conveyance deed is made on a non-judicial stamp paper keeping the agreement to sell as the blueprint.

 The document has all the details needed to carry out for the transfer of the property title. This includes the full names of the buyer and the seller, their addresses, etc. The actual demarcation of the property in question, chain of the title of the owners, and the method of the delivery of the property are also stated.
 In the deed, the seller is also required to certify that the property is free from any legal encumbrance.
 If some loan is taken against the property, the mortgage should be cleared before proceeding, if it’s a sale deed. It’s always better to personally check with the local sub-registrar’s office.
 In case of sale deed, it would also mention the money received towards the sale transaction.
 The document would also state the exact date on which the property would be physically handed over to the new owner.
 Within a period of four months of the execution of the deed, all the original documents related to the sale of the property should be produced before the registrar for registration.
 The conveyance deed is also required to be signed by at least two witnesses with all their details included.
 After the conveyance deed is signed, it has to be registered at the local sub-registrar’s office by paying the registration fee.
Although states vary in indicators of fraud which are recognized the following factors, among others, may be used to infer fraudulent conveyance:
 An inadequate or fictitious consideration or a false recital as to consideration;
 The fact that property is transferred by a debtor in anticipation of or during a pending suit;
 Transactions which are not in the usual course or method of doing business;
 The giving of an absolute conveyance which is intended only as security;
 The failure to record the conveyance or an unusual delay in recording the payment;
 Secrecy and haste are ordinarily regarded as badges of fraud but are not in themselves conclusive of fraud;
 Insolvency or substantial indebtedness of the grantor;
 The transfer of all the Debtor’s property, especially when she is insolvent or greatly financially embarrassed;
 An excessive effort to clothe a transition with the appearance of fairness;
 The failure of parties charged with fraudulent conveyance to produce available evidence or to testify with sufficient preciseness as to the pertinent details, at least in cases where the circumstances under which the fraud, transfer took place are suspicious;
 The unexplained retention of possession of property transferred by Grantor after conveyance;
 The buyer’s employment of the seller to manage the business as before, selling the goods which were the subject of the transfer;
 The failure to examine or to take an inventory of the goods bought or the presence of looseness or incorrectness in determining the value of property;
 The reservations of a trust for the benefit of the grantor and the property conveyed;
 The existence of a blood or other close relationship between the parties to the transfer.
Conveyance Deed mean
One should first understand the meaning of ‘Deed’. It is a written document that is sealed and signed by all parties involved in property transaction (buyer and seller). It is a contractual document that includes legally valid terms, and is enforceable in a court of law. It is mandatory that a deed should be in writing. When each party agrees and all the liabilities has been fulfilled as per the agreement of sale of any property, a final document is signed by the seller in favor of the purchaser. This documents that all rights of seller over a property henceforth has been transferred to the purchaser. This is the deed of conveyance.
“Conveyance Deed records the transfer of interest in immovable property. The conveyance in the immovable property may take place by way of sale deed, gift deed, exchange deed etc,”
What is the difference between sales and Conveyance Deed?
It has also been observed that buyers are usually confused about the two terminologies sales deed and Conveyance Deed.
Sale Deed
A Sale Deed acts as the main legal document for evidencing sale and transfer of ownership of property in favors of the buyer, from the seller. Further, it also acts as the main document for further sale by the buyer as it establishes his proof of ownership of the property. The Sale Deed is executed subsequent to the execution of the sale agreement, and after compliance of various terms and conditions detailed in the sale agreement as agreed upon between the buyer and the seller. The Sale Deed is the main document by which a seller transfers his right on the property to the purchaser, who then acquires absolute ownership of the property.
“Conveyance and Sale Deed essentially have no difference as in both the documents, the right, interest and title of the previous owner is transferred to the purchaser. Conveyance Deed includes Sale Deed i.e. Sale Deed is one of the mode of conveyance i.e. transfer of interest. All deeds transferring the property-rights are Conveyance Deeds. Sale Deed is one of them,” But what is to be taken into the account that all Sale Deeds are deeds of conveyance but all Conveyance Deeds are not sale deeds. So, Conveyance Deed is a broader concept including the Sale Deed in it. On signing a Conveyance Deed, the original owner transfers all legal rights on the property to the buyer, against a certain consideration which is usually money. However, this consideration is non-significant in the case of Gift Deeds, as they are based on familial bonds.

Conveyance Deed is required to contain the following:
 Complete identification and demarcation of the boundaries of the property
 Information of all the parties who are involved, such as name, age addresses and signature of both the parties involved – buyer and seller
 Mention of any other rights (if applicable) annexed to the property and its use
 The chain of title, that is, all legal rights to the present seller
 The method of delivery of the given property to the buyer
 The sale agreement, which is the main requirement of the drafting of the valid sale deed and both the parties, must mutually settle the terms and conditions of the agreement. A sale deed always precedes agreement to sell
 The sale consideration clause, which is the memo of the consideration, stating how it has been received
 Any other terms and conditions that are applicable as far as the transfer of ownership rights are concerned
The Conveyance Deed procedure
The Conveyance (or sale) Deed is required to be executed on non-judicial stamp paper. Once that is done it needs to be registered by presenting it at the Registrar’s office, and remittance of the registration fee. After the registration is done, the transfer of the property moves into the public domain. Stamp Duty and Registration Fees is obtained by the government as revenue. When this happens, the process of Conveyance Deed is officially over. If the builder is not alive, it can be done by the legal heirs/representative of the builder. You need to draft a Conveyance Deed and apply before registration. Engage any local counsel who is dealing in these matters.
Should I Hire an Attorney for Help with Conveyance Issues?
A skilled and knowledgeable estate attorney may prove to be an invaluable asset when conveying property to another person. An experienced estate attorney will be knowledgeable about your state’s specific property laws, and will be able to assist you in drafting any necessary real estate contracts. Additionally, they will be able to represent you in court, should any disputes arise.

Real Estate Attorney

When you need real estate legal help, call the Real Estate Attorneys at Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Ascent Law LLC

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Divorce West Valley

November 12, 2020Eve Hopkins Leave a comment

Divorce, or dissolution of marriage, is the legal process of severing a marriage contract, which is overseen by a court of law in the state in which one or both of the divorcing spouses live. The process for getting a divorce and acceptable grounds for divorce varies from state to state. In West Valley, Utah, a divorce can be completed on average in a minimum of 180 days, with court fees of $310.00. The state has divorce residency requirements that require the spouse filing for the divorce to have lived in West Valley, Utah, for a minimum of three months. In Utah a couple seeking a divorce can choose either no-fault grounds or can choose the option of filing on traditional fault grounds.

Grounds for divorce include:
 Adultery
 cruelty/violence toward the other spouse
 desertion
 drug/alcohol addiction
 impotency
One of the parties seeking a divorce must have resided in the State for a period of 3 months prior to filing. The parties must have also been separated for 3 months before a divorce will be granted. The divorce may be filed in the either county in which the parties reside.
Requirements To File For A West Valley,Utah Divorce
 Utah allows you to divorce based on irreconcilable differences.
 You or your spouse must have resided in the state of Utah for at least three months prior to filing for divorce.
 If you are parents of a minor child, you or your spouse must have resided in Utah for at least 6 months prior to filing, although the courts may make exceptions in certain circumstances.
 You may need to attend a Divorce Education class if you are parents of minor children.

How To Initiate A Divorce Proceeding

There are primarily two types of divorce in Utah: contested and uncontested.
If you and your spouse can agree on all of the issues in the divorce including the disposition of assets and liabilities, child custody, and spousal support, you qualify for the uncontested divorce process. This is a faster process because you typically do not need to appear in court unless you have children; if you have children, you will need to attend a short hearing regarding custody, support, and visitation. You will need to file a Verified Complaint for Divorce with the clerk of your local county court to start this process. Utah even has an online filing system that may allow you speed up the initial filing procedure. If you and your spouse are unable to come to an agreement on issues related to the divorce, you will follow a similar filing procedure. However, you and your spouse will have to attend a hearing shortly thereafter to help identify what issues remain unresolved. The judge will then schedule a jury or bench trial, at which you and your spouse may argue your claims.
Utah Legal Notice Process
Divorce is a legal action that one spouse takes against the other, and that requires proper notification of the other party. You must provide copies of the following documents to your spouse within 120 days of filing the original complaint:
 Copy of Verified Complaint for Divorce
 Copy of Court Summons
 Copy of Temporary Injunctions
The following methods of service are available in Utah:
 By mail—you may send your papers to your spouse via the U.S. Postal Service using registered or certified mail, or any commercial courier service that uses return receipts to confirm delivery. Your spouse must sign for the documents.
 Personal service—you may deliver the divorce papers using a private process server, local sheriff or anyone over 18 who is not a party to the legal action.
Utah courts will not proceed with the divorce without proof of service, which may take the form of a receipt or an affidavit signed by the process server. Once your spouse has been properly served, they will have 21 days to respond to the petition if they reside in the state of Utah, or 30 days if they reside in another state. If they fail to file an Answer with the court within this time period, they may lose the right to be heard by the court.

Default
If your spouse, as the respondent in the legal action, does not answer the complaint within the allotted time period, the judge will likely assume that they do not wish to participate. At that point, the court will grant most or all of the terms in the Complaint for Divorce without waiting to hear from the respondent.
Uncontested
If your spouse does not dispute any of the allegations found in the Complaint for Divorce and a divorce settlement has already been formalized and signed by both parties, there may be no need to serve process (as your spouse is already a party to the action). If you and your spouse have come to an understanding but have yet to sign a formal agreement, then your spouse should produce an Answer in which they agree to the terms of the Complaint. This removes the need for a trial and allows parties to proceed to the issuance of the final decree for divorce.
Contested
If your spouse files an Answer that refutes details in the complaint or makes a counterclaim, then the judge will order you and your spouse to trial. Before the trial, you and your spouse’s attorney may use the discovery procedure for evidence requests, witness interviews, and negotiations with the other party. This may be a lengthy, involved process that takes a hefty toll on you personally and financially.
Contested Utah Divorce (High Cost)

If you and your spouse are unable to reach an agreement on the issues in the divorce like those involving property allocation, alimony or child support, you will probably have to endure a long and costly legal process that will involve a trial. Because your spouse will probably hire an attorney to represent and protect their interests, it is strongly advised that you do likewise.
 Attorneys are experts in the law and have knowledge that will make the entire divorce proceed more smoothly. Their prior knowledge of court procedures will also lower the risk of making a misstep that could jeopardize the outcome of the case.
 Although an attorney may make certain legal deadlines are met, there is no guarantee that their involvement will shorten the amount of time to complete the divorce. They could engage in a protracted process of discovery to investigate claims made by you and your spouse or enter into negotiations with your spouse’s legal team that could drag on for weeks or months.
 If you have a lot of property to divide, or complicated issues to resolve, an attorney may provide the best ways to proceed.
 Because most divorce lawyers charge hourly in a contested divorce you may expect to pay quite a lot if you and your spouse cannot come to an agreement.
Uncontested Utah Divorce (Low Cost)
In Utah, if you and your spouse agree on certain issues, you may proceed through the uncontested divorce process.
 You and your spouse must agree on property division and the division of debt to use this expedited process.
 Neither you nor your spouse may petition for child support, child custody or spousal support to qualify for this expedited process.
 There is no need for a trial, but the judge may order you to appear at a hearing if there are child custody issues.
 There may be no need for legal representation, and, in many cases, you can complete the entire process on your own, saving yourself time and money.
 You may be able to complete an uncontested divorce in as little as 90 days.
Self-Representation (Lowest Cost)
The simplest and most cost-effective way to get a divorce in Utah is for you and your spouse to be in full agreement about major issues like property distribution and you represent yourself. That is why it is in your best interests to come to an agreement with your spouse before you start the divorce procedure. You will save a lot of money and trouble by completing the paperwork yourself.
Mediation (Medium Cost)
Utah courts will often order couples seeking a divorce to use mediation services even if neither party requests it. Mediators are conflict resolution experts who help couples come to an agreement on unresolved issues. Mediation is not legally binding, but it may make the divorce process easier, shorter or even unnecessary.
Divorce Trial (Highest Cost)
If you and your spouse cannot agree on major issues, the judge will order a bench or jury trial that will require you and your spouse to present evidence or testimony supporting your respective positions. In most trials, it is the attorneys with prior trial experience that do most of the arguing and present evidence. In addition to the legal fees paid to the attorneys, there are usually many court costs involved in a trial.
Property Distribution
One of the most divisive issues of any divorce involves how property is distributed to the parties involved. Utah courts use the principle of equitable distribution, i.e. assets should be allocated fairly, to divide marital property. This does not necessarily mean a 50/50 split and fairness is governed by many factors including:
 duration of the marriage
 the age and health of each spouse
 occupations and future income
 the standard of living during the marriage
 tax consequences of the distribution
 custody of the children
These factors may be ignored regarding property that was owned prior to the marriage or assets under the purview of a prenuptial agreement.
Child Custody
Utah confers upon a parent two types of custody: physical or legal. Physical custody governs the residence of the child, while legal custody grants the right make important decisions regarding the child’s wellbeing. Utah determines these custody decisions based on the best interests of the child. Utah courts prefer to award the parent with physical custody also with primary legal custody, but encourage contact with both parents. The court will take into consideration the following criteria before making a determination:
• the parents’ behavior and morality
• which parent will more likely act in the child’s best interest;
• which parent will more likely allow the child interactions with the other parent;
• the type of relationship between a parent and child.
Spousal Support
Alimony or spousal maintenance may be ordered if the dependent spouse is unable to maintain the current standard of living. In most cases, alimony is only temporary and will be terminated after a determined period of time. The court will consider the following when awarding alimony:
• Both spouse’s age and health
• Length of marriage
• the standard of living at the time of separation
• the dependent earner’s contribution to the increased earning power of the other spouse
• past services as a parent or homemaker
• both spouse’s future income and assets
• needs of any minor children
• any fault by a spouse including adultery, domestic violence or financial malfeasance
Finalizing Your Utah Divorce
If you and your spouse engage in an uncontested divorce, then you will probably not need to attend a court hearing before the judge issues the final divorce decree. If you are engaged in an uncontested divorce and have minor children, you must complete a Divorce Education class before the judge will issue the final decree. If you and your spouse disagree on key issues, the judge may schedule a trial before a jury or a judge. After the judgment is issued, you should receive your final decree of divorce.
How to Revise Your Estate Plan After Divorce
Planning an estate in the aftermath of a divorce involves learning a different type of arithmetic. Without a spouse to anchor an estate plan, the executors, trustees, guardians or agents under a power of attorney and health care proxies will have to be selected from a more diverse pool of people that are connected to you. Beneficiary forms tied to an IRA, 401(k), 403(b) and life insurance must be updated to reflect the dissolution of the marriage. Paperwork marks the end of one life and the beginning of another. Estate provisions are usually included in agreements that are created during the separation and divorce. These provisions may call for the removal of both spouses from each other’s estate planning documents and retirement accounts. Trusts made during the marriage are governed differently. Revocable trusts can be revoked and the assets held by those trusts can be part of the divorce. Irrevocable trusts involving marital property are less likely to be broken up. In fact, following the death of the grantor, distributions may be made to an ex-spouse as directed by the irrevocable trust.
A major part of post-divorce estate planning is changing beneficiaries. Request change of beneficiary forms for all retirement accounts – IRA, 401(k), 403(b) – and life insurance policies. Without a stipulation in the divorce decree terminating their interest, an ex-spouse still listed as beneficiary of an IRA or life insurance policy could lead to problems upon your death. Divorce pushes children into positions of responsibility at an earlier age. Adult children in their 20s or early 30s take the place of the ex-spouse as fiduciaries and health care proxies. This includes agents under powers of attorney, executors and trustees. For divorcing parents with minor children, selecting guardians under a will to care for the children should both parents pass away may involve more delicate negotiations between the parties to achieve a consensus. Trusts are often the preferred estate planning vehicle for divorced partners. Their assets pass outside of probate, which can be helpful in situations where the divorce’s impact was felt by the children and led to internal strife. Trusts are also useful when a divorced partner is contemplating remarriage, but wants to protect the estate legacy left to children from the first marriage. Once the whirlwind of emotions surrounding a divorce begins to subside, a few clear-headed estate planning tasks will mark a new chapter in a family’s history.
Hiring a Lawyer
If you have an uncontested divorce with no children or property to divide, and no spousal support claim, you do not need a divorce lawyer. Where there are any issues that require a negotiated settlement, it is mandatory to have independent legal advice in order for any agreement to be enforceable. In many cases you can reach an agreement without a lawyer, perhaps with the assistance of a trained mediator (who may be a lawyer). You have the right to represent yourself. However, given the importance of the underlying issues, most people prefer to have a lawyer represent them in negotiation, mediation, and any arbitration or court proceedings.

Utah Divorce Lawyer

When you need a Divorce in West Valley Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

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84088 United States
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Utah Criminal Code 76-5-102.8

November 11, 2020Eve Hopkins Leave a comment

Utah Criminal Code 76-5-102.8: Disarming a Peace Officer–Penalties

1. As used in this section:
a. “Conductive energy device” means a weapon that uses electrical current to disrupt voluntary control of muscles.
b. “Firearm” has the same meaning as in Section 76-10-501.
2. An actor is guilty of an offense under Subsection (3) who intentionally takes or removes, or attempts to take or remove a firearm or a conductive energy device from the person or immediate presence of a person the actor knows is a peace officer:
a. without the consent of the peace officer; and
b. while the peace officer is acting within the scope of his authority as a peace officer.
3. Conduct under Subsection (2) regarding a firearm is a first degree felony.
Conduct under Subsection (2) regarding a conductive energy device is a third degree felony.

Disarming A Peace Officer

Disarming a peace officer is a relatively simple criminal offense. At trial the an attorney must show five separate elements:
• The victim was a peace officer;
• The victim was acting in an official capacity;
• The defendant disarmed the victim by taking a dangerous weapon from him;
• The victim did not consent to the taking of the dangerous weapon; and
• The defendant intentionally committed the acts.
Peace officer “means any person vested by law to maintain public order or to make arrests for crime, whether that duty extends to all crimes or is limited to specific crimes. ‘Peace officer’ includes a commission warden and a university police officer…” A peace officer acts in an “official capacity” when that officer performed acts that they are employed to perform. In the midst of a scuffle with law enforcement, whether done intentionally or unintentionally, an individual can be charged with attempting to disarm. The alleged attempt of disarming can involve the gun of a police officer or his baton, pepper spray, handcuffs or any other list of items that constitute a weapon. As you now unfortunately know, a charge for disarming a police officer enters into a very murky area when it comes to your liberty although this offense is less than cut-and-dry in many cases. A skilled criminal attorney can frequently take advantage of the facts and law in these cases and avoid jail, etc.

How Serious Is A Disarming Law Enforcement Charge?

Disarming a Law Enforcement Corrections Officer is a second degree crime and can result in up to 10 years in prison. However, this charge can be enhanced to a first degree crime that carries as much as twenty years in prison and a $200,000 fine under certain circumstances that are discussed later.

When Does Someone Attempt To Disarm A Peace Officer?

There are three elements that must be present in order for a guilty verdict to be rendered. Specifically, they include:
• That the defendant knowingly took or attempted to exercise unlawful control over a firearm or other weapon in the possession of a law enforcement or corrections officer;
• While that officer is acting in the performance of his duties; and
• That officer is either in uniform or exhibits evidence of his authority.
The third element of this offense tends to be the trickiest for the State to prove in their case-in-chief. Primarily because undercover officers may be disarmed in the heat of an operation but never exhibit any authority or evidence of their power as a law enforcement officer. Developing these proofs in your case can be the difference between a conviction and exoneration.

Enhancement to First Degree Disarming of a Peace Officer

As mentioned above, the majority of charges for disarming a peace officer are in the second degree. However, under certain circumstances these charges will enhance to a crime of the first degree. Specifically, this will happen if, in addition to disarming the cop:
• The defendant fires or discharges the firearm;
• The defendant uses or threatens to use the firearm or weapon against the officer or any other person; or
• The officer or another person suffers serious bodily injury.
Most likely if someone is convicted of disarming a peace officer in the first degree, as previously stated, they are exposed to twenty years of incarceration. In addition, there is a presumption that they will go to jail which means that imprisonment is a virtual certainty if convicted. The No Early Release Act (“NERA”) applies to disarming convictions so that a defendant has to serve 85% of the jail/prison sentence imposed before eligible for parole. The presumption of incarceration and NERA also apply to second degree disarming. A person charged under the statute can be subjected to a first-degree or second-degree offense, depending on the extent of the encounter. It is a second-degree offense for a suspect to attempt to disarm or to actually disarm a peace officer. Where the disarming progresses to the point that the gun or firearm discharges and/or is fired, the gun is pointed or used against the officer, or a person suffers serious bodily injury, the charge is a first-degree offense. In either case, we are talking about a serious criminal indictment which carries a presumption of incarceration. It is therefore crucially important for an individual to hire a knowledgeable attorney to defend him given the exposure associated with a conviction. In order to prove a second-degree indictment or charge for disarming in Utah, the prosecutor must establish:
• that the suspect knowingly took or attempted to take control of a firearm or weapon;
• the weapon or firearm was possessed by a member of law enforcement;
• the law enforcement officer was acting in the performance of his duties; and
• the law enforcement officer was in uniform or exhibited evidence of his authority.
• An additional element must be established by the state where an individual is charged with a first-degree offense—that the firearm went off, the firearm or weapon was used to threaten the peace officer, or someone suffered serious bodily injury. The first element is established when there is an interference with the officer’s possession or control of the weapon.

Any individual who knowingly attempts to take control or actually exercises unlawful control over any weapon or firearm possessed by a peace or corrections officer acting within the performance of their duties is committing a Second Degree Offense.
The crime shall be considered a First Degree Offense if:
 The individual actual discharges or fires the firearm
 The individual threatens to use or uses the weapon or firearm against any other person, including the police officer; or
 Any other person involved, including the police officer, suffers serious bodily injury
If the accused attempted to disarm or actually disarmed a police officer, they are facing charges for a Second Degree Criminal Offense. If and when the act of disarming progresses and the officer or another individual is harmed and/or the gun is fired or used against the officer, the defendant faces charges for a Second Degree Offense. Regardless of the charge, disarming a law enforcement officer is a serious criminal indictment and often carries the penalty of incarceration. It is critical to your case to hire a knowledgeable attorney for the best defense possible.
To prove a Second Degree indictment for a disarming charge in New Jersey, the prosecutor must establish all of the following:
 The individual knowingly attempted to take or actually took control of the a weapon
 That weapon was in the possession of a member of law enforcement
 The law enforcement officer was acting within reasonable performance of their duties
 The law enforcement officer in question was in uniform or exhibited evidence of their authority
Furthermore, to prove the elevated charge of a First Degree Offense for disarming an officer of the law, the prosecutor must additionally prove the firearm went off, the weapon was used as a threat against the peace officer, or someone suffered serious bodily injury as a result of the disarmament. A weapon refers to any object capable of inflicting serious bodily injury or lethal use. If the individual accused of disarmament has acted lawfully, such as in justified self-defense or a superior law enforcement officer, there is no guilt of disarming an officer. Serious bodily injury refers to bodily injury that causes serious, permanent disfigurement, protracted loss or impairment of any bodily member, or substantial risk of death.

Common Offenses You May Be Charged With For Assaulting A Law Enforcement Officer

Assault and battery is a serious offense in Utah that can cause long-term consequences in a person’s life. If a person is charged with assaulting a police officer, the charges can be even more serious. Due to all the news about police assaults, shootings, and killings of officers, the police are becoming increasingly intolerant of any actions that may be interpreted as physical resistance or assault. If you have been charged with an assault on a police officer or a similar offense, you need the assistance of an experienced violent crimes attorney to reduce the harsh sentence that you may face. A person can commit battery through any offensive or harmful conduct, which can be as minor as throwing a snowball or small object at someone, if the person makes some contact with the victim and intended harm to the victim. An assault is an intentional act that makes a person think that he will be offensively touched or intentionally harmed. Since a battery is any unwanted touching, these charges can be raised for any minor action of a suspect. This law applies to police officers and many other government officials, including:
 Judges
 Correction officers
 Firefighters and volunteer firefighters
 Rescue squad personnel
If you are convicted of this offense, you face a mandatory minimum prison sentence of six months in jail that can be increased to one to five years in prison. You may also be fined a maximum of $2,500.

Obstruction of Justice Charges

You may also be charged with obstruction of justice if you prevent the police officer from performing his duties. This offense can also be charged with obstructing a judge, juror, prosecutor, or attorney. You may be charged with this for:
 Using force or threats of force to impede a peace officer
 Threatening body harm to impede a peace officer
 Making a false representation to a police officer who is investigating a crime.
Obstruction of justice is generally a Class 1 misdemeanor with a possible sentence of up to 12 months in jail and a fine of up to $2,500. However, a person can be charged with a Class 5 felony if he knowingly attempts to intimidate or impede a peace officer and does so in a court in relation to a drug offense or felony.

Resisting Arrest Offenses in Utah

Resisting arrest is similar to obstructing justice but is a different offense in Utah. Both involve intentionally impeding a peace officer from performing his duties. Unlike resisting arrest, you may be charged with obstruction of justice in situations other than an arrest. Under Utah law, you may be arrested for resisting arrest for intentionally preventing or attempting to prevent a law enforcement officer from arresting you, with or without a warrant. This is defined as fleeing under one of these circumstances:
 The peace officer is applying physical force
 The peace officer communicates to you that you are under arrest
 The peace officer has the legal right to and the immediate physical ability to do so
 A reasonable person would know or should know that he is not free to leave

Resisting Arrest: Laws, Penalties, and Defense

Resisting arrest occurs when a person interferes with a law enforcement officer’s attempt to perform a lawful arrest. Some states call the crime “obstruction.” Resisting arrest occurs when a person interferes with a law enforcement officer’s attempt to perform a lawful arrest. Some states call the crime “obstruction.” The crime can be a felony or a misdemeanor, depending on the severity of the actions of the person being arrested. Misdemeanor resisting arrest (or misdemeanor obstruction) can include actions such as running and hiding from a law enforcement officer. Felony resisting arrest usually requires that a person either act violently toward the arresting officer or threaten to act violently.
Felony Resisting Arrest: What Does the Prosecutor Have to Prove?
In order to secure a conviction for resisting arrest, the prosecutor must produce evidence on the following issues, called the “elements” of the offense, and the judge or jury must decide that the prosecutor has proved each one of them beyond a reasonable doubt. While the elements of the crime may vary from state to state, usually all of the following must be true:
 The defendant intentionally resisted or obstructed a law enforcement officer. This means the defendant intentionally acted in a way to hinder the arrest. However, the person need not have intended the result or harm that his actions caused.
 The defendant acted violently toward the law enforcement officer or threatened to act violently. For example, striking or pushing the officer would satisfy this requirement. Similarly, a defendant’s threat to strike an officer with an object in the defendant’s hand would also satisfy this requirement.
 The law enforcement officer was lawfully discharging his official duties. This means the law enforcement officer was properly engaged in the performance of official duties, such as investigating a crime or making a traffic stop. A law enforcement officer can be acting lawfully even when arresting the wrong person and even if the charges are dropped or the defendant secures an acquittal at trial. (Read more on your rights if you’re arrested.)

Call Ascent Law LLC For Legal Help

If you are facing a charge of resisting arrest, consider consulting with an experienced criminal defense attorney who regularly practices in your area. A lawyer can evaluate the strength of the prosecution’s case against you and help develop any defenses you might have. For example, if you believe that your resistance was justified because the arrest was unlawful, you’ll need to know whether your state recognizes this defense, as explained above. A lawyer’s skillful negotiation with the prosecutor can sometimes result in a reduction of felony resisting arrest charges to misdemeanor charges, or even dismissal of the charges. A local criminal defense attorney, who knows how the prosecutors and judges involved in your case typically handle such cases, can assist with these negotiations. And if you decide to go to trial, having a good lawyer in your corner will be essential.

Criminal Lawyer in Utah

When you need to defend against criminal charges in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

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Federal Trucking Law

November 11, 2020Eve Hopkins Leave a comment

The Federal Motor Carrier Safety Administration (FMCSA) is the federal agency responsible for devising the laws, rules, and regulations that govern motor carriers in Utah, United States. The FMCSA has also passed many trucking laws and regulations, which have been designed to increase the safety of bug trucks on the roads of the United States. These laws have been enacted in a bid to reduce truck accidents and also increase the safety of the vehicles, drivers, and other passengers on the roads.

FMCSA Trucking Laws and Rules

Title 49 of Code of Federal Regulations, as designed by the FMCSA, lists all the laws and regulations that govern the entire trucking industry in Utah, United States. The following are highlights of these federal trucking laws and regulations:

Laws and Regulations Applying to Truck Drivers

• Licensing Requirements: According to this rule, truck drivers are allowed to have just one driver’s license, which has been issued to them by their home state. The license can be issued to the truck drivers only after they are successful in clearing knowledge and skill tests. Hazmat (hazardous material) carriers are usually required to pass additional tests before being given a valid license.
• Special Training and Physical Requirements: Truck drivers need to undergo special training and also need to pass a physical exam every two years. Failing this test would restrict them from truck driving.
• Controlled Substances, Alcohol Use and Testing: Part 382 states that no truck driver is allowed to report for duty with a blood alcohol level of 0.02 or more. Truck drivers cannot carry any alcohol with them while driving, unless it forms a portion of their cargo. They cannot have alcohol or other drugs that can affect their driving capabilities, in the 8 hours before a driving shift.
• Hours of Service: Due to the alarming rise in truck accidents as a result of driver fatigue, the FMCSA has changed the rules of hours of service that apply to truck drivers. As per the new rules, truck drivers can drive a maximum of 11 hours in a workday of 14 hours maximum, after which they are required to take a minimum of 10 hours off duty. Truck drivers are also required to maintain log books of their time spent at work and behind the wheel.

Laws and Regulations Applying to Trucks

• Rules for Securing Cargo: Beginning January 1, 2004, the rules for securing cargo and heavy loads in trucks were changed by the FMCSA, in order to make the cargo more secure and minimize the chances of it becoming loose and falling off the vehicle. These rules include new and better provisions for tying down cargo and using better securing devices.

• Required Vehicle Markings: Under this rule, all trucks are required to display certain markings on the vehicle. These include their USDOT number, Hazmat markings, etc. In addition to the above, the FMCSA has passed many rules and regulations that govern the actions of trucking companies, and hazardous material carriers as well. These include, but are not restricted to, complying with USDOT safety rules by trucking companies, unfit carrier rules, hours of service logbook rule for companies, hazardous material regulations and how to comply with them, State Hazmat permission and registration procedures, etc.

Truck drivers and trucking companies must follow both state and federal regulations. The federal regulations are promulgated by the Federal Motor Carrier Safety Administration (FMCSA) and include all aspects of truck driving. Among the categories the federal regulations cover are drug and alcohol testing, hours of service, vehicle marking, and maintenance. A truck driver’s failure to follow a federal or state safety law is strong evidence of negligence after a truck accident causing personal injuries. Not all states recognize the doctrine of negligence per se, but the states that do recognize this doctrine may allow an inference of negligence if the truck driver violated a safety statute, the violation proximately caused an accident, and the victim was a member of the class that the statute was designed to protect. An inference of negligence can make it easier for a victim of a truck accident to recover damages. Even when states do not recognize negligence per se, evidence that a truck driver caused an accident by violating federal or state safety regulations is strong evidence that a duty was breached.

Alcohol and Drug Testing Under Federal Law

The FMCSA drug and alcohol testing rules apply to all operators of commercial motor vehicles with a commercial driver’s license. The test is designed to identify alcohol, marijuana, cocaine, opiates, amphetamines, and PCP in the system. There are four potential testing scenarios: pre-employment, reasonable suspicion, random drug tests, and post-accident drug tests. All trucking employers must have a designated employer representative who is required to oversee employer compliance with the drug testing regulations. A trucking company can only permit a driver to perform duties that require safety if he or she gets a negative result on the pre-employment test. The employer must also interview the potential employee as to drug and alcohol testing history, and obtain records from previous employers. When an employer or supervisor harbors a reasonable suspicion that the truck driver has taken drugs or has drunk alcohol, it has a duty to test that driver. Moreover, random tests chosen through a scientifically valid method and without notice to the driver are required. After a fatal truck accident, testing is required, and even when there isn’t a fatality, any commercial truck driver cited for a moving violation that either involved towing of a vehicle or required medical care away from the scene must also be tested for drugs and alcohol. If a police officer pulls over a truck driver for suspected drunk driving and believes the driver is drunk, he or she may require the truck driver to take a Breathalyzer or blood test. The blood alcohol concentration required to cite a commercial truck driver for a DUI is lower than it is for ordinary non-commercial vehicle drivers.

Hours of Service Regulations

Commercial truck drivers must also follow the federal regulations regarding hours of service. Truck drivers hauling property can drive 11 hours each day only after 10 consecutive hours off duty. They may not drive beyond the 14th hour in a row after coming on duty. Furthermore, they are not permitted to drive after 60 hours in seven days in a row, or 70 hours in eight days in a row. Truck drivers who reach the maximum 70 hours of driving within a week may only resume if they rest for 34 hours in a row. This rest must include at least two nights, including the period from 1-5 a.m. Truck drivers must take at least one 30-minute break during the first eight hours of their shifts.

Federal Regulations for Truckers

Drivers of trucks and commercial vehicles operate their vehicles over hundreds or even thousands of miles of highway. Besides having to pass high standards to be able to operate a large commercial vehicle, a driver must comply by federal regulations that place limitations on the hours that a person can sit behind the wheel. These limitations help to combat a common cause of truck and commercial vehicle accidents: fatigue. Accidents resulting from a truck driver’s fatigue can be life-shattering, especially for the driver and passengers of the vehicle collided with. If you or someone you know was involved in a truck or commercial vehicle accident and believe that driver error contributed to your crash, contact an experienced Utah truck accident attorney.

Commercial Driver’s License Requirements

Even before the driver of a truck or commercial vehicle can get behind the wheel, he or she must pass stringent requirements in order to be granted a commercial driver’s license (CDL). These requirements include:
• Being 21 years of age, if working between states or transporting passengers
• Providing “proof of legal presence,” e.g. a U.S. Passport or certified Birth Certificate
• Supplying a medical certification
• Passing truck and commercial vehicle-specific knowledge tests
• Passing specialized endorsement tests, if applicable
• Passing a truck and commercial vehicle-specific driving test
If a driver gets behind the wheel of a truck or commercial vehicle without a CDL, he or she is in violation of the law and is engaged in negligent behavior. If you were involved in a truck or commercial vehicle accident in which the operator of the truck or commercial vehicle lacked a CDL, contact an Utah truck accident lawyer.
The Driver’s Logbook — Rules of the Road
Besides keeping safe driving patterns, truck and commercial vehicle drivers must keep daily driving records. These records can be kept in a driver’s logbook or on an on-board electronic recording device. Data includes:
• Total hours of time on-duty
• Total hours of time off-duty
• Total miles driven
• Truck or commercial vehicle number
• Motor carrier’s name and address
• City and town names where a stop and change from on-duty to off-duty (or vice versa) occurred

Regulations for Trucks

• Loads and Freight — Loads should be properly loaded and properly secured to prevent leaking, spilling, or falling. The trucking company and the company that loaded the cargo may be liable if cargo slips or falls from the truck and injures someone. There also are numerous stringent regulations regarding shipment of hazardous materials by truck.
• Maintenance — There are a number of regulations pertaining to the maintenance, inspection, and safety of trucks. Trucks are supposed to undergo annual inspections, and truck owners should keep logs of accidents the truck has been involved in. Truck drivers are supposed to perform pre-trip inspections that include checking brakes, steering, lights and reflectors, tires, the horn, windshield wipers, mirrors, coupling devices, and emergency equipment. A report should be prepared and signed by the driver and reviewed by the trucking company.

Federal Regulations and Personal Injury Lawsuits

If you’ve been injured in an accident involving a truck, you may be considering a lawsuit to recover compensation for your injuries and other damages. When issues involving federal laws and regulations are involved, your lawsuit may need to be filed in a federal court instead of a state court. Federal courts have their own rules and systems that are a little different than state courts, so it’ll be crucial to the success of your claim that you’re represented by an attorney with significant experience handling personal injury lawsuits in federal courts. All truck drivers are required to abide by federal trucking regulations. These safety laws are often involved in truck accident cases, since drivers who cause an accident may be found to have violated one or more of the Federal Motor Carrier Safety Regulations. Truck accident victims pursuing a personal injury claim against a truck driver may find that the driver has violated a law or that the trucking company is legally at fault, in addition to the driver. The intention of federal trucking regulations is to provide for the safety of the driver and others on the road. Some regulations prohibit drivers from operating vehicles while under the influence of drugs or other impairing substances, for example, and others mandate that drivers and companies abide by hours-of-operation laws to prevent fatigued drivers from remaining on the road. Other laws require the trucking company and the driver to conduct regular inspections of their vehicles and ensure that brakes and connections are functioning properly. While some regulations may seem like common sense, such as the requirement that drivers use “extreme caution” in hazardous conditions such as snow or sleet, they are strictly interpreted, and there is a legal requirement that drivers immediately discontinue their travel when weather conditions are severe. Accident victims asserting the negligence of a truck driver may rely on a violation of a federal trucking regulation as evidence of a breached duty of care. Proving negligence in an injury claim requires showing that the driver owed a duty of care and breached this duty, and this breach directly led to injuries and damages. In some situations, there may be multiple violations committed by the driver or trucking company. When a trucking company encourages their drivers to meet unreasonable deadlines and ignore laws such as hours-of-service regulations, this may increase the potential value of the victim’s claim. Claims for damages following a commercial truck accident may be large, and often, trucking companies carry high amounts of liability insurance. Truck collisions can lead to serious injuries and after proving the legal liability of the driver and potentially the company, the accident victim will set forth the full range of the damages that were caused by the collision. These include costs for medical treatment, both past care as well as future, expected treatment. Lost wages from work and a decreased earning ability are also types of damages that may be recovered. Finally, victims may find that they suffer emotional pain and suffering as a result of the accident. These non-economic damages may be set forth and recovered in a personal injury claim after a truck crash.

Trucking Lawyer

When you need a Trucking Lawyer in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

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Utah Code 57-1-3

November 10, 2020Eve Hopkins Leave a comment

Utah Real Estate Code 57-1-3: Grant Of Fee Simple Presumed.

A fee simple title is presumed to be intended to pass by a conveyance of real estate, unless it appears from the conveyance that a lesser estate was intended.

A fee simple defeasible is a conveyance of property that has conditions placed on it. The holder of a fee simple defeasible possesses the property as a fee simple subject to that condition. If the condition is violated or not met, then the property will either go back to the original grantor or a specified third party.
Types of Fee Simple Defeasible
There are three types of fee simple defeasible. The first two confer future property interests in the person granting the property. The other type has the future interest going to a specified third party.
• Fee Simple Determinable: A fee simple determinable automatically ends the interest in the property when a condition is violated or not met. The person granting the property interest retains a “possibility of reverter,” meaning that if the condition is violated, the property will automatically shift back to the grantor without having to take any further action. In order to create a fee simple determinable, the words of conveyance must be durational (e.g., as long as, so long as, during, while, or until). An example of a fee simple determinable would be: A to B so long as the property is used as a school. B would have a fee simple interest in the property so long as the property is used as a school. If, however, the property is no longer used as a school, then the property will automatically go back to A.
• Fee Simple Subject To Condition Subsequent: A fee simple subject to a condition subsequent is very similar to the fee simple determinable except that the violation of the condition would give the original owner the option to take back the property. Thus, the property does not automatically shift to the original owner. Instead, upon violation of the condition, the original owner has the option to reassert a right to the property. This option is called a “right of reentry.” In order to convey a fee simple subject to condition subsequent, the words of conveyance must state that the original owner can retake the property if the condition is violated. An example of a fee simple subject to condition subsequent would be: A to B, but if the property is used for commercial purposes, then A has a right of reentry. Again, B has a fee simple interest in the property so long as the property is not used for commercial purposes. If, however, the property is used for commercial purposes, then A can retake the property.
• Fee Simple Subject To Executory Limitation: A fee simple subject to executory limitation is basically the same as a fee simple defeasible, except that it confers a future property interest in a third party, and not the original owner. In order to create a fee simple subject to executory limitation, the original owner would use either durational or conditional words that establish a condition and a third party to whom the property would go to if the condition is not met or is violated. Like a fee simple determinable, the property shifts automatically and does not require the third party to take any action. The third party interest is called a “remainder.” An example of a fee simple subject to executory limitation would be: A to B only if the property is used as a place of residence; if not used as a place of residence, then to C. Thus, B has a fee simple interest in the property. If, however, the property is used as something other than a place of residence, then the property will automatically shift to C. It is important to note that A, the grantor, no longer has an interest in the property

Understanding Fee Simple Vs Leasehold Ownership

• Fee simple ownership: Fee simple ownership is probably the form of ownership most residential real estate buyers are familiar with. Depending on where you are from, you may not know of any other way to own real estate. Fee simple is sometimes called fee simple absolute because it is the most complete form of ownership. A fee simple buyer is given title (ownership) of the property, which includes the land and any improvements to the land in perpetuity. Aside from a few exceptions, no one can legally take that real estate from an owner with fee simple title. The fee simple owner has the right to possess, use the land and dispose of the land as he wishes — sell it, give it away, trade it for other things, lease it to others, or passes it to others upon death.
• Leasehold ownership: A leasehold interest is created when a fee simple land-owner (Lessor) enters into an agreement or contract called a ground lease with a person or entity (Lessee). A Lessee gives compensation to the Lessor for the rights of use and enjoyment of the land much as one buys fee simple rights; however, the leasehold interest differs from the fee simple interest in several important respects. First, the buyer of leasehold real estate does not own the land; they only have a right to use the land for a pre-determined amount of time. Second, if leasehold real estate is transferred to a new owner, use of the land is limited to the remaining years covered by the original lease. At the end of the pre-determined period, the land reverts back to the Lessor, and is called reversion. Depending on the provisions of any surrender clause in the lease, the buildings and other improvements on the land may also revert to the lessor. Finally, the use, maintenance, and alteration of the leased premises are subject to any restrictions contained in the lease.
Important leasehold terms to know:
• Lease Term – The length of the lease period (usually 55 years or more)
• Lease Rent – The amount of rent paid to the Lessor for use of the land
• Fixed Period – The period in which the lease rent amount is fixed
• Renegotiation Date – Date after the fixed period that the lease rent is renegotiated
• Expiration Date – The date that the lease ends
• Reversion – The act of giving back the property to the Lessor
• Surrender – Terms of the reversion
• Leased Fee Interest – An amount a Lessor will accept to convey fee simple ownership
Fee simple is absolute title to land, free of any conditions, limitations, restrictions, or other claims against the title, which one can sell or pass to another by will or inheritance. A fee simple title has a virtually indefinite duration. It is also called fee simple absolute. Today, the law presumes an intention to grant an estate in fee simple unless an indication to impose conditions or limitations is clearly stated. It is most common way real estate is owned in common law countries, and is the most complete ownership interest one can have in real property. Other estates in land include the fee simple conditional, the fee simple defeasible, the fee simple determinable, the fee simple subject to a condition subsequent, the fee simple subject to an executory limitation, and the life estate.

What Is Fee Simple Ownership?

When a property deed states that the owner has fee simple ownership, he owns the property above the surface of the land and the mineral properties below the surface of the land. The mineral properties may include oil, gas, mineral rocks or coal. Many deeds do not include fee simple ownership, and thus, there may be several ownership interests connected to the mineral estate of a tract of land. Having fee simple ownership indicates the property owner owns both what’s above and under the surface of the land.
Property Deed Description
A property deed includes language that names the grantor and grantee as well as wordings that describe the grantor or seller’s intent to transfer his ownership interest in a property to the grantee or buyer. The deed also includes a description of the property, such as the address and other identifying information, the property lot and the subdivision.
Transferring the Title
With a warranty deed, the grantor warrants that the property is free and clear of liens and encumbrances and that he has the ownership rights to transfer title to the grantee. The grantee does not make any guarantees with a quit claim deed; the grantee simply receives any ownership interest the grantor has in the property. Typically, if the seller has fee simple ownership in the land, he owns the entire estate to the land. If the grantor transfers his entire ownership interest in the land, the buyer becomes the new fee simple owner. The deed may include words, such as fee simple ownership or fee simple absolute, which indicates that the grantor has absolute ownership interest in the land.
Absolute Ownership Interest
Fee simple ownership is the highest type of property ownership, whereas with a life estate ownership interest, for example, the owner only has lifetime ownership rights to the land. Fee simple owners may use and dispose of the entire land as permitted by law, and they are granted absolute ownership to the land. The property passes to the fee simple owner’s heirs upon death unless the owner has transferred title to the property during his lifetime or by way of a will.
Performing a Title Search
With many land purchase agreements, sellers are not required to disclose who owns the mineral properties connected to the property. Many property owners do not know who actually owns the mineral estate, anyway – the subsurface rights may have been stripped from the deed many generations in the past, or may never have been included with the surface deed. The Recorder’s Office in the county where the property is located is generally the best place to perform a search and discover the chain of title to a particular tract of land. Many counties maintain a record of deeds that trace back to the 1800s.

A concurrent estate describes the various ways in which property can be owned by more than one person at a given time. Three types of concurrent estates are:
• Tenancy in common: Tenancy in common is the most common type of ownership. Ownership is assumed to be a tenancy in common unless stated otherwise. A tenancy in common is a form of ownership of title to real estate by two or more persons. Although they have a unity of possession, they each have separate and distinct titles. In the event that one of the tenants in common dies, his or her title passes not to the other tenant in common, but to his or her estate or heirs.
• Joint tenancy: is a form of ownership in which the tenants own a property equally. If one dies, the other automatically inherits the entire property. This is known as the right of survivorship. Thus somebody cannot will a joint tenancy, and probate is not necessary under a joint tenancy. A person could not take a property as a joint tenant with a corporation, because a corporation cannot die. It would be taken as a tenant in common. If a joint tenant dies owing debts, the surviving joint tenants are free of the unsecured debts. Joint tenants cannot be created by law; therefore the parties who wish to be joint tenants must make it clear in the conveyance document. A joint tenant has the right to sell, mortgage, or transfer their interest without the consent of the other joint tenants. To create joint tenancy there has to be unity of time, title, interest, and possession. That is the most important thing to remember. You may want to say it again: time, title, interest, and possession. You can also remember the acronym TTIP. It is not much of a word, but it worked for me, so hopefully it will work for you too! Joint tenancy would be terminated if any one of those four unities is destroyed. Therefore a person who buys interest of a joint tenant would be a tenant in common with the other joint owners
• Community property: is property acquired by the spouses during marriage. Community property laws vary from state to state. Community property is owned by both regardless of whose name is on the title.
• Separate property is sole ownership, and is property acquired before marriage or property received by gift or inheritance. Separate property can be transferred without the non-owning spouse’s consent or signature.
• A partition is a court action to divide ownership interest if the owners cannot reach an agreement. Partitions can be used by tenants in common or joint tenants to dissolve ownership interest.

Real Estate Lawyer

When you need a lawyer who focuses on real estate law in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

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Salt Lake City DUI Lawyer

November 10, 2020Eve Hopkins Leave a comment

Operating a motor vehicle under the influence of alcohol may be termed with different designations under different circumstances or in different states or jurisdictions, including DUI (driving under the influence), OUI (operating under the influence), or even DWI (driving while intoxicated). These offenses are serious and should not be taken lightly. Anyone who is operating a motorized vehicle or a vehicle with any type of drive train can get a DUI-type offense. This includes the use of motorized watercraft, lawnmowers, mopeds, and even non-motorized bicycles. Individuals using skateboards, rollerblades, etc., would not be charged with a DUI offense if they are stopped while they are intoxicated on these conveyances, but could be charged with some other offense, such as public intoxication, depending on the jurisdiction where the offense occurs.

A Drunk Driving Offense Is Not Limited to Just the Use of Alcohol
Any charge of operating under the influence (DUI) is not limited to the use of alcohol. An individual, who is operating a motor vehicle under the influence of other drugs, including over-the-counter drugs, prescription drugs, and even illicit drugs, can be charged with this offense.

If Arrested for a DUI-Type Offense, You Will Spend Time in Jail

If an individual is arrested for a DUI-type offense, the arresting officers have the responsibility to remove the individual from the situation and get them off the road. Typically, this means taking them into the police station, booking them, and then putting them in jail until they post bond. In many jurisdictions, individuals must also demonstrate a significant drop in their BAC in order for them to be released on their own recognizance after being arrested for a DUI or related offense. The actual amount of time an individual spends in jail is dependent on the situation, jurisdiction, etc.

Is a DUI a Felony?

DUI type offenses may or might not be felonies. In most jurisdictions, an individual who is getting a first-time DUI will most likely be charged with a misdemeanor. However, an individual who severely injures or kills someone while under the influence of alcohol or other drugs will be charged with a felony. Some states now also charge individuals with felonies even for first-time offenses if they have a very high BAC; the level can vary from state to state, but as an overall standard, a BAC of 0.15 or higher is a red flag to most legal authorities. If an individual is arrested for a DUI-type offense while their driving privileges have been suspended or restricted, they may be charged with higher-level offenses. The trend in numerous states is also to charge individuals with multiple DUI offenses with felony convictions after they have been arrested many times for DUIs or similar offenses (most often, three times or more). Thus, in many states, after an individual has two (or three) DUI convictions on their record, any subsequent arrests for DUIs are felony convictions.

Arraignments Are Easy; After That Get an Attorney

After an individual is arrested for a DUI-type offense, they will go to court for an arraignment. At the arraignment, the individual will be formally charged with a criminal offense and will be allowed to plead guilty or not guilty. The standard legal advice is to plead not guilty at the arraignment, pay the bond, get released, and then seek the assistance of an attorney for further steps in the process.

Expect Immediate Financial Responsibilities

The entire process of getting a DUI is extremely expensive. Even before one is formally convicted, one should expect to start shelling out money. Individuals often have to pay the court a bond to be released, pay a bond to get their car back, and pay towing charges. They often have to give their chosen attorney a down payment before the attorney begins working on their case. Depending on the situation, other financial responsibilities could be incurred. Even before one goes to trial for their DUI offense, they may have already spent thousands of dollars.

Be Ready to Have Restrictions on Your Driving Privileges

These days, in most states, it is a safe bet to assume that once an individual is convicted of any DUI-type offense, there will be ramifications on their driving privileges. In most states, an individual who refuses to take a BAC test automatically has their driver’s license suspended. The length of time varies depending on the state but typically ranges from three to 12 months. In some states, the arresting officer confiscates the individual’s driver’s license once they are arrested, and the individual gets a temporary driver’s license until their trial. Upon conviction of any DUI offense, an individual’s driver’s license will most likely be restricted, suspended, or revoked depending on the state and the nature of the offense. First-time offenders most often have suspended licenses for a period of 90 days, but again, these suspensions can vary from state to state and case to case, and they are subject to being shorter or longer depending on the judge and situation. Most often, individuals have to meet certain specifications, such as having interlock systems installed on their car ignition if they are issued restricted driver’s licenses, or they must wait for a specified period of time to get their license back if it is suspended or revoked. In many of these later instances, individuals often have to appear before the Department of Motor Vehicles and formally evaluated in terms of their risk for future infractions in order to get their full driver’s license returned. All of these issues incur a further outlay of money, are significantly embarrassing for most individuals, and produce significant stress and resentment.

Expect to Pay More Money for Car Insurance

Individuals who have DUI offenses on their record pay significantly higher premiums for car insurance. There is no way around this. In many cases, insurance companies may drop them, and individuals are forced to seek out insurance companies that will accept them. These companies typically charge significantly higher rates for limited automobile insurance.

Expect to Be Placed on Probation

Because being convicted of a DUI offense is a criminal offense, the vast majority of individuals will be placed on probation for some period of time following their conviction. Probation costs money, and individuals can expect to shell out more money here. The specifications of probation require that an individual not use alcohol or other drugs, and not be in places where the primary purpose of the business is to serve alcohol (e.g., a bar). Other restrictions may be incurred depending on the state, situation, judge, and the individual’s probation officer. While on probation, individuals are required to notify their probation officer and get permission to leave the state and in some cases even the city in which they reside.

One Might Have to Attend an Alcohol Education Program

More and more jurisdictions are requiring that even first-time offenders attend a formal alcohol education program. The program can vary depending on the situation and the state where the program is delivered. Expect to pay for the program and have your attendance monitored in some way.
One Might Have to Complete a Formal Alcohol or Substance Use Disorder

The courts will often require that an individual be formally evaluated by a mental health provider that is attached to the court system or a private mental health provider for substance abuse issues prior to going to trial. This assessment often includes an interview with the healthcare provider/clinician and completing a series of tests. The court often uses this information to determine sentencing, probation, the need for treatment, etc. Again, these assessments can be relatively expensive, and the court does not pay for them in most cases. One should expect to shell out even more money for this court requirement if it is imposed.
Courts Most Often Require That the Individual Receives Substance Use

Will I Have To Get Treatment?

Yes. Very likely. The legal system does not want to see repeat DUI offenders. Most courts require that individuals receive substance use disorder treatment as a condition of their probation. If individuals do not attend treatment or are not able to demonstrate to the probation officer that they are attending treatment, they could be subject to jail or even steeper fines. The treatment is often specified by the judge and can include participation in Alcoholics Anonymous meetings and/or substance use disorder therapy. Individuals may be required to attend inpatient or residential rehabilitation programs for alcohol abuse. The specification of treatment is often a requirement for an individual to complete probation and may be a requirement for an individual to get their driver’s license back.

Upon Conviction, Expect More Fines

Once an individual is convicted of a DUI offense, they are typically fined by the court. These fines will often eat up the individual’s bond and may require the individual to pay additional monies. Individuals can arrange to be put on a payment program because, in many cases, the fines are extensive.

More Jail Time Might Be in Your Future

States are becoming stricter and stricter regarding punishments for individuals who incur DUI-type offenses, even for first-time offenders. Judges are given less leeway in giving out fines and jail sentences in the current milieu and may be required to include incarceration as a result of charging an individual with a DUI-type offense. In most cases, judges have some leeway concerning the length of the sentence they impose, but the trend is that individuals who commit more than one DUI offense will spend some time in jail. Serious repeat offenders or individuals who have injured someone or caused property damage may be forced to spend significant time in prison. In some cases, individuals may be placed on a tether in lieu of a jail sentence and are not allowed to leave their home except during specified periods (house arrest).

How Long Does a DUI Stay on Your Record?

Once an individual is convicted of a DUI offense, there is a record of it somewhere. In many cases, individuals are required to report these offenses on job applications and for other purposes, such as when applying to the military, applying to certain colleges, etc. Insurance companies often investigate an individual’s driving record for as far back as 5-7 years, and when offenses are uncovered by insurance companies, they will tend to charge higher premiums for services or will not cover the individual. Individuals subject to background checks for employment or other purposes often experience a DUI resulting in complications for certain types of employment. Even though it may not appear in some types of background checks or searches years after an individual has committed the offense, there is always a record of it somewhere. Individuals who have multiple DUI convictions, who have seriously injured or killed someone while driving under the influence of alcohol, or who committed significant property damage while under the influence may have these convictions follow them around for the rest of their lives.

Reasons Prosecutors May Reduce or Dismiss DUI Drug Charges

• Lack Of Probable Cause To Stop Your Vehicle: Before a police officer can stop your vehicle, he or she must have reasonable suspicion or probable cause to do so. Probable cause is “reasonable suspicion for a traffic stop” This means that you were observed having violated a traffic law, such as:
1. Speeding,
2. Failing to stop completely at a stop sign, or
3. Straddling the lanes.
An example of lack of probable cause to stop you is racial profiling.
What Happens If There Are No Witnesses?
If no one makes a statement to the officer and there are no indicators as to who the driver is, there may not be sufficient probable cause to arrest any of the persons standing near the vehicle which is known as the “no driving” defense.
However, if there is any evidence that could suggest that one person was likely the driver such as:
• The way the seat is adjusted, or
• The fact that one of the parties is the registered owners of the vehicle
The officer may have enough probable cause depending on the totality of the circumstances.

What If The Engine Is On But You Did Not Move The Car?

If your engine is running, the officer can assume you had just driven or were about to drive. Other indirect or circumstantial evidence of your having driven include:
• A warm engine
• Gear is in drive
• There is a damaged vehicle at scene of an accident
• The absence of an alternative driver
An adjunct to this is a scenario where you had been in an accident but left the vehicle and the scene and returned home or went to a nearby bar or restaurant where police found you. Unless you admit that you had not ingested any drugs (or alcohol) during the interim between the time you left the vehicle and your being questioned by police, you could just have likely become impaired after you left the scene.

What Symptoms of Impairment Are Officers Looking For?

Classic symptoms of impairment are slurred speech; watery, bloodshot eyes; fumbling with documents; and an inability to understand simple directions or questions. It may be different for drivers under the influence of a drug since different drugs produce different symptoms. If DUI marijuana is suspected, for example, your coordination is usually not affected. Few people who smoked or ingested marijuana exhibit slurred speech or have watery, bloodshot eyes, though they may appear glassy. If the officer testifies to this, a defense expert can counter with studies that refute such conclusions in the majority of subjects.

Field Sobriety Tests

In traffic stops where the officer has observed symptoms of drinking or of ingestion of a drug, the officer may request that you take a series of field sobriety tests that test your coordination and balance. These may include:
• Walk and turn
• Stand on one foot
• Horizontal gaze nystagmus (HGN)
Do You Have To Take Field Sobriety Tests?
You are under no obligation to take any of these tests and will not be penalized at all if you refuse. However, the majority of defendants are either too fearful of appearing uncooperative, or are unaware that they can refuse to take the tests, and commit to taking them. This includes blowing into a PBT, or preliminary breath test, which only detects the presence of alcohol in your blood. Its results are not admissible as evidence but do provide probable cause to suspect you are under the influence of alcohol.
The following are some of the legal grounds on which your DUI case can be dismissed:
• Improper cause for stopping your vehicle by the police
• Illegal seizures and searches by the police
• Illegal field sobriety tests conducted by the authorities
• Illegal chemical tests conducted by the authorities
• Your blood was withdrawn without consent and a warrant
• Violation of a right to speak with your Lawyer
• Successful ousting of license suspension

Illegal Field Sobriety Tests

There are certain kinds of field sobriety tests. There is also a specific manner in which they can be conducted. A test done without your consent is one of the reasons the judge may dismiss your DUI charge. Furthermore, if these tests are run in an invalid fashion, then the arrest is considered to be invalid. According to expert impaired driving lawyers, the most common reason for dismissal of a DUI is due to using faulty testing instrument. Thus, they can challenge the validity of the results of a test in a court of law.
• The conclusions will be false if breathalyzer is not calibrated well before use.
• The results may be inadmissible in the courtroom if you have a specific medical condition.
• Blood tests need to be administered using standard procedures. Blood must be drawn by a specialist technician. There should be no alcohol-based cleaning agents used where blood is drawn. The blood vials must contain an adequate amount of preservative and coagulant, which should not have expired. They should also be correctly mixed with the sample. This sample should be properly labeled and stored in safe custody at all times.

Right to Speak with Your Lawyer

At the time of the arrest, you should be properly notified by the police officers that you can speak with your lawyer. The defendant can challenge the authorities to have violated this basic right while being arrested.

If your lawyer can successfully dismiss the license suspension against you, then the prosecutor might be forced to offer you a plea bargain. He or she may withdraw all DUI charges against you for a much lesser penalty because their case will become weaker in the eyes of the law once the driving suspension is over. Although it seems very difficult to remain positive when you are facing Driving Under the Influence (DUI) charges, you should never accept the charges easily. Hire a competent DUI lawyer to defend you.

Salt Lake City DUI Lawyer

When you need legal defense from a Salt Lake City DUI Lawyer, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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Utah Criminal Code 76-5-102.7

November 9, 2020Eve Hopkins Leave a comment

Utah Criminal Code 76-5-102.7: Assault Against Health Care Provider And Emergency Medical Service Worker–Penalty

1. A person who commits an assault or threat of violence against a health care provider or emergency medical service worker is guilty of a class A misdemeanor if:
a. the person is not a prisoner or a person detained under Section 77-7-15 ;
b. the person knew that the victim was a health care provider or emergency medical service worker; and
c. the health care provider or emergency medical service worker was performing emergency or life saving duties within the scope of his or her authority at the time of the assault.
2. A person who violates Subsection (1) is guilty of a third degree felony if the person:
a. causes substantial bodily injury, as defined in Section 76-1-601 ; and
b. acts intentionally or knowingly.
3. As used in this section:
a. “Assault” means the same as that term is defined in Section 76-5-102.
b. Emergency medical service worker” means a person licensed under Section 26-8a-302.
c. “Health care provider” means the same as that term is defined in Section 78B-3-403.
d. “Threat of violence” means the same as that term is defined in Section 76-5-107.

Steps Health Care Provider Should Take After Being Attacked

• Try to escape – If you can’t escape, yell loud enough to get help.
• Create a barrier – Put something between that person assaulting you and yourself so you might be able to escape.
• Defend yourself – You can defend yourself. You are allowed to meet the attacker with equal force to get them to stop. Some people don’t know that.
• Report the incident – Notify your facility of the assault.
• Take a leave of absence – Many people will be nervous to go back to work after an incident. If you are struggling emotionally about the trauma, people need to begin to realize that trauma and anxiety are legitimate reasons to get a leave of absence. Don’t rush back to work if you aren’t ready.
• Get support and seek help – Surround yourself with people that you trust. Consider getting trauma counseling.

How Help End Violence Against Healthcare Workers

The legislature proposed the following,
• Assault against any healthcare workers must be a felony.
• No less than two law enforcement officers must be present with offenders.
• Facilities must provide locator badges with panic buttons for victims to signal for help.
• There must be anti-retaliation protections in place so healthcare workers may receive the same basic rights as any other assault victim – the right to report to law enforcement.

How to Prevent Workplace Violence

With violence in society a growing problem, the importance of taking measures to prevent workplace violence has become increasingly urgent to businesses that want to protect the safety of their employees. According to the Bureau of Labor Statistics, between the years of 2011 and 2018, a total of 5,746 injuries resulting from workplace violence were reported. Of these, 3,584 were workplace homicides and 2,825 of these homicides were the result of a shooting by another person. While violence is one of the major causes of death in the workplace, nonfatal cases are more common. Overall, the Occupational Health and Safety Administration estimates there are about 2 million cases of workplace violence a year. The surprisingly high number of incidents varies between verbal and physical abuse to homicides. It is also estimated that about 25 percent of workplace violence goes unreported. These statistics are a strong reminder that violence in the workplace is more common than we might think, but workplaces can take specific measures to prevent and lessen the impact of violence. When you know how to prevent workplace violence, you can be part of the solution and make your company a safer place for all employees.
• Workplace violence prevention begins with hiring. Conducting a thorough background check on potential employees (after they access a job offer) can reveal whether the candidate has a violent past. If something comes up, ask for an explanation and make sure it’s consistent with the report. They that have a recent violence conviction, you may decide to retract the job offer to avoid that kind of behavior in your workplace.
• Create a policy that prevents harassment. Harassment is repeated persecution, bullying and/or troubling behavior that intimidates others. It creates an offensive work environment and the behavior often serves as a warning for violence. That’s why creating a policy to prevent harassment is a crucial step in preventing the possibility of violence. This policy should include a set of procedures that addresses any workplace complaints efficiently and privately. While creating this policy, it’s important to involve each level of the facility, including managers, employees, and executives. Keep all individuals informed by distributing the new policy across your organization and take the time to ensure every employee understands it.
• Create an effective line of communication. Effective communication is a key factor in preventing workplace violence. If your employees have access to a workplace communication network, it can help them understand, recognize and report the early signs of potential violence, rather than passively sweeping them under the rug in favor of getting back to work. Giving them access to conflict-resolution resources makes them feel more responsible to communicate. Also, providing an open line of communication to management, HR and other key members of your company will help create an environment where employees can make sure their grievances are heard and properly responded to.

• Training and awareness are key factors in workplace violence prevention. Take the time to have training sessions about how to respond to a violent incident so your staff knows how to react when it occurs.
• Establish a strict anti-violence policy. Prevent workplace violence by creating firm policies that empower your team to report violent and harassing behaviors and other signs of danger. This kind of policy eliminates undesirable employee behavior and leaves no room for favoritism managers must apply swift and consistent punishment no matter who violates the policy. Make sure all employees are aware of the consequences for violating the policy.
• Encourage your employees to accept individual differences. Personality clashes or leadership style differences exist in every workplace. If left unresolved, these issues could result in job dissatisfaction or depression, and even violence (in the form of verbal abuse, sabotage, or worse). Persistent issues result in high turnover and culture problems or your organization. Help negate conflict by organizing activities to help the tea get to know each other, and acknowledging differences as positive attributes. This could help people see that their individual differences play a vital role in the team’s strengths as a whole.
• Manage visitors and provide security monitoring. Monitoring visitors and managing them when possible is a smart way to prevent violence in the workplace. Whether security guards are patrolling your facility/parking lot, capturing video surveillance, or overseeing a visitor check-in desk, these are all extra layers of security that can deter someone from performing a violent incident. This is especially important in situations where people work alone or in confined spaces, or provides services involving money or alcohol. Also consider providing after hours escorts for workers in parking lots who become easier targets when alone.
• Encourage everyone to report any and all violent incidents. A great way to start preventing workplace violence is to establish trust between you and your employees. Ensure your employees of the confidentiality in which they can report incidents, and assure each of them that no retaliation will be made against anyone reporting acts of violence.
• Deter robbers with limited assets on hand. Workplace violence often occurs in conjunction with crimes like robbery and shoplifting. In fact, 85 percent of workplace homicides fall into this category where the criminal has no known relation to the business or its employees. You can reduce the risk of robbery and potential violence by keeping the amount of assets at your facility to a minimum. Use electronic pay systems to reduce cash on hand and install a locked drop safe. It may also help to keep your facility well lit and ask law enforcement officers to visit occasionally. Always be alert and pay attention to customers acting strangely.
• Identify organizational risk factors that could lead to violence. What areas or concerns in your organization are potential risk factors that could lead to workplace violence? When combined with the stress of a personal situation employees bring to work, they may become aggressive and lash out. Assess your operation to become aware of these factors like working while understaffed, inadequate security, the perception that violence is tolerated or that victims are unable to properly report incidents, and many others.
• After an incident or near miss, perform a thorough analysis. In the event that your workplace does experience a violent situation or is able to prevent one from occurring, follow up with an analysis. Who was affected and what, if any, warning signs were present? Were existing procedures and operations followed and if not, why? Were team members adequately trained? What new procedures and operations would help to improve staff safety and security? Answering these questions can help you modify your existing plans and ensure your business is able to effectively prevent workplace violence.

There are some instances where the hospital, facility or even a patient will harm a nurse for one reason or another to include policies, accidents and intentional harm. In these circumstances, the nurse often needs to know how to move forward, what to do to seek recovery options and which choices are possible in the legal world. Nurses and nursing staff work in one of the most dangerous industries in the country. No matter what day they work, there are many hazards both at work and when treating patients that each nurse must confront. These can range from patients that have an imbalance or impairment to the sharp objects that can quickly and easily cut the skin. If equipment or tools slip and fall, they can slice open the nurse immediately. These dangers are everywhere in a hospital, and clinics equally have the same dangers. If working for a private practice, nurses still run into the same types of risks. A personal injury case is possible for anyone that suffers bodily harm at the hands of another person or company that is responsible for the damage. This then progresses to a lawsuit when the plaintiff requires compensation for recovery. The other party’s negligence is then an issue that the victim will need to prove to the judge or jury panel. Evidence and a legal argument presented will help to prove or disprove the claim. Generally, there are numerous rules that apply to these claims and can prevent a nurse from litigation against his or her employer.

Negligence and the Hospital

There are elements of a negligence case. For a nurse to sue a hospital, he or she will need to prove that the facility owes a duty of care to the nurse. This exists in the professional guidelines and conduct along with the employment agreement to the organization. The duty of care is what should prevent the facility from letting dangers go unnoticed or from keeping criminals contained. The nurse can sue the hospital for negligence when there is a breach of the duty of care. The other elements must also exist along with a detailed explanation from the legal team.

The Elements of the Negligent Claim

With the duty of care comes a breach. This occurs when the facility knows of danger but does nothing to remove it. Injuries that happen through negligence often lead to lawsuits where the victim can pursue compensation for a full recovery. With the breach, the plaintiff must explain the causation between the breach and any injury sustained. The injury must become significant to seek compensation through litigation. With the services of a lawyer, the nurse can detail the injury, incident and how the hospital or other party is responsible for damages.

Who to Sue

Based on the evidence of either negligence or a breach of the duty of care, the nurse may have one or more individuals or entities to sue. For a patient that attacks and injures the nurse, he or she can sue the patient and either obtain awards through insurance or by a direct attack on the person. However, the facility that has protections in place may not ensure the prevention of such incidents. This could lead to a lawsuit against the hospital or clinic. Then, the nurse will need a greater strength of evidence to pursue the claim legally in the courts.

Evidence and the Lawyer’s Help

By proving the elements of negligence, the nurse or Health worker can effectively sue the patient or hospital that employs him or her. This requires evidence. It is possible to acquire video surveillance captures of the accident or intentional damage. With witness statements, the video and a strong claim, the nurse can provide the courtroom with all necessary and relevant details and proof. With a lack of safety protocols in place, the hospital or clinic could face liability and owing damages to the nurse. The monetary compensation is necessary for recovery and to ensure the nurse can become whole after the injury.

Misdiagnosis

Almost hand in hand with delayed care is another one of the most common causes – misdiagnosis. When a patient is misdiagnosed it can be months before they receive the proper diagnosis and the proper treatment to go with it. Treatment for a misdiagnosed illness can actually hinder recovery, causing more problems than there were to start with. There have been thousands of cases of misdiagnosis, in which the doctor or medical staff have failed to notice a serious disease, such as cancer, before it is too late. Misdiagnosis is not always life threatening, but it can have a big impact on the patient’s mental and physical well-being. Misdiagnosed fractures and infections are becoming increasingly common. Doctors are squeezed for time and will routinely miss things. Fortunately, it is rare that it causes a patient undue suffering.

Medication Errors

On the list of ‘never event’ mistakes (errors which should never happen) and also on the list of most common causes is medication errors. Whether it be that a patient has been prescribed too much of a medication or the wrong medication altogether; the effects of these errors can be devastating. There have been cases in the last year in which patients have had their painkiller dosages doubled, to a fatal amount, due to simple carelessness of the medical staff. Medication errors are seen as ‘never event’ mistakes, yet this hasn’t stopped them from creeping into the top clinical negligence claim causes in the Utah.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Ascent Law LLC

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