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  • Utah Courts Reaffirm: Breath Test Shortcuts Aren’t Allowed — And Neither Is Judicial Guesswork

    Utah Court of Appeals Affirms the Mouth Check for Foundation for admissibility of a breath test results

    Posted in: DUI Defense | Utah Case Law

    If you’ve been charged with a DUI in Utah and the State’s case rests on a breath test, here’s something you need to understand: that test result is not automatically admissible. Before the jury ever sees that number, the State has to lay a proper foundation — and shortcuts don’t count.

    A recent Utah Court of Appeals decision, State v. Montgomery, 2026 UT App 77 (May 14, 2026), makes this crystal clear. The court reversed a DUI conviction because the officer skipped one of the foundational steps required before a breath test can be used as evidence. More importantly, the court rejected the idea that a judge can simply look at video footage and decide the result was probably fine anyway. That’s not how the law works.

    The Three Things the State Has to Prove Before a Breath Test Comes In

    Utah courts have long recognized that breath alcohol testing is only as reliable as the process used to obtain the result. Going all the way back to State v. Baker, 355 P.2d 806 (Wash. 1960), Utah courts adopted a three-part foundational test for breath test admissibility. As spelled out in State v. Vialpando, 2004 UT App 95, the State must establish:

    1. The machine was properly certified and working. A trained technician must have checked the breathalyzer, and it must have been in proper working condition at the time of the test.
    2. A qualified operator administered the test correctly. Not just anyone can run a breathalyzer. The officer must be trained and certified, and the test must be given properly.
    3. An officer observed the suspect for the fifteen minutes immediately before the test. This is the observation period — and it comes with specific requirements of its own.

    All three have to be satisfied. The State doesn’t get to check two out of three and argue that everything was probably fine.

    The Observation Period: More Than Just “Watching”

    The fifteen-minute observation period is not just about having a warm body in the room with the suspect. It exists for a specific reason: to make sure the suspect has nothing in their mouth that could skew the test result, and to prevent them from eating, drinking, belching, or regurgitating during that window — any of which can introduce mouth alcohol and inflate the reading.

    Utah courts have developed this requirement through two key cases: Vialpando and State v. Relyea, 2012 UT App 55. Together, they establish that the observation period requires three things:

    • The suspect must remain in the officer’s presence for the entire period.
    • The suspect must have no opportunity to ingest or regurgitate anything.
    • The officer’s ability to observe must be unimpaired throughout.

    But there’s a step that has to happen before the observation period even begins — and that’s where Montgomery focuses.

    The Mouth Check: It’s Not Optional

    Before the observation period starts, the officer must physically check the suspect’s mouth to confirm it is clear of any foreign matter. This isn’t a best practice or a nice-to-have. It is a foundational requirement.

    Think about it this way: what’s the point of watching someone for fifteen minutes if you have no idea what was already in their mouth when the clock started? The mouth check anchors the entire observation period. Without it, there’s no baseline, and no way to actually establish that the suspect’s mouth was clear going into the test.

    The Relyea court put it plainly: the initial mouth check “ensures that a suspect’s mouth is clear of foreign objects prior to the test.” The Montgomery court took it a step further and held that both the mouth check and the observation period are “integral steps” in ensuring reliability — neither one is optional.

    What Happened in Montgomery — and Why It Matters

    In Montgomery, the officer took the defendant to the police station, conducted an observation period of over thirty minutes, and administered the breath test. The result came back at 0.21 — well above the 0.05 legal limit in Utah.

    The problem? The officer never checked Montgomery’s mouth before the observation period began. The State stipulated to this fact.

    Montgomery filed what’s known as a “Baker motion” — a motion to exclude the breath test results on foundational grounds. The district court denied it. The judge acknowledged that a mouth check hadn’t happened, but concluded that the extensive video footage from the officer’s body camera — more than thirty minutes of it, high quality audio and video — provided enough other evidence to conclude that Montgomery’s mouth was clear the whole time. Watching him talk and interact with the officer, the judge decided, was good enough.

    The Court of Appeals disagreed. Flatly.

    The appellate court reversed the conviction and held that the district court had committed legal error. The judge cannot substitute his own observation of a video for the foundational procedures the law requires. The mouth check isn’t just one factor in a totality-of-the-circumstances analysis — it is a prerequisite. When it doesn’t happen, the foundational requirement is not met, period.

    You Can’t Fix a Missing Foundation with a Totality-of-the-Circumstances Argument

    This is the part that defense attorneys — and their clients — need to hear clearly.

    The State often argues, and some courts have accepted, that even if one of the foundational steps was skipped or imperfect, the “totality of the circumstances” shows the test was reliable. Montgomery is a firm rejection of that approach, at least when it comes to the mouth check.

    The Court of Appeals made clear that district courts “do not have discretion to misapply the law.” The admissibility of a breath test is a legal question, and when the required foundation isn’t laid, the evidence doesn’t come in. A judge cannot simply watch footage, make a judgment call about what was probably in the defendant’s mouth, and call it good. That sidesteps the foundational process entirely and substitutes judicial speculation for established protocol.

    The procedures exist because breath testing has real limitations, and those limitations are managed through careful adherence to the required steps. When an officer skips a step, the reliability guarantee disappears — and so does the foundation for admissibility.

    What This Means If You’re Facing a DUI Charge

    If you’ve been charged with DUI and a breath test is a central piece of evidence against you, the first questions your attorney should be asking are:

    • Did the officer check your mouth before the observation period?
    • Was your mouth check thorough — did the officer actually look, or just ask?
    • Did the officer remain present and able to observe you for the full fifteen minutes?
    • Was the breathalyzer machine properly certified?
    • Was the officer a certified operator?

    If any of these answers are in doubt, there may be grounds to challenge the admissibility of the breath test altogether. And as Montgomery confirms, if those foundational steps weren’t followed, the right result is exclusion — not a judicial determination that it was probably fine.

    This blog is provided for informational purposes and does not constitute legal advice. If you have been charged with DUI in Utah, consult with a qualified Utah DUI defense attorney to discuss the specific facts of your case.

  • The Utah Interdicted Person

    Establishing a legal understanding of DUI consequences in Utah is crucial for anyone navigating these laws. Two key statutes, Utah Code 32B-1-102 and 41-6a-505, outline a specific legal status known as “interdiction.”

    The following blog post explains what it means to be an interdicted person, the situations that require it, and the process and duration of this status.

    Understanding DUI Interdiction in Utah: What You Need to Know

    In Utah, a DUI conviction carries more than just fines and potential jail time. For certain offenses, the court may label an individual as an “interdicted person.” This status has significant implications for your ability to purchase or possess alcohol legally.

    What is an Interdicted Person?

    According to Utah Code 32B-1-102, an “interdicted person” is defined as an individual who is prohibited by law from purchasing, intending to purchase, soliciting, possessing, or consuming an alcoholic product. Effectively, being interdicted means you are legally barred from the alcohol market in Utah.

    When is Interdiction Required?

    Under Utah Code 41-6a-505, interdiction is a mandatory or discretionary part of sentencing for various DUI violations:

    • Extreme DUI (First Conviction): If you are convicted of a first-time “extreme DUI,” the court is required to designate you as an interdicted person as part of your sentence.
    • Standard DUI (First Conviction): For a first DUI conviction that does not meet the “extreme” criteria, the court has the discretion to designate you as interdicted.
    • High Alcohol Levels: If there is evidence of a blood or breath alcohol level of .16 or higher, the court must either order interdiction (among other requirements) or state on the record why such an order is not appropriate.

    The Process of Interdiction

    When a court determines that interdiction is necessary or required:

    1. Legal Designation: The judge officially designates the individual as an interdicted person during sentencing.
    2. Surrender of Identification: The individual is required to surrender their Utah driver’s license or Utah identification card to the court.
    3. Reporting: This status is recorded, effectively preventing the individual from legally obtaining alcohol at retail locations or venues where identification is checked against interdiction lists.

    How Long Does Interdiction Last?

    The duration of interdiction is tied to the individual’s legal oversight:

    • Standard Duration: The period of interdiction typically does not exceed the individual’s probationary period.
    • Court Discretion: A judge may order a shorter or longer period of interdiction if they find “good cause” to do so.

    Navigating Utah’s DUI laws requires a clear understanding of these specialized sentencing requirements. If you find yourself facing these charges, knowing the definition and duration of interdiction is a vital first step in understanding your legal future.

  • Utah DUI Driver license Changes 2026

    LEGISLATIVE UPDATE · JULY 2026

    Important Changes to Utah’s DUI License Suspension Law Take Effect July 1, 2026

    Utah Code § 53-3-223 has been amended — and if you or someone you know is facing a DUI charge, these changes matter. Here is what you need to know.

    BY GLEN W. NEELEY, ATTORNEY AT LAW UTAH DUI LAW BLOG EFFECTIVE DATE: JULY 1, 2026

    Utah’s legislature has amended the state’s primary DUI license suspension statute, Utah Code § 53-3-223, effective July 1, 2026. The changes affect the timeline of suspension, the window for requesting a hearing, and how certain reinstatement rules are applied. Some of these changes are meaningfully favorable to drivers facing DUI charges — and understanding them could affect the strategy and outcome of your case.

    OVERVIEW

    What Does § 53-3-223 Govern?

    When a Utah driver is arrested for DUI, two separate legal processes begin simultaneously. The first is the criminal case in court. The second — and often overlooked — is an administrative action by the Utah Driver License Division (DLD). Under § 53-3-223, the DLD has authority to suspend your driver’s license independently of any criminal conviction, based solely on the arresting officer’s report and chemical test results.

    This administrative suspension can happen quickly, and the window to challenge it is short. The July 2026 amendments change several of these critical timelines.

    KEY CHANGES

    What Changed and What Stayed the Same

    The following table summarizes the most significant differences between the prior law (effective May 7, 2025) and the new law (effective July 1, 2026):

    PROVISIONPRIOR LAWNEW LAW (JULY 1, 2026)
    Hearing window after arrestWithin 29 daysWithin 45 days
    Hearing request deadlineWithin 10 calendar days of noticeWithin 10 calendar days of notice
    Suspension start date (first offense, 21+)45th day after arrest60th day after arrest
    Suspension start date (repeat offense, 21+)45th day after arrest60th day after arrest
    Suspension start date (under 21)45th day after arrest60th day after arrest
    Early reinstatement (charge reduction)No sooner than 60 days from day 45No sooner than 60 days from day 60
    CDL disqualification carve-outSubsection 7(b)(v) — limited scopeStandalone § 13 — applies to all reinstatements
    10-day officer reporting deadline10 calendar days from notice10 calendar days from notice
    Judicial review petition deadline30 days after suspension30 days after order of suspension

    “The suspension start date moves from day 45 to day 60 — giving drivers two additional weeks before losing their license to drive.”

    ANALYSIS

    Why These Changes Matter for Defendants

    The extended suspension start date is significant

    Under the prior law, your license suspension could begin as soon as the 45th day after your arrest — even if your criminal case was still in its earliest stages. The new law pushes that to the 60th day. Those 15 additional days may not sound dramatic, but for someone who relies on a vehicle to get to work, care for a family, or meet other obligations, they can be critically important.

    The longer hearing window gives your attorney more time

    Previously, the DLD had to hold your hearing within 29 days of your arrest. The new law extends that window to 45 days. This gives your attorney more time to gather evidence, review the officer’s report, scrutinize the chemical test procedures, and build the strongest possible case for the administrative hearing — which is separate from, and in addition to, your criminal defense.

    Important: You still have only 10 days to request a hearing.

    Despite the extended hearing window, the deadline to request a hearing has not changed. You must still submit your request within 10 calendar days of receiving notice from the arresting officer. Missing this deadline means the suspension proceeds automatically, without any hearing. Do not wait.

    The CDL carve-out now has broader reach

    Under the prior law, the rule that CDL (commercial driver’s license) disqualifications are not affected by early reinstatement was tucked inside Subsection 7(b)(v) and applied only to reinstatements in that specific subsection. The new law moves this carve-out to a standalone Subsection 13, making clear that it applies across all early reinstatement provisions in the statute. CDL holders facing DUI charges should be particularly aware of this — the stakes for your professional license are higher, and the law now says so more explicitly.

    PROCEDURE

    Step-by-Step: What Happens Under the New Law

    1

    Arrest and chemical test

    If an officer has reasonable grounds to believe you are violating a DUI statute, they may request a chemical test. The officer must advise you that a failing result shall result in suspension, or may result in suspension if your BAC renders you incapable of safe driving.

    2

    Notice of suspension (within 24 hours)

    If the test shows a violation — or the officer determines on reasonable grounds that a violation occurred — the officer must give you written notice of the DLD’s intent to suspend your license within 24 hours of arrest. The officer must also provide information on how to request a hearing.

    3

    Request your hearing within 10 days

    You have exactly 10 calendar days from receiving notice to request an administrative hearing. This deadline is strict. Missing it means the suspension goes into effect automatically, without any opportunity to challenge it before the DLD.

    4

    Hearing held (within 45 days of arrest)

    The DLD schedules and holds the hearing — generally in the county of arrest or an adjacent county. The hearing covers whether the officer had reasonable grounds, whether you refused testing, and what the test results showed. The DLD may administer oaths and issue subpoenas for witnesses and peace officers.

    5

    Decision and suspension (beginning day 60)

    If the DLD rules against you — or if you did not appear or did not request a hearing — your license is suspended beginning on the 60th day after your arrest. For a first offense (age 21+), the suspension is 120 days. For a repeat offense within 10 years, it is two years.

    6

    Early reinstatement options

    Reinstatement may occur early if your charge is dismissed (immediate), your charge is reduced (no sooner than 60 days from day 60), or you participate in qualifying programs such as a DUI court, 24-7 sobriety program, or ignition interlock restricted driving.

    7

    Judicial review (within 30 days of suspension order)

    If you disagree with the DLD’s suspension order, you may file a petition for judicial review under § 53-3-224 within 30 days of the order being issued. This is your avenue to challenge the administrative decision in court.

    BOTTOM LINE

    What Should You Do If You Have Been Arrested for DUI?

    The administrative license suspension process moves fast and runs parallel to your criminal case. The 10-day window to request a hearing is unforgiving. If that deadline passes, your right to challenge the suspension before the DLD is gone.

    At the same time, the July 2026 amendments have created more breathing room than the prior law allowed — a longer hearing window, a later suspension start date, and broader clarity on CDL protections. An experienced DUI defense attorney can use that additional time strategically, both in the administrative process and in your criminal defense.

    Have Questions About Your License Suspension?

    If you have been arrested for DUI in Utah, time is short. Contact our office today to discuss your rights under the new law and to ensure your hearing request is filed before the 10-day deadline.

    GLEN W. NEELEY, ATTORNEY AT LAW · UTAHDUILAWBLOG.COM

    This blog post is provided for general informational purposes only and does not constitute legal advice. Reading this post does not create an attorney-client relationship. Laws and procedures may change. Consult a qualified Utah attorney regarding the specific facts of your situation.

  • Utah Criminal Refusal Law

    Utah Criminal Refusal Law

    The recent Utah Court of Appeals decision in State v. Allen (2026 UT App 47) provides a critical lesson for both law enforcement and legal practitioners: in criminal law, the specific language used in a warrant isn’t just “legal jargon”—it is the boundary of the State’s power.

    While Michael Lee Allen’s conviction for failing to stop for an officer was upheld, his conviction for refusing a chemical test was vacated by the appellate court. The reason? A few missing words in a search warrant.

    The Charge: Refusal to Submit to a Chemical Test

    In this case, after Allen was arrested following an eight-minute pursuit, an officer suspected he was under the influence. Allen refused to provide a blood sample, prompting the officer to obtain a search warrant.

    Under the version of the Utah law applicable to this case, a person can be charged with a class B misdemeanor if they refuse a chemical test after a court has issued a warrant specifically “to draw and test” their blood.

    The “Fatal” Flaw: The Language of the Warrant

    The search warrant obtained by the officer authorized him to “obtain a body fluid sample in the form of [b]lood”. However, the warrant said absolutely nothing about testing that sample.

    When the case went to trial, Allen’s counsel pointed out this discrepancy, arguing that the State failed to prove a required element of the crime:

    • The Statute Required: A warrant to “draw and test“.
    • The Warrant Provided: Authorization only to “obtain” (draw) the sample.

    The State argued that the authority to test the blood was “implicit” in the warrant’s purpose. After all, why would an officer draw blood if not to test it?

    Why It Matters: The Importance of Precision

    The Utah Court of Appeals disagreed with the State, finding merit in Allen’s argument. The court emphasized that because the warrant did not explicitly authorize officers to “draw and test” the blood, the State had not met the strict requirements of the refusal statute.

    This ruling highlights two vital takeaways:

    1. Strict Construction of Penal Statutes: In criminal law, statutes are often interpreted strictly. If a law requires a specific type of warrant (one that authorizes both drawing and testing), a warrant that only authorizes one of those actions is legally insufficient to support a conviction for refusal.
    2. The High Stakes of Documentation: This case serves as a reminder to law enforcement that the language in a warrant must mirror the requirements of the charging statute. A small oversight in drafting can lead to the dismissal of an entire charge, regardless of the defendant’s conduct.

    Because of this linguistic technicality, the appellate court vacated Allen’s conviction for refusal to submit to a chemical test and ordered an acquittal on that count.

  • Using Prior Convictions to Enhance a Utah DUI–State v. EILEEN JIMENEZ-WISS,

    The Utah Court of Appeal issued the decision in State v. Jimenez-Wiss.  Defendant was charged with Felony DUI based on prior convictions.  One of the convictions involved a case where Defendant was not represented by an attorney and no evidence was produced that Defendant waived the right to have an attorney.  The District Court gleaned from the evidence that Defendant did intend to waiver the right to an attorney.  Utah Court of Appeals disagreed.

    The holding states:

    “Because the State failed to meet its burden, the district court erred when it denied Jimenez-Wiss’s motion to strike the felony enhancement of her 2012 offense. We therefore vacate Jimenez- Wiss’s conviction on that offense and remand this matter for further proceedings.

    CONCLUSION

    ¶27 Once the district court found that Jimenez-Wiss had produced evidence that she did not knowingly waive her right to counsel prior to her 2008 DUI conviction, the State bore the burden of establishing that she had waived that right. The only evidence before the district court—the Plea Document—does not demonstrate waiver by a preponderance of the evidence. Moreover, the multiple omissions in the Plea Document raise doubts concerning Jimenez-Wiss’s intentions—doubts our supreme court has held must be resolved against a finding of waiver. The district court therefore erred in denying Jimenez-Wiss’s motion to strike the felony enhancement of her 2012 DUI charge. We vacate Jimenez-Wiss’s conviction on the 2012 charge and remand this matter for further proceedings.”

  • New Utah DUI Ruling on Preclusion–State v. BOBBIE JO NADINE RIRIE

    The Supreme Court issued a new decision this week in the case of State v. Bobbie Jo Nadine Ririe.  Essentially, Defendant was charged with traffic charges in a Justice Court.  Before the DUI was filed, Defendant went in and paid the fine on the traffic citations in the Justice Court.  The DUI was then filed as a Felony in the District Court.  Defendant’s attorneys argued the principle of “preclusion.”  They argued that because the traffic infractions and the DUI happened in the same single criminal episode, that paying the traffic citation and essentially pleading guilty to those charges, jeopardy attached and the government was prevented from filing the DUI in District Court.

    The Supreme Court held that because the citations were not filed with a formal information and that not prosecutor was involved on the citations, the State was not precluded from filing the DUI and jeopardy did not attach.

    The holding paragraph reads:  “Based on these two features of the single criminal episode statute—the requirement of a “prosecuting attorney” and the use of an “information or indictment”—we affirm the district court’s denial of Ririe’s motion to dismiss. We construe those terms as limiting conditions and decline to extend the statute’s principle of claim preclusion beyond its text.”

    Lesson learned:  When in this situation, always request a formal information be filed in the case and that you enter your guilty plea in open court with the prosecutor present.

  • Utah DUI 2015 New Potential Laws

    The legislature is back in session for the 2015 session.  SB150 is seeking to tweet the DUI Laws in the State of Utah.  The lawmakers are trying to do four things:

    1. The bill will prevent a second time offense from being plead down to an impaired driving.
    2. Get a screening and assessment for a Felony DUI and appropriate treatment.
    3. It extends the ignition interlock device requirement to 10 years.
    4. Makes it a crime to drive without an ignition interlock if ordered to do so.

    The first requirement would make it difficult on prosecutors when the facts would warrant a plea deal to an impaired driving.  I was defending an individual on a second time offense.  The officer did not follow proper procedures.  This forced the prosecution to make a plea offer to reduce the second time DUI to a much lesser offense.  Think about this.  If the prosecutor’s ability to plea bargain is taken away, then more people will have no choice but to go to trial.  If they win at trial, then there is not class, no rehabilitation, and consequences.  Whereas, a plea to a an impaired driving on a second offense would still require rehabilitative measures.

    The second issue is a change in the law because the discretion was taken away on appropriate treatment.  The law now requires intensive mandatory treatment that may not be appropriate and sometimes not affordable.

    The third issue is pretty harsh and unnecessary.  Right now, a person convicted of a DUI is Ignition interlock restricted for 18 months.  This gives the first time offender 18 months to deal with this head ache, reform, and then not deal with it.  This issue simply pads the pockets of the ignition interlock companies.

    The last issue makes yet another crime on the books for driving a car without an ignition interlock.

    This bill was put on hold for the moment because the feds are telling Utah that our DUI laws are not strict enough.  NOT Strict enough?  We have no employment license to drive like other states, we send people to prison after just three DUIs, our fines are steep, and  the cost is unbearable for a person to survive when they lose their job and can’t drive.  The most common question I get after a DUI sentencing is how do they expect me to pay all of this when they take away my ability to drive, take my job because I can’t drive, and pile on fines and costs?  It becomes impossible to some to bear the financial burden and sets too many people up to fail.

  • Utah DUI Prime for Life Class

    If a person is convicted of a DUI or a Driving While Impaired charge, it is statutorily required that the person participate in drug and alcohol treatment by a state certified agency.  The class is called the Prime for Life Class.  This is a 16 hour course taught by agencies throughout Utah.  In fact, many courts have agency representatives sitting in Court signing people up once they enter their plea.  I recommend most of my clients to take some proactive steps and do the class prior to attending the court hearing.  Here is a link to a list of providers all over Utah who are on the court approved list.

  • Utah DUI HB303 “Slightest Degree” is Dropped for Now

    After many showed up to the committee meeting to oppose this bill, Rep. Perry put the bill on hold for further study.

    Here is an interview wherein Rep. Perry tries to clarify that slightest degree is not a not a drop statute–very confusing.

     

  • 2014 Utah DUI Proposed Law Changes–Very Scary

    Yesterday, Rep Lee Perry, proposed changes to the current DUI Law.  Right now, there are three ways to violate the Utah DUI Law when it comes to alcohol and drugs.  First, you are over an alcohol level of .08 at the time of driving.  Second, you are over an alcohol level of .08 at the time when a chemical test is given after driving.  Third, you are impaired by drugs or alcohol or a combination of  both to the extend that you cannot safely drive a vehicle.  The proposal is to change the third prong and to change it drastically.  The proposal to is to change the language of the third prong to “impaired to the slightest degree”.  Further, the proposed language includes “impaired to the slightest degree by alcohol, drugs, or ANY SUBSTANCE.”  This language is so far overreaching that anyone pulled over could be said to be “impaired to the slightest degree by any substance.”  Caffeine can impair to the slightest degree.  Tylenol can impair to the slightest degree.  Advil can impair to the slightest degree.  Turkey contains a well known substance called tryptophan, which can impair you to the slightest degree by making you tired.  It is interesting that the LDS Church leaders have said the laws do not need to be changed.  What this law would do is put law abiding citizens at risk of being arrested who may or may not have something in their system.  How hard would it be to prove someone is impaired to the “slightest degree” and allege “any substance”.  This is a bill that should not pass or progress any farther.  Keep an eye on HB 303, its dangerous.