After your DUI arrest in Utah, you probably have a lot of questions. Below are answers to the legal questions our DUI attorneys get asked the most. Feel free to contact us with any additional questions you have about your case, or your arrest.
There are two ways a person charged with a DUI can plead to the reduced charge of impaired driving. First, with the agreement of the prosecutor and completion of court ordered probation a defendant can plea to impaired driving. (See, Utah Code Ann. §41-6a-502.5(1)(a)) Second, with the agreement of the prosecutor and the court finding the plea to be in the interest of justice a defendant can plea to impaired driving. (See, Utah Code Ann. §41-6a-502.5(1)(b))
There are two types of impaired driving pleas. The first type is conditioned on successful completion of probation. If the defendant does not successfully complete probation the court will amend the conviction to a DUI. (See, Utah Code Ann. §41-6a-502.5(3)(a)) The second type has no conditions and the impaired driving conviction is entered immediately. (Utah Code Ann. §41-6a-502.5(3)(b))
A plea to impaired driving can benefit a defendant in the following ways:
- If your license has not already been administratively suspended by the DMV a plea to impaired driving will prevent a driver license suspension.
- The DMV will reinstate a person’s driver license prior to the completion of the 120 day suspension period. (Note, this is only applicable to persons whose driving privileges have been suspended for 120 days.) (See, Utah Code Ann. §53-3-223(7)(c))
- Jail is no longer mandatory. (See, Utah Code Ann. §41-6a-502.5(6)(b))
While usually misunderstood by most citizens, the U.S. Supreme Court held, in Miranda v. Arizona, that statements of criminal suspects made while they are in custody and subject to interrogation by a peace officer may not be admitted in court unless the suspect first had certain warnings read to him beforehand. By now, these warnings are familiar to most Americans. They are as follows:
The suspect has the right to remain silent during a custodial interrogation;
That anything the suspect says to the police may be used against them in court;
That the suspect has the right to an attorney;
and that if the suspect cannot afford an attorney, an attorney will be provided to them.
The misunderstanding stems from the fact that Miranda Warnings are not applicable until a person is questioned while in custody.
The Utah Courts will consider the following factors in making a determination of whether a suspect was in custody:
- the site of the interrogation
- whether the officers make it clear that the investigation has focused on the suspect
- whether any indicators of arrest are present (e.g. handcuffs, drawn guns), and
- the length and form of the interrogation.
(See, Salt Lake City v. Carner, 664 P.2d 1168 (Utah 1983); State v. Levin, 144 P.3d 1096 (Utah 2006)).
Wherefore a person arrested for a DUI in Utah is generally not in custody under the following:
- When the peace officer questions you while in your automobile
- When the peace officer questions you after you exit the automobile
- When the peace officer questions you during field sobriety tests, and
- When the peace officer questions you prior to administering a preliminary breath test.
Lastly, a Utah Peace Officer usually follows a document entitled DUI Report Form when he conducts a custodial interrogation. (See, DUI Report Form/IX Interview)
In Utah, A peace officer may stop any person in a public place when he has reasonable suspicion to believe he has committed or is in the act of committing or is attempting to commit a public offense and may demand his name, address and an explanation of his actions.
(See Utah Code Ann. §77-7-15).
When reviewing the lawfulness of a stop, Utah Courts must determine whether the facts producing the officer’s suspicions were objectively reasonable at the time of the encounter, taking into account all the circumstances of the encounter.
Most, but not all, stops by Utah Peace Officers are based on traffic offenses. It is lawful for a peace officer to stop and question someone who has committed a traffic offense in the peace officer’s presence. However, a detention following a traffic offense must last no longer than is necessary to effectuate the purpose of the stop, i.e., issue a traffic citation. (See, State v. Hansen, 63 P.3d 650 (Utah 2002))
The lawfulness of the stop gets more complicated when it is for a reason other than a traffic offense committed in the officers presence. In these instances, the peace officer must observe specific and articulable events which give rise to a reasonable suspicion that illegal activity may be underway. The facts producing the peace officer’s reasonable suspicion must be objectively reasonable at the time, taking into account all of the facts surrounding the encounter. (See, Terry v. Ohio, 392 U.S. 1 (1968))
The suspicion must be reasonable to a judge looking at the encounter in hindsight, not suspicion that was subjectively reasonable to the peace officer at the time. In determining whether the suspicion was reasonable the judge will consider the following: The facts known by the peace officer; the observations of the peace officer; and the peace officer’s experience. When taken together these elements must come together and point to a conclusion that some form of illegal activity may be underway. Stated another way, what is, or is not reasonable suspicion requires a balancing, weighing and meshing of a variety of factors, taking into account the particular factual setting with which the peace officer was confronted. A mere intuition or instinctive feeling, standing alone, will not justify the stop.
The National Highway Traffic Safety Administration (NHSTSA) sponsored research leading to the development of a Driving While Impaired Detection Guide. The Guide describes a set of behaviors that are used by peace officers to justify stopping suspected impaired drivers.
The driving behaviors are broken up into four categories. They are: Problems in maintaining proper lane position; Speed and braking problems; Vigilance problems; and Judgment problems.
The cues presented in these categories predict that a driver is impaired 35% of the time. These cues are used to establish reasonable suspicion that a person has committed or is in the act of committing or is attempting to commit a DUI. The categories and cues are as follows:
Problems Maintaining Proper Lane Position
- Weaving across lane lines
- Straddling a lane line
- Turning with a wide radius
- Almost striking a vehicle or other object
Speed and Braking Problems
- Stopping problems (too far, too short, or too jerky)
- Accelerating or decelerating for no apparent reason
- Varying speed
- Slow speed (10+ mph under limit)
- Driving in opposing lanes or wrong way on one-way
- Slow response to traffic signals
- Slow or failure to respond to officer’s signals
- Stopping in a lane for no apparent reason
- Driving without headlights at night
- Failure to signal, or signal inconsistent with action
- Following too closely
- Improper or unsafe lane change
- Illegal or improper turn (too fast, jerky, sharp, etc.)
- Driving on other than the designated roadway
- Stopping inappropriately in response to officer
Most importantly to the accused is that if the peace officer did not have reasonable suspicion that criminal activity was underway, everything that happened afterwards will be of no consequence. Any evidence that may have been used against the accused will be suppressed.
In Utah, assuming the traffic stop was lawful, the temporary seizure of the driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Without additional reasonable suspicion, the officer must allow the seized person to depart once the purpose of the stop has concluded. (See, State v. Baker, 229 P.3d 650 (2010)) Furthermore, in Utah, the smell of alcohol emanating from a vehicle is enough to generate new reasonable suspicion of criminal activity, thus justifying further detention. (See, State v. Morris, 2011 UT 40 (2011))
When reviewing the lawfulness of a detention after a lawful stop, Utah Courts will ask, whether the detention was reasonably related in scope to the circumstances which justified the interference in the first place. Moreover, the scope of the stop is addressed as follows: (i) the length of the detention, and (ii) the methods employed during the stop.
The length of the detention is well settled “once a traffic stop is made, the detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” (See, State v. Lafond, 68 P.3d 1043 (2003)) Moreover, the scope of the search must be “strictly tied to and justified by the circumstances which rendered its initiation permissible.” Investigative detentions that detain the driver past a license and registration check must be supported by reasonable suspicion of more serious criminal activity.
Utah Courts, following the lead of the United States Supreme Court, has declined to adopt a bright-line rule as to an accepted length of detention. (See, State v. Grover, 808 P.2d 133 (Utah Ct. App. 1991)) Rather, “common sense and ordinary human experience must govern over rigid criteria.” (See, State v. Grover, 808 P.2d 133 (Utah Ct. App. 1991))
The methods employed during the stop must be tailored to serve the purpose of confirming or alleviating the officer’s suspicions. The nature of the questioning and level of force employed during the detention must be similarly limited.
The National Highway Traffic Safety Administration (NHSTSA) sponsored research leading to the development of a Driving While Impaired Detection Guide. The Guide describes a set of behaviors that are used by peace officers to justify detaining a suspect after a lawful stop.
Post Stop Cues
- Difficulty with motor vehicle controls
- Difficulty exiting the vehicle
- Fumbling with driver’s license or registration
- Repeating questions or comments
- Swaying, unsteady, or balance problems
- Leaning on the vehicle or other object
- Slurred speech
- Slow to respond to officer or officer must repeat
- Providing incorrect information, change answers
- Odor of alcoholic beverage from the driver
Most importantly to the accused is that even if the peace officer was justified in the initial stop, if the detention exceeds the scope authorized by its justification, i.e., “reasonable suspicion of criminal activity,” it will be deemed an illegal stop, and any incriminating evidence found thereafter will not be admissible in court.
Probable cause to arrest exists if at the time of arrest, a prudent, objective person, in the position of the officer, taking into account his experience, knowledge and observations, would reasonably believe that a crime has been or is being committed. (See, U.S. v. McKissick, 197 F.3d 1048 (10th Cir. 2000); Oliver v. Woods, 21 F. Supp 2d 1325 (D. Utah 1998))
In a warrantless arrest situation a police officer will be making the initial probable cause determination. The U.S. Supreme Court has stated that “[i]n determining probable cause, evidence required to establish guilt is not necessary, but on the other hand, good faith on the part of the arresting officers is not enough, and probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.” (See, Henry v. U.S., 361 U.S. 98 (1959))
In Utah , when determining whether there is probable cause to arrest, an officer will consider the following: Initial observations of vehicle in operation; observations of the stopping sequence; Face-to-Face observation and interview of driver; Observations of the exit and walk; Results of the psychophysical (field) sobriety testing; and Result of the preliminary breath test.
Field sobriety tests (FSTs) are a battery of tests administered by peace officers to determine impairment. The tests are; Horizontal Gaze Nystagmus, Walk and Turn, and One-Leg Stand, administered and evaluated in a standardized manner to obtain validated indicators of impairment based on National Highway Traffic Safety Administration (NHTSA) research.
Horizontal Gaze Nystagmus
Horizontal gaze nystagmus (HGN), refers to an involuntary jerking of the eyes that occurs as the eyes gaze toward the side. In addition to being involuntary the person experiencing the nystagmus is unaware that the jerking is happening.
Involuntary jerking of the eyes becomes readily noticeable when a person is impaired. As a person’s blood alcohol concentration increases, the eyes will begin to jerk sooner as they move to the side.
When administering the HGN test the peace officer is looking for three clues. The clues are: lack of smooth pursuit; distinct and sustained nystagmus at maximum deviation; and onset of nystagmus prior to 45 degrees.
Lack of smooth pursuit is when the eyes can be observed to jerk or bounce as they follow a smoothly moving stimulus, such as a pencil or penlight. The eyes of an unimpaired person will follow smoothly, i.e., a marble rolling across a smooth pane of glass, or windshield wipers moving across a wet windshield.
Distinct and sustained nystagmus at maximum deviation will be evident when the eye is held at maximum deviation for a minimum of four seconds. People exhibit slight jerking of the eye at maximum deviation, even when unimpaired, but this will not be evident or sustained for more than a few seconds. When impaired by alcohol, the jerking will be larger, more pronounced, sustained for more that four seconds, and easily observable.
Onset of nystagmus prior to 45 degrees is the point at which the eye is first seen jerking. If the jerking begins prior to 45 degrees it is evident that the person has a BAC above .08, as shown by research. Note, the higher the degree of impairment, the sooner the nystagmus will be observable.
Horizontal Gaze Nystagmus Interpretation
The peace officer should be looking for three clues of nystagmus in each eye. Based on research, if the peace officer observes four or more clues it is likely that the suspect’s breath/blood alcohol level is above .10. Using this criteria the peace officer will be able to classify about 77% of DUI suspects correctly.
Walk-and-Turn is a test that has been validated through research sponsored by the National Highway Traffic Safety Administration (NHTSA). It is a divided attention test consisting of two stages: instructions stage; and walking stage.
In the instruction stage, the suspect must stand with their feet in a heel-to-toe position, keeping their arms at their sides, and listening to the peace officer’s instructions. The instructions stage divides the suspect’s attention between a balancing task (standing while maintaining the heel-to-toe position) and an information processing task (listening to and remembering instructions).
In the walking stage the suspect takes nine heel-to-toe steps, turns in a prescribed manner, and take nine heel-to-toe steps back, while counting the steps out loud, while watching their feet. During the turn, the suspect keeps their front foot on the line, while turning in a prescribed manner, and using their other foot to take several small steps to complete the turn. The walking stage divides the suspect’s attention among a balancing task (walking heel-to-toe and turning); a small muscle control task (counting out loud); and a short-term memory task (recalling the number of steps and the turning instructions).
When administering the walk-and-turn test the peace officer is looking for eight clues. The eight clues are:
- Suspect can’t balance during instruction
- Suspect starts to soon
- Suspect stops while walking
- Suspect doesn’t touch heel-to-toe
- Suspect steps off line
- Suspect uses arms to balance
- Suspect loses balance on turn or turns incorrectly
- and suspect takes the wrong number of steps
The suspect cannot keep balance while listening to the instructions:
Two tasks are required at the beginning of this test. The suspect must balance heel-to-toe on the line, and at the same time, listen carefully to the instructions. Typically, the suspect who is impaired can do only one of these things. The suspect may listen to the instructions, but not keep their balance. The peace officer will record this clue if the suspect does not maintain the heel-to-toe position throughout the instructions.
The suspect starts the test before the peace officer is finished giving the instructions:
An impaired suspect may keep their balance, but not listen to the instructions. Since the peace officer specifically instructed the suspect not to start walking, “until I tell you to begin,” the peace officer will record this clue if the suspect does not wait until told to begin the test.
The suspect does an improper turn.
The peace officer will record this clue if the suspect removes the front foot from the line while turning. The peace officer will also record this clue if the suspect spins or pivots.
Walk and Turn Interpretation
Based on research, if the peace officer observes two or more clues it is likely that the suspect’s breath/blood alcohol level is above .10. Using this criteria, the officer will be able to accurately classify 68% of the suspects.
The One-Leg Stand is a test that has been validated through research sponsored by the National Highway Traffic Safety Administration (NHTSA). It is a divided attention test consisting of two stages: instructions stage; and walking stage.
In the instruction stage, the suspect must stand with their feet together, while keeping their arms at their sides, and listening to instructions. This divides the suspect’s attention between a balancing task (maintaining a stance) and an information processing task (listening to and remembering instructions.)
In the balance and counting stage, the suspect must raise one leg, either leg, with their foot approximately six inches off the ground and their foot parallel to the ground. While the suspect looks at their elevated foot, thy count out loud until told to stop by the peace officer. This divides the suspect’s attention between balancing (standing on one foot) and small muscle control (counting out loud).
When administering the one-leg stand test the peace officer is looking for four clues, they are:
- Suspect sways while balancing
- Suspect uses their arms to balance
- Suspect hops
- and the suspect puts their foot down
The suspect uses their arms for balance.
The peace officer will record this clue if the suspect moves their arms six or more inches from the side of their body while maintaining the one-leg stand position.
One-Leg Stand Interpretation
Based on research, if the peace officer observes two or more clues it is likely that the suspect’s breath/blood alcohol level is above .10. Using this criteria, the officer will be able to accurately classify 65% of the suspects.