What Are “Enhanceable Offenses” in Utah?

If you are facing criminal charges, you may be given a code citation and the level of crime that you are charged with. Some crimes are clearly labeled as “felonies” or “misdemeanors,” and they have a set range of penalties. For other crimes, there are details and specifics that could make the crime a higher level or increase the penalties.

Enhanceable offenses are criminal charges that carry standard penalties typical for most cases and penalties that are above and beyond the typical. Longer prison terms, higher fines, or additional penalties are common in cases involving enhanceable offenses. Most enhanceable offenses are created by statute. However, the prosecutor ultimately decides whether a defendant’s charges should be enhanced. The criteria for enhancing charges will vary from offense to offense.

As a criminal defendant, you are entitled to a competent criminal defense attorney to assist in your defense. Our Utah criminal defense lawyers can help with enhanceable offenses. Call (801) 758-2287 to schedule a free, confidential legal consultation at Overson & Bugden.

Definition of an Enhanceable Offense in Utah

It is difficult to pin down a single definition of enhanceable offenses. In general, an enhanceable offense can be upgraded to include harsher penalties if certain conditions or criteria are met. However, the exact nature of an enhanceable offense will be different for different offenses. Some enhanceable offenses are upgraded to more serious charges while others remain essentially the same, but come with things like greater mandatory minimum prison terms or higher fines.

Some enhanceable offenses may be upgraded from one type of criminal charge to another. For example, an offense could be upgraded from a Class A misdemeanor to a third-degree felony. In other cases, the charges remain the same, but the minimum possible sentence is increased. In still other cases, the charges remain the same, but the possible maximum sentence increases.

Precisely how enhanceable offenses work and when they may be enhanced will depend on the unique situations in your case. Different charges impose different requirements for enhancement. Some requirements are more objective, such as the age of the victim. Other offenses are more subjective and are decided at the discretion of the prosecutor.

Common Examples of Enhanceable Offenses in Utah

While there are various enhanceable offenses under the Utah Criminal Code, a few tend to come up more frequently. Drug offenses, theft, DUIs, certain sex crimes, and crimes of domestic violence may all be charged differently depending on any number of factors. Many of these offenses are enhanceable depending on factors like the value of items stolen or prior criminal convictions for similar offenses. Remember, it is important to consult with an attorney about your charges to determine if they can be enhanced. Contact our Logan criminal defense attorneys for help today.

Domestic Violence

Domestic violence charges are subject to enhancement under the Utah Code § 77-36-1.1. Under the law, domestic violence charges may be increased if the defendant has a history of domestic violence convictions. For example, suppose a defendant is charged with Class C misdemeanors for domestic violence-related offenses. In that case, the charges may be enhanced to Class B misdemeanors if the defendant has a prior domestic violence conviction within the past 10 years.

This enhancement applies to Class A, B, and C misdemeanors. The greatest enhancement would upgrade a Class A misdemeanor or a Class B misdemeanor to a third-degree felony. An enhancement from a Class A misdemeanor to a third-degree felony happens under the same repeat offender circumstances mentioned above. However, charges enhanced from a Class B misdemeanor to a third-degree felony require additional criteria. Our Ogden criminal defense attorneys can help you challenge the charges against you and hopefully prevent any enhancements.

Drug Crimes

Charges for illegal possession or distribution are frequently filed. Charges can be enhanced based on the quantity of drugs in question or other factors that may point to something like dealing. Charges also vary based on the type of drug involved.

Drugs are classified into different Schedules. More serious drugs, such as those classified under Schedule I or II, involve higher penalties. Less dangerous controlled substances, including Schedule III, IV, and V drugs, may be met with somewhat more lenient charges. This means your charges could be enhanced depending on what kind of drugs are found in your possession.

In addition, charges may be altered or enhanced based on the details of your case. For example, if police suspect you were distributing drugs or were part of a larger criminal ring, your charges may be enhanced beyond simple possession. Drug charges may also be enhanced if you have prior convictions for possession.

For example, according to the Utah Code § 58-37-8(b), possession of a Schedule I or II controlled substance is usually charged as a second-degree felony. However, a prior conviction may mean your charges are enhanced to first-degree felonies. For help with your enhanceable drug offenses, contact our Utah drug possession defense lawyers.

Theft Crimes

“Theft” encompasses a variety of specific criminal offenses. Theft can include crimes like shoplifting or normal theft and may be accomplished covertly, by force, or by deception, among other means. Under Utah Code § 76-6-412, theft offenses are charged based on factors including the value of the stolen property, the method of theft, and the involvement of a firearm.

For example, theft may be charged as a second-degree felony if…

  • The value of the stolen property is at least $5,000,
  • If the property is a firearm or motor vehicle, or
  • If the property was stolen from the physical person of someone else.

However, theft will only be a third-degree felony if…

  • The value of the stolen property is at least $1,500 but less than $5,000 or
  • The stolen property was worth at least $500 and the defendant has two prior theft convictions within the past 10 years.

Our Utah theft defense lawyers can help you argue against any enhancements for theft charges.


Driving under the influence (DUI) is an unfortunately common criminal offense in Utah and many other states. Drivers may be charged with a DUI if they are found driving their vehicles while under the influence of drugs or alcohol. Ordinarily, drivers are charged with a DUI per se if their blood alcohol concentration (BAC) is at least .05%. However, a driver may be charged even if their BAC is less than .05% if they are unable to safely drive or are otherwise impaired.

DUI charges can range based on BAC level and the driver’s history of prior DUIs. The greater your BAC, or the more DUIs you have on your record, the worse your charges are likely to be. A DUI is usually charged as a Class B misdemeanor but may be enhanced to a Class A misdemeanor if you injured another person while driving or had an underage passenger in the vehicle. Having two or more previous DUIs may enhance the charges even further to third-degree felonies.

If you are facing charges for a DUI, call our Park City Utah DUI defense attorneys for help. Our team will work to prevent your charges from being unfairly or unnecessarily enhanced.

Sexual Exploitation of a Minor

Sexual exploitation of a minor typically involves the possession or distribution of child pornography. This type of offense is taken quite seriously, and prosecutors will look for every opportunity to enhance the charges against you. A person may be charged with sexual exploitation of a minor if they knowingly possess articles of child pornography. According to the Utah Code § 76-5b-201(2), defendants are usually charged with a second-degree felony for sexual exploitation of a minor.

However, if the defendant is found to have produced child pornography involving a violent sex act, such as rape or aggravated sexual abuse, the charges may be enhanced to first-degree felonies. If you are facing allegations of sexual exploitation of a minor, you may be facing extremely serious criminal charges. Contact our Provo criminal defense lawyers for help fighting your charges and preventing any enhancements to your charges.

Who Decides if Criminal Charges Should Be Enhanced in Utah?

Enhanceable offenses are usually determined based on statutes. Enhancements may only be available where statutes allow them. This means the statutes relating to your criminal charges or the penalties for your charges must state that enhancements are permitted. The statutes must also explain under what circumstances the enhancements are permitted. For example, a statute might enhance charges when a defendant has a previous conviction for the same offense on their criminal record.

Enhanceable offenses are also sometimes put under the prosecutor’s discretion. The statutes pertaining to your charges might allow for an enhancement of charges, but the prosecutor makes the final call on whether to actually use the enhancement. For example, in some of the examples above, your charges may be enhanced if you have certain previous convictions on your criminal record. It is up to the prosecutor to decide if your record meets these criteria. Even if the necessary criteria are met, a prosecutor may decide not to impose the enhancement if they do not feel it is necessary.

Sometimes the law requires that facts related to an enhancement must be proved beyond a reasonable doubt. In these cases, an experienced Logan criminal defense lawyer can help fight the potential enhancement.

Defenses to Criminal Charges Involving Enhanceable Offenses in Utah

The best defense to your charges and to possible enhancements depends on what crime you are charged with. Different offenses all have unique elements that the prosecutor must prove if you are to be found guilty. This means any given case may have any number of different criminal elements that we can refute or argue. There may also be many different questions about the evidence.

Enhanceable offenses provide a unique defense opportunity. If you cannot argue against guilt, you can at least argue against enhancement. Enhanceable crimes do not always have to be enhanced, and we can fight to keep your charges at the lowest level possible. For example, we may convince the prosecutor or the judge that even though the criteria for enhancement are satisfied, they are weak and enhancement is unnecessary.

Some facts to support enhancement can be proved at sentencing with a lower standard, while other facts need to be proved beyond a reasonable doubt at trial. We can help keep evidence out to make it harder for the government to meet this burden. For example, we can seek to suppress evidence of an illegally seized weapon or a confession made under duress. At sentencing, we can fight to provide evidence that cancels out the prosecutor’s claims for enhancement.

Negotiating Plea Agreements for Utah’s Enhanceable Offenses

Many cases, if not most cases, never make it to trial. Instead, they are settled by plea agreements, also called plea bargains or plea deals. Plea agreements are like exchanges between defendants and prosecutors. A prosecutor agrees to reduce or drop charges and, in exchange, the defendant agrees to plead guilty, waiving their right to a trial.

In cases of enhanceable offenses, we may have a unique opportunity for negotiating a plea agreement. We may be able to convince a prosecutor to avoid enhancing the charges against you in exchange for a guilty plea. Under such an agreement, you would plead guilty to the standard charges or a reduced sentence rather than risk being sentenced for enhanced charges. Our Riverton criminal defense attorneys can help you negotiate the best plea agreement for your case.

Call Our Utah Criminal Defense Lawyers for Enhanceable Offenses

If you are facing criminal charges in Utah, there might be a chance those penalties could be enhanced and made more serious. Our Utah criminal defense lawyers will help you avoid enhancements in any way they can. Schedule a free legal consultation with our staff at Overson & Bugden by calling (801) 758-2287.