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

 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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 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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 The new laws now allow seizure and forfeiture of your car.  If you have been convicted of certain crimes, the government can take ownership of your car away.  If you are driving on a suspended license, and your license was suspended because of a DUI or DUI Metabolite, then the government can take your vehicle away and never give it back.  The following outlines the new law.

Forfeiture of Car
41-6a-527
 

(4) A motor vehicle is subject to criminal or civil forfeiture under the procedures and substantive protections established in Title 24, Chapter 1, Utah Uniform Forfeiture Procedures Act, upon a finding by the court that:

(a) the motor vehicle was used in a violation of Section 41-6a-502, 41-6a-517, a local ordinance which complies with the requirements of Subsection 41-6a-510(1), Subsection 58-37-8(2)(g), or Section 76-5-207;

(b) the operator of the vehicle has previously been convicted of a violation committed after May 12, 2009, of:
(i) a felony driving under the influence violation under Section 41-6a-502;
(ii) a felony violation of Subsection 58-37-8(2)(g); or
(iii) automobile homicide under Section 76-5-207;
(c) the operator of the vehicle was driving on a denied, suspended, revoked, or disqualified license; and
(d) (i) the denial, suspension, revocation, or disqualification under Subsection (4)(c) was imposed because of a violation of:
      (A) Section 41-6a-502;
      (B) Section 41-6a-517;
      (C) a local ordinance which complies with the requirements of Subsection 41-6a-510(1);
      (D) Section 41-6a-520;
      (E) Subsection 58-37-8(2)(g);
      (F) Section 76-5-207; or
      (G) a criminal prohibition that the person was charged with violating as a result of a plea bargain after having been originally charged with violating one or more of the sections or ordinances described in Subsections (4)(d)(i)(A) through (F); or
(ii) (A) the denial, suspension, revocation, or disqualification described in Subsection (4)(c) is an extension imposed under Subsection 53-3-220(2) of a denial, suspension, revocation, or disqualification; and
(B) the original denial, suspension, revocation, or disqualification was imposed because of a violation described in Subsection (4)(d)(i)(A) through (G).

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The most common question I get asked is "Can I get a permit to drive to and from work while my license is suspended?"  My answer used to be unequivocally no!  My answer has not changed.  This year, a new law was put in the code to allow a permit for school or work.  However, to qualify for the permit, it is pretty much impossible.  This is what the code says:

Limited Driving Permit
53-3-220(4)

1.  if first suspension extended for 3 years or more
2. Doctor says no knowledge of drug use unless prescribed in last 3 years
3. no physical or mental problems
4. 1 year prior,

• No violations 
• No Arrests
• No accidents
• Show undue hardship
• Granted only once
• School or employment
• Doesn’t apply to CDL

(4) (a) The division may extend to a person the limited privilege of driving a motor vehicle to and from the person's place of employment or within other specified limits on recommendation of the judge in any case where a person is convicted of any of the offenses referred to in Subsections (1) and (2) except:
(i) automobile homicide under Subsection (1)(a)(i);
(ii) those offenses referred to in Subsections (1)(a)(ii), (a)(iii), (a)(xi), (a)(xii), (a)(xiii), (1)(b), and (1)(c); and
(iii) those offenses referred to in Subsection (2) when the original denial, suspension, revocation, or disqualification was imposed because of a violation of Section 41-6a-502, 41-6a-517, a local ordinance which complies with the requirements of Subsection 41-6a-510(1), Section 41-6a-520, or Section 76-5-207, or a criminal prohibition that the person was charged with violating as a result of a plea bargain after having been originally charged with violating one or more of these sections or ordinances, unless:

(A) the person has had the period of the first denial, suspension, revocation, or disqualification extended for a period of at least three years;
(B) the division receives written verification from the person's primary care physician that:
(I) to the physician's knowledge the person has not used any narcotic drug or other controlled substance except as prescribed by a licensed medical practitioner within the last three years; and (II) the physician is not aware of any physical, emotional, or mental impairment that would affect the person's ability to operate a motor vehicle safely; and
(C) for a period of one year prior to the date of the request for a limited driving privilege:

(I) the person has not been convicted of a violation of any motor vehicle law in which the person was involved as the operator of the vehicle;
(II) the division has not received a report of an arrest for a violation of any motor vehicle law in which the person was involved as the operator of the vehicle; and
(III) the division has not received a report of an accident in which the person was involved as an operator of a vehicle.
(b) (i) Except as provided in Subsection (4)(b)(ii), the discretionary privilege authorized in this Subsection (4):
(A) is limited to when undue hardship would result from a failure to grant the privilege; and
(B) may be granted only once to any person during any single period of denial, suspension, revocation, or disqualification, or extension of that denial, suspension, revocation, or disqualification.
(ii) The discretionary privilege authorized in Subsection (4)(a)(iii):
(A) is limited to when the limited privilege is necessary for the person to commute to school or work; and
(B) may be granted only once to any person during any single period of denial, suspension, revocation, or disqualification, or extension of that denial, suspension, revocation, or disqualification.
(c) A limited CDL may not be granted to a person disqualified under Part 4, Uniform Commercial Driver License Act, or whose license has been revoked, suspended, cancelled, or denied under this chapter.  

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If a person gets arrested for DUI after July 1, 2009, then the driver's license suspension period has been extended.  Basically, a first time offender that does not refuse to take a breath test gets a 120 day suspension.  (Used to be 90 days).  A person with a prior DUI is now Two Years.  A second offense that is a refusal is now Three Years.  The problem is people don't stop driving.  The effect of these consequences is to put unlicensed and uninsured drivers on the road.  The following is an outline of the new laws that went into effect July 2009.

New Driver's License Suspensions

Refusal
41-6a-521 Revocation Hearing for Refusal

18 months first refusal (no change

36 Months (3 years) for priors (does not matter if priors were refusals) looks back 10 years from date of arrest or conviction

Refusal Suspension for--Under 21

18 months or until 21, whichever is longer
36 months or until 21, whichever is longer if:
prior license sanction in 10 years for (metabolite, refusal, alc restricted driver, DUI, motorboat alc violation, conditional license violation)

Non Refusal Suspensions-over 21
120 days (4 months) extended 30 days
2 years if there is a prior within 10 years

Non Refusal Suspension--under 21
Until 21 or 120 days, whichever is longer
Until 21 or 2 years, whichever is longer if prior within 10 years
Deny application for learner’s permit until 21 or 120 days whichever is longer
or until 21 or two years if priors within 10 years

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 Effective July 2, 2009, many new laws came into effect.  Now, anyone convicted of a DUI, whether it be a first offense or a subsequent offense, will be required to have an ignition interlock device placed on their car.  The ignition interlock business is going to be making a lot of money on this deal.  Lawyers will need to be fighting DUI cases.  There is no reason to plead people guilty with these consequences.  The device is expensive, it has problems being accurate, and it interferes with life.

Here is the outline of what is required:

Ignition Interlock
41-6A-518.2

The Adult

• 18 Months for first time offense
• 3 years for Second offense (Includes Driving While Impaired or Alcohol Related Reckless)
• Driving without Ignition interlock (3 year requirement)
• Refusal (3 years)
• Felony Conviction (6 years)
• Automobile Homicide (10 years)
• Ignition Interlock does not include:Person’s conviction is not a 41-6a-517 (metabolite DUI) ANDall of the person’s prior convictions are convictions under 517
• Plea and Abeyance: is a conviction

When can you get out of an ignition interlock???

• Vehicle owned by employer
• written notice to employer of interlock requirement
• On person or vehicle, proof of given notice to employer and
• operation was in scope of employment
• Doesn’t apply to personal use or self employed

If you are a Minor:

• 3 years if under age 21

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