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Criminal Defense Lawyer Draper Utah

Criminal Defense Lawyer Draper Utah

If you have been charged with a criminal offense, contact an experienced Draper Utah criminal defense lawyer.

Every criminal offense requires both a criminal act (often still referred to by the Latin phrase actus reus) and an accompanying state of mind (mens rea). The requirement of a criminal act is easily understood and is contested in only a few cases, but it reflects interestingly on the purposes of criminal law. The act element of the requirement refers to a voluntary action of the defendant, and the criminality element refers to the harm that ensues from the act.

An act is simply a movement of a part of the body. The criminal’s finger pulls the trigger on the gun or her hand takes a wallet out of the victim’s pocket. At this point we are not concerned with the consequences of the act–the death of the victim or the value of the wallet–but only with the defendant’s physical act itself. It’s enough that there be an act and that the defendant voluntarily performed it.

The element of voluntariness is essential. Suppose Tony Stark is quietly peeling an apple when he suddenly has an epileptic seizure. During the seizure, an involuntary muscle contraction causes his hand, which is holding the knife he was using, to jerk out, slashing the throat of Louis Lane, who was sitting next to him. Or suppose one night Tony gets out of bed and, in an unconscious, sleepwalking state, picks up a knife and slashes his wife to death. Has Tony committed a criminal act in either case? The law says no, because Tony’s conscious mind has not directed a voluntary act.

Sometimes it is argued that we can’t deter involuntary acts, so there is no point in punishing them; the threat of a criminal sanction cannot prevent the epileptic from having a seizure. But that’s not exactly right. We can’t prevent the somnambulist from sleepwalking, but we can provide a disincentive for him to be in potentially dangerous situations when he might do so; perhaps the threat of criminal punishment will encourage sleepwalkers to keep their bedroom doors locked and keep sharp objects out of reach, or even to seek treatment for the affliction. An even more important reason to require a voluntary act is retributivist. Criminal punishments are exacted because the criminal has done something wrong in a moral sense. Only where the criminal has chosen to commit harm–that is, has acted voluntarily–is it just to punish him.

Voluntariness as an issue arises in a few cases more common than sleepwalking. Many statutes punish simple possession, of drugs or of burglary tools, for example. Even if the statute doesn’t say so expressly, this means voluntarily coming into possession or maintaining possession. If someone slips a packet of heroin into your pocket and the police immediately thereafter find it, you are not guilty of possession of an illegal drug because you did not possess it voluntarily. It is useful for the government to be able to prosecute people for possession, though, because it is usually easier to prove possession than use, purchase, or sale. If you have the drugs and it is reasonable to infer that you either acquired them voluntarily or knew you had them for a sufficient period of time in which you had a chance to get rid of them, it is reasonable to infer that you voluntarily kept the drugs and to punish you for having them.

The voluntariness requirement can also be met if the criminal voluntarily performed some but not all of the steps necessary to complete the offense. Suppose a deeply fatigued truck driver continues to drive at the end of a very long day, falls asleep at the wheel, and runs over a pedestrian. Has the driver committed a criminal homicide? Running over the pedestrian was not a voluntary act, but continuing to drive while tired was, so the act requirement has been satisfied. The issue then becomes the degree of homicide. The driver might argue that she should only be liable for negligent homicide (manslaughter) because she didn’t intend to hit the pedestrian, even though she may have been reckless in driving in the first place.

The common rationale of excuse defenses— to exculpate the blameless— gives rise to common requirements: a disability or reasonable mistake must cause an excusing condition. The disability and mistake excuses generate the same conclusion of blamelessness in different ways. In disability excuses, the disabling abnormality, such as involuntary intoxication, sets the person apart from the general population. The mistake excuses seem to do the opposite: they argue that the person should not be punished because in fact he or she has made a mistake that anyone else would have made in the same situation. That is, the person’s mistake was reasonable; any reasonable person would have made the same mistake.

Mistake Excuses

Several types of mistakes are commonly allowed as grounds for a general excuse defense (as distinguished from mistakes that provide an absent-element defense by negating an element of the offense). Reliance on an official misstatement of law and mistake due to the unavailability of a law are two such general mistake excuses. A mistake about whether one’s conduct is justified also is commonly recognized as an excuse. (A fourth commonly recognized mistake excuse is reliance on unlawful military orders, essentially a special subclass of a mistake about a justification excuse, where the justification is the public authority of lawful military orders.)

Mistake with Regard to Justification

Every jurisdiction recognizes a defense for some form of mistake with regard to a justification. The often unpredictable and confrontational nature of justifying circumstances makes such mistakes particularly understandable. This is especially true for defensive force justifications, where the person must make the decision to act under an impending threat of harm. Most jurisdictions provide the mistake defense by including the word believes or the phrase reasonably believes in the definition of the justification defense (or by giving a defense if the person acts with a proper justifying “purpose”). This means that a person will get the defense if he or she believes that the conduct is justified, even if it is not. A popular alternative means of providing an excuse for mistake with regard to a justification— and one with some advantages— is to define justifications objectively, without the “believes” language, and to provide a separate general excuse defense for mistakes with regard to a justification.

Disability Excuses

Similarly, disability excuses share a common internal structure: a disability causes a recognized excusing condition. The disability is an abnormal condition of the person at the time of the offense, such as intoxication, subnormality, or immaturity. Each is a real-world condition with a variety of observable manifestations apart from the conduct constituting the offense. It may be a long-term or even permanent condition, such as subnormality, or a temporary state, such as intoxication, somnambulism, automatism, or hypnotism. Its cause may be internal or external, as in coercion from another person (duress).
Having a recognized disability does not itself qualify a person for an excuse, for it is not the disability that is central to the reason for exculpating the person. A person is not excused because he or she is intoxicated, but rather because the effect of the intoxication is to create a condition that renders the person blameless for the conduct constituting the offense. The requirement of an excusing condition, then, is not an element in de pen dent of the person’s disability but rather is a requirement that the person’s disability cause a particular result— a particular exculpating mental or emotional condition in relation to the conduct constituting the offense.

Involuntary Intoxication

The involuntary intoxication excuse has a disability of intoxication and the excusing condition— a cognitive or a control dysfunction.


The duress defense typically requires that the person committed the offense while under coercion to do so. The defense does not require, however, that the coercion cause in the person a “substantial lack of capacity to conform his conduct to the requirements of law” or another similar description of the degree of control impairment that the excusing conditions involuntary intoxication require. Instead, the duress defense requires that the person’s disability, which is in this case the state of coercion, come from a particular cause: a threat of force that “a person of reasonable firmness … would have been unable to resist.” The seriousness of the threat is to be assessed against the kind of threat that would coerce “a person of reasonable firmness in [the actor’s] situation”.

Nonexculpatory Defenses

Nonexculpatory defenses, which give a defense even though the person’s conduct may be wrongful and the person blameworthy, include such defenses as statutes of time limitation; diplomatic immunity; judicial, legislative, and executive immunities; immunity after compelled testimony or pursuant to a plea agreement; and incompetency to stand trial. Each of these forms of immunity furthers an important societal interest. Overriding nonexculpatory public policy interests also serve as the basis for many constitutional defenses. The double-jeopardy clause of the Fifth Amendment, for example, may foreclose the trial of even a blameworthy and convictable offender by barring the state from making repeated attempts to convict him or her. Notions of procedural fairness are said to demand that the state not subject a person to the embarrassment, expense, and ordeal of trial more than once for the same offense, nor compel him or her to live in a continuing state of anxiety and insecurity.

Dismissals based on the operation of the exclusionary rule or on prosecutorial misconduct also may be nonexculpatory in nature, especially if the dismissals are unrelated to the reliability of the evidence in the fact-finding process. The public policies served by nonexculpatory defenses may be as broad as protecting all members of society from unlawful searches, or they may narrowly focus on assuring fairness in the treatment of individual defendants.

The nonexculpatory entrapment defense furthers societal interest in deterring police misconduct. Where a police officer or agent has had some hand in having a person commit an offense, the person may be entitled to an entrapment defense. The United States is one of the few countries that recognize such a defense, and within the United States, jurisdictions disagree over how the defense should be formulated. “Objective” formulations of the entrapment defense focus on the impropriety of the police conduct. The defense is available, even if the person was predisposed to commit the offense, if the police conduct is such that it “creates a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.” “Subjective” formulations of the entrapment defense focus on the degree to which the entrapping conduct, rather than the person’s own choice, is responsible for commission of the offense. Under this formulation, the defense is given “because the wrongdoing of the officer originates the idea of the crime and then induces the other person to commit the offense when the other person is not otherwise disposed to do so.”

The objective formulation is clearly nonexculpatory: it uses the threat of acquittal of the defendant as a means of deterring improper police conduct. The blameworthiness of the defendant is not relevant. A subjective formulation, in contrast, might appear to be an excuse similar to duress that exculpates the defendant because he or she is coerced to commit an offense. However, the subjective formulation does not require that the inducement to commit the offense be one that a “person of reasonable firmness would have been unable to resist,” as the duress excuse does. Instead, it gives the defense even if we could well have expected the defendant to have resisted the temptation. The subjective formulation is a nonexculpatory defense like the objective formulation, but one that seeks to exclude career criminals from the defense in order to limit the costs it accrues in trying to deter overreaching on the part of police.

If you or someone you know has been charged with a criminal offense, your first course of action should be to get in touch with an experienced Draper Utah criminal defense lawyer. The lawyer will fight to get justice for you.

Draper Utah Criminal Defense Attorney Free Consultation

When you need to defend against criminal charges in Draper Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We can help you with White collar crimes, sex crimes, theft charges, assault, battery, manslaughter, DUI, drug crimes and more. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
itemprop=”addressLocality”>West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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About the Author

People who want a lot of Bull go to a Butcher. People who want results navigating a complex legal field go to a Lawyer that they can trust. That’s where I come in. I am Michael Anderson, an Attorney in the Salt Lake area focusing on the needs of the Average Joe wanting a better life for him and his family. I’m the Lawyer you can trust. I grew up in Utah and love it here. I am a Father to three, a Husband to one, and an Entrepreneur. I understand the feelings of joy each of those roles bring, and I understand the feeling of disappointment, fear, and regret when things go wrong. I attended the University of Utah where I received a B.A. degree in 2010 and a J.D. in 2014. I have focused my practice in Wills, Trusts, Real Estate, and Business Law. I love the thrill of helping clients secure their future, leaving a real legacy to their children. Unfortunately when problems arise with families. I also practice Family Law, with a focus on keeping relationships between the soon to be Ex’s civil for the benefit of their children and allowing both to walk away quickly with their heads held high. Before you worry too much about losing everything that you have worked for, before you permit yourself to be bullied by your soon to be ex, before you shed one more tear in silence, call me. I’m the Lawyer you can trust.