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The 2017 Legislative Session is Over: What You Need to Know

The 2017 Utah legislative session has come to an end. Many of Utah’s potentially new laws passed by the Utah legislature made national news. While some of the controversial bills that made headlines were not signed into law by Governor Herbert, some controversial bills were. That being said, the legislature passed, and Governor Herbert signed, bills that will undoubtedly benefit Utah. While there are many bills that impact our clients, below are a few that we believe are quite important to consider.

.05 BAC

House Bill 155 is a first in the nation. In 2019, Utah’s Blood-Alcohol Content (“BAC”) will move from .08 to .05 for drunk driving. HB 155 has made it to the Los Angeles Times, Washington Post, Men’s Journal, and other national publications. There are other components of the law, including a provision of “Novice Learner Driver” that may apply to immigrants and would restrict anyone that has not previously held a valid driver’s license in the United States from consuming any alcohol whatsoever before operating a vehicle (a “not a drop” driver, in legal parlance).

Governor Herbert signed HB 155 on March 23, 2017.
https://www.utah.gov/governor/news_media/article.html?article=20170323-2

What you need to know: First, this bill takes effect on December 30, 2018. Keep that in mind when we all ring in the New Year for 2019. Second, the bill affects other aspects of DUI law beyond the BAC. We are studying the bill. While we have time before the bill will take effect, we want to make sure we are ready for the changes. Third, we believe that no one should drink and drive. While we believe there will be many issues that arise under this new bill, we encourage anyone to be safe while enjoying their favorite beverages. If you are charged with a DUI or any traffic-related offense, contact Partner Phil Wormdahl.

Electronic Communication Harassment

Senate Bill 118 appears to try to combat online harassment. As we’ve seen in recent years, online harassment and abuses appear to be on the rise. So SB 118 makes it illegal for someone, “with intent to intimidate, abuse, threaten, harass, frighten, or disrupt the electronic communications of another,” to “electronically publish[], post[], or otherwise disclose[] personal identifying information of another person, in a public online site or forum, without the person’s permission.” The definition of “personal identifying information” is broad, including mother’s maiden name and telephone number.

Professor Eugene Volokh, of UCLA law school and authority on free speech law, has a wonderful analysis of SB 118. Again, there appears to be a good intent with this law. Online harassment is an issue. But, as often happens, good intentions can lead to bad outcomes. Professor Volokh’s analysis shines a light on some of those issues. Indeed, President Trump released the cell phone number of then-presidential candidate Senator Lindsey Graham during the last presidential campaign during a stump speech. SB 118 may not apply, but if President Trump knew that the video was being telecasted on other online forums, and President Trump released the number while in Utah, such conduct would appear to violate SB 118.

The bill was sent to Governor Herbert on March 16, 2017. As of this posting, the Governor appears to not have signed the bill. Under the Utah constitution, if Governor Herbert does not sign the bill, it will become law. https://le.utah.gov/xcode/ArticleVII/Article_VII,_Section_8.html

What you need to know: SB 118 appears quite broad. While no one should engage in any harassment online, review the list of what constitutes “personal identifying information” before lashing out against anyone online. That being said, the list appears to only be illustrative as “personal identifying information” states that it “may include” the examples listed, suggesting other information may apply. We have serious concerns about the criminalization of free speech. Indeed, before anyone is ever charged under SB 118, the bill could have a chilling effect on crucial speech, including political speech. If you are charged with a violation of this section, contact partners Robert B. Cummings and Phil Wormdahl.

The “Zion Curtain”

The legislature passed House Bill 442, which addresses the so-called “Zion Curtain” applicable to the sale of alcohol in restaurants and related establishments where minors are also allowed to visit and dine. Prior law required that restaurants have a wall erected separating out alcoholic drink preparation from the view of minors. The new law would allow restaurants and related establishments to remove the “Zion Curtain” so long as there is a 10-foot buffer between where alcoholic drinks are prepared and where minors are seated. Anyone within the buffer zone would be subject to age verification. Moreover, while prior law “grandfathered” in some establishments thereby not requiring those establishments to have a “Zion Curtain,” the new law removes any grandfather protection.

As of this posting, Governor Herbert has not signed the bill. Like SB 118, if he does not sign the bill, then the bill will become law.

What you need to know: Many establishments are concerned with the new law, especially smaller venues that cannot comply with the 10-foot buffer due simply to the size of their building. Additionally, establishments that serve alcohol and also cater to families with minors will need to be sure that proper age verification is occurring in the buffer zone. If you have questions as to this law, or DABC regulations in general, please contact Partner Robert B. Cummings.

Panhandling

The legislature passed House Bill 161, which targets panhandling, although not expressly. Utah enacted a similar law in 2010 with similar objectives. That law, however, was deemed unconstitutional by Judge Stewart of the Utah federal district court.

Governor Herbert signed HB 161 on March 17, 2017.
What you need to know: Panhandling is speech protected by the First Amendment. And roadway medians are what are known as “traditional public forums” where speech occurs. Laws that target speech under these circumstances pose serious constitutional problems.

While many believe panhandling is an eye-sore and my pose safety issues for the person seeking money, such laws have serious risks of impeding upon other constitutionally protected speech. For example, recently in Maine, a municipality passed a law seeking to prevent any panhandling on a roadway “median.” The plaintiffs in that case were engaging in political protest and speech when they were charged. Interestingly, the plaintiffs showed that even grassy medians spanning 30 feet were covered by the law. In those instances, someone standing on the grassy median protesting would not pose a risk to themselves or drivers.

If you are concerned with the breadth of this law, or have been cited under this law, contact Partner Robert B. Cummings. Mr. Cummings has handled civil rights cases for a myriad of clients, and is versed in First Amendment law as well.

Domestic Violence – Weapons Restrictions

The legislature passed House Bill 206, which prohibits anyone convicted of domestic violence or who had a protective order issued against them from possessing or carrying guns.

Governor Herbert signed this bill on March 23, 2017.

What you need to know: First, it appears that Second Amendment advocates supported the bill, brought by Representative Brian King of Salt Lake City. Second, weapons restrictions can be a big issue in divorce cases. And, many divorces involve the filing of protective orders at the outset or during the proceedings. While stipulating to a protective order can be a beneficial strategic move, it can have serious consequences for gun owners. Knowing those consequences beforehand is crucial as to avoid facing the unfortunate circumstances of owning guns all the while having a protective order in place. Third, if you have a protective order against you and own guns, there may be some challenges to the prohibition on gun ownership. All of these issues are nuanced and difficult. If you are facing an issue of gun ownership involving a divorce, contact Partner Danielle Hawkes.

Law Enforcement Body Camera Footage

The legislature passed House Bill 381, which provides ways for citizens to seek body-cam footage for police officers. As the bill describes, it provides for release of recordings made by a body camera that is worn by a law enforcement officer via Utah’s Governmental Records Access and Management Act, . The law also requires body-cam footage to be retained in accordance with applicable federal, state, and local laws.

Governor Herbert signed this bill on March 23, 2017.
What you need to know: If you are involved in a crime or believe your civil rights have been violated, you need to immediately act to seek records from the government. Importantly, certain records can be deleted pursuant to government policies and procedures. So time is of the essence. Body-cam footage can be imperative in mounting a defense to criminal charges, and can be crucial to vindicating your civil rights if they have been violated. If you believe that there is body-cam footage available related to either situation, and you would like an attorney to review or assist you with your case, contact Partners Robert B. Cummins and Phil Wormdahl.

About the Firm: The Salt Lake Lawyers is a boutique litigation and trial law firm in the heart of Salt Lake City, located in the historic Newhouse Building. The firm brings a wealth of knowledge to the table in a vast array of subject matters as to provide our clients with cross-discipline analysis of cases if necessary. The primary areas of practice for the firm are family law (including divorces, alimony, child support, move-away petitions, modifications, and other areas), criminal defense, civil rights, business litigation and consulting, contract disputes, personal injury (including car wrecks, medical malpractice, and other areas), Government Records Request and Management Act issues, police excessive force and abuse, Freedom of Information Act issues, and other areas of the law. If you have you are facing a legal issue, contact the firm at (801) 590-7555. If we cannot help you, we have a large referral network that most likely involves an attorney that can assist you.


The information provided herein is for educational and information purposes only and is not intended and should not be construed as legal advice. These commentaries are considered advertising under applicable state laws. CW Hawkes, PLLC d/b/a The Salt Lake Lawyers is located in the historic Newhouse Building in downtown Salt Lake City, at 10 Exchange Place, Ste. 622, Salt Lake City, UT 84111.


[1] The full text of the bill can be found at http://le.utah.gov/~2017/bills/static/HB0155.html.

[2] See, e.g., http://www.latimes.com/nation/la-na-utah-alcohol-limit-20161231-story.html; http://www.mensjournal.com/food-drink/articles/utah-is-about-to-lower-its-legal-blood-alcohol-limit-to-05-w471572; https://www.washingtonpost.com/news/wonk/wp/2017/03/09/utahs-drunken-driving-law-is-about-to-become-the-countrys-strictest/?utm_term=.c581f4579f80.

[3] The full text of the bill can be found at http://le.utah.gov/~2017/bills/static/SB0118.html.

[4] See https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/03/13/utah-poised-to-outlaw-mentioning-peoples-names-online-with-intent-to-abuse-or-harass/?utm_medium=twitter&utm_source=dlvr.it&utm_term=.4388f20a675b.

[5] See, e.g., http://www.cnn.com/2015/07/21/politics/donald-trump-lindsey-graham-cell-phone/.

[6] The full text of the bill can be found at http://le.utah.gov/~2017/bills/static/HB0442.html.

[7] See, e.g., http://www.deseretnews.com/article/865674370/Utah-lawmakers-unveil-alcohol-law-reform-bill.html.

[8] The full text of the bill can be found at http://le.utah.gov/~2017/bills/static/HB0161.html.

[9] See http://archive.sltrib.com/story.php?ref=/sltrib/news/53726306-78/panhandling-barnard-state-money.html.csp

[10] https://le.utah.gov/~2017/bills/static/HB0161.html.

[11] See, e.g., Norton v. City of Springfield, 806 F.3d 411 (7th Cir. 2015).

[12] See, e.g., Perry Edu. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).

[13] See Cutting, et al. v. City of Portland, Case No. 2:13-cv-00359 (D. Maine).

[14] The full text of the bill can be found at http://le.utah.gov/~2017/bills/static/HB0206.html.

[15] http://le.utah.gov/~2017/bills/static/HB0206.html.

[16] See http://www.stgeorgeutah.com/news/archive/2017/03/12/tds-legislature-wraps-new-laws-on-crime-punishment-penalties-and-protections/#.WMbNBoWcGUk

[17] The full text of the bill can be found at http://le.utah.gov/~2017/bills/static/HB0381.html.

[18] http://le.utah.gov/~2017/bills/static/HB0381.html.

 

Family Mourns Toddler Who Was Run Over By Relative In Driveway

LEHI, Utah – A family is mourning the death of a 15-month-old girl who was hit with a van at a Lehi home Thursday night by a relative in the driveway.

According to officials, the toddler was playing in the yard when a family member driving away from the home accidentally hit the child.

The girl was found to be in critical condition and a medical helicopter was called in to transport her but it was too late.

The toddler died at the scene.

Officials are investigating the case as an accident so no charges were filed.

News Source: www.Fox13Now.com

Utah Traffic Deaths Rise As Arrests Fall

SALT LAKE CITY – According to recent statistics, the number of traffic deaths in Utah caused as a result of impaired driving have gone up but the number of DUI arrests in the same period have dropped.

The state report was recently published which stated that the number of fatalities caused by drunken driving increased from 20 to 23, whereas the number of drug-related deaths in the same time period increased from 37 to 45 in the years 2012 to 2013.

The report was the 12th annual DUI report to the Utah Legislature and is compiled by the Utah Commission on Criminal and Juvenile Justice.

According to the report, there were a total of 10,901 arrests statewide that took place last year. This is a decrease of 11 percent from the previous year. The highest number of DUI arrests were recorded in 2009. The figure has dropped 36 percent since then.

This drop in the number of DUI arrests has been attributed to Utah’s increasing population and limited law enforcement resources by Mary Lou Emerson, director of the Utah Substance Abuse Advisory Council. She said that going after drunken drivers will be a priority of the Utah Highway Patrol in 2015.

The increase in the number of drug-related traffic deaths, from both illegal and prescription drugs, is of particular concern now, as these drug-related fatalities outnumber alcohol-related fatalities by almost 2 to 1.

In a meeting with the Transportation Interim Committee on Wednesday, Emerson stated that a lot of people believe that prescription and over-the-counter drugs are legal in most cases as they are prescribed by a doctor, but that is not the case.

The case of a Davis County school bus driver who was arrested this week on suspicion of DUI is a good example. The driver was seen weaving on I-15. According to the UHP, the driver had taken prescription drugs for pain, anxiety or high blood pressure that could have caused dizziness or drowsiness.

Emerson said that she feels that people don’t take those warnings very seriously. They think that since the medicine was prescribed to them by their health provider, they are safe to use and that it’s OK to drive after taking them, but that’s not really the case.

The report also stated a number of facts including the following:

  • The average blood-alcohol content of impaired drivers arrested was recorded at 0.14%, the highest being 0.44%, which is more than 5 times the legal BAC limit of 0.08%
  • First time DUI arrests were 70% whereas 19% of the arrests made were for second offenses. 7% arrests were for a third offense and 4% of the arrests were for a fourth or subsequent offense.
  • Around 12% of the arrests made were of individuals under the legal drinking age of 21 years. The youngest arrest made for a DUI offense was of a driver aged 14 years, whereas the oldest offenders arrested were 82 and 84 years of age.
  • 72% of the DUI drivers arrested were male whereas the remaining were female.
  • Almost 72% of the DUI arrests made statewide were made in Weber, Davis, Salt Lake and Utah counties.

News Source: www.DeseretNews.com

                       www.SLTrib.com

Lori W. Nelson Sworn In As The Incoming Chair Of American Bar Association Family Law Section

Last month, Lori W. Nelson, a veteran litigator with Salt Lake City-based Jones Waldo, was sworn in as the incoming chair of the American Bar Association Family Law Section.

Nelson will manage the association’s governing body and more than 10,000 lawyers, associates and student members all over the globe.

For the last 8 years, Nelson has practiced domestic law with Jones Waldo. Rex and Sharron Nelson of Driggs are her parents.

Nelson said, “It is humbling to be selected by my respected peers of the American Bar Association Family Law Section, who work with passion and integrity every day. I truly believe in the nobility of the profession and the cause for which we serve. I look forward to representing the Family Law Section in the most honorable and innovative way”.

For 18 years, Nelson has been a member of the American Bar Association Family Law Section and started working on the counsel as the region 5 representative, encompassing Montana, Idaho, Wyoming, Utah, Colorado, Arizona, New Mexico and Texas. Nelson worked in leadership positions on several committees in which CLE is included. She also co-chaired CLE prior to being elected as secretary.

Keven Rowe, firm president said, “Lori has proven herself to be a trusted leader among the attorneys and associates at Jones Waldo, and in the Utah legal community. We are confident she will do the same in her American Bar Association leadership position. Her appointment is a tremendous accomplishment and honor to our firm, and we could not be more proud to have her represent our firm in this national role”.

Nelson’s working with professional organizations and advocacy groups shows her strong passion for domestic law. She is a member of the Collaborative Family Lawyers of Utah, and has worked for the Needs of Children Committee, and as a member of the Board of Directors of the Legal Aid Society of Salt Lake. She served as president for the 2012-2013 year as a member of the Utah State Bar.

News Source: www.TetonValleyNews.net

Mother Accused Of Putting Her Day-Old Daughter In Trash Appears In Court

On Wednesday 10 September, a mother accused of leaving her newborn baby to die in a trash can appeared in court as her attorneys asked a judge for more time to understand what the reason was.

23-year-old Alicia Marie Englert made her first appearance in court in Salt Lake City, Utah, where her lawyers said that they needed more time to investigate the 23-year-old’s mental condition.

According to her family, she has a learning disability and didn’t understand what she did wrong.

Englert, whose baby daughter miraculously survived the ordeal after she was found and rushed to hospital in serious condition, is scheduled to appear in court again next month.

She is being held on $500,000 bail and faces up to life in jail if convicted of attempted murder.

She explained that she gave birth to her baby girl in a bathroom of her family’s home around midnight on 24th of August, according to the prosecutors and after that she wrapped the baby in a towel and left it on the floor of the bathroom. She left for work the next morning while leaving the baby alone without feeding her or seeking medical care for her. When she returned home from the job, she again left the baby girl on the bathroom floor.

The next day at about 6am, Englert put the baby in her neighbor’s trash can, hiding her under the trash bags. Prosecutors said that her lack of care shows she deliberately attempted to kill the child.

A neighbor heard the sound of what she thought was a purring cat in her trash can and when she moved some of the bags, she saw the baby under the garbage bags.

The baby was suffering from hypothermia and respiratory distress. She has since improved and is now in stable condition, according to the Unified Police.

Salt Lake County Attorney Sim Gill said, “It’s certainly a testament to how resilient these babies can be. It’s quite remarkable that the baby is doing well and is improving steadily.”

A photo album of Englert was published by FOX13 in which she was allegedly drinking alcohol, dancing and clubbing – “potentially within the same window of time that she was pregnant,” said the station.

Gill said that the Investigators don’t believe that the other family members knew about the baby being in the house.

Robert Englert, Englert’s father, said that his daughter has only just recently started to realize what she had done. “She doesn’t even realize that it’s a crime and it’s bad. Even when the police were taking her to jail, she thought they were taking her to her room”. He also said that he didn’t know who the baby’s father was.

Last week, Tammy Englert, the woman’s mother told The Deseret News that her daughter didn’t understand what had happened and what she did because she is mentally sick.

“We tried to explain it to her, and she didn’t realize it was that bad what she had done”.

She said her daughter had gained weight in past few months, but didn’t know that Alicia Englert was pregnant.

“I’m not going to tell my daughter, “You’re fat, and lose some weight”,’ she told the newspaper. “How do you do that?

Gill said they had no proof of any disability and that it was not a factor in his decision about charges of Englert. If Englert suffers from any mental condition, that problem will be dealt with as the case moves through the courts, he added.

News Source: www.SLTrib.com

Utah Makes Final Plea For US Supreme Court To Hear Its Same-Sex Marriage Case

SALT LAKE CITY – On Wednesday, Utah made its last plea for the U.S. Supreme Court to hear its same-sex marriage case, saying it’s the best way to solve the problem nationwide and that the appellate court ruling is not right.

In a briefing, the Utah Attorney General’s Office said that the case gives a chance to review a state constitution and laws that define marriage as between a man and a woman and recognize only those marriages from couples in other states. It also said that Utah’s Amendment 3 is similar to the rules and laws in other states.

Utah asked the court to decide whether the 14th Amendment prevents states from defining marriage as only the legal union between a man and a woman. “Resolution of this issue will mark the end of marriage litigation,” according to the state.

The Supreme Court now has fully briefed same-sex marriage petitions from Utah, Oklahoma, Virginia, Indiana and Wisconsin. On 29th of September, the justices will gather to begin considering cases for the term beginning in October.

Utah claims that the 10th Circuit Court of Appeals made a mistake in ruling the problem is about the freedom of choice to marry. According to the state, “If a person’s choice is the only marriage limit, then virtually every line that the people have drawn around marriage must fall”. The state also said, “The right would also necessarily include nonexclusive marriages, as well as those of only limited duration, such as a five-year marriage with a renewal option”.

According to Utah, it has “numerous compelling reasons” for keeping the definition of marriage that has existed since the state was made. The state said that it will explain in detail that redefining marriage without regard to “sexual complementariness” changes the meaning of marriage and also causes harm to the society.

Under the law, it is believed that children are best reared by their married biological parents and where that’s not possible, a married mom and dad.

In a statement, Freedom to Marry President Evan Wolfson said, “Utah’s brief to the Supreme Court gets at least one point exactly right: The freedom to marry is a matter of ‘immense national importance and deserves to be heard as quickly as possible by America’s highest court”. According to Wolfson, a large number of families living in Utah and throughout the country are being harmed by “indefensible marriage discrimination” and it’s time for the Supreme Court to reach a national resolution by taking the decision for one or more of the pending cases.

In federal court, Derek Kitchen and MoudiSbeity, Laurie Wood and Kody Partridge, and Karen Archer and Kate Call challenged Utah’s ban on same-sex marriage. Archer and Call married in Iowa and claim Utah law prohibits them from being treated the same as heterosexual couples due to the reason that the state does not recognize their marriage.

Last December, U.S. District Judge Robert J. Shelby ruled that the ban violates equal protection guarantees in the 14th Amendment. The 10 Circuit Court declared the ruling in June.

The plaintiffs’ attorney, Peggy Tomsic, said the time has come for the Supreme Court to make the decision of the problem. “The state of Utah and the plaintiff couples agree that it is important the Supreme Court take this case and settle the constitutional questions at stake, questions that matter so much to the families we represent and to so many others across the country”.

Proponents and opponents of same-sex marriage, in which The Church of Jesus Christ of Latter-day Saints, filed friend-of-the-court briefs are included, are urged the court to take Utah’s case last week.

News Source: www.DeseretNews.com

Utah Mom To Be Evaluated For Leaving New Born In Trash Can

SALT LAKE CITY – Lawyers for a Utah woman, who left her baby to die in a trash, are saying that her mental state is the main problem in the incident. The child, who was found in serious condition, is now in state custody.

On Wednesday, 23-year-old Alicia Marie Englert appeared in Salt Lake City court for the 1st time with her hands tied behind her back. Her eyes looked half closed and she was wearing black-framed glasses.

According to prosecutors, Englert gave birth to a baby girl on 24th August at midnight in the bathroom of the Kearns, Utah home she lived in with her family. She didn’t feed her or give her any medical attention before wrapping her in a towel, placing her in a trash can and going to work after 2 days.

A report by CBS affiliate KUTV showed that Englert told police she placed the child in the garbage, and that she did not know she was pregnant prior to the birth of the child.

A state judge permitted Englert’s lawyers almost a month to evaluate her before her next hearing. According to the Defense attorney, Susanne Gustin, the case is totally horrible and full of sorrow but asked the public to withhold judgment. “We just ask people to be patient and wait for the information to come out and to maybe give everyone a greater understanding of why this happened”, she said.

According to Englert’s family, she has a learning disability and didn’t know what she was doing when she left the newborn in the trash can. Gustin said lawyers are still attempting to find out whether Englert understands the charges or not. “Obviously, this is going to be a case of what was going on with Alicia”.

If convicted, Englert is being held on $500,000 bail and faces up to life in jail on an attempted murder charge.

The condition of the baby girl has improved since she was taken to a hospital in serious condition on 26th of August.

A neighbor found the baby under bags of garbage. The neighbor thought she heard a cat purring, but the baby was suffering from hypothermia and respiratory distress because of being under the garbage.

Salt Lake County District Attorney, Sim Gill, said that the child was dirty, smelly and had a blood-borne infection. He said the child would have died if she wasn’t found and treated some more hours. State child welfare workers have custody of the baby, who is now in stable condition.

The child’s father has not been publicly identified.

Englert is scheduled to appear in court for her next appearance on 6th of October.

News Source: www.CBSNews.com