by Philip Wormdahl
Editor’s Note: This article is part of a series summarizing CLE presentations given as part of the YLD’s “Practice in a Flash” program.
More than 15,000 DUI arrests were made in Utah during 2010. Roughly two-thirds of those arrests were first-time offenders. With so many citizens facing DUI charges, most lawyers should expect that someone they know will need representation for DUI. Because of the volume of arrests, being able to competently handle a DUI case is a critical skill for attorneys working in criminal defense and a huge asset to attorneys looking to develop and grow their clientele. This article is meant to give a basic overview of the “typical” DUI case by exploring some of the most common procedures, hearings, and issues.
Driving Under The Influence of Alcohol and\or Drugs, or “DUI,” is codified at Utah Code section 41-6a-502. See Utah Code Ann. § 41-6a-502 (LexisNexis 2010). The conduct prohibited by the statute is as follows:
Section 41-6a-502. Driving under the influence of alcohol, drugs, or a combination of both or with specified or unsafe blood alcohol concentration – Reporting of convictions.
(1) A person may not operate or be in actual physical control of a vehicle within this state if the person:
(a) has sufficient alcohol in the person’s body that a subsequent chemical test shows that the person has a blood or breath alcohol concentration of .08 grams or greater at the time of the test;
(b) is under the influence of alcohol, any drug, or the combined influence of alcohol and any drug to a degree that renders the person incapable of safely operating a vehicle; or
(c) has a blood or breath alcohol concentration of .08 grams or greater at the time of operation or actual physical control.
Id. § 41-6a-502(1).
The first element of the offense requires that the subject be “operating” or in “actual physical control” of a vehicle. See id. § 41-6a-502(1). While “operating” may be self-explanatory, it is important to understand that a person can be convicted of DUI without actually “driving” a vehicle. Whether a person was in “actual physical control” of a vehicle is a question for the jury and is determined by the totality of the facts. A DUI attorney challenging “actual physical control” should look to Richfield City v. Walker, 790 P.2d 87 (1990), for a good primer of facts that may establish “actual physical control.” Also, unlike most other violations of the traffic code, DUI does not require the vehicle to be on a public street. “Parking lot” and “driveway” DUIs are common.
Second, the statute requires that a person be at or above the statutory “per se” alcohol limit of 0.08 grams of alcohol, or be under the influence to a degree that renders the person incapable of safely operating a vehicle. See Utah Code Ann. § 41-6a-502(1)(a)(b). This means that a person under the “per se” limit of .08 could still be arrested for, charged with, and convicted of DUI.
It is clear from the language of the statute that a person can be prosecuted for DUI for both alcohol, and\or drugs. The definition of what counts as a “drug” is also specifically defined for DUI offenses in Utah Code section 41-6a-501 and is broad enough to include substances beyond “controlled substances.” See id. 41-6a-501. A common example of this is a DUI that involves the use of household inhalants like paint, glue, or compressed air.
In addition to a “traditional” DUI under section 41-6a-502, Utah drivers can be prosecuted for having “any measurable amount” of a controlled substance, or its metabolite, in their body while driving – regardless of whether they are impaired or noticeably affected by the substance. The “Metabolite DUI” statute is found at section 41-6a-517. See id. § 41-6a-517. It is common for citizens of California who are medical marijuana users to be arrested for Metabolite DUI while passing through Utah (unimpaired), because THC metabolites can remain in a person’s body for months after the active THC has left their system.
Taking The Case
If you have been hired to represent someone for DUI, you should already have a good sense of the facts of the case from your client’s perspective. In your initial interview, you would have asked them general questions about their background, substance use habits, and full criminal history. You would also ask about their memory of events from the arrest. You would know where the client had been, where they were going, what they had consumed, why they were pulled over, whether they took roadside field sobriety tests, and the circumstances of any chemical testing (blood, breath, or urine).
Your first steps after being hired are to (1) request a hearing with Driver’s License Division (“DLD”), (2) enter your appearance with the court, and (3) begin the discovery process.
Request DLD Hearing
When a person is arrested for DUI, the arresting officer will take the arrested person’s Utah drivers license. The driver is then given a citation that may act as their temporary license for up to thirty days from the date of arrest. The driver only has ten days from the arrest to make a written request to DLD for a hearing. If no hearing is requested, the license is automatically suspended after thirty days when the temporary license (citation) expires. If a hearing is requested, it will be scheduled by the DLD, in the county of the arrest, prior to the expiration of the temporary license.
Enter Appearance with Court
Like any other criminal case, once you are hired, you need to notify the court of your appearance. Send a “Notice of Appearance of Counsel” to the court so they know your client is represented and where to send notices. You may want to include some additional items in your Notice of Appearance, for instance, a request for a speedy trial by jury or an entry of a “not guilty” plea on your client’s behalf. Many municipal justice courts will strike a defendant’s Arraignment upon entry of your appearance.
DUI cases can turn on very small details, so understanding what evidence is out there, and how to get it, is key to a successful defense. Some examples of things you want are: police reports, videos from police station and patrol car “dash-cams,” certification reports for the breath-testing machine, and the arresting officer’s “POST” certification record. A general discovery request to the prosecutor under Rule 16 is a start, but sometimes that will not get you critical evidence quickly enough. See Utah R. Crim P. 16. For instance, if you need a “dash-cam” video for a driver’s license hearing, you will likely have to bypass the prosecutor and go directly to the source. Not all cases will have every kind of evidence available, so the best bet is to call the particular agencies and find out what evidence they “might” have and how they want you to request it, i.e., GRAMA request, subpoena, in-person pickup, mail or fax, etc. Discovery can be a bureaucratic nightmare in some cases, but usually if you are nice and ask in the right way, you can get what you need with basic efforts.
Driver’s License Hearing
For many first-offense DUI clients, the prospect of license suspension is the primary concern. They need to drive to work, take kids to day care, and run errands. Utah has no privilege for limited driving when a license is suspended for DUI, so a win at a DLD hearing is something to cherish. Driver’s license hearings generally come in two basic flavors: (1) the “per se” suspension hearing and (2) the “refusal” revocation hearing.
The “per se” hearing is what you get if your client was arrested for DUI and submitted to every chemical test demanded by the officer. Typical suspension lengths for a “per se” hearing are 120 days for a first offense and two years for a subsequent offense.
The “refusal” hearing is what you get if your client was arrested for DUI and refused to take any of the chemical tests requested by the officer. Typical revocation length for a “refusal hearing” is eighteen months for a first offense and thirty-six months for a refusal with a prior administrative license action.
DLD hearings are civil “administrative” hearings, not criminal proceedings, so make sure you are prepared to operate under very relaxed evidentiary rules (hearsay freely comes in!) and don’t bother with fourth amendment challenges to the vehicle stop or subsequent detention, because the exclusionary rule does not apply. Also, officers usually appear telephonically and DLD hearing officers will tightly control your cross-examination of the arresting officer.
There are a few general points of attack for a successful DLD hearing. First, if the officer fails to appear for the hearing, either in person or telephonically, DLD will take “no action” on the license. If the officer appears and the hearing is conducted, be sure to focus on “procedural issues” and the “merits” of the DUI arrest. Procedural arguments include things like the officer’s failure to properly serve the driver with a copy of the citation and provide them notice of DLD’s intent to suspend the license. Additionally, officers are required to read certain verbal “admonitions” to arrested drivers to warn them of the potential consequences of providing (or not providing) a chemical sample to the officer. Making sure that the officer properly relayed the contents of the required admonitions is a key step at a suspension hearing. Attacking the merits of a DUI arrest at an administrative suspension hearing is similar to challenging probable cause for arrest in a court. The “bread and butter” for challenging the merits are the officer’s administration of the field sobriety tests, observation of any driving pattern (or lack there-of), and the officer’s observations of your client’s physical signs of impairment. All of these facts are to be considered under a “totality of the circumstances” standard. Officers are in a habit of documenting only the facts that point to your clients impairment, not the facts that point to sobriety, so if the officer didn’t make any note of your client’s speech, make sure that you create a positive fact in the record regarding unslurred speech, rather than leaving speech out. Same goes for other common observations like “swaying,” “red eyes,” “fumbled documents,” or “odor of alcohol.”
The priority at a DLD hearing is to protect your client’s driving privilege, but don’t be afraid to use the hearing as an opportunity to build the record for subsequent motion practice in the court. The officer will be placed under oath and the audio from the hearing will be recorded by DLD. Tie the officer to the report, get the officer to clarify any ambiguous language, and fill in any gaps. Sometimes a DUI case can be won by an officer’s testimony at a DLD hearing.
For concise information about suspension and revocation hearings, check the Utah Code, Title 53, Chapter 3 – The Uniform Driver’s License Act. The main points of interest for a DUI lawyer are Utah Code sections 53-3-220 through 53-3-231. See Utah Code Ann. §§ 53-3-220-231 (LexisNexis 2010, Supp. 2011).
Most officers will subject a suspected impaired driver to roadside tests. The common three-test battery, known as the Standardized Field Sobriety Tests include: the Horizontal Gaze Nystagmus Test (“HGN”), the Walk and Turn Test, and the One Leg Stand Test.
HGN – Horizontal Gaze Nystagmus is an involuntary jerking of the eyes as they move from side to side. The HGN test is administered by having a driver follow a stimulus (usually a pen or finger held twelve to fifteen inches from the subject’s face) with their eyes. The subject is instructed to keep the subject’s head still and follow the stimulus with his or her eyes only while the officer makes several “passes” with the stimulus. As the stimulus is moved horizontally across the subject’s field of vision, the officer looks for certain “clues” in the subject’s eyes. The officer is looking for three different clues in each eye, for a total of six possible clues: lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation, and onset of nystagmus prior to forty-five degrees. Four out of six is considered a fail.
Walk and Turn – The Walk and Turn Test involves having a subject walk a straight line with nine heel-to-toe steps, turn, and take nine steps back. The test begins by putting the subject in a heel-to-toe “instructional” position while the officer explains and demonstrates the test. When the instruction is complete the officer has the subject perform the “walking stage” of the test. The officer is looking for eight impairment clues during the test, including: starting the test too soon, failing to maintain the instructional position, taking the wrong number of steps, raising the arms more than six inches from the sides, missing heel to toe contact by more than half of an inch, stepping off line, making an improper turn, or stopping walking during the test. Two out of eight is considered a fail.
One Leg Stand – The third test in the battery is the One Leg Stand. For this test, the officer has the subject raise one of his or her legs out in front of them with the foot approximately six inches from the ground. Both of the subject’s legs should be kept straight and the sole of the raised foot should be parallel with the ground. The subject then counts out loud, “One thousand and one, one thousand and two,” until told to stop. The officer times the test for thirty seconds. The officer watches for four clues on the one leg stand test, including: hopping, putting down their foot, swaying, and raising the arms more than six inches from the sides. Two out of four is considered a fail.
This three-test battery was validated by the National Highway Traffic Safety Administration (“NHTSA”) as reliable enough to use in court for the purpose of showing impairment in drivers. However, the reliability of these tests is predicated on the tests being administered in the correct, standardized way. The NHTSA testing manual explicitly states that the “validation applies only when: the tests are administered in the prescribed standardized way,” and cautions that “if any one of the…test elements is changed, the validity is compromised.” All of the specific testing procedures are contained in Session VIII of the NHTSA manual. Any attorney who is handling a DUI case should have read at least Section VIII of the NHTSA manual and be well-versed in the proper administration and scoring of the validated tests.
One of the most damning pieces of evidence in a DUI case is the chemical evidence. Although officers may ask for breath, blood, and urine, the most common test administered is the breath test. Utah uses the Intoxilyzer 8000 breath-testing machine made by CMI. Pursuant to Utah Administrative Code R714 – 500, et seq., evidentiary breath-testing machines must be certified “on a routine basis not to exceed 40 days.” Any attorney handling a DUI case with breath evidence should have the certification records of the specific machine used in the case.
Also, prior to the administration of a breath test, the officer must observe a “depravation period” to ensure that the subject’s mouth is free from foreign objects. Foreign objects in the mouth, particularly mouth alcohol, can artificially inflate the machine’s blood alcohol calculation and call into question the reliability of the result. The principal concern is the presence of mouth alcohol. The deprivation period is casually referred to as the Baker period or observation, taking its name from the defendant in the seminal case. See State v. Baker, 355 P.2d 806 (Wash. 1960). The Utah case that established the observation period is State v. Vialpando, 2004 UT App 95, 89 P.3d 209. For the observation period to be properly observed, the officer must check the subject’s mouth for foreign objects to determine it is clear, and then observe the subject for fifteen minutes prior to the time the breath sample is taken. Vialpando established that the observation requirement is satisfied when: “(1) the suspect was in the officer’s presence for the entire period; (2) it is clear that the suspect had no opportunity to ingest or regurgitate anything during the minimum observation period; and (3) nothing impeded the officer’s powers of observations during the observation period.” Id. ¶18.
If the officer failed to meet the requirements of the observation\depravation period, a Baker challenge is appropriate to exclude the result of a breath test from trial.
Blood testing is also used frequently in DUI prosecutions, especially if the officer suspects drugs, rather than alcohol, are causing the subject’s impairment. For blood tests, your first line of defense is to investigate the “chain of custody” of the sample. In other words, you want to know where the blood went when it left your client’s arm. Who took it? Where did they take it? Under what conditions was it kept, and who tested it? Breaks in the chain of custody call the reliability of the blood testing into question and can lead to exclusion from court.
The most common charge reduction in a DUI case is a plea to “Impaired Driving” under Utah Code section 41-6a-502.5. See Utah Code Ann. § 41-6a-502.5 (LexisNexis, 2010). Impaired Driving replaced “Alcohol Related Reckless Driving” or “Wet Reckless.” The biggest advantages to an Impaired Driving conviction over a DUI is that Impaired Driving has no mandatory jail sentence, and a conviction for Impaired Driving will not trigger a license suspension, nor require a person to maintain an ignition interlock device in their vehicle on a first offense. Outside of Impaired Driving, anything is possible. The deal you are able to secure for your client will depend on the facts of your case and your negotiation skills. Usually, the lower the blood alcohol level, the better your position. Also, evidentiary issues, like an officer’s failure to properly observe Baker, will help you sweeten the deal.
Much of the typical DUI sentence is predetermined by statute. Some things that are open for argument by a DUI attorney are the amount of jail time, community service, fine amount, and conditions of probation. Some of the main consequences are outlined below, but a DUI attorney should carefully read section 41-6a-505 for a more comprehensive picture. See Utah Code Ann. § 41-6a-505. Additionally, more information regarding typical sentencing practices can be found in the DUI sentencing matrix at: http://publicsafety.utah.gov/highwaysafety/documents/2010DUISentencingMatrix.pdf.
Other resources may be found at: http://publicsafety.utah.gov/highwaysafety/docs/DUI_BEST_PRACTICES.pdf and at: http://publicsafety.utah.gov/highwaysafety/documents/