Utah DUI Attorney : Salt Lake City DUI Lawyer & Attorney : Glen Neeley : Serving Davis County, Ogden, Brigham City, Logan

I was reading an article about a case wherein a man is accused of serious robbery type crimes.  An identification of the man was made by several witnesses in Court.  Here is the problem.  Apparently, what happened is a couple of weeks before trial, the prosecutor and officer's met with the witnesses.  They showed the witnesses the defendant's photo.  It was not done in a photo line up.  The prosecution showed the witnesses the photos so they could identify him in court.  The judge ruled that the witnesses were tainted from this act by the prosecution because the witnesses were not testifying from their recollection of the incident, they were making an identification based on a photo shown to them.  There are real problems with witness identification.  This seems like the prosecution was trying to get around those problems and ensure an identification.  Is this a prosecution trying to seek justice, or just trying to win a case.  Here is the article.

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New laws came into effect regarding expungements.  The eligibility requirements have changed to the detriment of many.  To be eligible for expungement, the case has to be dismissed with prejudiced, meaning it cannot every be filed again.  Rarely, is a case dismissed with prejudice.  So it used to be that if a case was dismissed without prejudice, the citizen could file for expungement after 30 days.  Now, the person must wait as if convicted of the charge.  Here is the eligibility statute:

Utah Code
Title 77 Utah Code of Criminal Procedure
Chapter 40 Utah Expungement Act
Section 104 Eligibility for expungement of records of arrest, investigation, and detention -- Requirements.

77-40-104. Eligibility for expungement of records of arrest, investigation, and detention -- Requirements.
(1) A person who has been arrested with or without a warrant may apply to the bureau for a certificate of eligibility to expunge all records of arrest, investigation, and detention which may have been made in the case, subject to the following conditions:
(a) at least 30 days have passed since the arrest for which a certificate of eligibility is sought;
(b) there have been no intervening arrests; and
(c) one of the following occurred:
(i) charges were screened by the investigating law enforcement agency and the prosecutor has made a final determination that no charges will be filed;
(ii) the action against the person was dismissed with prejudice;
(iii) the person was acquitted at trial; or
(iv) the statute of limitations has expired on the offense.
(2) Notwithstanding Subsection (1)(a), a petitioner seeking expungement under Subsection (1)(c)(iii) shall be issued a certificate of eligibility on an expedited basis.

If you are convicted of the crime, or the case was dismissed without prejudice, you must wait the time periods listed below before you can expunge:  (77-40-105)

i) 10 years in the case of a misdemeanor conviction of Subsection 41-6a-501(2) (DUI) or a felony violation of Subsection 58-37-8(2)(g);
(ii) seven years in the case of a felony;
(iii) five years in the case of a class A misdemeanor;
(iv) four years in the case of a class B misdemeanor; or
(v) three years in the case of any other misdemeanor or infraction.

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Utah uses two machines that are manufactured by the same company.  Both work on the same principles.  The newest machine is the intoxilyzer 8000.  This is the most common machine that is being used at this point because it is mobile.  It can be carried in an officer's car.  Every night, in Salt Lake City, there is a DUI squad of officers circling around bars waiting to pull people over for minor infractions.  If the officer does not have the 8000 machine with him, he calls the carrying officer to bring the machine to the place where he has a person under investigation for DUI.  The 5000EN is used in Utah, but seems to be phasing out and replaced by the 8000.  The question, are the machines accurate?   If you take a breath test, you would hope that it tests your system for alcohol.  

A recent study showed that not to be the case.  A man was in the park, allegedly very inebriated.  He presented himself as being lethargic, having slurred speech, and ataxia.  He looked drunk.  He was tested by the officers with a 5000EN machine.  The result was .288, which is almost 4 times the legal limit.

He was taken to the hospital.  The hospital ran a blood test on the man and found no alcohol in his system.  Instead, methanol was found in his system.  The man was suicidal and drank a gas line anti-freeze known as Heet.  The breath test machine read methanol as being alcohol.  What if a person works with chemicals all day long and absorbs these chemicals into the blood system.  The person is then pulled over for some small infraction, like a license plate light out, and tested for alcohol?  The machine says the man is guilty of being over a .08 and should be convicted of DUI, when in fact the machine was in error.  The article is below.

www.utahduilawblog.com/uploads/file/Intox-EN-MeOH (1).pdf

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 Beware, ride with an alcohol limit at or over a .08, you can be charged with DUI.  It's true.  It has happened in Vernal.  The first of its kind in Utah, that I have heard.  There are old cases of riding a horse while drunk.  But really, a bike?  I mean if a person chooses to ride a bike to the bar, isn't the person doing what we want.  They are not driving the 5K lb vehicle.  But here is what the legislature did.  Utah Code 41-6a-501 states a "Vehicle" or "motor vehicle" means a vehicle or motor vehicle as defined in Section 41-6a-102; and
(ii) "Vehicle" or "motor vehicle" includes:
(A) an off-highway vehicle as defined under Section 41-22-2; and
(B) a motorboat as defined in Section 73-18-2.

Utah Code 41-6a-102  defines a vehicle as any device.   "Vehicle" means a device in, on, or by which a person or property is or may be transported or drawn on a highway, except devices used exclusively on stationary rails or tracks.

Here is the slippery slope.  If bike fits the definition, then scooters, then rollerblades, then running shoes???  This just gets absurd.  

Here's the Vernal Story headlined "Utah Drunk Biking Laws."  

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 For the eight months, I have been defending a man that was accused of a DUI occurring on Hill Air Force Base.  The man was exiting out of an inbound gate at 5:30 a.m.  (All traffic, both lanes were inbound with no exit).  The man pulled to the side and the cops arrived and smelled alcohol.  The man was given Field Sobriety Tests and then a breath test that read .139.  (The limit being .08) .  The case was dismissed today.

 Here are five tips in defending a Federal DUI.

1. The first thing you have to know is that in Federal Court, a person is not entitled to a jury trial.   The trial is held before a judge only.  Do not make the judge mad and be prepared at all times!
2. Next, because there is no jury, do not hold anything back for the trial.  Bring all issues up front with the judge and make the prosecution work.  Challenge all issues.  The prosecutors in Federal Court may not be used to people challenging the case.  They may show up unprepared.
3. File motions to challenge the Stop, the Arrest, the validity of the Breath Test, and any thing else that can be brought before the judge.  In Federal Court, the motion is simple, concise, and has no argument.  All argument and briefing comes after the hearing and the evidence.  This makes sense because sometimes you never know what the cop will say and you don't know what the evidence will be.
4. Request evidentiary hearings.  Sometimes the witnesses get shipped off to military duty and are unavailable for hearings.  These hearings are your trial.  The judge who hears the hearing, will hear the trial.  If the judge is convinced of your argument prior to trial, you won't be wasting his time doing a trial when he has heard all the facts.
5. Judge's in Utah are tough and conservative, but smart and reason well.  They support their findings with reasoning and caution.  Write a brief better than the prosecution and  and support it with documentation and with law.  Attack the prosecution's brief carefully and methodically.

The man's case was dismissed because of all of the above.  We filed motions to challenge the arrest and the breath test.  An evidentiary hearing was held.  The officer's did not conduct the field sobriety tests according to the standards.  The validity was compromised.  The officers could not tell the court how they insured the breath test was accurate by checking the man's mouth and waiting 15 minutes before giving the test.  Cheers to this man.  He almost lost  his job, his career, and everything else that rolls into having a Federal DUI on the record.
 

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 The Horizontal Gaze Nystagmus Test is a field test that officers across the nation, including Utah, use to determine whether a person is impaired.  Is the test valid?  The officer is not an opthamalogist and uses no scientific equipment to check a person's eyes.

He is not trained by anyone who has scientific training with the eyes.  On a good day, the National Highway Traffic Safety Administration studies say this test is at least 77% accurate at determining whether a person is above a .10 (now claim it is effective at .08).   A recent study that was published by the New Jersey Neuroscience Institute indicate that too many people have a natural nystagmus (involuntary bouncing/twitching of the eye).  Here are the highlights:

**GEN=Gaze Evoked Nystagmus

• A significant number of normal subjects have physiologic GEN at gaze angles as small as 10°.
• Studies suggest that it is present in over 50% of the normal population and is more common in fatigued subjects.
• Despite the wide range of conditions other than alcohol toxicity which can cause GEN and even though the test and formulas are
  under extreme scrutiny, it is currently accepted by courts as evidence equal to chemical testing.
• At 10° and 20° respectively, 21 % and 34% of the subjects demonstrated physiologic GEN.
• We found an unexpectedly high frequency of GEN at 10° (21 %) and 20° (34%),which was similar at all ages.
• The current minimum gaze angle of appearance of nystagmus at which the person "passes" is 45°. Not only does our study show that there is a significant amount of nystagmus occurring at
  smaller gaze angles, but our maximum angle on extreme lateral gaze averaged 42.7°; which was much less than the minimum amount required to "pass the test." The majority of our subjects (93%) would fail this test out in the field.

If an officer conducts a field test on anyone, regardless of alcohol consumption, there is a good chance he will see nystagmus.  Should the officer be allowed to testify that he saw bouncing eyeballs and therefore, the citizen accused was impaired?  Absolutely not!  The only person I want looking at my eyes is a trained eye doctor that is not looking to take me to jail.  There are too many variables when this test is given by an officer on the street.  The test is just too unreliable.  The link below is the study itself. 

www.utahduilawblog.com/uploads/file/PHYSIOLOGIC GEN OCCURS AT SMALL ANGLES BY WHYTE 2009.pdf

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Attorney.org recognized Utah DUI Attorney Law Blog (www.utahduilawblog.com) as one of the top criminal law blogs on the net.  The ranking seems to be alphabetized, rather than a rank of the best to worse.  The link is http://www.attorney.org/criminal-law.html.

Attorney.org seems like a site that reports on current legal issues, items in the news, and seems to help people find competent lawyers.

The site does not just focus on criminal law, but seems to focus on many areas of law including malpractice, criminal law, divorce, civil, bankruptcy, tax, and many more areas.  It seems to be a good place to start.

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 I was asked by a client two years ago to take over his case. He had another lawyer; he pled guilty and was on the verge of being sentenced. I agreed to represent this man and filed a motion to withdraw his guilty plea before he was sentenced. The judge allowed the plea to be withdrawn. The man’s case just did not sit right. The man claimed he did not have anything to drink that day and gave me specific details of what he did that day. He was pulled over, arrested, and charged with DUI. Here’s the thing. The man did not trust the breath test, so he begged for the officers to give him a blood test. The officers refused and said take my breath test. The breath test came back so high that it was unbelievable to the man. Again, he asked for a blood test. Again, he was denied. He was booked into jail.

The officer wrote a report that described a drunk. It was horrible. The officer was asked to produce a video, but he testified at various hearings that his camera was not working. Things did not match and the case did not smell right. So we have a jury trial in the justice court and the man is convicted. He is sentenced and we appeal to the District Court. We are not going to give up. We have a hearing on whether the officer had a right to arrest this man. 

Here is the kicker. After six suppression motions and hearings on those motions, after a jury trial, and after an appeal, this officer walks into court with a video! The video is played in Court for the judge. The video contradicts the officer’s testimony and report. This man didn’t look drunk. He looked aged and a little uncoordinated doing the tests in his sandals. The real kicker is that the officer was not truthful with the court. He told us there was no video, but in fact, he never looked. Then he thought the video would help him, so he brings it to court. It contradicted everything the officer testified to prior.

A motion was then filed under a case called Brady v. Maryland and Utah cases that stand for the proposition that if the government hides evidence then there is a sanction. The government shall not cheat.

The District Court Judge took this issue and studied it. It is a big sanction to the government to dismiss a case. The judge considered this case for about two months. Today, a well thought out ruling came in the mail ending with “CASE DISMISSED WITH PREJUDICE.”

Never, ever, give up!

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