There is an incorrect assumption out there that if you get a DUI, you are required to carry SR22 high risk insurance.  NOT TRUE.  Utah did not jump on that bandwagon, yet!  SR22 Insurance is only required in the state of Utah if a person is convicted of not having insurance.  Guest Blogger Dave B.G. wrote an article about this to help people understand the ins and outs of SR22 Insurance. 

Understanding the SR22 Insurance Regulations for Utah

When it comes to carrying SR22 insurance, you may or may not be aware of the fact that the regulations and guidelines for this insurance can vary from state to state. SR22 is a type of insurance a driver carries when he or she is considered high risk or has been required to carry this type of policy. If a driver stops carrying this insurance prior to the time mandated, they will be in danger of losing their license.

A Utah driver may be required to carry SR22 insurance if:

• A driver is caught driving with no auto insurance policy in place

In Utah, as with other states, there are three different types of SR22 insurance a driver can carry:

1.     SR22 for Utah drivers who will be driving their own vehicle

2.     SR22 for Utah drivers who will be driving a vehicle that belongs to someone else

3.     SR22 for Utah drivers who will be driving either of the above.

The SR22 Process for Utah Drivers

There are steps to the SR22 process that must be followed before a driver’s license is reissued and the driver is permitted to drive again.

ðThe driver compares rates for insurance companies that offer SR22

ðFor the state of Utah, the minimum coverage drivers must have for their SR22 policy is $3,000 for personal injury protection, $25,000 for injury or fatality of another, $65,000 for injury or fatality of more than one person and $15,000 for property damage

ðOnce the policy is in place, the insurance company sends the SR22 to the Utah State Department of Motor Vehicles to request approval

ðUsually the driver will receive a letter of acceptance or rejection within a 30-day period

ðIf the Utah driver gets accepted, his or her driver’s license will be reinstated

ðFor the state of Utah, the driver is required to maintain SR22 insurance for a minimum of three years

ðFailure to keep the SR22 policy current can result in the driver’s license being revoked. Insurance companies are required by law to inform the Utah DMV should there be a lapse in the drivers insurance. The State will then usually revoke the license until an SR22 policy is put back in place.

Keep in mind that although Delaware, Pennsylvania, Kentucky, New Mexico, Minnesota and Ohio do not require SR22 policies, if you move from Utah when required to have SR22 insurance, you will still have to maintain this type of policy wherever you move.

http://le.utah.gov/~code/TITLE31A/htm/31A22_030400.htm

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 On August 11, 2011, the Utah Court of Appeals affirmed the conviction of a man who did the right thing.  He felt he was too intoxicated to drive safely, so he pulled over and went to sleep.  The Court recited some of the facts as: 

"On July 27, 2007, at about 2:30 a.m., Officer Salvador Toscano discovered Prawitt asleep in the driver’s seat of a vehicle. The vehicle was legally parked on the side of the road, and Prawitt’s leg was hanging out the window. Toscano determined that Prawitt had actual physical control of the vehicle and was under the influence of alcohol. Toscano then arrested Prawitt for driving under the influence. A subsequent search of Prawitt’s vehicle revealed open beer containers."

The whole issue was whether Prawitt had actual physical control of the car.  His leg was out the window, the keys were not in the ignition, he was asleep, the car was not running.  The Court looked at common factors in the legal community to determine that the Trial Court made the right decision.

Applying the Richfield factors to the facts of this case, Prawitt was discovered asleep in the driver’s seat of the vehicle. The vehicle was legally parked on the side of the road, and the motor was not running. Prawitt was the sole occupant of the vehicle. He appeared capable of operating the vehicle, and it appeared to be capable of being driven. No other persons were present, nor did Prawitt claim that anyone had left, and Prawitt indicated to Toscano that he had in fact driven the vehicle to the location where it was discovered.

Here is the interesting part, the public policy issue.  Under this law of actual physical control, the law actually encourages a person who feels intoxicated to make every attempt to drive home.  If you are found asleep in your vehicle because you did the right thing by pulling off and being safe, you will be charged the same as the guy who was on the road driving drunk.  The law promotes drive drunk, don't pull off.  The Court in this case recognizes this and seems to not like it one bit.  The Law is the law.

Although we believe the State satisfied its burden of establishing only probable cause, we note the possible perverse consequence this decision may have of encouraging drunk drivers to hedge their bets against getting caught and keep driving, rather than pull over and “sleep it off” in their vehicles, see Richfield, 790 P.2d at 93. The Richfield court recognized the ”compelling argument that intoxicated drivers should be encouraged to pull off to the side of the road to sleep it off,” but also categorized this consideration as “more appropriately [in] the province of the legislature.”5 Id. While the results in this case and in Richfield may have unintended consequences, we are nonetheless bound by Richfield under the doctrine of horizontal stare decisis.

Perhaps there should be a lesser crime for a person that is intoxicated in or about a vehicle or a safe harbor exception.

The case is State v. Prawitt, 2011 Ut App. 261.

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Over the past year and a half, I have worked tireless on becoming an author.  So here it is released yesterday.  Over half the books in stock are gone.  In conjunction with AZ premier DUI Defense Attorney James Nesci and premier Utah DUI Defense Attorney Jason Schatz, 458 pages are done along with an extraordinary DVD that has all the Field Sobriety Test Manuals, DRE Manuals, and the studies that go behind the manuals. This book is more of a lawyers guide on how to represent citizens in DUI cases from the first contact through trial and appeal. It covers everything from driver’s license hearings, suppression hearings, and trial. It comes with example cross examinations and direct examinations. The hardest part of doing the book was in fact sudden law changes. The law changes were not too drastic this year, but there were some. I want to thank those who helped me with the book including my co-authors and UACDL members that provided input and research. If you are interested in the book, you can purchase it from Lawyers and Judges Publishing at this link.

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 The 2011 legislature changed Utah Code 53-3-231.  If the driver is found to have any detectable amount of alcohol in the system while operating a vehicle and is 19 to 21 years old, the Driver License Division can deny the person's license not less than 6 months for a first offense.

If it is a second offense, the driver will be denied a license until age 21 or 2 years, whichever is longer.

If the driver is under 19 years old, the Driver License Division will deny the license not less than one year for a first offense, and until 21 or two years, whichever is longer, for a second offense.

Before reinstatement or obtaining a license after this type of suspension, the Driver is required to take an approved substance abuse program.

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 New laws come into effect on July 1, 2011.  These new laws are confusing.  First, you must understand that there are administrative/civil consequences that the Driver License Division will impose without any Court action.  There are consequences that the Driver License Division will impose as the result of Court action.  That New Laws break down like this:

Civil/Administrative Actions

If you are 19 years old to 21 years old and it is a first offense DUI, the Driver LIcense Division can suspend your license for 6 months.  This is a change from the 2010 law, which allowed them to suspend the license until you were 21 years old.   If it is a second offense, the license can be suspended until 21 years old or two years, whichever is longer.

If you are Under 19 years old and it is a first offense DUI, the Driver License Division can suspend the license for two years.  If it is a second offense, the license will be suspended until age 21 or two years, which ever is longer.

Criminal/Conviction Based Actions

If the driver is 19 to 21 years old, and the Court reports a DUI Conviction to the Driver's License Division for a first offense, the Driver License Division will impose a 1 year suspension or until age 21, whichever is longer.  However, the Court can reduce the suspension to 6 months if the person does a screening and assessment, treatment, educational series if not treatment, has no new violations, complies with all terms of probation, and files a sworn statement that no alcohol or drugs used during the probation period.  If it is a second offense, the license will be revoked for two years or until 21 years old, whichever is longer.

If the driver is under age 19, the Driver License Division will suspend until age 21.  The Court can reduce the suspension period to 2 years if all the requirements are completed above with the exception that the parent or guardian must file a sworn statement that not alcohol/drugs were used during the probation period.  If it is a second offense, the license will be revoked until 21.

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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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 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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