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

 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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  I recently represented a lady on her second accusation of a DUI.  The first accusation she plead guilty.  I appealed it for her because there was no evidence that this woman was impaired to any degree.  The officer arrested her because she went through a red/yellow light and smelled alcohol on her.  That was it.  Case was reduced to red light violation.  This second accusation was interesting.  The officers get a dispatch call that two people are arguing in her front yard.  The police show up and see a man yell something at a woman.  The woman yells something back.  Officers could not identify what the words were.  The woman started her car and drove away.  The police chased her down and pulled her over.

Here is where the problem began.  Why did the officer's have a reason to pull her over? Yelling is not a crime.  The officers have a right to investigate but do not have a right to stop and seize a person without a reasonable suspicion that a crime has occurred.  If a report of an argument was the only reason to pull someone over, then every attorney in town should be seized--if that was against the law.

We took our case to the judge to ask for a dismissal based on the fact that there was no reason for the officer's to pull the woman over. 

A hearing was held and the officers could not describe any criminal conduct.  The officers could not describe or articulate any fact that led them to believe that the woman committed a crime.  In fact, while the officer's followed her in her car, they could not describe any traffic violation.  The judge dismissed the case.

An officer has to have a reason to pull a citizen over.  The officer must be able to articulate facts that lead them to believe that a crime was committed or about to be committed and that the person did it.  It can be something very simple like a tail light out or running a stop sign. 

Points to remember when pulled over:

• don't be afraid to question the officer why you were pulled over.
• don't be afraid to ask to see the radar reading. (officer does not have to show, but it is good to ask)
• don't be afraid to exercise your right to remain silent.  (just identifying information to be given)
• don't be afraid to ask for a lawyer.
• don't be afraid to take your case to a judge for his opinion.
• Always be courteous.

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 A man by the name of Callis called me the other day.  He was upset at a Utah Highway Patrol Trooper, Trooper Lisa Steed.  He wanted to talk with me, so I met with him to find out what his complaint was.  His case was over and dismissed, but the lasting affect it had on his life remains.  He was falsely arrested by an officer that jumped to too many conclusions.  This is how his case went down.

Callis was pulled over because he was weaving.  The police report is very descriptive of a horrible driving pattern.  Oddly enough, the video does not show such a driving pattern.  I admit, the driving pattern showed some drifting side to side just like a person does when they are tired.  Callis told Trooper Steed that he was tired.  Trooper Steed makes a descriptive list of the following clues:

1. slow reaction time, seemed tired
2. slow and slurred speech
3. swayed while standing
4. constricted pupils, droopy eyes, very slow movements.
5. No clues on the Horizontal Gaze Nystagmus
6. On the Walk and Turn Test:  couldn't keep balance, raised arms, missed heel to toe, stopped, improper turn, off line = 6/8 clues.
7. One Leg Stand Test:  Swayed, raised arms, and foot down = 3/4 clues.

At this point, Callis was arrested.  The interesting part about the field sobriety tests is that the Trooper violates all of the UHP policy and takes Callis off the video so no one can see what she did or what Callis did.  It appears that she has done this on multiple cases.

Trooper Steed asked Callis to take a blood test.  Callis says "yeah".  He voluntarily consents to another officer, a deputy, to come in, stick his arm with a needle, and draw his blood.  Callis asks Trooper Steed "can we do it asap, I will do it."  

Trooper Steed takes the blood vials and has them tested at the Utah Toxicology Lab.  She specifically asks the toxicology lab to test for two specific drugs along with their normal drug panel.

NO PRESCRIPTION DRUGS IDENTIFIED IN THE BLOOD.

NO ILLEGAL DRUGS IDENTIFIED IN THE BLOOD.

NO ALCOHOL IDENTIFIED IN THE BLOOD.

So here is an innocent man that has bad balance, maybe a little different in his speech, and is slow in his movements, and the police jump to the conclusion that he is impaired by drugs or alcohol.  So one has to ask, "why are we not tested on our balance when we are given a driver's license?  Why are we not given a speech test, a walk the line test, a one leg stand test?"  Many people do not have the ability, the physical ability, to do these tests.

I had the chance to ask the officer about this.  She stated that the lab did not test for the right drugs.  She will not admit to a mistake, yet she never asked that it be retested.  She specifically asked them to test for certain drugs.

Callis's license was suspended for 90 days, because of the officer's opinion.  The decision was eventually overturned.  Callis had to hire an attorney, make court appearances, and deal with the stress of being accused by the government over this officer's opinion.  It's been a couple of years since this happened.  Callis still lives with the pain of the whole experience.

Callis filed a letter of complaint with the Utah Highway Patrol and never heard anything back from them.  He was sad that he opened his newspaper one day in 2007 and saw that this Trooper was not being reprimanded for her conduct, but was being praised and given awards for nabbing hundreds of what she perceives as drunk drivers.

Callis authorized me to use his name and his story.  He indicated that he wanted to warn other people.  His trust in the police has been severely damaged.  A person is not required to do any field sobriety tests.  They are designed to make a person fail, even if the person has taken no substances.  You will never convince an officer that you are not impaired by doing the field sobriety tests.  You are just giving him evidence to use against you.  There is no consequence to your driving privileges for not participating in the officer's exercises.  You can refuse.  A polite "not without my lawyer" or "no thank you"  will suffice.  There are consequences of losing your license if you refuse to take the intoxilyzer  or chemical test after the officer has read you an admonition regarding the consequences of taking the chemical test.

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I was asked the other day what the consequences are of a minor in possession/consumption of alcohol.  Interesting question with the new laws in effect now.  Lets say you were never in a car, you are 18 years old, and you rinsed our mouth out with Listerine.  An officer comes up to you and says I smell alcohol on you, please blow into my little breath test machine.  You do so.  Wow, you just registered a .02 with your good breath. Now what?

Pursuant to Utah Code 32a-12-209 you have just committed a crime.  The code makes it a crime for a minor (under 21) to have any measurable or detectable amount of alcohol in your body.  The harshest consequence that is now mandatory, even though you were not driving or even near a car, is that you will lose your license for one year.

Here is the exact language from the statute.

32A-12-209. Unlawful purchase, possession, consumption by minors -- Measurable amounts in body.
(1) Unless specifically authorized by this title, it is unlawful for a minor to:
(a) purchase an alcoholic beverage or product;
(b) attempt to purchase an alcoholic beverage or product;
(c) solicit another person to purchase an alcoholic beverage or product;
(d) possess an alcoholic beverage or product;
(e) consume an alcoholic beverage or product; or
(f) have measurable blood, breath, or urine alcohol concentration in the minor's body.
...(4) If a minor is found by a court to have violated this section and the violation is the minor's second or subsequent violation of this section, the court:
(a) shall order the minor to participate in an educational series as defined in Section 41-6a-501; and
(b) may order the minor to participate in a screening as defined in Section 41-6a-501.
(5) (a) When a minor who is at least 18 years old, but younger than 21 years old, is found by a court to have violated this section, except as provided in Section 32A-12-223, the court hearing the case shall suspend the minor's driving privileges under Section 53-3-219.  (the division shall: (A) impose a suspension for a period of one year;)

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I saw this story in the Salt Lake Tribune the other day.  The man caused an accident that killed another man.  It was an "accident."  A so called "expert cop trained to spot impaired drivers" accused this man of being under the influence of a central nervous system depressant.  The man was jailed for 3 months on felony charges, automobile homicide.  The problem is that the blood was tested several times with nothing found in his system.  I can't imagine all that he has lost in three months.  Contrary to witnesses' opinion, the "expert" officer formed the opinion that this man was impaired because he talked slow and was stumbling around.  He had just been in a horrible accident.

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 This women is being charged with multiple first degree felony rape charges.  Today was her preliminary hearing.  My partner, Rich Gallegos, is defending her.  He asked me to sit with him at the defense table for support and for a second pair of eyes.  He was masterful.  The headlines for months read "Teacher had sex with her student."  Rich showed how things are not so black and white.  He was able to show how this kid was very adult in his conduct and groomed not one, but two older women into inappropriate relationships.  Rich showed how this kid instigated the relationship and pursued this women.  The whole case was turned around once Rich was able to cross examine the witnesses.  Even the judge seemed hesitant to bind the women over for trial.

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