 |
| Lisa Steed, who wrongfully arrested multiple Utah citizens for false DUIs. |
She had no basis for her arrests and they were performed illegally. Presumably, her motive behind the fraud was to maintain her number one spot for DUI arrests many years running. Many of these Utah citizens who were wrongfully arrested are now filing suit against Sara Reed and the Utah Highway Patrol. They will likely win their cases and receive compensation for the wrongful arrest.
What is the law for drunk driving in Utah? What do you do if you are pulled over for drunk driving? and What can you do if you are charged with drunk driving in Utah?
THE LAW
BAC (blood alcohol content) for DUI:
Under 21
|
zero tolerance
|
21 or older
|
.08%
|
Commercial
|
.04%
|
According to Utah code 41-6a-502:
THE TESTS
The common three-part test, aka the Standardized Field Sobriety Tests, include: the Horizontal Gaze Nystagmus (“HGN”), the Walk and Turn, and the One Leg Stand Test.
1. HGN – Horizontal Gaze Nystagmus is an involuntary twitching of the eyes as they move from side to side. Police administer this test by asking you to follow his pen or finger while he moves it side to side. The pen should be 12 to 15 inches from your face. If it is not, the police officer has administered it incorrectly.
The officer looks for a lack of smooth pursuit, distinct and sustained nystagmus at the very side of your view, and nystagmus before reaching the sides.
2. Walk and Turn – The test involves having you walk a straight line with nine heel-to-toe steps, turn, and take nine steps back. The officer should put you in a heel-to-toe “instructional” position while he shows you how to do the test. If he does not do this, he has administered the test incorrectly.
The officer looks for starting the test too soon, failing to maintain the instructional position, taking the more or less than 9 steps, raising the arms higher than six inches, missing heel to toe contact by more than half of an inch, stepping off line, turning improperly, or stopping.
3. One Leg Stand – For this test, the officer has you raise one leg with the foot approximately six inches from the ground. Both of your legs should be kept straight and your raised foot should be parallel with the ground. You then count, “One thousand and one, one thousand and two,” for thirty seconds.
The officer looks for hopping, dropping your foot, swaying, and raising the arms higher than six inches.
The reliability of these tests is predicated on the tests being administered in the correct, standardized way. If any one of the test elements is changed, the validity is compromised.
The Breathalyzer
The Breathalyzer measures the amount of alcohol in your system from the amount of alcohol detected on your breath. The idea was simply derived from the common notion that if someone has been drinking a lot, you can usually smell it on their breath.
The Breathalyzer must be done a certain way to ensure its accuracy. Specifically, prior to the administration of a breath test, the officer must ensure that the subject’s mouth is free from foreign objects. Foreign objects can raise the alcohol content in your mouth, even though the actual BAC is much lower. This standard was enumerated by State v. Baker, 355 P.2d 806 (Wash. 1960). For that reason, it is known as the Baker standard.
To sufficer Baker Standard, the officer must check your mouth for foreign objects and determine it is clear. Then, he must watch you for 15 minutes before taking a breath sample. Of course, the officer cannot watch you for every second of that 15 minutes. However, the officer must keep you in his presence for the entire 15 minutes, make sure you had no opportunity to ingest or regurgitate anything during the 15 minutes, and make sure nothing impeded his powers of observations during the observation period.
How to prevent a Breathalyzer test?
Now that you have read the requirements for a properly administered breathalyzer test, you know what the police must do to maintain reliability of the test. The most common "foreign object" that invalidates a breathalyzer test is gum. If the policeman fails to check your mouth, fails to keep you in his presence for 15 minutes before the breathalyzer, or has something else distract his attention in those 15 minutes YOU WIN! Make a note of it and get it on the dash cam. Perhaps by saying "why are you looking at your computer screen for five minutes?" or "my gum keeps getting in the way of the breathalyzer."
(1) A person may not operate or be in actual physical control of a vehicle within this state if the person:
(c) has a blood or breath alcohol concentration of .08 grams or greater at the time of operation or actual physical control.
(1) A person may not operate or be in actual physical control of a vehicle within this state if the person:
(c) has a blood or breath alcohol concentration of .08 grams or greater at the time of operation or actual physical control.
THE FIRST ELEMENT:
The Judge will first consider if you were in "actual physical control of the vehicle." This does not necessarily mean driving the vehicle. Nor does it mean that a
person has to be on a public road - parking lot and driveway DUI’s are common in Utah.
A famous Utah case that gives you an idea of what "actual physical control" in the judge's eyes looks like is Richfield city v. Walker. In that case, Walker was found asleep, alone in his truck, (which was parked in a hotel parking lot) laying across the seat with his head towards the passenger side. The keys were in the ignition, the lights were on, but the truck was not running. He blew a 0.21% and was found guilty of DUI. The court placed a large emphasis on the fact that the keys were in
the ignition. Although the car was not on, the court inferred that the
defendant placed those keys in the ignition, and at that moment, he was in
actual control of the vehicle. (crazy right?)
Some significant factors that the courts consider are: how the car got there, the condition
of the car (whether it could be driven off), where the defendant was sitting, whether he was asleep or not, and where the keys were.
How to prevent a DUI charge?
So this means, do not "sleep it off" in your car! The court repeatedly stated that an intoxicated person should only enter a vehicle as a passenger. If you find yourself in a position that could be construed as "actual physical control of a vehicle" remember: your keys go out of reach, and you go into the passenger seat. Don't keep the keys on you, and DO NOT put them in the ignition.
THE SECOND ELEMENT:
Next, the judge will consider the level of impairment. Utah has a "per se" level of intoxication of 0.08% BAC. This means that even if you don't feel impaired and can drive fine, the law still sees you as impaired. In other words, don't determine your intoxication level from how you feel - determine it from the amount of alcohol you imbibed.
Although the law prohibits you from judging your own impairment from your abilities, the law will judge you from your abilities. Better yet, the judge can find you impaired based solely off your ability to operate a vehicle. Under Utah law, a person is impaired, regardless of the BAC level, if he is under the influence of ANY substance "to a degree that renders the person incapable of safely operating a vehicle."
This comes into play when a police officer gives you a field sobriety test. Even though you blow a BAC under the legal limit, if you fail the field sobriety test, he can arrest you and the judge can convict you for DUI.
How to prevent a DUI charge?
Do not base your intoxication level off of how you feel. Instead, refer to the drinking chart. If you have had enough alcohol to put you at .08% or higher, DON'T DRIVE!
Also, don't kid around on the field sobriety tests, even if you have had very little to drink. A judge can convict you on your performance without the BAC level. If you have a medical condition that could affect your ability to perform the field test, tell the police before you do the field tests.
THE SECOND ELEMENT:
Next, the judge will consider the level of impairment. Utah has a "per se" level of intoxication of 0.08% BAC. This means that even if you don't feel impaired and can drive fine, the law still sees you as impaired. In other words, don't determine your intoxication level from how you feel - determine it from the amount of alcohol you imbibed.
Although the law prohibits you from judging your own impairment from your abilities, the law will judge you from your abilities. Better yet, the judge can find you impaired based solely off your ability to operate a vehicle. Under Utah law, a person is impaired, regardless of the BAC level, if he is under the influence of ANY substance "to a degree that renders the person incapable of safely operating a vehicle."
This comes into play when a police officer gives you a field sobriety test. Even though you blow a BAC under the legal limit, if you fail the field sobriety test, he can arrest you and the judge can convict you for DUI.
How to prevent a DUI charge?
Do not base your intoxication level off of how you feel. Instead, refer to the drinking chart. If you have had enough alcohol to put you at .08% or higher, DON'T DRIVE!
Also, don't kid around on the field sobriety tests, even if you have had very little to drink. A judge can convict you on your performance without the BAC level. If you have a medical condition that could affect your ability to perform the field test, tell the police before you do the field tests.
THE TESTS
The common three-part test, aka the Standardized Field Sobriety Tests, include: the Horizontal Gaze Nystagmus (“HGN”), the Walk and Turn, and the One Leg Stand Test.
1. HGN – Horizontal Gaze Nystagmus is an involuntary twitching of the eyes as they move from side to side. Police administer this test by asking you to follow his pen or finger while he moves it side to side. The pen should be 12 to 15 inches from your face. If it is not, the police officer has administered it incorrectly.
The officer looks for a lack of smooth pursuit, distinct and sustained nystagmus at the very side of your view, and nystagmus before reaching the sides.
2. Walk and Turn – The test involves having you walk a straight line with nine heel-to-toe steps, turn, and take nine steps back. The officer should put you in a heel-to-toe “instructional” position while he shows you how to do the test. If he does not do this, he has administered the test incorrectly.
The officer looks for starting the test too soon, failing to maintain the instructional position, taking the more or less than 9 steps, raising the arms higher than six inches, missing heel to toe contact by more than half of an inch, stepping off line, turning improperly, or stopping.
3. One Leg Stand – For this test, the officer has you raise one leg with the foot approximately six inches from the ground. Both of your legs should be kept straight and your raised foot should be parallel with the ground. You then count, “One thousand and one, one thousand and two,” for thirty seconds.
The officer looks for hopping, dropping your foot, swaying, and raising the arms higher than six inches.
The reliability of these tests is predicated on the tests being administered in the correct, standardized way. If any one of the test elements is changed, the validity is compromised.
The Breathalyzer
The Breathalyzer measures the amount of alcohol in your system from the amount of alcohol detected on your breath. The idea was simply derived from the common notion that if someone has been drinking a lot, you can usually smell it on their breath.
The Breathalyzer must be done a certain way to ensure its accuracy. Specifically, prior to the administration of a breath test, the officer must ensure that the subject’s mouth is free from foreign objects. Foreign objects can raise the alcohol content in your mouth, even though the actual BAC is much lower. This standard was enumerated by State v. Baker, 355 P.2d 806 (Wash. 1960). For that reason, it is known as the Baker standard.
To sufficer Baker Standard, the officer must check your mouth for foreign objects and determine it is clear. Then, he must watch you for 15 minutes before taking a breath sample. Of course, the officer cannot watch you for every second of that 15 minutes. However, the officer must keep you in his presence for the entire 15 minutes, make sure you had no opportunity to ingest or regurgitate anything during the 15 minutes, and make sure nothing impeded his powers of observations during the observation period.
How to prevent a Breathalyzer test?
Now that you have read the requirements for a properly administered breathalyzer test, you know what the police must do to maintain reliability of the test. The most common "foreign object" that invalidates a breathalyzer test is gum. If the policeman fails to check your mouth, fails to keep you in his presence for 15 minutes before the breathalyzer, or has something else distract his attention in those 15 minutes YOU WIN! Make a note of it and get it on the dash cam. Perhaps by saying "why are you looking at your computer screen for five minutes?" or "my gum keeps getting in the way of the breathalyzer."
What if you refuse to take a chemical test in Utah?
In Utah, if you refuse to submit to a chemical test you will be subject to a fine and automatic license suspension. It's called Utah's implied consent law. You can't refuse it but you might be able to beat it.
DUI SENTENCING IN UTAH
DUI SENTENCING IN UTAH
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