Lane Etiquette - Some quick lessons on traffic

For all of us who have been stuck behind a car going under the speed limit in the LEFT LANE that refuses to get over... Here is the law that says to that driver, Loud and Clear:   GET  THE   ##%!   OVER!!

"Look kids a deer..."

Utah Traffic Code 41-6a-704 prohibits three things:

1. Cars Cannot Camp in the left lane.

The law states that a vehicle in the left lane "may not impede the free flow of traffic." So if you are going slower than the flow of traffic, you best NOT be traveling in the left lane; otherwise, it is a chargeable violation.

2. Cars Must get over if someone needs to pass.

DON'T BE A GANDALF...

Next, the law says that when a car comes upon another car, traveling in the same lane, with a 2 second gap or less between the cars, the car in front MUST move over to the Right Lane to let the car in back pass. NO EXCUSES! The car in front has to move over because it is being "overtaken."

3. Drivers Must Be Polite when letting others pass.

Not only does the vehicle have to move over, but the law says that the vehicle being overtaken CANNOT INCREASE HIS SPEED until completely passed. This means, it is illegal to "gas it" when someone passes you.  Also, the vehicle being passed has to yield the right of way to the passing vehicle to merge back over into the lane. 

What did you learn?

FACT SCENARIO:  
           Fred is driving his shiny, new car in the left lane, going the speed limit, when he notices a black truck in his rear-view mirror behind him. The truck seems excessively close to Fred's new red Corvette, so Fred taps his breaks to communicate to the other driver to "Back off." The other driver backs off a little but stays behind Fred. 
          Finally, the other driver gets into the right lane to pass Fred, and hits the gas. Black smoke spews out the back of the jacked-up truck. Fred, knowing the power of his 6.2 L, V8 engine, allows his car to gain speed on the flat asphalt. The other driver passes Fred without too much trouble, then cuts left into Fred's lane extremely close to Fred's new set of wheels. Fred, scared stiff, slams on the brakes, loses control of his vehicle, and slams into a parked, pink ice-cream truck. QUESTION -->    Who is at fault?


The chilling truth (Sorry Fred) is that both drivers are at fault, but Fred will likely have to pay his own way. Because his car was the only one damaged, he will pay 100% of the damages.



SO, Share this post with anyone and everyone,    especially those who needs to hear this: 

GET THE  #@!  OVER!!

DOUBLE fines in construction zones? - Not Always!

I recently heard of a man who was pulled over for speeding at nighttime. The officer walked up to the window and began "You realize this is a construction zone?" The man had no idea. It was nighttime and there were no flashing lights. no one could have guessed it was a construction zone.  "Anytime there are orange cones, its a construction zone."  Responded the police officer lazily. "Stay here, I'll get your ticket for DOUBLE the regular fine." The man believed the police officer and paid the fine. After all, why wouldn't you believe a police officer, right?....

Its now time to expose this Police Officer's lies:



The Law:
Utah Code 41-6a-209 does say that fines are double when you are speeding in a construction zone. BUT, what is actually a construction zone?


Much to the Police Officer's dismay, a construction zone is NOT "any time there are orange cones"!! He was dead wrong about that. (I'm sure he feels really bad about it..)





For an officer to fine you double, 3 things must happen:

• Construction WORKERS must be present.

• The construction zone must be CLEARLY marked.

• and there must be SIGNS that say "FINES DOUBLED"

If any of these three things are lacking, the police officer CANNOT fine you double. 

So, next time you are pulled over in a "construction zone" don't drink the officer's koolaid. If you don't see workers, or the "fines doubled" signs, or a clearly marked construction area, YOU ARE NOT IN A CONSTRUCTION ZONE. 

The REAL Blacklist

You can be Blacklisted.   And, you can sue who Blacklisted you. 


However, being Blacklisted in real life, is not like the enticing hit series on Netflix. You are not chased by the FBI or by Raymond Reddington (Red). (If you are being chased and need to flee the country, a guide here.)

Instead, if you are Blacklisted, this means someone, or some corporation, is tarnishing your name, attempting to destroy your ability to get a job. The real life scenario is not akin to Red hunting you down with his eloquent charm and reason. It is more like him shaking his fist and yelling "You'll never get a job in this town again!"
Sounds archaic? It happens.

In Utah, the Blacklist law (Utah Code Ann. §§ 34-24-1 to 34-24-2) says this:  

Blacklisting or publishing the name of any former employee with the intent of preventing the employee from obtaining employment is prohibited.

Although, in many cases, you could sue for defamation, suing under the Blacklist Law has a huge advantage: you do not have to prove that you suffered actual harm (like not being hired). This is often the most difficult part of defamation cases. Instead, you just prove that your name was Blacklisted and you win. (this is equivalent to proving 1/3 of a defamation case.)


Also, suing someone under the Blacklist Law is much more badass than defamation. (And Likely James-Spader-approved)


If you are consistently on the verge of being hired for a job, then suddenly rejected, you could have been Blacklisted. Don't take it sitting down. Get help from an attorney, and keep watching that addicting, suspenseful show - THE BLACKLIST.

As Always, Thanks for Reading.

'American Sniper' Murderer claims he was insane. Was he?

Chris Kyle 'American Sniper' - Played by Bradley Cooper

Chris Kyle and a friend were gunned down at a Texas shooting range. Now, the accused murderer Eddie Ray Routh claims he was insane at the time of the shooting.  Was he?

THE INSANITY DEFENSE:

If a defendant can show that he was insane at the time of the crime, he will be acquitted by "not guilty by reason of insanity." The reasoning behind allowing this "exception" to the law rests in the purposes of punishment: deterrence and retribution - If punishing someone will not deter that person from doing it again, and that person could not help doing what he did, what is the purpose of the punishment?

     How to prove insanity?

In Texas, (where the murder is being tried) the defendant must suffice either the 1) M'Naghten (Right-Wrong) rule, or  2) the Irresistible Impulse rule. Routh is attempting to convince the jury that he is insane under the first rule, the M'Naghten "Right-Wrong" Rule. 

For Routh to suffice the M'Naghten "Right-Wrong" Rule, he must prove two things: 1. That he had a mental defect or disease; and 2. As a result of that mental defect, he did not understand the "nature and quality" of his actions, or he did not know his actions were wrong. 

So far, it has been quite clear that Routh has a mental defect, the prosecution has even conceded this. Routh had Post-Tramatic Stress Disorder (PTSD) at the time he pulled the trigger. The real questions for the jury are "Did Routh understand the nature and quality of his actions?" and "Did he know his actions were wrong?"  Did He?

SO IS ROUTH INSANE?

The last thing the Jury heard before deliberations was a quote by Routh about the murder. He said:

". . . I shot them because they wouldn't talk to me. . . I feel bad about it, but they wouldn't talk to me. Im sure they've forgiven me." 

The prosecution thinks this quote is imperative to finding him not insane because to "retaliate" suggests an understanding of the "nature and quality" of his actions - it will cause harm.    For example: Routh's feelings were hurt because he believed his victims were ignoring him. So, as a response, he retaliated. He shot them, intending to inflict the same pain that he felt upon them. He intended harm and understood that shooting them would harm them.

      But did he know that inflicting that pain was "wrong"?

REMEMBER, It is not enough that Routh knew his actions would cause pain, he must have also believed that his actions were "wrong." 

This is a guy who spent much of his influential years killing people as a soldier. He was trained to fire without hesitation and to not feel the consequences of killing. He was instructed that killing the enemy protects his country.   But  did this training remove all emotional understanding of killing? What about killing two of his own? Two of his "brothers"?  Did he really think that killing two fellow military men was morally acceptable?   -  To be found insane, he would have to. 

These are the questions the Jury will be losing sleep over. I invite your responses below. Weigh in and be heard.

Thanks for reading.

How to Beat a Ticket for Running a Red Light:

You got a ticket? Want to beat it?

Here's how:

THE LAW:
It is illegal under 41-6a of the Utah Code to enter into an intersection when a "steady red circular light" is on. 

THE 4 WORK-AROUNDS:

1. It is only illegal to "enter" into the intersection when there is a red light. This means if you are already in the intersection when the light turns red, then you are not in violation of the code. (Yes, go ahead and finish turning left.)

Next...

2. Under the law 41-6a-305, if the traffic light has not detected your car's presence, you can run the red light. (This is literally what the code says!!) If the cameras don't see you, you're legally able to enter the intersection. HOWEVER, only after stopping and waiting for 90 seconds can you run the light. (SO, next time you are waiting at a light FOREVER, and start to communicate to the red light with phrases like "really?"and "this is ridiculous," worry no more! You can legally go through the intersection after 90 seconds of waiting.)

(Ron Swanson can barely contain himself...)

Next...

3. On some roads, you can always run a stoplight: If you are turning from a one-way street into another one way street, you can run the stoplight after stopping. 

Lastly...

4. According to 41-6a-304, if the traffic light is not sufficiently legible to be seen by an "ordinarily observant person" or in the wrong place, you don't have to abide by it. In other words, if the traffic light has a tree branch blocking it, or it is crooked and facing another lane, you can go through the intersection on red. 

So there you have it. Now you know what you can and can't do with traffic lights. 

Word of advice for those fighting a ticket:   Never claim a yellow light was too short. The problem with this defense is you nearly admit to driving too fast to stop in time. This is because traffic engineers design the lights specific to the speed limit on the road they govern. --- stick with winner arguments instead.

Please share to help your friends avoid a ticket!!

Can you get a ticket for texting while stopped at a stoplight? - Policeman gives answer.

CONFUSED about the newly enforced "texting and driving" laws?

Your not alone!  A policeman admitted to me that the inconsistent enforcement of the law has caused much of the confusion statewide.

So lets put THE CONFUSION to rest:

The Law:
Utah Traffic Code 41-6a-1716: 

Except as provided in Subsection (3), a person may not use a handheld wireless   communication device while operating a moving motor vehicle on a highway in this state to manually:

            (a) write, send, or read a written communication, including:

            (i) a text message;

            (ii) an instant message; or

            (iii) electronic mail;

            (b) dial a phone number;

            (c) access the Internet;

            (d) view or record video; or

            (e) enter data into a handheld wireless communication device.

     

      Means:  You can do very little on your cell phone while driving. Most notably, you cannot even dial a number into your phone while driving. 

     --- When I asked the patrolman to expound on this, he said "Utah is what is called a no-manipulation state." He is right about that, but he was wrong about what that means. 
         He claimed that a no-manipulation law prohibits the driver from even swiping your phone to unlock it. **Nice try, but actually not true. The law prohibits inputing data into your phone. Unlocking your phone is not considered inputting information. 
        (Even police officers are confused about the texting and driving laws!)

WHAT CAN YOU DO ON YOUR PHONE??

The Law:

[The law] does not prohibit a person from using a [cell phone] while operating a moving motor vehicle:

            (a) for voice communication;

            (b) to view navigation (Maps);

            (c) during a medical emergency; or

            (g) to operate:

                    (i) hands-free or voice operated technology; or

                    (ii) a system that is physically or electronically integrated into the motor vehicle.

    Means: 

• If you are talking to your friend on your phone while driving, you don't have to throw your phone down and hide when you pass a policeman. 

• Yes, go on and chat away. It is legal! 

• You can also access your navigation system on your phone.

• Most notably, you are allowed to operate a system that is integrated into your car. My interpretation of this means you can operate your music that is integrated into your car. (we have yet to see a case that decides that issue.)

• Lastly, your vehicle has to be moving to prohibit operation of the cell phone. So  YES you can legally text, email, etc. when stopped at a stoplight!!

    

The Wrap Up:

    To you, this means you can talk on the phone, (answer calls and send calls as long as you do not dial the number), you can access Maps, and likely access your integrated music. 

    You CANNOT text, dial, e-mail, record videos, Facebook, or access the internet (UNLESS YOU ARE STOPPED, NOT MOVING).

Remember, the best option is to not access your phone at all while your driving. (I want to emphasize this for my friend Reggie Shaw). Drive safe Utah. 

Can you get arrested for recording a cop?

There is a lot of confusion running around whether you can record a police officer. Here is a simplified guide:

1. You have the right to record a public officer in a public place. 

Under the First Amendment of the Constitution, you have a right to record a police officer on duty. In fact, a recent Supreme Court case reaffirmed that right. In that case, Simon Glik was arrested for filming a group of cops arresting a young man in public. The Court found that Simon Glik should not have been arrested because he has a right to film a public officer in a public place. 

2. Your right IS Limited!

You do not have an omnipotent right to film whatever you like whenever you want to. The right to film an officer is limited in three respects:

• The recorded person must be a public official. - This means that you can record a police officer, only when he is on duty. (just look for the uniform ;)

• Do not record while driving. - Even though you have a right to record the police officer, it is still against the law in Utah to manipulate a handheld device while driving. This includes recording from your phone! Make sure you are stopped before you begin handling your device. In Utah, you can be stopped (even at a light) and handle your phone legally. 
  
  ...Duh right?
  
  

• LASTLY, You cannot interfere with the cop's legitimate duties. - If a cop reasonably believes that you are interfering with his duties as a cop, he can arrest you. There is an emphasis on "reasonably." REMEMBER, the mere fact that you are recording does not qualify as a "reasonable belief" of interference. You must do something beyond pushing the record button. 

RECAP - Be smart. Cops are not lawyers. Often times they don't know the law, and will make improper arrests. (Example:

(The cop says "if you are invoking your rights, you must be doing something wrong?!?)

Know your rights! And don't be afraid to invoke them!

  You can LEGALLY record a cop!!!

How to Expunge a Record in Utah (Part 2: Filing forms)

OOPS! Part 2 of "How to Expunge a Record in Utah" is currently being written.


In the meantime, here are some funny gifs

How to Expunge a Record in Utah (Part 1: Eligibility).

EXPUNGEMENTS ARE EASY. Here are the steps and websites you will need to expunge your record, misdemeanor or infraction, in Utah. 

First, the basics:

What is an Expungement? Expungement does not change history.  Expunging records seals them (usually of any arrest, investigation, detention and/or conviction). Sealing the records make them unavailable to the public. 

So by expunging your criminal record, you make it unavailable to the public. Any background check by an employer, school, or private company will not show your record. (Pretty cool right!?) 

Justin Bieber obviously needs an expungement.

What can be Expunged?

Two types of records can be expunged: a non-conviction record, and a conviction record. (Conviction includes a verdict or finding of guilty after trial, a plea of guilty, or a plea of nolo contendere (no contest)).

       Non-Conviction:  In Utah Code, Section 77-40-104, you can expunge records of arrest,   investigation, and detention for a crime when there is no conviction, IF:

• 30 days have passed since the arrest;
• there are no criminal cases pending; and
• one of the following occurred:
• no charges were filed;
• charges were filed, but the case was dismissed with prejudice;
• charges were filed, but the person was acquitted at trial; or
• the statute of limitations has expired. 

               (More Information HERE)

     Conviction:  Conviction records can be expunged unless the conviction is for: 

• a capital felony, first degree felony or violent felony;
• automobile homicide;
• felony driving under the influence; or
• a registerable sex offense;

         Also, a person cannot expunge records of any conviction if:

• the petitioner has been convicted in separate criminal episodes of:
• two or more felonies;
• three or more crimes of which two are class A misdemeanors;
• four or more crimes of which three are class B misdemeanors; or
• five or more crimes of any degree other than infractions and the traffic offenses identified in Section 77-40-102.

          Lastly, for convictions, a person cannot expunge a record unless the statutory time has passed since the latest of the conviction, release from incarceration, or probation. 

Here is a chart found on Utah State Courts website showing the amount of time that must pass before you can expunge a record:

Offense	Time from date petitioner was convicted or released from incarceration, probation or parole, whichever occurred last
Misdemeanor conviction of Subsection 41-6a-501(2) Felony conviction of Subsection 58-37-8(2)(g)	10 years
Felony	7 years
Class A Misdemeanor	5 years
Class B Misdemeanor	4 years
Other Misdemeanor or Infraction	3 years

Applying for Eligibility:

Once you determine for yourself that you might be eligible, you must obtain a Certificate of Eligibility (publicsafety.utah.gov) issued by the Bureau of Criminal Identification (BCI - publicsafety.utah.gov) of the Utah Department of Public Safety. 

Here is the form to fill out and send into the BCI. The application fee is $50.00 and requires fingerprinting.

Once BCI performs a records check and determines that you are eligible to expunge criminal records, the certificate is valid for only 90 days from the date issued. 

Next Steps: Filing the proper forms

How to Beat a Speeding Ticket in Utah

What you need to know to win:

1. The radar gun must be tested to be admissible against you. 

      The State of Utah requires that any radar gun used to track speed must be tested BEFORE and AFTER the police officer's work-day. Although most police stations have daily routines that accomplish this, they can make mistakes. You should verify that the gun was tested. 

2. There must be PROOF of speed offered. 

The prosecutor must prove that your vehicle was traveling at a certain speed. It is not enough to claim that you were traveling within a certain range (unless that range is the small margin of error by a radar gun). The prosecutor must offer the calibration certificate of the radar gun to prove this. A valid certification must be: 1. tested within the 6 months prior to the date of speeding; 2. acknowledged by the writing officer; and 3. an original copy. 

3. There must be constructive notice of the speed limit.

The prosecutor must prove constructive notice, not actual notice. Constructive notice does not mean that you didn't see the sign. It means that the sign was obstructed from view in some way, or non-existent. You should take photographs of the sign and the way it appeared to you on the day of the incident.

These are the most common forms of challenging a speeding ticket. They are a great start on your defense against a speeding ticket in Utah. 

See Disclaimer page. 

•  Here is a short video from an attorney giving further general advice:

Guilty Plea v. No Contest (Alford Plea)

You're facing a criminal charge, you got a plea offer from the prosecutor that includes a "no contest" plea or a guilty plea. What do you do? What is the difference between the two? What are the consequences of both?

THE LAW

On a basic level, a plea deal by the prosecutor will usually serve two purposes: 1. the prosecution gets to settle the case before a lengthy trial, which frees their schedule and avoids court costs.  And 2. the defendant gets a lesser charge and/or sentence. 

A GUILTY PLEA

For a guilty plea, the defendant is asked how to confess his guilt before the court. The prosecutor will then state the general facts of the case, which the defendant is assumed to agree with. You can and should ask what those facts are going to be. You can negotiate with the prosecutor to edit the facts. (this is helpful for any civil cases that might follow)

NO CONTEST PLEA

A no contest plea is also called an Alford Plea, named after the famous case North Carolina v. Alford. By pleading "no contest," you are asserting your innocence but accepting that the prosecutor has enough evidence against you to likely convince a jury that you are guilty. This can prove helpful when there is a subsequent civil lawsuit.  

Sounds good right? But there is a unforeseen problem. Like it or not, your sentencing judge may not enjoy a no contest pleas. Many judges follow the notion that "No Contest pleas" undermine the trust in the judicial process. Specifically, Alford pleas can give off the perception that innocent people often plead guilty. 

Even more troubling to a judge is that an Alford plea allows guilty defendants to avoid accepting responsibility for their wrongs. It is much easier for a judge to justify a lesser sentence for an repentant criminal than an unrepentant one. 

Lastly, the U.S. Attorneys' Manual states that in the federal system, Alford pleas "should be avoided except in the most unusual circumstances, even if no plea agreement is involved and the plea would cover all pending charges." If you're in a federal or state court, the prosecutor will not offer you an Alford plea without asking for it first. 

Some believe that an Alford plea cannot be used in the court of future crimes or that when applying to jobs an Alford plea is not reported. FALSE! For future crimes, the guilty plea may or may not be used against the defendant, depending on the court that presides over the future crime. When applying for a job, the defendant is obligated to disclose that he/she has “plead guilty” to a crime. 

So remember, Alford pleas, a.k.a "no contest" pleas, are good in only a few circumstances, BUT they can cause the judge to begin sentencing with a bad taste in his mouth. An angry judge is a lot harder to convince than a sympathetic judge.  

How To Beat a Breathalyzer Test!

      Beat the Breathalyzer!

What commonly causes false positives for breathalyzers? 
AND How can you legally challenge the validity of a breathalyzer? 

This information will help you BEAT THAT BREATHALYZER!

First, What is the law?
Utah uses the Intoxilyzer 8000 breath-testing machine made by CMI. Pursuant to Utah Administrative Code R714 – 500, these machines must be certified every 40 days or less. There are many Utah DUI cases that get dismissed because the certification was NOT VALID.

SO, If you were recently breathalyzed, you should obtain the certification records of the machine to ensure it was certified in the past 40 days. If it wasn't, the test is invalid and you beat the breathalyzer!

Next, as I mentioned in my previous post about fighting a DUI, Utah follows what's called the Baker Standard. This standard requires the police to ensure that absolutely nothing is in your mouth 15 minutes prior to taking the breathalyzer test. 

WHY? Because breathalyzers can pick up "residual mouth alcohol." - (thats the alcohol that is still in your mouth even after you drink it).  So if you have breath spray, gum, tobacco, or anything in your mouth, it will hold that alcohol in your mouth and raise the BAC reading on the Breathalyzer! THIS ALSO MEANS that the police officer administered the test improperly, and the test is invalid!

Finally, Breathalyzers are not %100 accurate! Usually, Breathalyzers are only accurate within .003%. This means, if you have a 0.08% BAC and are charged with DUI, a good lawyer can convince the jury that the breathalyzer results are inaccurate AND YOU COULD BE ACQUITTED!

Tips and Tricks

Some tips that don't work:

• Burping directly into the machine. The alcohol in your stomach is often higher than that in your lungs. However, food and time can reverse that effect.

• Holding your breath. By holding your breath before you exhale into the machine, you allow more time for alcohol to diffuse into your breath. 

• Breath Sprays. These have alcohol in them! You will raise your breathalyzer result by using them before the breathalyzer! 

• Mouthwashes: Listerine is about 27% alcohol. Again, don't try to cover the smell of alcohol. You will raise your Breathalyzer results!

Some tips that have potential to work:

• First, don't follow the officer's orders to "keep blowing." Every officer tells you to keep blowing until you can't anymore. WHY? because when you force the air out of the bottom of your lungs, you are forcing out the air that is most saturated with alcohol! Don't fall for it! Don't overexert your breath! Give a normal breath into the breathalyzer.

• Hyperventilating prior to taking the test. Chemically, this causes the gaseous alcohol in your lungs to be replaced with fresh oxygen. By breathing quickly, and a lot, you exhale more alcohol than what is being diffused into your lungs.  By the time you blow into the breathalyzer, the alcohol in your lungs is thought to have reduced temporarily.

• There are products out there that claim to reduce "residual mouth alcohol." Although these products are controversial, some claim they work. (an example here) The products work like asthma inhalers, but fill the mouth with corn syrup, masking the residual mouth alcohol. However, breathalyzers are supposed to measure the alcohol in your lungs, not your mouth. 

These tricks, however, are risky. I would not rely on the possibility of asking the officer for a moment to hyperventilate so you can reduce the test results. INSTEAD, you should challenge the validity of the test by using the LAW.

What do you do?
So next time you are pulled over, don't ask for a second and begin hyperventilating. Instead, watch for an improper administration of the test by the officer. Was something in your mouth within 15 min prior to the breathalyzer? Did the officer keep an eye on you for the entire 15 min? 

You can also keep an eye on the time. The officer must wait 15 minutes from the time that he checks you mouth. So when he asks you to open your mouth, glance at your watch. 

Check the certification of the breathalyzer! These things are often not certified properly!

Finally, GET A LAWYER! Paying a lawyer $1000 beats paying the State a dime! You don't lose your license, and you don't get a record! (especially because In Utah, a third DUI in ten years is a FELONY! And carries up to a FIVE YEAR SENTENCE! The first DUI can be up to $1500 fine) Don't mess around. Get a lawyer the first time. 

For a complete sentencing guidelines on DUI in Utah, Check out my previous post on fighting DUIs.

DUI defense in Utah

Lisa Steed, who wrongfully arrested multiple Utah citizens for false DUIs.

Just recently, Highway Patrol officer, Lisa Steed, deprived over 30 Utah citizens of their trust in the police system.  Ms. Steed was fired last November for falsifying DUI arrests. She pulled many people over, required them to perform a field sobriety test, then arrested them regardless of their performance on the test.

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:

(1) A person may not operate or be in actual physical control of a vehicle within this state if the person:

(a) has sufficient alcohol in the person's body that a subsequent chemical test shows that the person has a blood or breath alcohol concentration of .08 grams or greater at the time of the test;

(b) is under the influence of alcohol, any drug, or the combined influence of alcohol and any drug to a degree that renders the person incapable of safely operating a vehicle; or

(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.